| Catherine Mitchell November 10, 1999 © 1999 Catherine Mitchell Email
The Captain Hooks of Today
The protection of trade in general has always been considered as essential to the defense of the commonwealth, and, upon that account, a necessary part of the duty of the executive power.
INTRODUCTION Adam Smith lived in a turbulent and unpredictable world. Indeed Britain was an affluent nation at the time, but that does not over-ride the sometimes-barbaric notions of its citizens. Piracy was rampant in the Eighteenth Century reaching its peak in 1724 when trade almost came to a complete stop due to the constant threat of encountering pirates while at sea. The property-seeking vagabonds would hijack a ship, take what they wanted and either leave the crew to their own means in a damaged vessel or alternatively, enslave them and possibly use them for bartering later. Adam Smith when writing, An Inquiry into the Nature and Causes of the Wealth of Nations, was all too aware of the threat that pirates were still having on trade in 1776. Smith was logical in his assumption that the state should strive to protect the trade industry whenever possible, especially since in those days the sun never set on the British flag and England ruled the seas. Although Britain cannot be blamed though for lack of trying, piracy still exists today. Yet, because the act continues at sea often far from land, it gains little media attention, and therefore less action from governments. China, despite being a number one producer of pirates, continues to deny that there is a problem while at the same time often pardoning those who are caught. Countries such as Indonesia and Philippines, which have been hardest hit in the past few years by pirates, are looking for international assistance. The West is, of course, looked to for solutions yet choose seemingly chooses to turn a blind eye, perhaps in the name of diplomacy. When the world is ready to combat the perpetual problem of piracy, it may discover that by intertwining tougher policies aimed at dealing with piracy with current or future trade negotiations, productive steps can be taken to initiate plans to curtail modern day sea wolves who prey on the helpless. The suggestion of ‘Piracy Charters’ will be discussed further as the means of which to add the topic of to multilateral agreements.
BODY
Piracy is not something, which developed recently. The young Julius Caesar was kidnapped by pirates in 78 BC on a voyage to Rhodes and held for ransom. After the ransom was paid, Caesar later returned, captured the corsair crew and ordered every one of them to be executed (Black, 1989: 2). In Caesar's time, piracy was mainly a business of collecting ransoms. As the practice continued more ship's crews participated in the pastime. "These marauders from Algiers, Tunis, Tripoli, and Morocco regarded the Mediterranean as their private lake and roamed it in swift corsairs, encouraged by their rulers to prey on the vessels of any nation which refused to pay the price of ‘protection,’" (Goodman, 1999: 2). This practice continued into the Nineteenth Century such that in 1800, President Adams, started the Tripolitan War when he found it necessary to send the United States Navy to fight a group of pirates in Tripoli who demanded more compensation for passage. Pirates were operating in the Gulf of Mexico as late as 1812 when General Andrew Jackson made a pact with the pirate Jean Lafitte in defending New Orleans. Lafitte provided men, arms and even cannons to fight the British and the United States government pardoned Lafitte (Mueller 1985; 294). Piracy once even had a certain legitamentcy. England and France particularly in the days when Spain controlled much of "the New World" issued Letters of Marque to ships which were then free to prey on Spanish ships bringing gold and silver from Mexico and South America. These privateers were expected to return a portion of their spoils to the government, which commissioned them. The definition of piracy is often debated when being dealt with in legal issues, but most agree it "is any robbery or other violent action, for private ends and without authorization by public authority, committed on the seas or in the air outside the normal jurisdiction of any state." The key points to take notice of is that the act must take place outside the normal jurisdiction of a state, without state authority, and that the intent is private, not political (Black 1989: 3). The passing of the Navigation Act by Britain in 1696 perpetuated piracy by forbidding English colonies from trading with anyone except England. The price of imports for the colonies rose considerably and they were therefore happy to buy cheaper goods, illegally whenever possible. Pirates who would sell them goods at the market price were a nice alternative. No one cared to explore the means by which the pirates acquired their stock just that it was cheaper. Several Caribbean ports became major sanctuaries where pirate ships replenished their stores and sold their booty (Black 1989: 5). In Smith’s time piracy continued due to men who had formerly been working in the harsh disciplined world of the naval and merchant marine services which often involved floggings escaping from their chains and turning to piracy which yielded a quick and relatively easy profit. In the current terms, piracy has taken on a new Twentieth Century methodology. Now a piratical act often consists of a small powerboat that will speed up behind a merchant vessel in the middle of the night. The pirates then board, using grappling irons. They tie up the captain, empty the safe, sweep the ship of portable valuables and are gone before an alarm can be raised (Those in peril 1997). Sometimes no one is hurt, but other times the entire crew is executed. The fictional act of making prisoners ‘walk the plank’ just is not good enough anymore. In the past few years piracy has risen considerably. In 