The Return of the Pirate: Post-colonial Trajectories in the History of International Law

Amedeo Policante
Goldsmiths college, University of London

Volume 5, 2014

The centrality of the pirate figure for the development of Carl Schmitt’s theory of international law has not yet been subjected to systematic scrutiny.[1] Nevertheless, Schmitt was well aware of how his intellectual engagement with the pirate figure had shaped much of his thinking on international law. In a letter to his friend Ernst Jünger, dated 24 September 1942, Schmitt commented on his latest intellectual efforts and progress and concluded: “I have been long occupied by the Problem of Piracy. Now I am a step closer to resolve it” (Briefe 129). Far from being merely incidental, Schmitt’s fascination with the pirate was in fact deeply grounded in his epistemological orientation toward the extreme case. “The exception,” he famously remarked, “is more interesting than the rule. The rule proves nothing; the exception proves everything” (Political Theology 15). As die Figur des Piraten is Schmitt’s favorite syntagm, it is no surprise that the figure of the pirate never really ceased to haunt Schmitt’s thought, returning time and again as a revelatory anomaly in the structure of international law.

Schmitt’s first open discussion of the peculiar questions arising from a systematic consideration of the meaning of the pirate figure in the history of European legal culture appeared in the fall of 1937, in a short article simply titled “The Concept of Piracy.” This initial confrontation with the pirate, symptomatically, did not take place in the midst of a systematic study of international legal theory, but rather was one of the very first circumstances in which Schmitt turned toward a study of the Law as it exists at the international level. In this sense, we may venture to say that the figure of the pirate was one of Schmitt’s favorite points of entry for the study of international law. This may be because the pirate, in relation to a legal system centered on the relations between modern states, appears to be an anomalous category that promised to reveal much about modern international law.

This article will follow the thread running through Schmitt’s scattered comments on the different roles that the figure of the pirate assumed in subsequent epochs of international law. In order to do so, I begin from Schmitt’s argument in The Nomos of the Earth. I consider the marginalization, criminalization, and suppression of piracy throughout the world not as a natural by-product of the advance of morality and civilization but as part of a much more ambiguous political project. While the demonization and eradication of piracy have often been presented as an unambiguous linear tale of progressive civilization, Schmitt shows that it might be more accurately understood as a constituent part of the history of European imperialism and the genealogy of global capitalism. I argue that the suppression of piracy was a powerful symptom of a structural transition from the vagaries of primitive accumulation to the systematic character of modern forms of imperialist exploitation. In the second part, I analyse the role played by the pirate in the rhetoric of nineteenth century British humanitarianism, which at its core is a colonial discourse that not only legitimizes forms of global policing but also perpetuates discriminatory practices against “rogue states” and “pirate nations.”

In the final part, I analyse the role played by the pirate figure in the origins of modern international criminal law in the twentieth century. I argue that Universal Jurisdiction, which was first introduced in the eighteenth century by the European powers as an exceptional measure designed to deal with pirate crews operating beyond any single state’s jurisdiction, was gradually extended to the point of radically transforming the very nature of international law. In the nineteenth century Universal Jurisdiction began to be employed against not only small pirate crews but also entire “pirate states,” especially in the colonial world. And yet, it is only in the twentieth century that the pirate exception ceased altogether to be localizable, as even European states began to be accused of being illegitimate “piratical communities,” potentially subject to Universal Jurisdiction. The spectre of the pirate has become ubiquitous, such that at present no one is left unexposed to the potential intervention of those claiming to exercise Universal Jurisdiction in the name of humanity.

The Pirate as hostis communis omnium: International Law, Systematic Freedom, and the Making of the World Market

Throughout the sixteenth and seventeenth century, European imperialist expansion and internecine European warfare depended on thousands of privateers. Political theorists such as Charles Tilly, historians such as Jon Latimer, and historical sociologists such as Janice Thomson have argued convincingly that pirates, who were legitimated as privateers through the widespread use of lettres de marque, played an instrumental role in the violent processes inherent in state-building. Political economists such as Karl Marx and economic historians such as Nuala Zahedieh have argued for the importance of piracy and maritime plunder in the dynamics proper to early modern commercial empires and for the accomplishment of making primitive accumulation possible on a massive scale. In particular, Schmitt has shown how piracy and imperialist plunder ultimately rested on a strict separation between Europe and the colonial world, with the latter effectively reduced to a permanent state of exception at once included in and subtracted from modern international law (Policante).

The conclusion of the War of Spanish Succession was a turning point in the history of piracy and, more generally, in the history of the modern capitalist world-system. With the signing of the Treaty of Utrecht in 1713 and the growth of its maritime power, Britain gained the exclusive right to export slaves to the Spanish colonies. Thus the trade that would provide the spur for the plantation economy and, eventually, for the beginning of the industrial revolution began. In Schmitt’s words this was “a caesura,” a world-historical event of revolutionary importance (The Nomos of the Earth 180-81). After the Treaty of Utrecht, the period of savage primitive accumulation and anomic warfare between the European empires for the spoils of the American continent was brought to a halt. The “amity line” principle – which suspended the rule of international law in the extra-European space beyond the imaginary line passing by the El Hierro Island – was forever abandoned in order to construct and sustain a more ordered system of trade, whose twin pillars were the exploitation of wage labour in Europe and the exploitation of slavery in the colonial plantations.

