The Issues of Sea Piracy in History and International Law Prohibitions During The 1400s to 1500s

Sea Piracy has been an issue since the 15th century to the 16th century, which is dubbed to be the Golden Age of Piracy. This is due to the lack of unified body to form an agreeable law of the sea to combat sea piracy. It is only in the 20th century when the United Nations was formed and the inclusion of the United Nations Convention on the Law of the Sea in 1982 did we finally have an organized set of rules on matter of the sea.

The justification for Sea Piracy law in International Law is strong as this problem flourish due to the fact that it happens far away from land and secluded from the rest of the world. An assessment of this problem in Southeast Asia, shows that the region’s waters are hotspots for sea piracy. This is due to the fact that 45% of the world’s commercial shipping uses routes on that region and there have reported of attack on commercial shops which causes damaging economic loss and international trade.[1]

Furthermore, in Southern Philippines, pirates frequently kidnap Malaysian nationals for ransom and those kidnapping activities are for the sole purpose of funding terrorist activities. These kidnapping are usually done by the terrorist group Abu Sayyaf, which is linked to the global terrorist group, ISIS. With the help of stricter and stronger sea piracy laws, it could be curb the problem of sea piracy which some is taking advantage of funding terrorist organizations.[2]

Most importantly, sea piracy posed a big threat to those to sail the open sea. Seafarers are the first victims or sea piracy, having exposed to the danger of being killed, kidnapped and tortured by pirates. Sea piracy continuously make the open sea a dangerous place for travellers and those who work at the open seas, this cause a dent to the shipping industry, as the job scope for sailors would involve the risk of getting in danger from pirates.[3] Without a codified sea piracy law with harsh punishment to deter others from sea piracy, the open sea is an open playground for those who will take advantage of it.

In conclusion, sea piracy is an international problem which requires the co-operations of the world community since this is happening all over the world, not just an isolates case in a certain part of the world, sea piracy is thriving and strong. With the help of a proper enforcement on sea piracy laws, the open seas would be a safer place for sailors and the international trade industry will be safe from the threats of sea piracy.

The issue before us is whether Captain and the whole crew of the Bootstrap can be sued under International Law?

The most appropriate authority for this matter is the Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS)[4]. In this provision, it states that piracy or maritime piracy is “…any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship…and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship…” To briefly explain this provision, it means that piracy is an act of aggression from another party to another party at which happens on the high seas by using force or illegal detention of another party.

Furthermore, is the Article 103 of the UNCLOS[5], which defines that a pirate ship is one which is “…intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 10…” As shown in the given facts, the Bootstrap was in fact used by Captain Barbossa and his crew to commit acts which are describe in Article 101 UNCLOS. It definitely suggest that the Bootstrap is by all definition, a pirate ship.

Next, is the Article 105 of the UNCLOS[6], in this provision, in this original wording it clearly states that “…On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith…”

This means that once an offence of piracy was committed with the use of a pirate ship, said ship shall be taken seize by any State and shall be taken to trial and punished by any courts of the State which had seized the pirate ship. Briefly speaking, a pirate ship shall be capture and can be put into trial, although the offence happened on international waters or the high seas.

Case in point is, the case of Re Piracy Jure Gentium [1926-1941] HKC 153[7]. In this case, the facts are a number of armed Chinese nationals cruising in two Chinese junks pursued a cargo junk on the high seas for over half an hour during which shots were fired. Two merchant vessels intervened and the pursuers were eventually taken in charge by a British naval vessel. They were brought as prisoners to Hong Kong and indicted for piracy.

One of the issues of this case was whether this case could be tried in a municipal court. The judgment delivered by Viscount Sankey LC, in his own words stated that, “…according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or …by its own nationals wherever committed, it is also recognised as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any state. He is no longer a national, but hostis humani generis and as such he is justiciable by any state anywhere…”

This means that once a person is found to be committing the offence of piracy, the said person could not hide behind the laws of any State to evade persecution. But in fact, he or she shall be trial and sentenced by any State for the offence of piracy. This shows that a person charged for piracy can be persecuted or in this case, sued by the virtue of international law for his part in piracy.

The next case in point is the case of United States v Suarez (2017) No. 16-cr-453 (RJS)[8], where in this case the defendants were intercepted by the US Coast Guard However, the defendant argued that they were not seize within the high seas for the offence of piracy. However, the court found them guilty for piracy jure gentium since they were seized in the high seas by the US Coast Guard. These cases shows that for the offence of piracy, any State everywhere has jurisdiction to punish the offender for their offence of piracy.

