In Book I of De jure belli, Alberico Gentili spoke of the ancient and bloody art of piracy: “Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they can find no protection in that law. They ought to be crushed by us . . . and by all men. This is a warfare shared by all nations.” Cicero, in his earlier orations, simply described pirates as general enemies of all mankind who should be treated accordingly.
As it was in the time of the Greeks and Romans so it remained until the time of the industrial revolution. The natural hazards of storm and uncompromising sea had, as a complementary deterrent to travel, the violent and fearsome buccaneer, freebooter, or pirate. Time has perhaps lent a bit of romance to Captain Kidd, the brothers Barbarossa and Blackbeard, but history records them as a brutal, thieving lot singularly lacking of romantic thoughts and deeds. By 1820, their breed was relatively under control as a result of strong punitive action by the legitimate users of the sea. Isolated piratical hunting grounds continued to exist, however, in remote areas, e.g., the South China Sea, Gulf of Oman, and on the west coast of Africa. In the modern era, acts of classical piracy have been relatively infrequent. Perhaps because of this infrequency, such incidents receive considerable attention in the press. Two examples are worthy of note. In 1951, China Sea buccaneers, led by a woman, tore up and made off with more than three miles of the Danish Great Northern Telephone Company’s cable between Hong Kong and Amoy. In 1961, pirates operating in the Philippine Sea boarded a small coastal schooner of Philippine registry, killed several members of the crew, and escaped with $20,000 in cash and jewelry. The report indicated that the pirates were successful in eluding capture.
From the above, it can be concluded that the popular concept of piracy relates the problem, except for isolated cases, to the past. A cruise on a modern liner or the shipment of goods to a distant harbor is accomplished without fear of walking the plank or blatant seizure of cargo. Considered in this light, it is remarkable that in the 29 operative articles of the Convention on the High Seas, as adopted in the United Nations Law of the Sea Conference of 1958, nine articles dealt specifically with the question of piracy and its control. The apparent reason for the attention accorded piracy was simply that no prior international convention had dealt with the problem. As will be seen, there was also considerable controversy over what constituted piracy. To a large measure, political questions fed the controversy, but also present was a wide divergency of views by experts who, notwithstanding political considerations, felt that piracy should be treated in a narrow or broad sense, according to their particular analysis.
What, then, constitutes piracy? The United Nations Conference on the Law of the Sea (1958) adopted, inter alia, the following article defining piracy as generally declaratory of established principles of international law.
“Article 15. Piracy consists of any of the following acts:
“(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
“(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
“(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
“(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.
“(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.”
The above text was adopted by the Conference by a vote of 45 for, seven against, and three abstentions. Subsequently, the United States formally ratified the Convention, including the articles on piracy, on 26 May 1960; the Union of Soviet Socialist Republics likewise ratified the Convention on the High Seas on 22 November 1960. More than the required number of states to give Article 15 recognized international acceptance have also ratified. Article 15, then, represents the law, and by virtue of its act of ratification, the United States is bound by it.
While it is beyond the scope of this article to examine thoroughly the conflicting concepts that had to be overcome in arriving at Article 15, it is germane to set forth, in brief, the essential differences that identify what is commonly referred to as the narrow view of piracy as distinguished from the so- called broad view. The essential differences can be illuminated most succinctly by selected opinions expressed by recognized authorities.
The narrow view: In A Digest of the International law of the U. >S'., published by the Government Printing Office in 1887, F. Wharton opines, “Piracy must be robbery on the high seas.” In 1932, Professor Joseph Bingham, of Harvard University, defined piracy as “Any act of violence or of depredation committed with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property, for private ends without bona fide purpose of asserting a claim of right, provided that the act is connected with an attack on or from the sea or in or from the air. If the act is connected with an attack which starts from on board ship, either that ship or another ship which is involved must be a pirate ship or a ship without national character.”
The broad view: In International Law, published in London in 1905, L. Oppenheim argued that “Piracy is effected by any unauthorized act of violence, be it direct application of force or intimidation through menace. The crew or passengers 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.”