Indeed, as Schmitt writes, “a new period” of the jus publicum Europaeum “began in 1713 with the Treaty of Utrecht” (The Nomos of the Earth 180). The Treaty, which sanctioned the conclusion of an international war that involved Spain, Great Britain, France, Portugal, Savoy, and the Dutch Republic, signalled the fundamental passage from an “elemental” to a systematic freedom of the Sea (The Nomos of the Earth 181). Before that date the principle of international law commanding freedom of the seas meant essentially “that the sea is impervious to human law and human order, that it is a realm free for tests of strength.” After that date, “this freedom was limited by the fact that state control over the pirate ships of its own subjects became stronger, while the old style freebooters sank to the level of criminal pirates” (The Nomos of the Earth 181). After the second half of the seventeenth century, lawless plunder had become an outmoded form of accumulation. Buccaneers and freebooters were slowly marginalized, condemned, and suppressed; privateers were subjected to increasing and more stringent controls. Eventually, the sea lost its exceptional status; it was integrated into the nascent state-based international system and made functional to its order.

As a result, the space “beyond the line,” which in the sixteenth century still represented a paradigmatic borderland, began to disappear in the eighteenth century. That extra-European space – which had been initially included in international law as a wholly exceptional space in which “might made right” and European states could freely perpetuate their conflicting activities of mutual plunder, ruthless exploitation of the territory and the native people, killing and genocide, without ever questioning the general validity of international law and morality –was now gradually being either colonized (in the case of extra-European land), or made to serve the European state system as a pure space of circulation. In both cases, there was resistance to integration. On the one hand countless native people resisted the integration of their land into the imperialist order of European states; on the other hand, pirates remained an obstacle to the reduction of the oceans into a smooth surface of circulation, which was necessary for an efficient process of expanded capitalist accumulation that would feed off the systematic exploitation of wage labour in Europe and of slave labour in the colonies.

This is why, between 1660 and 1700, the advent of the so-called “Commercial Revolution” led to a fundamental change in the way in which piracy was perceived by states (Rubin 100-101). While, even in the early seventeenth century, piracy was treated as a minor nuisance or as an exploitable source of private violence, in the early eighteenth century piracy gradually emerged as one of the central problems of international law. A new sensibility toward the importance of long-distance trade and a new interventionist stance by European powers – interested only in imposing the minimum of law and order on the oceans of the world, making them safe for global processes of capital and commercial circulation – crystallized into a new image of the pirates, now portrayed as irredeemable outlaws and enemies of civilization. “It is a sign of the growing importance of far-away colonies and in general of long-distance oceanic trade for the whole of Europe,” writes J.H. Parry, “the fact that the epoch of pirates and buccaneers had to be followed by the age of admirals” (112). The growth of a new model of colonial exploitation, organized around the space of the plantation, required the criminalization of piracy, the securitization of international transport, and the juridification of long-distance trade.

Pirates, then, were systematically demonized by the highest legal authorities; they were described as savage beasts, cold-hearted monsters, sea wolves and demons of the oceans, or otherwise meaningless vermin to be eradicated from the sea. “Stripped of all human characteristics,” writes Marcus Rediker, “the pirate was now a wild fragment of nature that could be tamed only by death” (146). On 18 October 1717, in a trial that would lead to the execution of six “persons indicted for piracy,” the King’s attorney concluded that pirates “can claim the protection of no Prince, the privilege of no Country, the benefit of no Law, he is denied common humanity and the very rights of Nature” (Trials 3). As outlaws at the margin of international law, pirates were neither understood as citizens guilty of a crime, nor as enemies to confront conserving mutual honour and respect. What is important to note is that there never was an actual “war against pirates,” but rather a series of ill-defined police actions, campaigns of extermination, and imperialist ventures that are not remembered as wars proper because they were seen as asymmetrical conflicts between unequal subjects.

“It is fundamental to the hitherto existing interpretation of piracy,” writes Schmitt, “that the action of the pirate is not a war in the sense of international law, just as little as, conversely, the action of a state directed against the pirate is not a war … War owed its justice, honour and worth to the fact that the enemy was neither a pirate nor a gangster but rather a ‘state’ and a ‘subject of international law’” (Writings on War 168, 71). From this point of view, to name a particular group of people “pirates according to international law” meant, first of all, to deny the political value of their association. Pirates were defined as groups of individuals motivated only by plunder, potentially at war with the entire world, and thus apolitical.

