Re Piracy Jure Gentium
| Jurisdiction | UK Non-devolved |
| Judgment Date | 26 July 1934 |
| Date | 26 July 1934 |
| Docket Number | Case No. 89 |
| Court | Privy Council |
(Viscount Sankey, L.C.; Lords Atkin, Tomlin, Macmillan, and Wright.)
Piracy jure gentium — Frustrated Attempt to Rob — Whether Actual Robbery Essential — Piracy in Civil Law — Piracy in Common Law — International Law Crimes and Jurisdiction — Sources of International Law.
The Facts.—“On January 4, 1931, on the high seas, a number of armed Chinese nationals were cruising in two Chinese junks. They pursued and attacked a cargo junk which was also a Chinese vessel. The master of the cargo junk attempted to escape, and a chase ensued during which the pursuers came within 200 yards of the cargo junk. The chase continued for over half an hour, during which shots were fired by the attacking party, and while it was still proceeding, the steamship HangSang approached and subsequently also the steamship Shui Chow. The officers in command of these merchant vessels intervened and through their agency, the pursuers were eventually taken in charge by the Commander of H.M.S. Somme, which had arrived in consequence of a report made by wireless. They were brought as prisoners to Hong Kong and indicted for the crime of piracy. The jury found them guilty subject to the following question of law: ‘Whether an accused person may be convicted of piracy in circumstances where no robbery has occurred’. The Full Court of Hong Kong on further consideration came to the conclusion that robbery was necessary to support a conviction of piracy and in the result the accused were acquitted.
“The decision of the Hong Kong Court was final and the present proceedings are in no sense an appeal from that Court, whose judgment stands.
“Upon November 10, 1933, His Majesty in Council made the following Order: ‘The question whether actual robbery is an essential element of the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium, is referred to the Judicial Committee for their hearing and consideration’.”
Held (per Viscount Sankey, L.C.): “Actual robbery is not an essential element in the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium”.
I. Sources of International Law.—“In considering such a question, the Board is permitted to consult and act upon a wider range of authority than that which it examines when the question for determination is one of municipal law only. The sources from which international law is derived include treaties between various States, State papers, municipal Acts of Parliament and the decisions of municipal Courts and last, but not least, opinions of jurisconsults or text-book writers. It is a process of inductive reasoning. It must be remembered that in the strict sense international law still has no legislature, no executive and no judiciary, though in a certain sense there is now an international judiciary in the Hague Tribunal and attempts are being made by the League of Nations to draw up codes of international law. Speaking generally, in embarking upon international law, their Lordships are to a great extent in the realm of opinion, and in estimating the value of opinion it is permissible not only to seek a consensus of views, but to select what appear to be the better views upon the question.”
II. Definitions of Piracy.—“With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed, it is also recognized 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: Grotius (1583–1645), ‘De Jure Belli ac Pacis’, vol. 2, cap. 20, § 40.
“Their Lordships have been referred to a very large number of Acts of Parliament, decided cases and opinions of jurisconsults or text-book writers, some of which lend colour to the contention that robbery is a necessary ingredient of piracy, others to the opposite contention. Their Lordships do not propose to comment on all of them, but it will be convenient to begin the present discussion by referring to the Act of Henry VIII., cap. 15, in the year 1536, which was entitled ‘An Act for the punishment of pirates and robbers of the sea’. Before that Act, the jurisdiction over pirates was exercised by the High Court of Admiralty in England and that Court administered the civil law. The civilians, however, had found themselves handicapped by some of their canons of procedure, as for example, that a man could not be found guilty unless he either confessed or was proved guilty by two witnesses. The Act recites the deficiency of the Admiralty jurisdiction in the trial of offences according to the civil law and after referring to ‘all treasons, felonies, robberies, murders and confederacies hereafter to be committed in or upon the sea, etc.’ (it is not necessary to set out the whole of it), proceeds to enact that all offences committed at sea, etc., shall be tried according to the common law under the King's Commission, to be directed to the Admiralty and others within the realm.
“Many of the doubts and difficulties inherent in considering subsequent definitions of piracy are probably due to a misapprehension of that Act. It has been thought, for example, that nothing could be piracy unless it amounted to a felony as distinguished from a misdemeanour, and that, as an attempt to commit a crime was only a misdemeanour at common law, an attempt to commit piracy could not constitute the crime of piracy, because piracy is a felony as distinguished from a misdemeanour. This mistaken idea proceeds upon a misapprehension of the Act. In Coke's (1552–1634) Institutes, part 3, ed. 1809, after a discussion on felonies, robberies, murders and confederacies committed in or upon the sea, it is stated (p. 112) that the statute did not alter the offence of piracy or make the offence felony, but ‘leaveth the offence as it was before this Act, viz., felony only by the civil law, but giveth a mean of triall by the common law and inflicteth such pains of...
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