1994, the International Maritime Bureau (IMB) whose Regional Piracy Center tracks worldwide incidents of piracy, logged ninety reported pirate attacks. One year later with transoceanic international trade continuing at impressive levels, these already high statistics more than doubled with reported cases of piracy worldwide in 1995, and increased again in 1996, to 224 reported cases. Not only does the stealing plundering continue, so does the killing as the 1996 data included twenty-six individual murders committed during the course of piratical attacks. Over fifty mariners dies in attacks during 1997, a near 100% increase over 1996 levels. Additionally, over 400 individuals were taken hostage in 1997, dramatically higher than the 194 hostages reported taken during all of 1996. Not as though these statistics are outrageous enough, but in reality they are higher because many cases go unreported. The shipping industry fears that "official investigations will delay shipments, increase insurance premiums, prompt demand for higher pay by nervous crews, and raise questions about their credibility among clients who can switch carriers at a moment’s notice (Goodman, 1999: 3). As shown above, the occurrence of piratical acts is showing no signs of declining. It is not only increasing, and it is doing so with a vengeance yet nothing is done. Captain Grahame Hicks, secretary of Numast, the trade union that represents British merchant-navy officers stated, "If you had civilian aircraft being threatened or bazookas being fired at train drivers there would be a public outcry. Because it’s shipping, it’s out of sight, out of mind and nothing is done," (Those in peril 1997). Adam Smith reports of disorders in the government of Indostan which caused both the English and French East India Companies to build forts to protect their people and property (Smith, 1776: 732). Such a small step at the time in order to protect trade and its people, yet in modern times not even that much effort has been taken under much more serious circumstances. One might ask, "How come I never hear of this on the news?" The answer is simple. Most acts occur in Southeast Asian waters affecting mainly Asian countries and their people with no direct threat to the West or its citizens. Indonesia, the Philippines and India reported the most piratical attacks in 1998. If any one of these countries had been European undoubtedly more attention would have been paid to the issue. It has seemingly become somewhat commonplace to the point that people have become used to it and basically accepted the risk of piracy as an occupational hazard. There are organizations that have been paying the issue attention, but they are not qualified to act in a fashion, which will produce results. As previously mentioned, there is the International Maritime Bureau (IMB), which monitors sea-going crime. It was established in 1982 to prevent fraud in international trade and maritime transport, reduce the risk of piracy and assist law enforcement in protecting crews. It also tracks cargoes and shipments and verifies their arrival at schedules ports (ICC International 1999). However, a private organization normally has no police powers, weapons or warships with which to deter piracy. Unfortunately many Third World Countries are not much better equipped to deal with the problem. The United Nations has also stepped in with the establishment in 1982 of the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS essentially confirms that piracy must be for "private ends" and conducted "on the high seas, against another ship…or against persons or property on board such a ship," (Goodman 1999: 2). It also provides a comprehensive legal framework governing uses of the oceans, and the rights and obligations of States relating thereto. UNCLOS achieved consensus on the nature and extent of jurisdiction that States may exercise off their coasts: a territorial sea of a maximum breadth of 12 nautical miles and coastal State jurisdiction over fisheries and other resources (e.g., oil and gas) in a 200 nautical-mile Exclusive Economic Zone ("EEZ"), and on the continental shelf where it extends beyond the EEZ. These rules balance extended coastal State jurisdiction with provision for reservation and elaboration of rights of navigation and over-flight in these areas, and guarantees of passage through and over straits used for international navigation and archipelagoes (ICC International 1999). Trade began to expand from continent to continent in the late fifteenth century, early sixteenth century. Goods were being transported long distances thus making them more vulnerable to capture from pirates. When Smith was writing in the eighteenth Century, trade was flourishing. The protection of goods in trade was an issue and paying for the protection was put upon those protected. Smith explains himself in the following, as follows,
There was a problem facing British of protecting commerce from pirates. Britain acknowledged it, decided upon what course of action to take and then followed through. Forts were built in trading partners land with the purpose of protection. British warships patrolled the oceans looking for pirates. Those buccaneers taken alive were often publicly hanged. Britain had to prove that it was serious about protecting its interests, as do modern day nations. If piracy is going to be eradicated then collective action has to be taken and it has should be done soon. Worldwide trade liberalization has become a trend of late. Multilateral agreements throughout the world are developing at an increasing speed. The European Union (EU) has turned most of Western Europe into a Single Market. The North American Free Trade Agreement (NAFTA) brought the United States together in a trade agreement with its neighbors, Canada and Mexico. The nations of Africa and Asia are slowly following suit with trade agreements of their own. The