International Law. A Treatise Volume I Part 43

It must be emphasised that the motive and the purpose of such acts of violence do not alter their piratical character, since the intent to plunder (_animus furandi_) is not required. Thus, for instance, if a private neutral vessel without Letters of Marque during war out of hatred of one of the belligerents were to attack and to sink vessels of such belligerent without plundering at all, she would nevertheless be considered as a pirate.[559]

[Footnote 559: This statement is correct in spite of art. 46, No. 1, of the Declaration of London; see below, vol. II. -- 410, No. 1.]

[Sidenote: Mutinous Crew and Pa.s.sengers as Subjects of Piracy.]

-- 274. The crew or the whole or a part of the pa.s.sengers who revolt on the Open Sea and convert the vessel and her goods to their own use, commit thereby piracy, whether the vessel is private or public. But a simple act of violence alone on the part of crew or pa.s.sengers does not const.i.tute in itself the crime of piracy, at least not as far as International Law is concerned. If, for instance, the crew were to murder the master on account of his cruelty and afterwards carry on the voyage, they would be murderers, but not pirates. They are pirates only when the revolt is directed not merely against the master, but also against the vessel, for the purpose of converting her and her goods to their own use.

[Sidenote: Object of Piracy.]

-- 275. The object of piracy is any public or private vessel, or the persons or the goods thereon, whilst on the Open Sea. In the regular case of piracy the pirate wants to make booty; it is the cargo of the attacked vessel which is the centre of his interest, and he might free the vessel and the crew after having appropriated the cargo. But he remains a pirate whether he does so or kills the crew and appropriates the s.h.i.+p, or sinks her. On the other hand, it does not matter if the cargo is not the object of his act of violence. If he stops a vessel and takes a rich pa.s.senger off with the intention to keep him for the purpose of a high ransom, his act is piracy. It is likewise piracy if he stops a vessel for the purpose of killing a certain person only on board, although he may afterwards free vessel, crew, and cargo.

That a possible object of piracy is not only another vessel, but also the very s.h.i.+p on which the crew and pa.s.senger navigate, is an inference from the statements above in -- 274.

[Sidenote: Piracy, how effected.]

-- 276. Piracy is effected by any unauthorised act of violence, be it direct application of force or intimidation through menace. The crew or pa.s.sengers who, for the purpose of converting a vessel and her goods to their own use, force the master through intimidation to steer another course, commit piracy as well as those who murder the master and steer the vessel themselves. And a s.h.i.+p which, through the threat to sink her if she should refuse, forces another s.h.i.+p to deliver up her cargo or a person on board, commits piracy as well as the s.h.i.+p which attacks another vessel, kills her crew, and thereby gets hold of her cargo or a person on board.

The act of violence need not be consummated to const.i.tute the crime of piracy. The mere attempt, such as attacking or even chasing only for the purpose of attack, by itself comprises piracy. On the other hand, it is doubtful whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed a single act of violence.[560]

[Footnote 560: See Stephen, "Digest of the Criminal Law," article 104.

In the case of the _Ambrose Light_--see above, -- 273--the Court considered the vessel to be a pirate, although no attempt to commit a piratical act had been made by her.]

[Sidenote: Where Piracy can be committed.]

-- 277. Piracy as an "international crime" can be committed on the Open Sea only. Piracy in territorial coast waters has quite as little to do with International Law as other robberies on the territory of a State.

Some writers[561] maintain that piracy need not necessarily be committed on the Open Sea, but that it suffices that the respective acts of violence are committed by descent from the Open Sea. They maintain, therefore, that if "a body of pirates land on an island unappropriated by a civilised Power, and rob and murder a trader who may be carrying on commerce there with the savage inhabitants, they are guilty of a crime possessing all the marks of commonplace professional piracy." With this opinion I cannot agree. Piracy is, and always has been, a crime against the safety of traffic on the Open Sea, and therefore it cannot be committed anywhere else than on the Open Sea.

[Footnote 561: Hall, -- 81; Lawrence, -- 102; Westlake, I. p. 177.]

[Sidenote: Jurisdiction over Pirates, and their Punishment.]

-- 278. A pirate and his vessel lose _ipso facto_ by an act of piracy the protection of their flag State and their national character. Every maritime State has by a customary rule of the Law of Nations the right to punish pirates. And the vessels of all nations, whether men-of-war, other public vessels, or merchantmen,[562] can on the Open Sea[563]

chase, attack, seize, and bring the pirate home for trial and punishment by the Courts of their own country. In former times it was said to be a customary rule of International Law that pirates could at once after seizure be hanged or drowned by the captor. But this cannot now be upheld, although some writers a.s.sert that it is still the law. It would seem that the captor may execute pirates on the spot only when he is not able to bring them safely into a port for trial; but Munic.i.p.al Law may, of course, interdict such execution. Concerning the punishment for piracy, the Law of Nations lays down the rule that it may be capital.

