Legitimate use of military force against state-sponsored - Air University

The hot pursuit must cease when the ship enters the territorial waters of another state.
(1958 Geneva Convention on the Law of the High Seas, art. 23, para. 1.) Bowett indicates that
there may be one possible exception to this rule “in that the pursuit of pirate vessels can be
continued within the territorial waters of another state if that state is not in a position to take up
the pursuit itself; even then it is suggested that the right of trial devolves on the territorial state
within whose waters capture is effected.” 85
Hot pursuit may only be effected by warship or military aircraft. (1958 Geneva
Convention on the Law of the High Seas, art. 23, para. 4.)
Piracy: What Is It?
In the late 1700s and early 1800s piracy, along with slave trading, was made an
international crime. Consequently, pirates became hostis humani generis (enemies of the human
race) subject to a universal criminal jurisdiction. Any nation could prosecute and punish piracy.
If a nation did not wish to prosecute, then it had an obligation to extradite pirates to states that
would. There were no safe havens. Contemporary international law (both custom and treaty)
firmly recognizes the continued application of this law today.
Although military force may properly be directed at pirates, the concept of piracy is a
very narrow one indeed. Originally it comprised the commission of the felony of robbery on the
high seas. By the twentieth century several additional requirements had arisen. 86 According to the
Geneva Convention on the Law of the High Seas, article 15, piracy requires all of the following:
1. The act must comprise illegal violence, detention or depredation.
2. The act must he committed for private end. It cannot be an act committed for
public purpose or for political reasons.
3. The act must occur on the high seas. It must not occur within the jurisdiction
of any state.
4. The act must take place from one private ship to another private ship. A ship in
this context includes seagoing vessels and aircraft. There must be two ships, one
from which the act is committed and the other which is the object of the illegal
act. If seizure of a ship occurs from within, then it may be viewed as a hijacking
but it is not piracy. If a public vessel is involved, the offense of piracy does not
arise either.
As should be evident from the foregoing analysis, the Jaw pertaining to piracy will not be
very useful in dealing with terrorism. The 1986 Achille Lauro incident was not piracy for two
reasons: it was not committed for private ends nor did it take place from one private ship to
another. In recognition of this fact, Italian authorities did not charge the Achille Lauro terrorists
with piracy. It charged them with murder, kidnapping, and various weapons offenses. 87
Interestingly enough the sinking of the Rainbow Warrior in New Zealand waters in 1985 was not
piracy either since the act against the Greenpeace vessel was carried out by French public
officials.