distinguishing characteristics of trade liberalization are that the factors involved in negotiations these days are not strictly trade oriented. Such hot issues as the environment, drug control, and human rights are coming into play when countries are deciding who they do and do not want to be associated with in trade. Because this is a period of diverse thinking in regards to trade it is the perfect opportunity to stretch the agreements into extending their power and influence in dealing with the issues related of piracy. Today those who choose the occupation of transporting goods on the oceans of the world are often in more danger than in ancient times for now the pirates are armed with automatic weapons with the intent of achieving their goal no matter the costs. The increasing violent acts of piracy continue with an international legal system that lacks an effective enforcement mechanism to suppress piratical attacks. The sad reality is that no one appears to be paying attention to the contemporary piracy threat. If piracy can be brought into trade agreements there is an increased chance it will have an opportunity of being effectively combated. In his article, Timothy Goodman offers a route that could be pursued as a way of attaching piracy legislation onto a current trade agreement or onto agreements in the future. They are called "Piracy Charters." UNCLOS provides a jurisdictional avenue for the creation of regional groupings in maritime law. UNCLOS takes the "Piracy Charter" enforcement approach provided that such Charters remain consistent with existing international rights and obligations. Goodman stresses that in order for such Charters to work that must include four main elements:
In recognizing how governments work, Goodman insists that it would be strategically better to link Piracy Charters to existing multilateral regional agreements since a higher level of attention would potentially be paid to the legal enforcement of piracy laws. The added plus is that with the small number of parties involved it would be easier to establish the charters and to keep the ultimate goal in mind instead of one that results in the lowest common dominator. Also the participating countries will be familiar with the region’s languages, geography, and piracy-threat profiles in an area (Goodman, 1999: 4). To further the objective of Piracy Charters, a Piracy Commission would be established. It would have the authority to fairly and neutrally judge which nation state’s property and/or nationals are "most reasonably damaged, injured, or otherwise negatively impacted" by an incident of piracy. It would not be a supranational criminal court to try alleged pirates, but would have limited responsibility of administering regional piracy extradition procedures among the parties to the Piracy Charter (Goodman 5). An alternative to a Piracy Commission would be a Piracy Court, which would try and punish pirates apprehended. The commission is seen as more likely to be accepted for two reasons. First, there is not one set of international piracy laws that could be displayed in Piracy Court against apprehended pirates. As previously stated, even the definition of piracy is often debated! Secondly, many states would not be comfortable being bound to the jurisdiction of a regional criminal tribunal which would determine the fate of its nationals and/or property outside of that state’s own legal system. Additionally scholars have expressed concerns that supranational criminal tribunals, such as a regional Piracy Court, would potentially disrupt the existing system of international law and organizations. In this view a decision of such a court might conflict with centuries of international custom, practice, and agreements, as well as with the prerogatives of existing international institutions such as the United Nations Security Council (Goodman, 1999: 6). In Adam Smith’s time piracy was just as rampant as today if not more so. For the most part it exists in the same general places: the coasts of Africa, the Malacca Straits of Asia and along the coast of Brazil. Today piracy continues in these areas especially when the economy turns for the worse. As the Brazilian economy continued to worsen in early 1999, maritime agencies around the world issued warnings, based on what happened in other regions such as Asia where inflation and other financial problems caused more crime, including pirate attacks on ships. In fact, it turned out to be so bad in Brazil that many ship captains had standing orders against reporting pirate attacks while sailing to Brazilian or Latin American ports. "If we report the attack, they hold up the ship for days. We can’t afford that. So our captains will sometimes report it later. Usually they never get reported," the executive of one shipping line (Fabey 1999: 1). Such reports make the papers and yet no one takes any action. A pirate is an enemy to everyone for he commits hostilities upon the subjects and property of any and all nations without any regard to right or duty, or any pretence of public authority. He shows no remorse, shows no allegiance, he is out for himself and the only way to fight him is for nations to band together for the common purpose of ending such a threat on the seas (Goodman, 1999: 2). Why is it that governments cannot see this and band together and fight? Is it not the government’s responsibility as Smith says to protect commerce and those involved? How can this "Defense of the commonwealth" be forgotten? Smith reminds us that commerce has often required us to keep ministers in foreign countries even when there was no war or reason of alliance, but for the simple fact that it is the country's duty to protect. Protection in Smith’s time was mainly seen as in the power of an army or navy. Britain then had one of the most powerful navies in the world, which it could afford to flaunt in necessary situations. "Some particular