This quotation points out the distinction between "private ends" and absence of authority or endorsement from any State. The two are not synonymous, and the distinction is crucial when characterizing the conduct of insurgents. It would be unfair to hold the government of their target State responsible for the actions of those rebelling against it; so, the insurgents' conduct is without any State authority or endorsement, at least by the State whose government they seek to change or cast off. Yet, the conduct of insurgents is normally calculated to further their political objectives, not commonly thought of as "private ends."

The Harvard Research Draft Convention adds to its definition of violent acts and depredations committed both outside the jurisdiction of any State and within the territory of a State by descent from the sea this limiting proviso:

[T]hat the purposes of the persons in dominant control are not definitely limited to committing such acts against ships or territory subject to the jurisdiction of the state to which the ship belongs.35

The Commentary on articles 3 and 4 of the Harvard Research Draft Convention reports opposition to bringing within the universal jurisdiction under the international law of piracy offenses against the interests of only a single State and an insistence on some international factual elements.36 Of all ships devoted to attacking solely the territory and ships of one State, however, the language drafted excludes from universal jurisdiction only those ships sailing under the flag of the State against which they are rebelling. If insurgents sail under a foreign flag, as did the Lyla Express and Johnny Express, they could still be characterized as pirates unless excluded by the separate criterion of "private ends" in article 3.

The presence of foreign documents on the marauding vessel does add an international element, but not one which is relevant to the purposes for which the international law of piracy was evolved. Use of a foreign flag by an insurgent vessel would not appear to threaten States other than the target of the rebellion, and therefore would not justify its inclusion within the international law of piracy on the basis of foreign documents.

The Harvard Research language regarding limitation of acts to the ships or territory of the State to which the pirate vessel belongs was not duplicated in the High Seas Convention.37 Rather the "private ends" criterion was relied upon to exclude insurgents from its scope. The International Law Commission found that:

35. Article 4, para. 1, HARVARD RESEARCH 743-44. 36. HARVARD RESEARCH 807, 823.

37. While the International Law Commission did disagree with the Harvard Research on this and other matters, it referred to that research generally as being of "great assistance," and "in general, the Commission was able to endorse the findings of that research." ILC Commentary on art. 38 of the 1956 draft, quoted at 4 WHITEMAN 657.

[T]he questions arising in connexion with acts committed by warships in the service of rival governments engaged in civil war are too complex to make it seem necessary for the safeguarding of order and security on the high seas that all States should have a general right, let alone an obligation, to repress as piracy acts perpetrated by the warships of the parties in question.38

The International Law Commission's conclusion is interesting because the safety of international maritime commerce was directly involved with the interests of more than one State being affected.39 It would appear to follow, a fortiori, that attacks upon a State by insurgent vessels for political objectives, not affecting the commercial interests of other States, are not within the scope of piracy as included within the High Seas Convention.40

38. ILC Commentary on article 39 of the 1956 draft, quoted at 4 WHITEMAN 658-59. Several Communist States offered amendments inspired by several incidents in which the Government of the Republic of China stopped merchant ships of various nations sailing for ports of the People's Democratic Republic of China, and brought the ships into Taiwan ports for condemnation of their cargoes as contraband. The language quoted rejects those amendments. MCDOUGAL & BURKE 816. 39. A countervailing consideration is that the Republic of China exists as an organized political body which can be held responsible for any acts in violation of international law.

40. Since Cuba is not a member of the High Seas Convention, this conclusion is relevant only to the extent that the High Seas Convention is declarative of existing customary international law.

It will be noted that the textual argument is the "single state" argument used by the Harvard Research to exclude insurgents from piracy doctrine absent the unnecessary restriction that the insurgent vessel fly the flag of the State against which they are rebelling. A different argument in favor of excluding insurgents from the scope of piracy doctrine because they may be an embryo State is advanced by Hall. He also shows the irrelevancy of a question frequently bothering writers: how can insurgents avoid characterization as pirates when they have not yet won recognition as belligerents.