Henry Wheaton, in Elements of International Law, published in 1866, felt that “Piracy is the offense of depredating on the high seas without being authorized by any sovereign State, or with commissions from different sovereigns at war with each other.”
In viewing the above contrasting descriptions of piracy, the narrow view, and, indeed, it is the majority view, restricts piracy to unlawful acts committed by a private ship (or aircraft) against another ship for private ends, e.g., robbery, or other crimes against the person or property. The broad view indicates that only one ship need be involved in the violent act to constitute piracy. Furthermore, the authorities are by no means clear as to whether such acts need be limited to the seeking of private ends.
It is apparent that Article 15 of the United States-ratified Convention on the High Seas is in consonance with earlier authorities who espoused the narrow view. The basic differences between the narrow and broad views and the current implications flowing from our concurrence in the narrow view will be brought into sharper focus in the material that follows.
Prior to such discussion, however, it is pertinent to look into a political aspect of the problem that arose during the deliberations on Article 15. The incidents that gave rise to the quasi political-legal argument were the blockade and subsequent searching, and in some cases seizure, of various Soviet, Polish, and British ships in the China Sea by naval units of the Chinese Nationalist Government in the early 1950s. The Soviet and Polish ships had been detained, and several crew members had selected freedom in the United States in lieu of returning to their flag state. Delegates of various Communist states to the United Nations stated that such seizures must be regarded as acts of piracy. Mr. Raduilski of Bulgaria expressed it this way:
Those who continued to recognize Chiang Kai-shek’s government as the lawful government of China could not be allowed to seek to justify such acts by asserting that a blockade had been declared. In a civil war, neither the lawful government nor the insurgents could establish a blockade or curtail the freedom of foreign vessels to navigate on the high seas. As there was no international war in China, the Chiang Kai-shek forces which interfered with freedom of navigation were guilty of piracy.
The cumulative effort of the Communist delegates was to establish the thought that piracy should be deemed to include every act of violence or depredation committed on the high seas (or in the air space above the high seas) regardless of whether the ship (or aircraft) committing the act was privately owned or state owned. Their thesis was, of course, based on a question of nonrecognition of the Formosa regime as a political fact of life; yet, in exploiting their lack of recognition, they adopted as broad a definition of piracy as they thought could be sustained.
Few authorities who espouse the broader view of piracy, when directed to the specific issue of whether warships could commit piracy, come up with an affirmative view. The United Nations International Law Commission in deliberating on this point was of the opinion that piracy could not be committed by warships or other government ships, except in the case where the crew had mutinied and taken control of the ship. In that case, the acts committed should then be assimilated to that of a privately owned ship. Underlying the general view is the fact that when a public ship, such as a warship, commits an act of violence at sea, the state whose flag it flies can be held responsible for the acts of its agents. In essence, other grounds recognized by international law exist for punishment of such illegal acts.
On the broader question of non-recognition, as raised by Communist bloc delegates in reference to China and the status of insurgents, suffice it to say here that the general rule is that warships, under the control of insurgents and unrecognized by the government of any sovereign power, are to be considered as pirates for acts at sea against ships of foreign powers.
As a collateral matter, the word “piracy,” through popular usage, has had attached to it an abstract meaning as descriptive of a series of reprehensible acts that were morally as disgraceful as piracy. Indeed, in its looser sense, the word “piracy” has come to mean many things that go far beyond its true technical meaning. Webster defines it, in part, as, “Any unauthorized appropriation and reproduction of another’s production, invention, or conception; literary or artistic theft.” In the nine-power Nyon Agreement of September 1937, in meeting the challenge of the loss of several ships through submarine action in the Mediterranean during the Spanish Civil War, the word was used in an abstract sense. While it was known that German and Italian submarines were involved, no government was willing to assume responsibility for such acts. Essentially, the agreement provided that such sinkings were “contrary to the most elementary dictates of humanity, which should be justly treated as acts of piracy.” In essence, the signatories at Nyon were guilty of a loose use of the term “piracy,” but in doing so had no intention of broadening the concept of piracy as a technical term in law.
