Excellent paper and I recommend checking out the whole thing with the provided link below. The section that I was particularly interested in is the International Law portion. I continue to hear arguments against the Letter of Marque, and no one really has a firm legal foundation for their argument. Or at least that’s what it seems to me. It is just assumed or the ‘opinio juris’ is that issuing Letters of Marque is a no go, and this paper clearly identifies the counter argument to this belief.
So that is why I posted this, and I hope that the legal counsels of countries that are looking for arguments for firing up their LoM or introducing legislation for such a thing, will have some resource to draw from. And what is really nice with legal papers like this, is they are heavily sourced and footnoted, just so they can back up their arguments. The footnotes alone are worth reading, just because they indicate how much the LoM has been talked about in legal circles. Lot’s of opinions, and this is a good collection of them.
In this particular section I posted below, the author identifies two reasons why states believe they are prohibited from privateering and issuing letters of marque, based on their interpretation of the Declaration of Paris and of International Law. One is opinio juris and the other is state practice that influences this interpretation.
State practice refers to “consistent conduct,” while opinio juris means States follow the rule out of “belief” that they are legally obligated to behave in a certain manner.
One of the reasons why I started the Letter of Marque category is to remind states of the practice of privateering, and to remind those who are establishing a legal basis for the act, that countries like the US have a history of consistent conduct when using privateers(it was used in multiple conflicts). And because the US is not a signatory of the Declaration of Paris, then that is interpreted as an ‘objection’ to banning the practice. This is key if you are to prove a state’s ‘belief’, and the fact that the LoM still exists in the US’s most cherished legal document called the Constitution, then we can certainly deduct the US ‘opinio juris’.
The author made this legal argument very well. So if the US could care less about the Declaration of Paris, then why do these other countries continue to hang on to a ‘belief’ that they have to abide by this document? Especially as their navies continue to be downgraded by reduced budgets, or those navies get over extended with other commitments. And especially as piracy is attacking the very life blood of these countries or commerce. National interest should be focused on doing whatever it takes to stop this, and the LoM is just one tool to help with that endeavor.
Finally, I would like to also point out the fact that this was written by a ‘naval Surface Warfare Officer’ and a ‘Judge Advocate student at the Naval Justice School in Newport, R.I’. That indicates to me a paper influenced by naval military history and thought, and the legalities behind implementing the LoM in modern times. It is also a paper that can show the way for how to implement the LoM to help in the war against today’s virus called piracy. Very cool and check it out. –Matt
Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates
Lieutenant Todd Emerson Hutchins
June 9, 2011
(this is just one section of the paper)
THE PRESENT STATE OF LETTERS OF MARQUE IN INTERNATIONAL LAW AND AMERICAN JURISPRUDENCE
Many contemporary international law scholars contend that the Paris Declaration “by formal accession or tacit acceptance by all the powers [has become] an established part of the general body of [customary] international law.”273 Proponents of a broad prohibition on privateering allege that customary international law has formed since the Paris Declaration. “[I]nternational custom, as evidence of a general practice accepted as law” is recognized as a source of international law under Article 38 of the International Court of Justice Statute.274 It “consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.”275 The two key elements are state practice and opinio juris.276 State practice refers to “consistent conduct,” while opinio juris means States follow the rule out of “belief” that they are legally obligated to behave in a certain manner.277 Admittedly, the distinction is frustrating “because it is difficult to determine what states believe as opposed to what they say.”278But, as expressed in Article 38, the normative force of customary law derives from voluntariness to be bound. Actions can only amount to custom if accompanied by an articulation of the legality of such an action. Following this approach, international courts have inferred customary norms based on instances of state action and acquiescence.279 Recently, in judicial and academic circles, this inductive approach has been replaced by a deductive method that primarily focuses on evidence of opinio juris, such as the States’ attitude towards international statements.280 In Military and Paramilitary Activities in and Against Nicaragua, the International Court of Justice derived custom without considering state practice when both countries expressed willingness to be bound to a norm by consenting to the text of the agreement.281 The Court noted that anorm could be considered customary international law, so long as conduct was generally consistent with state practice, and that instances of inconsistency with the practice had been treated as breaches of the rule rather than as generating a new law.282 However, this method has been criticized for failing to maintain the importance of sovereignty and voluntariness to be bound as the basis for customary law. Top scholars lament that what most “perversely persist in calling customary international law is not only not customary law: it does not even faintly resemble a customary law.”283 They argue that modern interpretation of customary international law cannot constitute binding law because it is not derived from implied individual consent or general acceptance.284 These concepts of how customary international law is formed are important in understanding that letters of marque remain valid under international law. But, one need not subscribe to a specific view of customary law formation to see that custom has not been formed.
