A big thanks to Cannoneer #4 for posting this in the comments of yesterday’s post on piracy. Other folks sent me the same link to this publication and I was very interested in what Theodore Richard had to say. To say the least, I was impressed and this paper was well researched and footnoted. (as a good legal type paper should be)
This was also published in a contract law journal, which tells me that the guy writing this believed it could survive the scrutiny of his peers. This should be of particular interest to any legal specialists in other countries who would like a source to draw from for exploring how the LoM could help your nation.
What surprised me is the listing of all the companies that were involved with maritime security in Somalia. I learned a bunch, and he started out with Hart’s operations there. Theodore talked about the various politics and financing issues that either contributed to the success or failure of these companies, and I found that to be very informative.
The author also went over how a modern day LoM would look, and all the various uses for the LoM. He does a great job in calling upon historical reference to support his modern day applications, and what kind of tweaking it would take to make it work.
Probably my favorite part of the paper is the way he was able to confront the Max Weber argument, and define exactly how the LoM fits into that discussion.
The other part of this paper that he goes over, that I continue to forget to talk about in my discussions about the LoM, is the license and bonding aspect of modern day privateering. The author uses the example of America’s modern day bail enforcement officers or ‘bounty hunters’, and discusses how this could be a model. The point of a license is to ensure you know what you are doing, and bonding puts your money where your mouth is. In this case, a surety bond industry for privateers would be needed if the start up company did not have it’s own financing for such a thing. It would also depend upon what the congress wants, because they are the ones who issue the LoM, pay the bounties and run the Prize Courts. Let me know what you guys think and check it out. –Matt
Edit: 5/31/2010 -David Isenberg posted a deal that discussed this paper and how the LoM could be used for today’s issues with piracy. Check it out here.
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Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy
Theodore Richard
Public Contract Law Journal, Vol. 39, No. 3, pp. 411-464, Spring 2010
Abstract:
This article examines how letters of marque could be revived to effectively empower the private sector to assist governments in dealing with modern piracy. It examines Somali piracy, the development and different uses of letters of marque and privateers, the current legal framework relating to piracy, Somalia’s decade-long experience with maritime security contractors, the use of maritime contractors outside of Somalia, and addresses concerns involving private maritime security. The article concludes that unless governments provide security everywhere and all the time, the market will demand private security. Governments can effectively manage and control this security in the maritime environment without inventing a new legal scheme out of whole cloth: letters of marque can provide authorization, regulation, and accountability.
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(From the paper)
As privateering matured, privateers faced signi?cant regulations, including highly detailed and precise requirements for legal captures that were, in turn, subject to rigid enforcement in specialized prize courts. Serious transgressions, like murder, rape, or mutiny, could result in imprisonment or death.
For example, a British privateer captain was executed for robbery constituting piracy in 1759. Improper privateer conduct resulted in the loss of the commission, the bond, and, if applicable, the prize. Thus most British and American privateers in the eighteen and nineteenth centuries were neither dishonorable nor piratical. Importantly privateers played a signi?cant role in ending piracy.
*****
The western world’s “Golden Age of Piracy” began in 1715, following the 1713 Peace of Utrecht, which brought an end to a decade of European warfare involving all the continent’s major powers. The upsurge in piracy was caused by the unemployment of signi?cant numbers of sailors: the English navy alone discharged 54,000 sailors and privateers could no longer obtain commissions to attack European commerce. This “Golden Age of Piracy” peaked around 1720 and reached an abrupt end in 1725. More than anyone else, the man responsible for bringing this age of piracy to an end was Woodes Rogers.
In an early example of the “revolving door” between the private and public sector employment, Rogers was a privateer before being appointed as the Governor of Bahamas, then the pirate capital of the Americas. In order to reform this territory, Rogers dispersed the pirates of the Caribbean with privateers.
The piracy problem during this era was solved through a combination of tactics:
(1) the British Parliament passed legislation allowing overseas piracy trials, rather than requiring suspected pirates to be brought to England;
(2) captured pirates were publicly tried and executed;
(3) pirates who turned themselves in were pardoned;
(4) naval patrols were increased;
(5) rewards or bounties were promised for the capture of pirates; and
(6) private ships were licensed to attack and capture pirates.
Of these methods, the last is the most relevant here.
Link to paper here.