This definition enabled European states to portray operations aimed at eradicating “pirate groups” as neutral forms of global law enforcing. Imperial states could now, in the name of humanity at large, intervene anywhere on earth, disposing at will of the life of foreigners, as long as the target of their military might was convincingly portrayed as an apolitical pirate. An accusation of piracy, then, means that a particular community is immediately excluded from the realm proper to all legitimate political associations. This is what makes it a powerful allegation: the accused are immediately excluded from the legal norms that regulate the way in which legitimate political communities relate to one another. In the eighteenth century, the pursuit of those defined as pirates was presented not as a form of political warfare, but as a benevolent service offered by particular Imperial states to the whole international community.[2]

The eradication of piracy in the eighteenth century, in other words, was paradigmatic of a form of discriminatory global violence – distinct from traditional international warfare – that would continue to haunt international law in the centuries to come. If there ever was an “international community,” this was constructed also by the invocation of a “common enemy,” which finds its realization in the figure of the pirate as hostis communis omnium. The pirate – variously referred to in international law as “universal enemy,” Welt Feind, criminel cosmopolit, etc. – is, in other words, the constitutive outside of the jus publicum Europaeum defined as an expanding world order organized around the institution of the modern state. The narrative which opposes the absolute character of the Wars of Religion to the guerre en forme of the international state system – a narrative that Schmitt too often seems to embrace – obscures the fact that the international system never ceased to project its absolute enemies. As Schmitt remarked, war between states was limited only to the extent that the opponents recognized each other as not being pirates; but this means that they also continued to brand other, minor polities as pirates to be outlawed and suppressed.

This may seem a consideration so evident to the student of colonial history to appear hardly worth mentioning, and yet it is often forgotten or left at the margin of studies of international relations and international law, centred as they are on the relationship that states entertain among themselves. Shifting the gaze from the international politics of the European core – i.e. looking at the ways in which early modern (European) states negotiated the colonial encounter with polities, which they did not recognize as equal members of the international community – may thus work against a certain euro-centric bias that continue to inform a disciplines such as international relations.

For instance, it is certainly possible that modern war is, in the classic definition given by Alberico Gentili, “an armed, public and legalized conflict” (armorum publicorum justa contentio); and yet war is not the only type of violence that is constitutive of the state-form. The genealogy of the modern international community not only must take into account the history of international war as an institution, but must also show the ways in which imperial violence continued to be projected at the shifting margins of the international community of states, which continuously re-created an outside beyond international law. It is at this point that we start to glimpse in the history of imperial campaigns against enemies of humanity and outlawed pirates another genealogy of war: not the glorious, codified war between equal sovereigns, but the forgotten terror of the persecutio piratarum.

Pirate States, Rogue States: The Asymmetrical Character of the Colonial Encounter

Counter-piracy operations – that is, imperial interventions conceptualized as forms of violence against pirates to be suppressed in the name of all – have a long and surprisingly neglected history. It may well be true that the hundreds of executions by hanging in the eighteenth century brought the Golden Age of piracy to an end. Nevertheless, the imperial campaigns against piracy continued, although the new pirates would not enjoy the glamour of those romantic outlaws who succeeded in forever capturing the popular imagination.

In the nineteenth century, the United Kingdom officially intervened in the Malay Archipelago to defend free trade from pirates and robbers (Tarling). As shown by James Warren, the penetration of European commercial empires in the region coincided with the destruction of traditional networks of trade that, as it had been for centuries in the Mediterranean, were also networks of plunder and small-scale piracy. The Portuguese, then the Dutch East India Company, and finally the British Empire gradually imposed a monopoly on long-distance trade, which disempowered local chieftains opposed to it. By the beginning of the nineteenth century, British military dominance of the seas and “the spreading notion that the forms of sovereignty that might be possessed by non-European societies should not be permitted to interfere with the natural law of property, led to a further assumption by Great Britain of a legal authority to protect shipping lines in general” (Rubin 202).

The eradication of piracy thus played an important role in British political strategies. Imposing tighter measures of control over the shipping lanes enabled the British to police and suppress resistance against colonial penetration, but this imposition of measures was also essential for an efficient exploitation of the commercial outposts conquered by the colonial powers. This is why, in the 1840s, the British Admiralty distributed a prize of twenty pounds for every pirate captured or killed anywhere in the Pacific Ocean. Bounty prizes were distributed not only to British merchants who claimed the capture of one or two “native pirates,” but also to colonial officials who were responsible for large-scale operations. In 1849, for instance, officials of the British Navy received a bounty worthy over 42,000£ for a single operation of “maritime policing” in which, officially, only on the first day, “1800 pirates were attacked and 400 killed with British casualties of only one man slightly wounded; and two days later 3000 Chinese pirates were attacked, killing 1700 with no British loss of life” (Fox 107-108).

Around the same years, Thomas Jefferson mobilized the United States in its first major military intervention abroad and claimed to uphold the universal right to commerce against “the Barbary pirates” of Algiers (Fisher). Countless popular books today compare the Barbary Powers to modern terrorists, claiming that, “while the Barbary War resembles today’s war on terror tactically and strategically, it resonates most deeply in its assertion of free trade, human rights, and freedom from tyranny and terror” (Wheelan 25). What has been recently recuperated as “America’s first war on terror” was characterized by the way in which the corsairs of Algiers – who operated in similar fashion as the privateers that America had relied on decades prior to its war of independence – were denied the status of legitimate enemies. Here the category of the pirate anticipated and served many of the same functions that are today explained through the ubiquitous concept of the “terrorist,” which reflects and legitimizes a form of undeclared, asymmetrical warfare without borders.

