The Concept of Piracy (1937)

Abstract

The Concept of Piracy (1937) Carl Schmitt (bio) The Nyon Conference, which convened on September 11, 1937, has been dubbed the piracy or antipiracy conference; in the official text of their signed resolution of September 14, the nine participating powers announced that the sinking of commercial shipping by submarines, in violation of the rules of Part IV of the London Naval Treaty of April 22, 1930, should be treated as “acts of piracy.” According to the old formula—one often repeated at the conference—the pirate is defined as the “enemy of mankind,” hostis generi humanis. This label was once justified in terms of his “general hostility,” because his predatory aims affected all states indiscriminately, so that each state could disarm him. “The consensual enemy,” as Karl Bindung puts it, “must give rise to consensual opposition.” According to the development of continental international law so far, it was essential to the concept of piracy that it took place in an empty space in which the state was completely absent. From this point of view, a whole sequence of negative conceptual markers was incisively and logically worked out. It was not only that the free sea—understood as a state-free space untouched by any state’s territorial sovereignty—was piracy’s stage. It was also considered to be essential that the perpetrator, either as precondition or as consequence of his act, became “denationalized,” i.e., that he was not considered a member of any state or authorized by any state, even if he did not become stateless. Further, the pirate’s attack was not directed against a specific state, but must (at least hypothetically) be directed against all states, the goal being private enrichment, out of a so-called animus furandi, and so forth. As a result, given this equation between the state and the political, piracy was understood as a characteristically unpolitical act. The best German monograph on the subject by Paul Stiel, Der Tatbestand der Piraterie [nach geltendem Völkerrecht unter vergleichender Berücksichtigung der Landesgesetzgebungen (1905)], concludes in agreement with Hall, Rougier, and Bishop, that “an undertaking that aims at political ends is not piracy.” From which it directly follows that the actions of revolutionary parties—even when they are committed against authorities who do not recognize them as belligerents—cannot be classified as piracy, “as long as the political end of the measures they undertake is evident” (p. 80). Correspondingly, action against pirates is unpolitical as well. It is not a war, but either criminal justice (according to the English view) or a measure of international maritime police power (according to the Continental construction). Ancient, medieval, and modern conceptual elements are mixed together in this entire controversial theory of piracy; and there is the danger that the reality of the current state of affairs remains hidden behind deceptive formulas and conceptual residues. We are speaking, after all, not of the pirates of antiquity or the Middle Ages, [End Page 27] but those of the Mediterranean Sea today. Given the current world order of states, the essentially non-state, unpolitical character of piracy immediately becomes problematic. In particular, whoever calls to mind the political situation of the Mediterranean must immediately face the question of where exactly that unpolitical buccaneer could find a legally empty space, free of any state, in which he could ply his trade. Fortunately, the “robber states” and the Barbary States no longer exist; they have disappeared since the conquest of Algeria over a hundred years ago. Because of their political character, revolutionary parties are, as mentioned, not supposed to count as pirates. The modern technology of maritime transportation and armaments has created new possibilities for the use of force on the high seas; at the same time, it has replaced inert, feudal structures with the tightly centralized organizations of the modern state, whose mechanisms of control it has enormously expanded. One need merely compare the technical means of a modern police force with those of its eighteenth- or even nineteenth-century predecessor to understand what is meant here. Through these technical means the modern state is becoming ever more self-contained, in this sense ever more “total,” and the empty space beyond the...