With the above background, it is pertinent to view recent (1960-1964) incidents at sea and in the air which have prompted the label of “piracy.” Whether or not such acts were in fact piracy, coming within the purview of Article 15, is the purpose of this examination. No such examination would be complete, however, without a concomitant survey of pertinent international political factors that ostensibly played a part in some of the incidents.
While it has been a firm objective of the United States to seek a world order that would be governed by the rule of law, unfortunately in this present era of international realities the policy-maker frequently finds himself in the dilemma of trying to wed a variance between international law and what he considers to be the best course of action for his country in a particular instance. Where the proposed policy and rule of law coincide, a happy marriage is produced; where they are at variance, the resultant soul-searching produces a selection of one course of action to the detriment of the other. In one instance, the rule of law is advanced, in the other it is necessarily retarded. Obviously, it is beyond the scope of this paper to search into, or to judge, whether this nation should in all cases follow the dictates of international law. Thus, this digression is included herein to point to the fact that the decision of the policy-maker, in practice, rests on the entire, cumulative aspects of a particular problem, and this includes a measurement of the political implications as well as the pertinent law.
Mention has already been made of the act of piracy in the Philippine Sea in 1961. From the limited reports available, there is no doubt that it was an unquestioned act of piracy. The assailants boarded the ship at sea and killed the captain and five crew members; passengers were held at gunpoint while being stripped of cash and jewelry, and some passengers were taken as hostages when the pirates left.
Three other recent incidents of quite different complexion and widespread notoriety have served to emphasize the fact that lawlessness at sea is still of concern to the world community.
During the night of 13 September 1964, two unidentified speedboats fired at and set afire the Spanish freighter SS Sierra Aranzazue, killing three, wounding seven, and causing the ship to be abandoned by her crew. The attack took place on the high seas near the Bahama Islands; the freighter was en route from Spain to Cuba. There was speculation that the attack had been made by Cuban exiles from the Castro regime, although there was no ready proof to substantiate the allegation. In Washington, a Spanish Embassy official stated that the attack occurred in an area of the high seas, “ . . . very well controlled by U. S. forces, and we are much surprised and naturally concerned about it. We qualify that which has happened to the ship as an act of inadmissible piracy, and the attackers have been inhuman.”
On 15 February 1963, the 3,127-ton Venezuelan Line freighter Anzoategui was hijacked at sea by the Communist Armed Forces National Liberation (FALN), a dissident group in Venezuela, with the ostensible purpose of forcing President Romulo Betancourt to call off his impending visit to the United States. Venezuelan authorities labeled the hijackers as pirates; they had threatened to blow up the ship if molested, and actually held the rest of the crew as hostages. U. S. Navy ships and planes, later joined by two Venezuelan destroyers, pursued the Anzoategui as she steamed toward Brazil. Upon arrival in Brazilian waters, the ship anchored and, as reported by The New York Times, the pirates asked and received asylum from the Brazilian government. On 6 June 1963, the hijackers left Brazil for Cuba in order to avoid prosecution.
The Santa Maria case of January and February 1961 drew world-wide attention. Admiral Robert Dennison, then Commander-in-Chief Atlantic Fleet, describes the sequence of events as viewed from his headquarters in Norfolk, Virginia.
“The following is background information in the Santa Maria incident. During the progress of the incident there was some speculation, misinformation, and misunderstanding in naval circles world-wide as to the role of the United States Navy. After the incident, government officials of the principal nations involved expressed appreciation for the fine way the incident was handled and which permitted its successful conclusion. Secretary of State Rusk congratulated the Navy saying, ‘This is just one of the many instances in which the Navy has shown that its fighting spirit is matched by its diplomatic skill.’