In most of these cases, in the Mediterranean as much as in the Pacific Ocean, the persecution of piracy was not conceived as a form of war between equally legitimized political communities but as part of a broader strategy of maritime policing. The eradication of piracy was presented as a neutral “security measure,” necessary for the establishment of a stable world market in which commodities could flow unimpaired from the colonies to the metropolis, and vice versa. Commenting on this evolution, Schmitt recognized that “the principle of security of the traffic routes formulated by the British Empire … directs itself not towards a certain coherent space and its inner order but rather, above all else, towards the security of [commercial] connections” (Writings on War 91).

Schmitt thus opposed the principle of national defence, which focuses on separating an ordered inside from a hostile outside, with the liberal principle of security. While national defence presupposes and reinforces the idea that global space is composed of a multiplicity of separate places, liberal security presupposes and reinforces the idea that global space is a single plane of circulation. While national defence aims at the striation of global space through the imposition of impermeable borders, liberal security aims at establishing control over multiple processes of circulation in a single, undivided open space. While national defence operates on the principle of protecting one’s people from all other peoples, liberal security operates globally safeguarding a right to freely travel, and trade that is as Universal as it is abstract. “This freedom,” writes Schmitt, “that is spoken in numerous English arguments regarding international law belongs by its very origin to the evolution of maritime law in the 17^th century. These arguments reached their high point in the apology of a Universal human interest in the freedom of global commerce in the nineteenth century” (Writings on War 94).

Liberal security aims at the securitization of commercial exchange and, therefore, the enforcement of the essential juridical conditions for the existence of a world market. And yet this is not presented as a form of imperialism by which national law is imposed on a foreign territory. According to Schmitt, in fact, “the form of route-thinking or road-thinking” typified by the English seaborne Empire is characterized by the equation established between the interest of an empire founded on free trade and the interests of humanity as a whole (Writings on War 91). In contrast to a national defence, which has war as its most extreme resort – either to establish a new border or re-establish a threatened one – liberal security paradigmatically operates through police actions and punctual interventions against unredeemable pirates and criminals. The principle of security of the common traffic routes can be endangered only by agents of a war against mankind. “The legal consequence of all this” writes Schmitt, “is that war ceases to be war. For one does not conduct a war against pirates; pirates are only the object of anti-criminal or maritime police actions, which oppose the order of Empire to those who represent only chaos and disorder” (Writings on War 218).

Thus according to Schmitt the global spatiality of the world market invites a new way of conceiving international law and international conflict. Since the world market transcends national borders, the juridical principles that sustain its mechanism – the most fundamental being the law of property rights – can be enforced only on the basis of international law. The whole military confrontation is thereby transposed onto a new level. Anti-piracy operations are characterized by the use of Universal Jurisdiction, by which those who are judged as criminals against international law are systematically denationalized and exposed to the jurisdiction of a coercive power different from the one possessed by the state to which they belong.

The history of modern piracy reveals that there has been both a fundamental evolution in the use of the concept of piracy and a parallel extension of Universal Jurisdiction. Far from being a concept without history, the meaning of Universal Jurisdiction has, from the beginning of modern international law until today, changed fundamentally. Having retraced the history of the exercise of Universal Jurisdiction against pirates in the last three centuries, we could venture to claim that this was an institution originally complementary to a Eurocentric international system of states. Subsequently, when European imperialism posed the problem of differentiating between sovereign states belonging to the international community and groups that were unworthy of the honour, Universal Jurisdiction began to play a constitutive role in relation to the international system. Finally, in the twentieth century, Universal Jurisdiction became essentially an alternative to the classical, absolute sovereignty of the state. Let us briefly review these three moments.

As we have seen, Universal Jurisdiction emerged as an institution that was largely complementary to the Westphalian order of territorial states. In the eighteenth century, the commercial revolution transformed the oceans of the world into the most important space for global circulation. Nevertheless, this was a zone subtracted from the sovereign power of every single state, which posed the question of how the fundamental rules sustaining a market could be upheld. The question posed itself dramatically during the Golden Age of Piracy, when hundreds of multinational pirate crews, independent of any recognized state, provoked a crisis in international commerce. Universal Jurisdiction was introduced for the first time in modernity in order to confront this challenge. Oceanic space was conceptualized as a space for free trade, which does not belong to any single state but is instead common to all members of the international community. Since pirates violated private property and the international law meant to protect it they were considered hostis communis omnium, so that any state was entitled to punish them in the name of all. In early modernity, then, Universal Jurisdiction was an exceptional institution of international law, since it allowed a sovereign to sanction people that not only were outside its territory, but were not its subjects. And yet it seemed to complement rather than challenge the sovereignty of the modern state. In fact, following Schmitt, we could say that the jus publicum europaeum existed as the combination of an international order of territorial states (in Europe) and an oceanic zone (outside of it). Throughout this liquid frontier, increasingly traversed by a commerce that gave rise to contracts, the enforcement of international law depended on the exercise of Universal Jurisdiction.