Based on the authorities above, it is clear that based on the facts given, it clearly shows that Captain Barbossa and the whole crew of the Bootstrap had attacked another ship called the Black Pearl and had unsanctioned and unwarranted force against the crew of the Black Pearl which resulted into the death of 19 crew and detention of the passengers boarding the Black Pearl. Therefore, by the virtue of Article 1 of the UNCLOS, Captain Barbossa and the whole crew of the Bootstrap has committed piracy.

Furthermore, based on the eye witness statement given by William Turner, it is clear that the Bootstrap which is the ship of Captain Barbossa was used for the offence of piracy, where the Bootstrap was mentioned to be involved in the capture of the Black Pearl. Therefore, by the virtue of Article 103 of the UNCLOS, should be regarded as a pirate ship used by Captain Barbossa.

Finally, by the virtue of Article 105 of the UNCLOS, it states that the offence of piracy shall make the offender liable to be capture and trial in any State everywhere. This is supported by the two cases of Re Piracy Jure Gentium [1926-1941] HKC 153 and United States v Suarez (2017) No. 16-cr-453 (RJS), where the judges in this case held that in the case of piracy, any State shall have the jurisdiction to seize the pirate ship and trial those who are involved in piracy.

Therefore, in conclusion, by the virtues of the Article 105 and the mentioned cases, Captain Barbossa and the whole crew of the Bootstrap can be sue for their action against the victims of the Black Pearl.

Based on the facts given, the issues of the case are whether Albert Co. Ltd can be regarded to be subject under international law? Whether this matter can be heard at an International Court or National Court of Cuba? And what is the best decision for the actions of Albert Co. Ltd for possessing the Black Pearl, hijacked 20 Mexicans and for breach of the contract with the corporation?

For the first issue, Albert Co. Ltd is a corporation incorporated under Mexican law and had trade agreement with Guinea Incorporation from Cuba. Thus, this makes Albert Co. Ltd subjected to international law, since the deal between Albert Co. Ltd and Guinea Incorporation is international in nature with no similar domestic legal link between them.

For the second issue, the most appropriate authority is the case of Compagnie Tunisienne De Navigation SA v Compagnie D’armement Maritime SA HL (1970), where in this case, the parties in the case are Tunisian and French companies, disputes arose in their dealing and the Tunisian company claimed damages for repudiation of the contract. The Tunisian company claimed that the proper law for the dispute is Tunisian law but the French party claims that the proper law is French Law. The court held that the proper law is French Law since the facts shows that the express choice of law during the agreement was French Law.[9]

Furthermore, in the case of Iran Continental Shelf Oil Company and others v IRI International Corporation [2002] EWCA Civ 1024, where in this case, The Claimants are Iranian corporations ultimately owned by the Government of Iran and The Defendant (“IRI”) is a Delaware corporation with its principal place of business in Houston, Texas. The Court of Appeal held that since both of the parties was found could not able to able on the choice of law to be used in the event of a dispute, there was not choice of law for the dispute to be settled.[10]

This means that a dispute between private parties can usually be resolve through municipal court if both parties had earlier in the contract, included a clause of choice of law. If the parties did include this clause, then the dispute shall be settled under the municipal law of the chosen law.

Based on the authorities above, it is clear that if Albert Co. Ltd and Guines Incorporation had included a clause which appoints Cuban law as the choice of law to settle the dispute, then this disputes can be heard in the National Court of Cuba as shown in the case of Compagnie Tunisienne De Navigation SA v Compagnie D’armement Maritime SA HL (1970).

However, as accordance of the case of Iran Continental Shelf Oil Company and others v IRI International Corporation [2002] EWCA Civ 1024 if there was no such clause in their trade agreement, then the best option for them is to choose for the case to be heard in an International Tribunal or Court. This means that this case can be heard on either an International Tribunal or Court or the National Court of Cuba, depending on the provisions.

For the third issue, the most appropriate authority is the Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS),[11] where it clearly stated piracy are acts which includes “…illegal acts of violence or 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: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship…” and the Article 105 of the UNCLOS[12] also states that “…every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken…”

This means that those who caught committing the act of piracy is liable to be subjected to prosecution for this offence on every State everywhere. Therefore, the best decision that the law can be enforced against Albert Co. Ltd for the illegal possession of the Black Pearl and the unlawful hijack of 20 Mexican nationals would be to be trial and convicted for the offence of piracy under the principle of piracy jure gentium.