“The initial report was received at Atlantic Fleet Headquarters in Norfolk late on the afternoon of January 23rd from the United Kingdom’s Senior Naval Officer, West Indies, who was at Santa Lucia where Captain Galvāo had put ashore by boat several wounded members of the Santa Maria’s, crew. The report advised that the cruise ship Santa Maria, registered under the Portuguese flag, had been forcibly taken over by a group of about 70 passengers armed with machine guns and grenades. It appeared that piracy might have occurred. The Senior Naval Officer, West Indies, requested that the United States Atlantic Fleet arrange and co-ordinate a search for the ship in areas to the north of Trinidad and advised he would search to the south and east. The ship’s schedule called for her to sail from Curasao, Netherlands West Indies, to Miami, Florida; however, there was no clear indication where she was bound. A large ocean area had to be searched to cover all possible locations of Santa Maria. Many conflicting reports from civil aircraft, merchant ships and other sources had to be investigated in an area of numerous islands and frequent shipping.
“Ships and aircraft of the Atlantic Fleet engaged in training maneuvers in Puerto Rican waters were ordered into this extensive search. Instructions at this time to United States ships were to board the vessel to determine if piracy in fact had occurred and, if so, to bring the ship to the nearest United States port, presumably San Juan, using force as necessary.
“Expert legal opinions in the United States were unable to support a finding of piracy in international law. Therefore the need no longer existed to determine piracy by boarding and exercising force. Appropriate modifying orders were dispatched to the naval forces involved. The safeguarding of United States nationals embarked and the humanitarian interest for all other passengers and crew members of the ship still remained as a basis for continuing action.
“Galvāo protested the presence of search aircraft, and it was reported that he threatened to scuttle the ship if warships were to approach. It was continuously necessary to take into consideration the possibility of injury and loss of life.
“Galvāo had informed a search aircraft that he intended going to Africa. However, United States Naval Forces from African waters were headed westward to intercept, and ships were closing behind him. He was boxed in and had no way to gain any objective other than to obtain publicity for his cause. Time was against him, for each day reduced his fuel and water. The best course of action was to induce him to come into a port in the Western Hemisphere. As Galvāo’s choices were gradually narrowed, he was left with no alternative but to enter port. He finally did so at Recife, Brazil.
“A different course of action involving the use of force might have closed the incident in shorter time but also might well have resulted in injury or loss of life to those on board. The innocent crew members of the ship were ... a matter of concern ... but references to them in discussions with Galvāo were purposely avoided in order not to jeopardize attempts to get him into port.
“The task of bringing the misadventure of the Santa Maria to a safe ending was difficult and tedious, requiring great patience and perseverence on the part of all concerned, as well as outstanding co-operation extended by the authorities of Portugal and Brazil.”
To the above, a few additional facts may be added. At the time of the take-over by Captain Henrique Galvāo, a crew member of the Santa Maria was killed. Although the passengers (approximately 40 of them Americans) were guarded with drawn pistols, none was really molested nor was any personal property taken. In addition to U. S. Navy ships and aircraft, British and Portuguese units were also alerted in the search. Captain Galvāo, who led the group of “passengers” who took control of the Santa Maria, claimed that he and his men were a part of the “Iberian Liberation Movement,” a political movement aimed at the overthrowing of the existing government of Portugal and Spain. The group was composed of Portuguese, Spaniards, and Latin Americans.
With these facts in mind, let us first look at some of the political aspects of the incident. Who was Henrique Galvāo? C. G. Fenwick, in a short comment on the case, said in a humorous vein that it was “difficult to take seriously a case of alleged piracy in which the pirate, Captain Galvāo, had no black patch over his left eye, no wooden leg, no sword between mis-shapen teeth.” In a political sense, “He [Galvāo] said he was an insurgent, that his purpose was to overthrow the tyrant of Portugal, that he was acting on behalf of Salazar’s chief rival, General Humberto Delgado, that he was taking the first step in a revolt against the dictator; that the Portuguese colony of Angola was awaiting his arrival.”