In the nineteenth century, the classic pirate image was recuperated and transformed by European imperialist powers to serve as a fundamental conceptual tool in the colonization of much of the world. For instance, Malay communities resisting European commercial penetration were not recognized as sovereign members of the international community. Instead they were labelled as “pirate states” and persecuted as malevolent congregations of “enemies of humanity” united by a common hostility to civilization, peaceful labour and trade. Similarly, the sovereignty of the Barbary cities of Northern Africa was questioned by the European powers, who considered their corsairs to be nothing but pirates. The attacks on trade by Barbary corsairs were not accepted as legitimate acts of war performed by official agents of a sovereign state. Instead they were denounced as piracies, that is, as crimes against international law that required all civilized nations to join forces. The United States assaulted Tripoli in what would be its first undeclared war, while the British presented the bombing of Algiers as a humanitarian operation. Finally, the French conquest of Algiers was celebrated as necessary for the civilization of the inhabitants and for the extirpation of their piratical customs. In all of these examples, the concept of the pirate is part of the struggle to define the limits of the international community. Separating legitimate political communities, worthy of being part of the international system, from illegitimate communities of outlaw pirates is a political operation in itself, by which the limits of an international order are negotiated. What differentiates a “sovereign state” from a “pirate state”? Who is a legitimate privateer (acting as a representative of a political community) and who is a pirate (acting as a member of a piratical community)? Rather than simply complement the international state system, the exercise of Universal Jurisdiction seems to constitute it. It is always an Imperial power that decides to exercise Universal Jurisdiction against what it defines as a “piratical community,” thereby proving the latter’s exclusion from the international community. This is a lesson worth remembering today in relation to the increasing use of an analogous concept such as “rogue state.”

Finally, in the twentieth century, the introduction of international criminal law transformed the relation between sovereignty and Universal Jurisdiction. In the eighteenth century Universal Jurisdiction with respect to piracy reinforced an international order based on state sovereignty over enclosed territorial spaces, and in the nineteenth century the exercise of Universal Jurisdiction against sea rovers pertaining to various indigenous polities was the essential moment in which the latter’s membership in the international community was denied, in the twentieth century Universal Jurisdiction seems to undercut state sovereignty. It allows one sovereign to judge members of another recognized state according to its particular understanding of international law. In the most extreme and paradoxical case, foreshadowed by the proposed trial of Whilelm II of Germany, it may allow one sovereign member of the international community to judge another (Schmitt, The Nomos of the Earth 262-66). Consequently, the enemy of all is no longer someone outside the international community, nor is it someone who is part of a polity not accepted within the community of civilized nations; it is instead a member of the international community that must be forcefully cast out. In this case, Universal Jurisdiction is really an alternative to sovereignty, since it preludes a cosmopolitan imperial order in which those who were once recognized as absolute sovereigns are now subjected to judgments and sanctions grounded in international law. In short, the piracy analogy has underpinned the whole movement towards the twentieth century revival of Universal Jurisdiction, which today is posed as the foundation stone of a global police order.

Pirate Spectres in the Twentieth Century: International Criminal Law and the Globalization of Discriminatory Warfare

This final evolution in the meaning of the pirate figure in international law did not pass unnoticed by Schmitt. According to him, the pirate analogy was continuously evoked in the early twentieth century because it represented an ideal point of transition from the classic system of international law to a completely new one. Its significance is therefore infinitely multiplied. In the classic system of international law, as Schmitt remarked, the pirate concept was a unique anomaly that opened perspectives of Universal Jurisdiction, global policing, and criminalization of minor communities at the margin of the international state system. Nevertheless, it was an anomaly that for a long time remained marginal to the classic system of international law: its significance and raison d’être was localized in the oceans of the world and, especially, in the colonial world. From Schmitt’s perceptive but strictly Euro-centric perspective, the figure of the pirate initially appears a theoretical conundrum of little practical impact (Hesse). And yet, in the twentieth century, the concept of piracy becomes the device by which the discriminatory practices of global policing that characterized the colonial world are imported into Europe. The pirate image, in other words, is turned into a semiotic machine that can be projected onto different subjects of international law with the result of transferring them into an imperial legal system that is global, hierarchical, and thoroughly juridified.

The significance of the pirate analogy is brought to bear in the years immediately preceding the conflagration of the Second World War. In 1922 the idea that those responsible for fundamental violations of international law should be treated as denationalized pirates subject to Universal Jurisdiction was included in the Treaty of Washington, which laid down strict rules for the use of submarines and concluded that

[a]ny person in the service of any Power who shall violate any of those rules, whether or not such person is under orders of a governmental superior, shall be deemed to have violated the laws of war and shall be liable to trial and punishment as if for an act of piracy and may be brought to trial before the civil or military authorities of any power within the jurisdiction of which he may be found.
(Finch 633)

