Abstract
This article retraces the debate on the assimilation of submarine warfare with piracy that arose with the Washington Treaty of 1922 and culminated with the Nyon Agreement of 1937. It argues that the rejection of the superior orders defence at Nyon, together with the enforcement of anti-piracy international police measures, represented the first concrete breach of the international legal taboo that the public enemy cannot be criminalized. It also argues that the presence of an ‘enemy of mankind’, as denied by Carl Schmitt and asserted by Hersch Lauterpacht, played a significant role in this process by motivating international co-operation and justifying collective recourse to force. With reference to the current debate on terrorism, the article problematizes recent attempts to establish an analogy between historical pirates and contemporary terrorists.
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