The N. Y. Herald Tribune (15 January 1961) reported as follows: “The master pro tern of the Portuguese liner Santa Maria is a hawkfaced revolutionary convicted three times for trying to overthrow Premier Salazar.”
From the above, it can be concluded that Captain Galvāo was a man in strong opposition to the legitimate government of Portugal. If he had successfully concluded his venture, it is open to speculation as to just what he would have done with the ship, cargo, and passengers. Possibly he would have used them to gain funds for his own use, i.e., to strengthen his political movement. But this is mere speculation; the fact is that the venture was never completed except for the seizure, and, in seizing, Captain Galvāo claimed to be an insurgent. Did his claim of insurgency place him outside the penalties accorded to those who commit acts of piracy and give him the specialized status of a belligerent with the rights that flow from that status?
Insurgents are persons who are engaged in a political struggle; classically, they are distinguished from people who are acting for private ends. Yet, the term “private ends” need not and indeed is not to be restricted to an interpretation of private material gain, for hatred or a desire for revenge among other motives can be the governing motivation for an act of piracy. It is most questionable, however, to try to establish motive at the time of a given act of alleged piracy, for, in the usual case, the external facts are all that are available. The subjective motivation behind the act can, most frequently, only be determined in retrospect long after the violent act itself. What the perpetrator might say at the time of the act is only a bit of evidence of what was his true purpose and should not be the governing factor in a final determination of whether piracy was committed or not. In essence, it is better in laying down a general principle to be content with the external character of the facts without entering too far into the often delicate question of motives.
From his statements, Captain Galvāo gave his motive for his act of violence as that of insurgency. Insurgency necessarily means fighting as in a revolution, but in this case Captain Galvāo had no base of operations nor was there any open fighting in Portugal to so constitute a revolution. The status of insurgency is not one to be conceded to any and every citizen who believes that the government of his country is tyrannical and should be overthrown. It takes something more than that. A recognition of insurgency by third states or the acknowledged open fighting for control of an area by an organized group against a sovereign state could be the additional factor required. Such criteria have been used in the past.
An authority on the subject, W. E. Hall, does not necessarily subscribe to the above test, for it is his opinion that violent acts committed by a political society of no legal status at first sight seem to be at least technically piratical, when in fact it is by the accomplishment of such violent acts that independence is established and its existence proved. The success of the venture then, according to Mr. Hall, necessarily removes the stigma of piracy and places upon the act an aura of legitimacy.
It is impossible to pretend that acts which are done for the purpose of setting up a legal state of things . . . are piratical for want of an external recognition of their validity, when the grant of that recognition is properly dependent in the main upon the existence of such a condition of affairs as can only be produced by the very acts in question.
One can subscribe to the thesis presented by Mr. Hall that violent acts are usually required to produce a status of insurgency, but it would appear, in balance, that the test of success should not govern. This is particularly true when the interests of third states are involved, for when persons and property of third states are at stake, as in the Santa Maria case, such states should be able to react quickly and effectively to protect their citizens and property. A later adjudication can redress the wrong, but it does not operate so as to arrest the wrong in its consummation.
As a general rule, the country that is being rebelled against can and usually does consider captures made at sea by rebels as piratical acts; this is an internal domestic problem and does not necessarily have an influence on the attitude of third states. These latter are influenced more by the circumstances of each individual case. If such operations did not involve injury to neutral property or rights, third states would not interfere. Where, however, injury to neutral persons or property did take place by the acts of rebels, third states have treated such acts as piratical. The foregoing statement has an inherent implication of some kind of recognition of insurgency in particular type cases, i.e., those that do not affect third states. In the Santa Maria case, the government of Portugal did declare Captain Galvāo and his followers to be pirates; no states recognized them as de jure insurgents. For the sake of argument, if it is assumed that Galvāo had the status of an insurgent, his act could also make him a pirate in the eyes of third states. This is Galvāo, because the law of insurgency applies to violent acts between rebels and the parent sovereign state. It does not apply nor can it justify attacks upon the subjects of other states. This is valid particularly if the violent acts in question were in no way connected with the rebellion. In this light then, Captain Galvāo, whether an insurgent or not, had to be considered as a pirate, for he took under control and threatened the lives of citizens of many third states and placed in jeopardy foreign private property. As Mr. Fenwick expressed it:
It matters not that there was no further violence beyond changing the course of the ship and leaving the passengers in suspense as to their fate; it matters not that Galvāo’s followers were not hastes jumani generis, as pirates are described; they killed and robbed on the high seas, under circumstances not justified by the law of insurgency.