"It is generally said that one of the conditions of the piratical character of an act is the absence of authority to do it derived from any sovereign state. Different language would no doubt have been employed if sufficient attention had been earlier given to societies actually independent, though not recognized as sovereign. Most acts which become piratical through being done without due authority are acts of war when done under the authority of a state; and as societies to which belligerent rights have been granted have equal rights with permanently established states for the purposes of war, it need scarcely be said that all acts authorized by them are done under due authority. Whether the same can be said of acts done under the authority of politically organized societies, which are not yet recognized as belligerent, may appear more open to argument, though the conclusion can hardly be different. Such societies being unknown to international law, they have no power to give a legal character to acts of any kind; at first sight, consequently, acts of war done under their authority must seem to be at least technically piratical. But it is by the performance of such acts that independence is established and its existence proved; when done with a certain amount of success, they justify the concession of belligerent privileges; when so done as to show that independence will be permanent, they compel recognition as a state. It is impossible to pretend that acts which are done for the purpose of setting up a legal state of things, and which may in fact have already succeeded in setting it up, are

Corroborating the above conclusion is the case of the Santa Maria.41 In 1961 a group headed by Captain Galvao seized the Portuguese liner Santa Maria on the high seas through violence resulting in the death of one of the ship's officers. Captain Galvao announced the seizure was "the first step aimed at overthrowing the Dictator Salazar of Portugal." The United States and the United Kingdom participated in the search for the vessel. Despite initial statements indicating this was a case of piracy, after the discovery the vessel and her captors were treated as political refugees instead of pirates.

Further support for not treating this case of political violence as piracy came from the fact that the vessel was seized by a group of embarked passengers rather than from another ship or aircraft. The latter is required for piracy under the High Seas Convention.42

G. ENFORCEMENT MEASURES

1. Competence to Seize Pirate Vessel and Arrest Personnel

All States have competence to seize pirate ships and personnel.43 This is one of the exceptions to the general rule that, on the high seas, ships are subject only to the exclusive jurisdiction of their flag State.44 The policy interests supporting this common authority were discussed earlier.45

piratical for want of external recognition of their validity, when the grant of that recognition is properly dependent in the main upon the existence of such a condition of affairs as can only be produced by the very acts in question. It would be absurd to require a claimant to justify his claim by doing acts for which he may be hanged." HALL, INTERNATIONAL LAW 233, quoted in II MOORE § 332, at 1103.

41. The following description is taken from the accounts of the incident in MCDOUGAL & BURKE 821-23 and Green, The Santa Maria: Rebels or Pirates, 37 BRIT. Y.B. INT'L L. 496 (1962).

42. High Seas Convention art. 15; 4 WHITEMAN 665–66.

43. Article 6, HARVARD RESEARCH 744; High Seas Conv. art. 19.

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44. Art. 6, High Seas Convention: "1. Ships shall sail under the flag of one state only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. . . .' Art. 22, High Seas Convention: "1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:

(a) That the ship is engaged in piracy; or

(b) That the ship is engaged in the slave trade; or

(c) That, though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship."

The failure of article 22 to include all circumstances under customary international law in which States other than the flag State may exercise some right of visit and search over a foreign vessel on the high seas, explained by MCDOUGAL & BURKE at 889-93, does not affect the basic point here, that piracy is one of the few exceptions to the exclusive competence of the flag State.