branches of commerce, which are carried on with barbarous and uncivilized nations, require extraordinary protection," says Smith and such is the case today in Southeast Asia where there is much travel through the dangerous waters of the Malacca Straights. Yet the nations involved are today recovering from an economic disaster and therefore military means are not going to be an option. Sanctions have become more of an economic tool these days as opposed to military action. The main opposition in this piracy debate is the People’s Republic of China who is being criticized for not attacking piracy. China being a major contributor of pirates to the seas refuses to acknowledge the problem. Example, in December 1998 a Hong Kong bulk carrier, Cheung Son, disappeared in the Taiwan Strait carrying slag. The bullet-riddled bodies of six of the 23-crew members, most of them mainlanders, have been dragged up in fisherman’s nets off Shantou, a port in China’s Guangdong province (Asia: Yo). The ship was found empty and abandoned. Nothing else is known. The Chinese authorities claim to be conducting their investigation in secrecy yet nothing ever turns up. This incident perpetuates the concern of the shipping industry that hijacked ships are regularly turning up in Chinese ports. What is even more disturbing is that the Chinese authorities invariably repatriated the suspected perpetrators of the attacks. In some cases, pirates are literally getting away with murder (Times Business 1999). Action needs to be taken in order to make China recognize the problem and take preventive measures to stop the piratical attacks. There tends to be a Catch-22 at hand, though, in dealing with China. China is an industrial nation, but with yet a great amount of poverty. How do you deal with a nation that because of the poverty of some the people are driven to extreme measures? Brazilian pirates fall into the same category although many Brazilians are a lot more impoverished than Chinese citizens. There is an old saying that people cannot be raised poor and then later punished for being so. There has to be more equitable solution. Enacting Piracy Charters that pertain to a specific region can entail provisions that will help deal with the economic situations of those involved in hopes of curtailing the piratical acts. In regards to piracy the United States has not come so far as to make an official policy. In speech that President Clinton gave in April of this year he acknowledged the problems China was having in saying,
As mentioned before the attitude of the West to date seems to be one of empathy, but nothing that sparks any action from powerful outsiders who would have some weight. To most this is still a South East Asian problem. Until an American or European crew or ship is directly affected piracy is not going to get the attention it needs. Yet when it seems as though there is nothing more to be done, there arises one hope in getting the West involved before piracy gets more out of hand: the environment. In today’s world of environmental protection, anything or anyone who risks harming the precious environment in anyway runs the chance of having the wrath of the West on its back. The pirates in the South China Sea are getting very gutsy and taking over large crude carriers. The robbers have continued their practice of tying up the crew and taking what they want, but when they abandon the ship they let it continue on automatic without a navigator. The logical fear is that someday one of these loaded crude carriers are going to crash into another vessel in busy waterways such as the Malacca and Singapore Straits Such a major ecological disaster no one would have ever been expecting, yet could have so easily been prevented has action been taken. Multilateral trade agreements among the nations who have fallen victim to piracy must soon be established. The Association of Southeast Asian Nations (ASEAN) is already established and thriving. All that is left to be negotiated to help combat there plight, is a Piracy Charter (Oil piracy 1999).
CONCLUSIONS Piracy has been a problem for centuries and is therefore not something that will disappear over night. It is a complex industry in which many people are gaining monetarily and therefore it is hard to combat. Despite the lack of help from China and the world ignorance on the subject, it is an issue that can be effectively combated. Multilateral Agreements have gone further than most diplomats had ever thought possible. Fifty years ago no one would have guessed that France and Germany would be agreeing to a common currency. Things change and can change for the better. Agreements are covering a whole new realm of topics that before were not considered. Goodman’s suggestion of future inclusion of Piracy Charters would be a simplistic way of getting preventive legislation on the books so that in the future action can be taken against pirates. The Charters would not be affected by the trade negotiations, but because they are included more attention will be paid to them. If countries come together to combat the environment then they should be able to do the same for piracy, which is not killing the rain forests, but innocent, hard working people. Trade must be allowed to continue in reasonable peace and as Smith has said so many times, it is the states responsibility to look after it as best they can.
CITATIONS
Asia: Yo ho ho, and a bottle of rice wine. 1999. The Economist Volume 350 Issue 8104, pages 40-41. Black, Clinton. 1989. Pirates of the West Indies. Cambridge, Great Britain: Cambridge University Press. Clinton, William Jefferson (President of the United States). Remarks by the President in Foreign Policy Speech. 1999. Fabey, Michael. 1999. "Bad times spur pirates." Volume 257 Issue 8, pages 42-43.
Those in peril on the sea.1997. The Economist Volume 344 Issue 8029, page 40.
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