To support their claims that letters of marque violate customary international law, critics cite British and French decisions not to issue letters of marque against China in 1860 (even though China was not a signatory to the Paris Declaration); Chilean and Peruvian decisions not to issue letters of marque against Spain (again not a signatory); and the French decision not to issue letters of marque against Prussia as indicating that customary law has developed beyond the requirements of the Paris Declaration.285 They also point to the fact that the United States concluded agreements with France, Holland, Sweden, Prussia, Great Britain, Spain, and Colombia, which forbid U.S. citizens from accepting letters of marque from a third state, as an indication that America sought to limit privateering.286 However, other scholars counter that customary international law on privateering has not been established. They argue that nations’ decisions not to issue letters of marque after the Paris Declaration were due to practical considerations, rather than to a sense of obligation to a supposed international norm.287 Even under the modern approach, although letters of marque have not been issued since World War II (perhaps evidence of state practice), there is no undisputed evidence of opinio juris that the Paris Declaration signatories or the United States universally banned the practice. Claims that the Paris Declaration constitutes the basis for a general customary international law prohibition of privateers conflict with the text and purpose of the Declaration, and with universally accepted methods of treaty interpretation. First, the Declaration explicitly states that it was applicable only between signatories engaged in war against each other.288 It does not prevent the use of letters of marque among nonsignatories, nor does it prohibit signatories from using letters of marque against nonsignatories. This pact is “not binding upon [powers, like the United States], which have not acceded it.”289 Because the Paris Declaration does not impose a universal ban, the existence of a custom cannot derive from the Declaration itself, but only from subsequent practice or, under the modern test, opinio juris in the form of statements of belief.
Second, in subsequent wars, privateers were employed—even by Paris Declaration signatories.290 This suggests that practice was neither widespread nor universal. Subsequent practice by the United States and other nations, as evidenced during the Civil War, the Spanish-American War, and the World Wars, reflects the Paris Declaration’s narrow scope. When governments publicly issued letters of marque after the Paris Declaration, the international community did not lodge any objection against the practice.291 Finally, the widespread use of private military contractors, even by signatories of the Paris Declaration, indicates a broadening acceptance of private actors in warfare, in contrast with the narrative of an evolving trend favoring more restrictions on the use of private actors in war on which prohibitionists rely. Additionally, the U.S. failure to issue letters of marque in conflicts after World War II should not be attributed to an observance of international norms. The United States may have chosen not to issue letters of marque in the Vietnam, Korea, and Gulf conflicts because Congress never declared war.292 This suggests that the conditions necessary for the issuance of letters of marque under domestic law did not arise. The international community should not construe the lack of letters of marque in these conflicts as a basis for a customary obligation.
Alternatively, even if a prohibition on privateers had become part of customary international law, the United States would not be bound due to its persistent objection to the Paris Declaration. Congress’s action authorizing the president to issue letters of marque immediately after the Paris Declaration must be interpreted as an objection. This objection, along with subsequent practice, plays an important role in rebuffing contemporary claims that customary international law has formed against the use of privateers and that the United States is bound by it. On the first point, the American rejection of the Paris Declaration suggests that it had not been universally accepted. On the second point, even if custom had formed against the use of letters of marque, the United States prudently maintained the right to use letters of marque as a persistent objector.293 Under international law, a nation is not bound by a custom if it immediately and consistently objects, as the United States has with letters of marque.294 Consequently, international law cannot prohibit the United States from issuing letters of marque…….Lieutenant Todd Hutchins is a naval Surface Warfare Officer and is currently a Judge Advocate student at the Naval Justice School in Newport, R.I.; B.A. University of Southern
California; Masters of Planning, USC School of Policy Planning and Development; J.D. University of California, Berkeley School of Law. This Comment benefited from workshops, presentations, and lectures hosted by the American Society of International Law, the California Law of the Sea Institute, the International Tribunal for the Law of the Sea, and the Rhodes Academy for Ocean Law and Policy. Special thanks to Professors John Yoo, Harry Scheiber, and David Caron for their insight and guidance, as well as Tim Salomon of Bucerius Law School for outstanding critique which strengthened the paper. Genuine appreciation to Mark Evan at the Naval History & Heritage Command, the American Aviation Historical Society, and the University of Akron Historical Archives for excellent research support. The views expressed in this article are those of the author and do not reflect the official policy or position of the U.S. Navy, the Department of Defense, or the U.S. Government.
Download the PDF here.