The provision was part of the new international order established by the League of Nations. Submarine crews accused of violating international law, even when they did so as official agents of a sovereign state, were considered pirates and were therefore subject to Universal Jurisdiction. The treaty affirmed the superiority of international law over all national laws, to the point that a company of soldiers – following the laws of their country – might appear as pirates in the eyes of international law. Although symptomatic, the Treaty had little practical impact in the following years. At least that was the case until 22 November 1936, when the cruiser Miguel de Cervantes was unexpectedly hit by a torpedo launched by an unidentified submarine. The military ship belonged to the government of the Spanish Republic, which at that time was embroiled in a bitter civil war. Now we know that the anonymous submarine belonged to the Italian Navy, which had begun its secret campaign in support of the coup led by Spain’s reactionary faction (Frank). In the following months, German and Italian submarines haunted the Mediterranean, trying to cut off all imports to the Spanish Republic. Careful to keep their identity unknown, they attacked a number of merchant ships of various nationalities without any warning or regard for the fate of passengers and crews.

In November 1937, France and Great Britain summoned an international conference to be held in Nyon with the aim of offering a united response to the rising threat to international security and Mediterranean commerce (Maiolo). The final arrangements judged the anonymous attacks to be “violations of the rules of international law.” Moreover, the illegal submarine assaults were proclaimed to “constitute acts contrary to the most elementary dictates of humanity, which should be justly treated as piracy.” As a result, the anonymous submarines were open to Universal Jurisdiction, although initially exercised only by France and Britain (Finch). The significance of this agreement lay less on its limited practical impact on the events surrounding the Spanish Civil War than in the coherent way in which it tried to apply the ideas of world order and international criminal law that had been proclaimed since the institution of the League of Nations almost twenty years before. It was immediately apparent to all the major actors involved that this was the first historical test of the cosmopolitan decline of international law that had emerged from the Paris Conference.

In the following months, a veritable intellectual battle took place around the use of the accusation of piracy in the Treaty of Nyon (Rech). At a superficial level, the issue was limited to a dispute regarding the legitimacy of such an accusation; at a deeper level, however, the question revolved around the use of the pirate analogy as a way to establish international criminal law. International legal theorists that remained faithful to the categories of classical international law accused the Nyon diplomats of being mistaken in their use of the “pirate concept” (Genet). They maintained that only private subjects that were motivated by desire for plunder and acted independently of any sovereign state could be accused of piracy. The cosmopolitan innovators were nevertheless eager to assimilate submarine warfare into piracy in order to affirm the superiority of international law over national legislation (Wilcox). If German and Italian submarines could be analogized to pirate ships, their crews could be apprehended and punished for crimes against international law, even if they were acting under the sovereign command of a nation-state. This would have created a precedent for international criminal law that was in accord with the international order established after the First World War. In the debate surrounding the question of piracy, two personalities stood out for clarity of vision and deep awareness of the fundamental issues at stake: one was Hersch Lauterpacht, who would become one of the leading international legal scholars of the twentieth century and an important source of inspiration for the United Nations; the other was Schmitt.

In his Insurrection et piraterie, Lauterpacht called for a wide application of Universal Jurisdiction against serious violators of international law. As noted by Walter Rech, “Lauterpacht ultimately aimed to extend the concept of piracy to public enemies in order to submit them to Universal Jurisdiction. He believed it useful that, at this early stage of international criminal law, international criminals be labeled as pirates and ‘enemies of mankind’ in order to legitimate their prosecution and punishment before the international community…. The radical outcome of this reasoning was that piracy jure gentium included any offence that states agreed to name so and to counter by means of Universal Jurisdiction” (4). Lauterpacht therefore suggested that by establishing an analogy with eighteenth century pirates, states could subject any offence against international law to Universal Jurisdiction, beginning with unrestricted submarine warfare. Grave violators of international law, if equated to pirates, would be “denationalized, deprived of the guarantees normally conceded to criminals by municipal law, and denied the status of lawful belligerents” (Rech 22).

Diametrically opposed to Lauterpacht’s cosmopolitan interpretation of international law, Schmitt was the first and most authoritative voice to speak out against the Nyon Conference. In The Concept of Piracy, he reasserted that originally, in the eighteenth century, only stateless individuals acting independently from any state were labeled as pirates. Since they were not recognized as legitimate political communities but only as multitudes of individuals driven by egotistic interests, they were denied the status of legitimate enemies and were instead considered hostis communis omnium, systemic enemies of the entire international system of states (352). Just as their actions were deemed apolitical, so too was their repression. In fact, according to Schmitt, since pirates are denationalized they can only be considered in two ways by international legal theory: either as outlaws banned from international law and cast into a space of exception radically void of legal rights and duties, or as criminals responsible for some grave offence against some kind of Universal or Natural law. In both cases, the suppression of pirates “is not a war, but either criminal justice, according to the English understanding, or a measure of international security, according to the Continental one” (The Concept of Piracy 352).