If the acts of Captain Galvāo do not meet the test of insurgency (particularly as regarded by third states) or the criteria of success in the venture as indicated by Mr. Hall, can it be said that he disqualified himself as a pirate because his acts were not committed for private ends? As already noted, the term “private ends” includes, but is not restricted to, an intention to rob; piracy may also be prompted by a feeling of hatred or revenge and a desire for personal gain. It would seem that if Captain Galvāo lacked the status of an insurgent, as generally defined, his act must fall within the purview of “private ends.” Yet, it is difficult to sustain a private goal in this instance, for in retrospect it is obvious that Captain Galvāo’s so-called revolution did cause a public and political impact even though the military effort was minute and ineffective. Salazar’s dictatorship was brought into sharp focus as was the servitude of the people of Angola. Captain Galvāo’s action had tremendous propaganda value and certainly served as a possible catalyst for actual revolution. After interception by U. S. units, Captain Galvāo was negotiated with, and when he landed in Brazil he was granted political asylum. No “pirate” had ever been treated in such a gentlemanly way. In fact, the conclusion that must be drawn is that Captain Galvāo’s act was for a public end— stillborn, but nonetheless a public venture. Thus, an anomaly is present: Captain Galvāo was not an insurgent nor was he successful; he did not pursue a “private end,” therefore he was not a pirate under Article 15 of the Convention. If neither an insurgent nor a pirate, what was he?
It is suggested that no third classification is possible. Just as apparent, a classification of pirate or insurgent cannot rest solely on legal grounds, for Captain Galvāo’s case simply does not fit the legal criteria. In a most perceptive article on the question, Mr. Benjamin Forman takes the approach that the label of piracy could not be attached to Captain Galvāo and that, notwithstanding, the scope of actions permitted under international law was sufficient to deal with the situation.
The facts support that conclusion, for the Santa Maria was returned to her owners, and American lives and property were unharmed. Nonetheless, it is appropriate to ask what we would have done had Captain Galvāo come under our jurisdiction after he had killed 40 crew members instead of one, or killed some American passengers, or opened the sea cocks thereby permitting the ship to sink. It is submitted that U. S. response would have been much stronger. Subsequent events at sea indicate that like problems will continue to arise. How should the perpetrators be treated? In this light, or indeed in the light of the facts as they did occur in the Santa Maria, it is pertinent to establish Captain Galvāo’s legal status. The fact that he does not qualify as a pirate or insurgent under present concepts prompts further examination. In this kind of situation, two contemporary factors come to the fore in order to reach a solution. First, the political relationship between the sovereign states most affected must be determined, in this case between Portugal—because it was Portuguese property that was attacked—and the United States, because its citizens were endangered and U. S. warships made the interception. Secondly, the question arises, is the criteria of “private ends” in Article 15 precise enough to make clear delineation between pirate and insurgent?
For 100 years, the relations between the United States and Portugal have been a model of friendliness and dignity. Over 50 treaties, among them NATO, bind the countries together. Portugal’s friendship is valued as a partnership of both strategic and commercial value; both countries oppose Communism at home and abroad. The choice for the United States was either to back Portugal’s plea to go after Captain Galvāo as a pirate, or to treat him as an insurgent. The latter was the apparent final choice. Three factors can be calculated as to why this choice was made: American lives might have been further endangered were Captain Galvāo to be treated as a pirate; the recently ratified Article 15 limited piracy to acts committed for private ends and required “another ship”; and, finally, our political posture in regard to colonialism made us hesitate to react harshly against someone who was ostensibly seeking freedom for a colony (Angola).