45. See text accompanying note 21.

2. Permissible Areas of Seizure

A pirate on the high seas may be seized by any State.46 Opinion differs on whether a State may capture a pirate in the territorial waters of another State. Both the Harvard Research and the League of Nations Sub-Committee recommended a compromise position allowing capture in the territorial waters of another State if pursuit began on the high seas or in the captor's own territorial waters. However, the capturing State could prosecute the pirates only if the territorial State declined to do so.47 The High Seas Convention grants no authority to seize a pirate ship in the territorial waters of another State.48 McDougal and Burke find the Harvard Research approach better calculated to repress piracy than the High Seas Convention but find the need to seize pirate ships sufficiently infrequent that no significant problem is raised by the more limited High Seas Convention.49

While Cuba seized the Johnny Express in the territorial waters of the Bahamas, we do not know whether the pursuit started on the high seas or in the Bahama waters. Authority to seize a pirate ship in foreign territorial waters, following hot pursuit from the high seas, would appear to be a valuable adjunct to the common authority to seize. If it were necessary to wait for notification to and action by the territorial State, there may be ample opportunity for the pirate to slip away. It should be remembered that the pirate is considered the enemy of the territorial State as well, and that all States have a duty to assist in his repression.

3. Methods of Seizure

a. Visit and Search

The common authority of all States to seize a pirate ship is exercised through the right of visit and search-piracy being one of the few instances in which this right exists on behalf of the warships of one State over ships flying foreign flags.50

46. Article 6, HARVARD RESEARCH 744; article 19, High Seas Conv. The Harvard Research language states: "not in the jurisdiction of other States," permitting capture of a pirate in the captor's own territorial waters. The High Seas Convention language states, "outside the jurisdiction of any State," which excludes the captor's own territorial waters from the areas in which the competence granted by the convention may be exercised. Within his own territorial waters, the captor State can rely upon its municipal law for authority to seize the pirate ship and its personnel.

47. Article 7, HARVARD RESEARCH 744; II HACKWORTH § 203, at 683.

48. Article 19, High Seas Conv.; ILC Commentary on art. 43 of 1956 draft. Quoted at 4 WHITEMAN 660.

49. MCDOUGAL & BURKE 877-78.

50. Supra notes 43 and 44.

b. Type of Ship

Those ships which may exercise the right of visit and search and subsequent seizure on behalf of a State are limited generally to ships authorized to act on behalf of a State. The Harvard Research states only that requirement without further specification, leaving it to the internal law of the State to determine which agencies are authorized to act on its behalf.51 The High Seas Convention uses more restrictive language but achieves much the same result.

A seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government service authorized to that effect."

Requiring State authorization before a ship can act on its behalf in seizing a pirate ship furthers the goal of limiting private violence on the high seas. There is no issue in our case because the two vessels were seized by Cuban Navy gunboats.

4. Competence to Adjudicate Status of Ships and Personnel Seized

a. When Seized in Foreign Territorial Waters

As a general rule, the State which seizes the pirate ship and its personnel has competence to dispose of the property and ship and prosecute the personnel.53 Our case is the exception, however, since the seizure was carried out in the territorial waters of another State. No tender of ships and personnel was made to the Bahamas authorities as required by article 7(2) of the Harvard Research Draft Convention.54 The High Seas Convention does not grant authority to make such a seizure in the territorial waters of another State. Our question is whether there is competence to adjudicate in the courts of the seizing State when the seizure occurred in the territorial waters of another State.

The Harvard Research Draft Convention may be interpreted in two ways. First, article 7 may be interpreted as requiring a tender and decline by the

51. Art. 12, HARVARD RESEARCH 846.

52. High Seas Conv. art. 21.

53. "1. A state, in accordance with its law, may dispose of ships and other property lawfully seized because of piracy." Art. 13, HARVARD RESEARCH 745. “1. A state which has lawful custody of a person suspected of piracy may prosecute and punish that person." Art. 14, HARVARD RESEARCH 745. "... The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith." Art. 19, High Seas Convention.

54. "2. If a seizure is made within the territorial jurisdiction of another state in accordance with the provisions of paragraph 1 of this article, the state making the seizure shall give prompt notice to the other state, and shall tender possession of the ship and other things seized and the custody of persons seized." Art. 7, para. 2, HARVARD RESEARCH 744.