Schmitt, moreover, insisted that the classic, eighteenth century pirate figure had disappeared for almost a century, following the exponential increase in the powers of control that states wielded over the whole world. He remarked that in the classical tradition of international law “an essential trait of the modern concept of piracy was the fact that the pirate inhabited the empty space outside the state, he was existentially part of a reality radically alien to the modern state” (The Concept of Piracy 353). Then he wondered where the pirate “would find today that juridical empty space totally free from the state,” since modern technologies “enormously augment the capacity of control of modern states,” even at sea (The Concept of Piracy 352). In fact, he concluded that while the space occupied by the geometrical ordering of the state “the modern state is becoming ever more self-contained, in this sense ever more ‘total,’ and the empty space beyond the ken of states—on which the concept of piracy depended—has become ever smaller and less significant” (The Concept of Piracy 352). Schmitt thus explains the disappearance of the classic pirate figure from the stage of world history with the fact that no space can be considered a “juridical empty space.” Not only are there no more colonial zones “beyond the line” that are radically excepted from the rule of international law, but there is no space in which pirates can hope to operate truly independently from one or more official governments. Schmitt suggests that in the twentieth century it is hard to believe that a pirate crew may operate in the oceans of the world against the combined will of all states: either pirates are protected and supported by a state – in which case they are effectively state agents – or they are destined to be annihilated.

From this point of view, the portrayal of German and Italian submarines as pirates jure gentium represents a radical departure from classic international law. Schmitt insists that “given the equation between the state and the political,” actions directly performed by state agents – or even by revolutionaries whose aim is to become agents of a transformed state – would not be normally considered acts of piracy (The Concept of Piracy 353). Nevertheless, he does not criticize the decision reached in Nyon as simply “incorrect.” He does not consider the conflation of submarine warfare with “piratical action” to be a naïve mistake that might be corrected by the enlightened intervention of academic scholars well versed in the history of concepts. Instead, he looks at the “Conference on Piracy” as a political operation by which a number of actors tried to affirm a new international order, an order in which sovereign states could be held accountable for crimes against international law just as individuals are held accountable for crimes against national law. According to Schmitt, the contemporary resurgence of the pirate figure in international law, and the tendency to expand its meaning by analogy, “relate to the impulse to replace war with collective arrangements of various types (international police, criminal punishment, proscriptions and sanctions), and to create some power capable of acting ‘in the name of humanity’” (The Concept of Piracy 354).

Among the many critics of the Conference of Nyon, Schmitt was one of the few to argue that the alteration of the concept of piracy was a sign of epochal transformations in the world of public order. The Conference not only reiterated the classical conception of piracy, but added something radically new. For the first time, Universal Jurisdiction was enforced not against stateless individuals but against people acting under the authority of a sovereign European state. In this way, the absolute authority of a European state over its citizens was radically put into question. German and Italian submarine crews were thus cast in the same position as the Barbary Corsairs of the nineteenth century. They were essentially treated as the official agents of a “pirate state”:

The concept of piracy displaces the whole [submarine] question on a universalistic and ecumenical level. Indeed, the pirate is marked, more than anything else, by the fact that he is “denationalized” and abandoned by the state to which he presumably belongs. It represents thus a breach in the structure of international law, which is important also because it is susceptible to be remarkably enlarged by super-national and Universalistic interpretations. They make it possible to treat entire states and nations as pirates and to evoke anew the concept of the pirate state (itself a term thought for a century to have become totally obsolete) at a level of increased intensity.
(Writings on War 68)

In Schmitt’s view, by instituting forms of international policing against German and Italian submarines and treating them as piratical vessels, the signatories at Nyon had radicalized the trend toward a discriminating concept of war. One side claimed to represent humanity while the other was demonized and cast as an irredeemable enemy of humankind. If successful, this attempt would have also contributed to the construction of a global order in which war would be banned, only to be substituted by police operations, moral disqualifications, and economic sanctions suspended in a grey area between war and peace. The consequence, writes Schmitt, is that any person portrayed as a “pirate” would immediately “pass into that empty space foreign to the state that up to now was the fundamental premise for the very notion of piracy […]. The state would be forced to abandon the people held responsible” (The Concept of Piracy 354). Thus the concept of the pirate, which in the past presupposed a place subtracted from the law, now seemed to be capable of recreating that space, at least insofar as states were asked to withdraw their protection from citizens identified as hostes humani generis.[3] Thus, the outside of the international state order no longer was “beyond the line” but was within a global order that seemed to have no more stable, identifiable outside.

Conclusion

According to Marx, “the modern history of capital dates from the creation in the 16th century of a world-embracing commerce and a world-embracing market” (Capital, Vol. I, 347). According to Schmitt, “no sooner had the contours of the earth emerged as a real globe … than there arose a wholly new and hitherto unimaginable problem: the spatial ordering of the earth in terms of international law” (The Nomos of the Earth 86). In this article I have paid attention to this parallel coming-into-being of modern international law and the capitalist world market. In particular I have done this by following one of the many subtle threads that constitute The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, a thread that, incidentally, also appears in Marx’s reflections on the origins of capitalism and the world market. This is the history of piracy in the early modern period.