But it need not be, the Munic.i.p.al Law of the different States being competent to order any less severe punishment. Nor does the Law of Nations make it a duty for every maritime State to punish all pirates.[564]

[Footnote 562: A few writers (Gareis in Holtzendorff, II. p 575; Liszt, -- 26; Ullmann, -- 104; Stiel, _op. cit._, p. 51) maintain, however, that men-of-war only have the power to seize the pirate.]

[Footnote 563: If a pirate is chased on the Open Sea and flees into the territorial maritime belt, the pursuers may follow, attack, and arrest the pirate there; but they must give him up to the authorities of the littoral State.]

[Footnote 564: Thus, according to the German Criminal Code, piracy committed by foreigners against foreign vessels cannot be punished by German Courts (see Perels, -- 17). From article 104 of Stephen's "Digest of the Criminal Law," there seems to be no doubt that, according to English Law, all pirates are liable to be punished. See Stiel, _op.

cit._, p. 15, note 4, where a survey is given of the Munic.i.p.al Law of many States concerning this point.]

That men-of-war of all nations have, with a view to insuring the safety of traffic, the power of verifying the flags of suspicious merchantmen of all nations, has already been stated above (-- 266, No. 2).

[Sidenote: _Pirata non mutat dominium._]

-- 279. The question as to the property in the seized piratical vessels and the goods thereon has been the subject of much controversy. During the seventeenth century the practice of several States conceded such vessel and goods to the captor as a premium. But during the eighteenth century the rule _pirata non mutat dominium_ became more and more recognised. Nowadays the conviction would seem to be general that s.h.i.+p and goods have to be restored to their proprietors, and may be conceded to the captor only when the real owners.h.i.+p cannot be ascertained. In the first case, however, a certain percentage of the value is very often conceded to the captor as a premium and an equivalent for his expenses (so-called _droit de recousse_[565]). Thus, according to British Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of the pirate.

[Footnote 565: See details regarding the question as to the piratical vessels and goods in Pradier-Fodere, V. Nos. 2496-2499.]

[Footnote 566: See section 5 of the "Act to repeal an Act of the Sixth Year of King George the Fourth, for encouraging the Capture or Destruction of Piratical s.h.i.+ps, &c." (13 & 14 Vict. ch. 26).]

[Sidenote: Piracy according to Munic.i.p.al Law.]

-- 280. Piracy, according to the Law of Nations, which has been defined above (-- 272) as every unauthorised act of violence against persons or goods committed on the Open Sea either by a private vessel against another vessel or by the mutinous crew or pa.s.sengers against their own vessel, must not be confounded with the conception of piracy according to the different Munic.i.p.al Laws.[567] The several States may confine themselves to punis.h.i.+ng as piracy a narrower circle of acts of violence than that which the Law of Nations defines as piracy. On the other hand, they may punish their subjects as pirates for a much wider circle of acts. Thus, for instance, according to the Criminal Law of England,[568]

every English subject is _inter alia_ deemed to be a pirate who gives aid or comfort upon the sea to the King's enemies during a war, or who transports slaves on the High Seas.

[Footnote 567: See Calvo, ---- 488-492; Lawrence, -- 103; Pradier-Fodere, V. Nos. 2501 and 2502.]

[Footnote 568: See Stephen, "Digest of the Criminal Law," articles 104-117.]

However, since a State cannot on the Open Sea enforce its Munic.i.p.al Laws against others than its own subjects, no State can treat such foreign subjects on the Open Sea as pirates as are not pirates according to the Law of Nations. Thus, when in 1858, before the abolition of slavery in America, British men-of-war molested American vessels suspected of carrying slaves, the United States objected and rightly complained.[569]

[Footnote 569: See Wharton, III. -- 327, pp. 142 and 143; Taylor, -- 190; Moore, II. -- 310, pp. 941-946.]

VI

FISHERIES IN THE OPEN SEA

Grotius, II. c. 3, -- 4--Vattel, I. -- 287--Hall, -- 27--Lawrence, ---- 86 and 91--Phillimore, I. ---- 181-195--Twiss, I. -- 185--Taylor, ---- 249-250--Wharton, II. ---- 300-308--Wheaton, ---- 167-171--Moore, I.

---- 169-173--Bluntschli, -- 307--Stoerk in Holtzendorff, II. pp.

504-507--Gareis, -- 62--Liszt, -- 35--Ullmann, -- 103--Bonfils, Nos.

581-582, 595--Despagnet, Nos. 411-413--Merignhac, II. p.

531--Pradier-Fodere, V. Nos. 2446-2458--Rivier, I. pp.

243-245--Nys, II. pp. 165-169--Calvo, I. ---- 357-364--Fiore, II.

Nos. 728-729, and Code, Nos. 995-999--Martens, I. -- 98--Perels, -- 20--Hall, "Foreign Powers and Jurisdiction" (1894), -- 107--David, "La peche maritime au point de vue international" (1897)--Fulton, "The Sovereignty of the Seas" (1911), pp. 57-534.