But in making that choice, the relationship between the United States and Portugal was damaged. It is queried, would not it have been better to choose the label of piracy to preserve the bonds with Portugal? The initial facts pointed to a clear case of piracy. Historically, the United States has not hesitated to uphold a principle in the face of possible bloodshed. Indeed, the United States has fought wars over the very principle of the freedom of the seas. Some reporters felt strongly about the U. S. decision, i.e., “the minutiae of definitions of piracy are absurdly irrelevant. The gang had behaved as gangsters and pirates and that was how the U. S. Navy, with its long tradition and defense of the freedom of the seas, initially proposed to handle them.” The above quotation, taken from National Review Bulletin, “Mr. Kennedy and the Pirates,” oversimplifies a complex situation and uses harsh words to describe a possible course of action. Notwithstanding, it is submitted that it probably would have produced a political net gain had the U. S. decision been to treat Captain Galvāo’s act as one of piracy.
One of the true arts of diplomacy is to support an ally in strength when it is feasible to render support, particularly when it is patent that other issues (Portugal and its colonies) cannot be supported.
The other factor that should be considered is that the United States ratified Article 15 of the Convention. Should that article be amended? Specifically, is the criteria of “private ends” and the requirement for “another,” or second ship, too limiting for modern-day piracy? It would appear that the criteria is too limiting if modern violence at sea is to be constrained and deterred. Prior to the adoption of Article 15, the broad view of piracy permitted more options in response to violence at sea, because the criteria was based on the concept of “without due authority” in lieu of “for private ends.” In practice and in intent, “without due authority” permitted arresting action to take place over a broader spectrum of violence. The criteria of “without due authority” seems the better view, for it limits the search for motive as in the test of “for private ends.” This objectively permits third states to react with clearer direction, make more direct inquiry, and intercede early and with force, if necessary.
The present requirement for “another” ship (see Para. 1(a) of Article 15), ostensibly the “pirate” ship, also seems too limiting, for it makes a technical point of how the pirates arrived aboard the victim ship. It would appear that just how or where the “pirates” got on board is of little consequence as long as their purpose was to take control by use or threat of violence. The primary test of piracy, of course, is the act itself and not merely the mechanics of setting the stage for the act.
Had Article 15 been worded in consonance with the foregoing, the U. S. decision would have been that much easier to treat Captain Galvāo* as a pirate. Going beyond the Santa Maria case, it is submitted that in today’s world climate dramatic efforts such as Captain Galvāo’s and the other cases described will probably be repeated and will have to be dealt with. The better way would be to amend Article 15; lacking that, the anomalous and controversial status as presented in the Galvāo case, where it is not clear whether the perpetrators were insurgents or acting for private ends, or if it is clear that the act falls somewhere between insurgency and piracy, prompts the suggestion that where like situations arise in the future, and it is to our political advantage to do so, the United States should declare the act piratical and react accordingly.
What of piracy in the air? On 12 October 1958, Cuban dissidents under the control of Castro forcefully took control of a Cuban aircraft in flight and forced it to fly to Miami where it landed.
On 24 July 1961, a 3,500,000-dollar commercial airliner en route from Miami to Tampa was forced by an armed passenger to fly to Havana.
On 10 November 1961, five men and a girl boarded a Portuguese airliner at Casablanca, forced it to circle Lisbon while political leaflets were dropped, and then made the plane proceed to and land at Tangier.
On 27 November 1961, Venezuelan students boarded an airliner at Caracas, forced the pilot to circle the city while they dropped leaflets, and then forced it to proceed to Curasao, Netherlands Antilles, where it landed.
Most of these incidents have several common features: Force or the threat of force shifted control of an airliner from the authorized pilot to another person (s) at grave danger to the passengers and plane; political motives in lieu of “private ends” appear to have been the predominant goal being sought, although no recognized belligerency or insurgency existed; while under forced control, the airliners crossed international boundaries and parts of the airspace above the high seas; and, finally, only one aircraft was involved in each incident, i.e., there was no second or “pirate” aircraft.