In the first part I argued, following Schmitt’s comments on the significance of the Treaty of Utrecht for the foundation of the maritime side of the first nomos of the earth, that the formation of a stable world market and the growth of a colonial economy based on the exploitation of slave labour necessitated the suppression of piracy and the normalization of the exceptional spaces beyond the line. Therefore, I looked at the ways in which modern international law introduced the application of Universal Jurisdiction against those who were branded as pirates and hostis humani generis. In the second part, I focused on how this form of exceptional violence against pirates and “enemies of humanity” was effectively employed in the nineteenth century to legitimate forms of imperial interventionism, as in the case of the British campaign against “Malay pirates.” Following Schmitt’s comments in The Großraum order of international law, I considered the origins of a form of route-thinking that justified the eradication of piracy as a necessary feature of security measures other-than-war meant to protect international commerce on a global scale. In this context, the nineteenth century witnesses the modern re-emergence of the concept of the “pirate state,” which plays an important role in British Imperial politics in the Indian Ocean, and particularly in the Malay world. But this is also the century in which the idea that entire communities could be branded as “piratical” – and therefore exposed to an imperial violence deemed to uphold the rule of international law – returns to haunt the Mediterranean world. In a typical post-colonial trajectory, the modern concept of the pirate as “enemy of humanity” – and of the “pirate state” as a community stripped of its rights and marginalized from the international state system – was initially deployed in the extra-European world, only to travel back to the European center.

This form of discourse further penetrated European history during the twentieth century and found its strongest expression in the accusation that Germany and its military officials acted in a piratical fashion. Also in this case, the discourse of piracy prepared the ground for the perpetuation of a grey area between war and peace, and for the international violence perpetrated in the name of global policing and international law. This was an evolution that would have been unthinkable a century before, but that was in fact the continuation of a much longer historical trajectory. In the twentieth century, the “pirate state” is not only outside Europe, in the form of an imagined predatory inclination characteristic of little known Asian people or “orientalized” Muslim cities. It is within Europe. Equally, the form of discriminatory warfare by which “pirate communities” have been persecuted throughout the world is no longer limited to the colonial world, but takes a central role in the history of Europe and the whole world. Thus, in the twentieth century exo-colonization leads to a form of endo-colonization as colonial figures, concepts, and categories cast their disquieting shadows on the metropole itself. What remains is a global market that asymptotically approaches a world unity it can never reach, and which is therefore perpetually haunted by the pirate exception. In the smooth space of circulation of the new capitalist nomos, war and peace gradually disappear into each other and result in a confused grey zone in which ill-defined security measures, counter-piracy and counter-terrorism operations, imperial interventions, global police actions against criminals and outlaws follow one another in an ever-expanding economy of violence that can never completely stop.

Notes

01. The contemporary attempts to equate terrorists to pirates in order to expose them to Universal Jurisdiction, together with the recent revival of asymmetrical counter-concepts such as “pirate state” and “rogue state,” has led a number of authors to consider once again the importance of the pirate figure in the history of international law. Some of them have also considered in some detail the Schmittian analysis of the pirate concept. In particular I may point to the contributions made by Rech, Bojanic, Ruschi, and Heller-Roazen. In the last five or six years, the resurgence of maritime plunder off the coast of Somalia – and the unparalleled coalition of navies involved in joint anti-piracy patrols around the Horn of Africa – has contributed to renewed efforts to understand the history of piracy and the way it continues to haunt our contemporary world. Looking at the way in which Imperial powers have often sanctioned military violence as a necessary security-measure against irrational pirates and “criminals against mankind,” I have recently tried to argue that it may be more correct to read both piratical plunder and the lethal security-measures used against it as symptomatic of a tendency towards escalating violence, characteristic of a global economy beset with a worldwide inequality (Policante).

02. What defines the difference between a “political community” and a “piratical community”? Is there a way to decide on the nature of a community that is scientific rather than political? In Theory of the Partisan, Schmitt holds strong to the position that pirates must be regarded as strictly non-political figures, since their “evil deeds” are “focused on booty” or, alternatively, since the irregularity of the pirate lacks any relation to regularity (14, 70). Nevertheless, his own theory of the “political,” renders his position on piracy untenable. If the political is “the utmost degree of intensity of a union or separation, of an association or dissociation,” and if the concepts of friend, enemy, and struggle acquire their “real meaning” from the fact that they all relate, in a specific sense, to the “real possibility of physical killing,” then pirate crews formed a unity that was deeply political rather than territorial (The Concept of the Political 26, 33). It may be argued that those pirate crews that fought and died to maintain a certain mode of existence, no matter what we may think of them, can hardly be defined as apolitical. More generally, as the history of European colonial strategies in the nineteenth century demonstrates, we must recognize that the depoliticization implicit in the accusation of piracy has often been employed as a political instrument for domination.

03. The pirate, both in its classical forms and in the multifarious forms it can take by analogy, is the paradigmatic denationalized individual. Accordingly, when in 1926 the League of Nations codified the status of pirates in international law it considered them “enemies of the human race and […] outside the law of peaceful people.” It stressed that they were to be considered denationalized subjects, stripped of all belongings: “By committing an act of piracy, the pirate and his vessel ipso facto lose the protection of the State whose flag they are otherwise entitled to fly. Persons engaged in the commissions of such crimes obviously cannot have been authorised by any civilised state to do so” (Matsuda 226).

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