[Sidenote: Fisheries in the Open Sea free to all Nations.]

-- 281. Whereas the fisheries in the territorial maritime belt can be reserved by the littoral State for its own subjects, it is an inference of the freedom of the Open Sea that the fisheries thereon are open[570]

to vessels of all nations. Since, however, vessels remain whilst on the Open Sea under the jurisdiction of their flag State, every State possessing a maritime flag can legislate concerning the exercise of fisheries on the Open Sea on the part of vessels sailing under its flag.

And for the same reason a State can by an international agreement renounce its fisheries on certain parts of the Open Sea, and accordingly interdict its vessels from exercising fisheries there. If certain circ.u.mstances and conditions make it advisable to restrict and regulate the fisheries on some parts of the Open Sea, the Powers are therefore able to create restrictions and regulations for that purpose through international treaties. Such treaties have been concluded--first, with regard to the fisheries in the North Sea and the suppression of the liquor trade among the fis.h.i.+ng vessels in that Sea; secondly, with regard to the seal fisheries in the Behring Sea; thirdly, with regard to the fisheries around the Faroe Islands and Iceland.

[Footnote 570: Denmark silently, by fis.h.i.+ng regulations of 1872, dropped her claim to an exclusive right of fisheries within twenty miles of the coast of Iceland; see Hall, -- 40, p. 153, note 2. Russia promulgated, in 1911, a statute forbidding the fisheries to foreign vessels within twelve miles of the sh.o.r.e of the White Sea, but the Powers protested against this encroachment upon the freedom of the Open Sea; the matter is still unsettled.

A case of a particular kind would seem to be the pearl fishery off Ceylon, which extends to a distance of twenty miles from the sh.o.r.e and for which regulations exist which are enforced against foreign as well as British subjects. The claim on which these regulations are based is one "to the products of certain submerged portions of land which have been treated from time immemorial by the successive rulers of the island as subject of property and jurisdiction." See Hall, "Foreign Powers and Jurisdiction" (1894), p. 243, note 1. See also Westlake, I. p. 186, who says: "The case of the pearl fishery is peculiar, the pearls being obtained from the sea bottom by divers, so that it has a physical connection with the stable element of the locality which is wanting to the pursuit of fish swimming in the water. When carried on under State protection, as that off the British island of Ceylon, or that in the Persian Gulf which is protected by British s.h.i.+ps in pursuance of treaties with certain chiefs of the Arabian mainland, it may be regarded as an occupation of the bed of the sea. In that character the pearl fishery will be territorial even though the shallowness of the water may allow it to be practised beyond the limit which the State in question generally fixes for the littoral seas, as in the case of Ceylon it is practised beyond the three miles limit generally recognised by Great Britain. 'Qui doutera,' says Vattel (I. -- 28), 'que les pecheries de Bahrein et de Ceylon ne puissent legitimement tomber en propriete?' And the territorial nature of the industry will carry with it, as being necessary for its protection, the territorial character of the spot."

This opinion of Westlake coincides with that contended by Great Britain during the Behring Sea Arbitration; see Parliamentary Papers, United States, No. 4 (1893) Behring Sea Arbitration, Archives of His Majesty's Government, pp. 51 and 59. But it is submitted that the bed of the Open Sea is not a possible object of occupation. The explanation of the pearl fisheries off Ceylon and in the Persian Gulf being exclusively British is to be found in the fact that the freedom of the Open Sea was not a rule of International Law when these fisheries were taken possession of.

See Oppenheim in Z.V. II. (1908), pp. 6-10, and Westlake, I. (2nd ed.), p. 203.]

[Sidenote: Fisheries in the North Sea.]

-- 282. For the purpose of regulating the fisheries in the North Sea, an International Conference took place at the Hague in 1881 and again in 1882, at which Great Britain, Belgium, Denmark, France, Germany, Holland, and Sweden-Norway were represented, and on May 6, 1882, the International Convention for the Regulation of the Police of the Fisheries in the North Sea outside the territorial waters[571] was signed by the representatives of all these States, Sweden-Norway excepted, to which the option of joining later on is given. This treaty contains the following stipulations:[572]--

[Footnote 571: Martens, N.R.G. 2nd Ser. IX. p. 556.]

[Footnote 572: The matter is exhaustively treated by Rykere, "Le regime legal de la peche maritime dans la Mer du Nord" (1901). To carry out the obligations undertaken by her in the Convention for the regulation of the fisheries in the North Sea, Great Britain enacted in 1883 the "Act to carry into effect an International Convention concerning the Fisheries in the North Sea, and to amend the Laws relating to British Sea Fisheries" (46 and 47 Vict. ch. 22).]

(1) All the fis.h.i.+ng vessels of the signatory Powers must be registered, and the registers have to be exchanged between the Powers (article 5).