This post has been linked for the HOT5 Daily 4/18/2010, at The Unreligious Right
Comment by UNRR — Sunday, April 18, 2010 @ 12:34 AM
Don, fantastic post and thanks for adding to the stew of ideas on this. Although I would like to correct one issue you brought up with Treaty of Paris. The US is not a signatory to the portion of the treaty that discusses maritime law. Here is the excerpt for the readership.
If this is wrong, please correct me so we can get this right. Thanks again. -matt
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History
On the conclusion of the Treaty of Paris, which was signed on 30 March 1856, putting an end to the Crimean War (1853-1856), the plenipotentiaries also signed this declaration at the suggestion of Count Walewski, the French plenipotentiary.[3] The declaration is the outcome of a modus vivendi signed between France and the United Kingdom in 1854, originally intended for the Crimean War. These two powers had agreed that they would not seize enemy goods on neutral vessels nor neutral goods on enemy vessels. The belligerents had also agreed that they would not issue letters of marque, which they had not done during the war. At the close of this war the principal states of Europe concluded that private armed ships, maintained at private cost for private gain, and often necessarily for a long time beyond the reach of the regular naval force of the state, could not be kept under proper control. The Declaration of Paris confirmed these rules and added to them the principle that blockades, in order to be obligatory, must be effective.
The Declaration did not as such make privateers into a new category of international criminals, but rather made it a treaty obligation of states that they refrain from commissioning privateers in the first place. Most states normally treated foreign privateers as pirates in any case.
Numerous states ratified this declaration, including the United Kingdom, Austria-Hungary, France, Prussia, Russia, Sardinia and the Ottoman Empire. This treaty established maritime law among the major powers of Europe. It represented the first multilateral attempt to codify in times of peace rules which were to be applicable in the event of war. This declaration bound only its signatories when at war with each other, and lets them free to use privateers when at war with other states.
The United States, which aimed at a complete exemption of non-contraband private property from capture at sea, withheld its formal adherence in 1857 when its "Marcy" amendment was not accepted by all powers, chiefly as a result of British influence. The US was also keen on maintaining privateers. It argued that, not possessing a great navy, it would be obliged in time of war to rely largely upon merchant ships commissioned as war vessels, and that therefore the abolition of privateering would be entirely in favour of European powers, whose large navies rendered them practically independent of such aid. All other maritime states acceded to the declaration except Spain, Mexico and Venezuela.
In 1861, during the American Civil War, the United States declared that it would respect the principles of the declaration during hostilities. The same was done during the Spanish-American War of 1898, when the United States Government affirmed its policy of conducting hostilities in conformity with the dispositions of the declaration. Spain too, though not a party, declared its intention to abide by the declaration, but it expressly gave notice that it reserved its right to issue letters of marque. At the same time both belligerents organized services of auxiliary cruisers composed of merchant ships under the command of naval officers.
Some of the questions raised by this declaration were clarified by the 1907 Hague Convention.
The rules contained in this declaration later came to be considered as part of the general principles of international law and the United States too, though not formally a party, abides by provisions.
http://en.wikipedia.org/wiki/Paris_Declaration_Re…
Comment by headjundi — Sunday, April 18, 2010 @ 4:17 PM
Mr. Richard's article does discuss the 1856 Paris Declaration Respecting Maritime Law (“Paris Declaration”) over several pages — from pp. 428-30. He notes that the declaration never defined "privateering" and that nations did not believe the contracting of civilian vessels as naval adjuncts during wartime had been prohibited.
Comment by Ray — Monday, April 19, 2010 @ 11:21 AM
Ray,
Thanks for pointing that out as well. Theodore did go over the treaty. -matt
Comment by headjundi — Monday, April 19, 2010 @ 8:53 PM
You know, Australia might be a country that could issue legal LoMs, since we don't appear to have the will to do it in the USA (ie, Ron Paul's attempt to address Somali pirates in this matter). Of course, Australia might have to specifically refuse to extradite Cyber Privateers who sufficiently irritate international banking by looting terrorist/criminal accounts.
Comment by Rick Bennett — Tuesday, October 26, 2010 @ 6:34 AM
Rick,
Glad to see you on the blog and it looks like we share the same interest in the Letter of Marque and privateering? Here is a post I did on cyber privateering and I would love to hear your thoughts on the matter?
Also, I am seriously promoting the LoM concept here at this blog, and have mixed it up in many of my posts. Just click the 'letter of marque' category to the right, and you will see what I mean. Take care and thanks for the input.
https://feraljundi.com/2010/05/22/building-snowmob…
Comment by headjundi — Tuesday, October 26, 2010 @ 7:13 AM