In viewing the common features of these incidents against the criteria for piracy (as laid down by Article 15), it is apparent that the test of an act committed for private ends and the requirement that “another” aircraft be involved are missing. It follows that the acts cannot be considered piratical under Article 15. Referring to the rationale set forth heretofore as to amending and therefore broadening the concepts of piracy, it appears that, in regard to aircraft, practical considerations make an amendment even more mandatory. Query: “Is it not much more difficult for an aircraft physically to commit an act of piracy against another aircraft than to consumate the piracy in the sole aircraft itself?” For those bent on piracy, the apparent choice is to board the chosen aircraft before it is airborne. Similarly, while piracy at sea is dangerous enough, the violent act in the air is manifestly of greater immediate danger to life and property. It is submitted therefore that stricter, rather than looser, control is indicated. In regard to the criteria for “private ends,” it is apparent that an airplane is a poor choice of property to abscond with. While in the air, the usurper can maintain control, but once he lands, his control problem becomes complex indeed. In fact, cases of seizing control of aircraft in the air for “private ends” are marked by their rarity. The usual motive, as indicated in the listed incidents, is to create political impact; the seizing of an aircraft in flight is most dramatic and forceful, and draws attention to the cause of the doer. When one tries to balance out the motive against the act itself, it is difficult to qualify the act as something less than piracy.
Thus, for the reasons given above, it is suggested that when such acts occur over the high seas they should be considered as acts of piracy. The amendments mentioned in regard to Article 15 would accomplish that end.
As a direct result of the increase in air incidents, such as described heretofore, President John F. Kennedy, on 5 September 1961, signed into law legislation amending the Federal Aviation Act of 1958. It is commonly referred to as the Air Piracy Act. Its purpose is to extend federal criminal law to violent acts committed on board private and commerical aircraft. Subsection (i) (2) of Section 902 of the Act defines aircraft piracy as, “any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft in flight in air commerce.”
The Act is clearly intended to meet the problem of seizure of control of aircraft operating within the territorial and maritime jurisdiction of the United States. In its domestic legislation, a state may label as piracy any particular act the control of which it intends to handle as an internal matter. It has no direct relationship to the classic interpretation of the term as accepted on the international level. In this particular instance, the Congress found the term “aircraft piracy” to be both convenient and desirable. But the Act purports to go further than crimes committed in our domestic air space. The point turns on the use of the term “air commerce” in the definition of aircraft piracy. As defined in the Federal Aviation Act, the law will operate not only on U. S. flag aircraft regardless of their location, “but also to such acts committed on foreign aircraft in flight in air commerce over foreign countries, but only if such aircraft are engaged in flight originating at or destined to points in the United States.” The Department of State, in an effort to avoid obvious complications, recommended that the Act apply only to U. S. flag aircraft over foreign countries. That department stated, “The proposed bill might well be considered by the foreign countries of registry to be an improper exercise of jurisdiction by the United States and give rise to foreign relations difficulties.” As enacted, it will be interesting to observe foreign reaction when and if the United States attempts to exercise its jurisdiction over a foreign aircraft over foreign territory in a flight originating in the United States. While it is believed that this would be an extreme application of jurisdiction, nevertheless, it is suggested that the Air Piracy Act will serve its purpose if it prompts enactment of some form of like-intended legislation in foreign states. Domestically the law is good and meets a present need.
In concluding this brief summation of the Air Piracy Act, international bodies, such as the International Law Commission, should meet the problem of seizures and violence in the air over the high seas in order to make more complete the body of international law on piracy. In large measure, the U. S. Air Piracy Act would serve to complement that part of international law.
* Captain Galvāo was tried and convicted in absentia by a Portuguese court in 1962. Having been granted asylum in Brazil, he has not served the 22- year sentence handed down by the court.