As for the action of breach of contract, when a party breaches his part of the contract, the aggrieved party have the right to firstly, to compel specific performance, secondly, to avoid or cancel the contract altogether, thirdly, and lastly, seek for damages.

The appropriate cases are Oakacre Ltd v Claire Cleaners (Holdings) Ltd (Chancery Division) [1981] 3 Al ER 667[13], the court held that “…In an action for specific performance, therefore, the court had power to award damages for delay in completion even though the action had been instituted before the occurrence of the completion date and thus before the cause of action in damages had accrued…” This case shows that the aggrieved party is entitled to an award of specific performance in the event of a breach of contract and even if the breach has not occurred but bound to happen.

Next is the case of Forslind v Bechely-Crundall 1922 (Sessions Court) (HL) 173[14], where in this case, the court held that “…in the circumstances, the conduct of the seller warranted the purchaser in believing that the seller did not intend to fulfil his part of the contract timeously, such conduct amounted to repudiation of the contract; and that the purchaser was entitled to decree…” This shows that a breach of contract will certainly give the right to the aggrieved party for a repudiation for the contract.

The last case is the case of Addis v Gramophone (House of Lords) [1909] AC 488[15], in his case the court held that in a case of contract law, the aggrieved party should be compensated with money for the damages he suffer if the circumstances deemed it to be sufficient.

Therefore, for the breach of contract, the case above suggested that based on the circumstances of the matter, Albert Co. Ltd shall be liable for either to specific performance, repudiation or to pay damages for the breach that was committed.

In conclusion, Albert Co. Ltd can be subjected to international law, as the dealing made between Albert Co. Ltd and Guinea Incorporation is an international trade, and the matter could be heard either in an International Tribunal/Court or the National Court of Cuba based on the fact whether the trade agreement contain the clause which appoints the choice of law for remedy and lastly, Albert Co. Ltd can be held responsible for the act of piracy committed in the high seas and are liable to remedy the aggrieved party which is Guinea Incorporation for the breach of contract.

Intergovernmental organizations are basically organizations which relies on the compromise and collective teamwork among States to pursue the same goal. An example of an intergovernmental organization is the United Nations, where almost every State in the globe is involved for the furtherance of a collective and mutual benefit for every of its members. One of these benefits are peace and globalisation of nations. Other examples are the World Bank, North Atlantic Treaty Organization (NATO).

Intergovernmental organizations are formed to help in developing public international laws. This is proven by the fact that all the international rules like the UNCLOS or the Geneva Conventions, which all are the result of the workings of intergovernmental organization. It is shown under the Article 1 of the United Nations Charter, which states the purpose of the United Nations are to “maintain international peace and security, and to that end...” Its main purpose was to maintain peace and to prevent wars among States.[16]

Furthermore, intergovernmental organizations functions to gather and collect information among around the world and study those information to better help set laws and rules which is accepted by the majority. This helps to prevent from making any laws or rules with greatly benefit one State while at the same time, gravely curtails the right of another State. Situations like this creates tensions and tension like this could cause disunity among the States which in worse-case scenario, starts wars.[17]

Next, intergovernmental organizations often acts as a third party to help two conflicting States.[18] The International Court of Justice (ICJ), which is the judicial organ of the United Nations usually steps in to act as a neutral judge of the conflict. The parties of the conflict are bound by the decision of the ICJ.

Plus, in the event of a commercial conflict between corporations of different States. The conflicting parties were between State and private person, the right course would be to seek help from the International Centre for the Settlement of Investment Disputes (ICSID), and this is shown in the case of Amco Asia et al v The Republic of Indonesia ICSID Case No. ARB/81/1, where the tribunal held that “Article 42(1) refers to the application of host State law and international law. If there are no relevant host States laws on a particular matter, a search must be made for the relevant international laws. And, where there are applicable host State laws, they must be checked against international law, which will prevail in case of conflict…”[19]

Lastly, intergovernmental organizations often become the party which is responsible to form multilateral and bilateral treaties which serves the purpose to protect the interest of the States and at the same time to provide a sense of unity among the States in certain matters. For example, the World Trade Organization (WTO), oversees and governs four trade agreements which are the General Agreement on Tariffs and Trade (GATT), General Agreement on Trade in Services (GATS), and so on.[20]

Conclusion, intergovernmental organizations are a vital body in current world, as the fast pacing globalizations requires a primary body which serves the purpose to regulate laws and rules for the mutual benefit of all.