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The International Law of Piracy

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Abstract:

“Piracy” is frequently referred to as the quintessential example of “internationalcriminal law.” But, despite the rhetoric, examples of any legal results flowing from that characterization are very rare. The First Americans tatute relating to “piracy” was passed in 1790 and immediately ran into difficulties. It provides, in its section 12, for example, for designating as “pirates” those giving assistance to “pirates.” Among the first defendants were two pilots (surnamed Howard and Beebee) in Delaware who had guided a suspicions vessel to anchorage (in 1818 the case is in 3 [Bushrod] Washington 340). The two defendants were acquitted by a jury. The second statute, which survives today (18 U.S. Code ยง1651), was passed in 1819 (3 Stat. [1850 ed.] 510) and continued in 1820 (3 Stat. [1850 ed.] 600). It tries to avoid the problems of the 1790 statute by making criminal at United States law “piracy as defined by the law of nations.” Since, as noted below, there is no clear definition of piracy under the presumed “law of nations,” this amounts to delegating to judges the capacity to define a “crime” after it is committed. But “common law crimes,” while theoretically possible, have not been considered a proper basis for criminal prosecution in the United States since 1816 (U.S. v. Coolidge, 14 U.S. [1 Wheaton] 415 [1816]). It is an interesting sidelight on this discussion that the American jurist most insistent on maintaining the validity of the statute of 1819 was Joseph Story (see U.S. v. Smith, 18 U.S. [5 Wheaton] 20 [1820]), who dissented from U.S. v. Coolidge in 1816. Above the current (1936) codification of the law of 1820, the following note appears: “In light of far reaching developments in the field of international law and foreign relations, the law of piracy is deemed to require a fundamental reconsideration and complete restatement, perhaps resulting in drastic changes by way of modification and expansion…” There has been no known criminal conviction under the 1820 statute for over a century, although it has been discussed in several cases.

Document Type: Research Article

DOI: http://dx.doi.org/10.5848/CSP.2302.00014

Publication date: January 1, 2010

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