Pirates and the Law

Aargh! Shiver me timbers! Walk the plank! These are just a few of the iconic catchphrases we’ve attributed to the thieves of the sea. We’ve mythologized pirates so much that it can be easy to forget that they actually do still exist in the modern day, although it must be noted, in not very significant numbers. How does modern piracy fit into the modern Canadian Legal Landscape? Confusingly and awkwardly, that’s how. We do have two separate crimes related to piracy, Piracy and Piratical Acts, Criminal Code ss. 74–75, but to the best of my knowledge, neither has actually ever been invoked. The theoretical maximum penalty for Piracy is life imprisonment; for Piratical Acts it is 14 years imprisonment—although it is difficult to imagine a scenario where one could be convicted of Piratical Acts without also being convicted of Piracy, there is substantial overlap.¹ In India, pirates can get the death penalty; in the UK, pirates can get life in prison.² Much of the world is fairly aligned in strong penalties for piracy.

Modern piracy occurs mostly in Southeast Asia and around the Western Indian Ocean. Everybody’s heard about Somali pirates, of course, but Indonesia is actually where most modern pirate attacks have taken place. Modern piratical activity had peaks in the early and late 2000s and has since died down to lower levels. These pirates in their small boats will board and threaten commercial ships for their spoils.³

Canada, when dealing with modern piracy in Somalia, operated a “catch and release”⁴ policy out of concerns about the financial cost of entering the quagmire of international law around piracy by detaining and trying pirates in an extraterritorial manner.⁵

Now that you have a basis in the real world, let’s get talking about the law!

Customary International Law & Jus Cogens

So, piracy is a crime per customary international law,⁶ but that’s a bit vague, isn’t it? Yes, Customary International Law (CIL) conceptually is incredibly vague and difficult to pin down. Essentially, it is all the law that binds states as a result of an examination of underlying legal precedents and foundational documents. If that sounds confusing, that’s because it is.

Jus Cogens is a subset of CIL that serves as the highest and most authoritative of all international laws—according to the United Nations at least—it contains “norm[s] accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”⁷ This implies an obligation to uphold those norms and prosecute crimes against them, such as piracy.⁸

Jus Cogens necessarily underpins much of the foundations of Canadian law, but it has actually come up directly in a couple of recent Supreme Court cases, notably Kazemi Estate v. Islamic Republic of Iran and Nevsun Resources Ltd. v. Araya. The former mostly says that Jus Cogens mostly aligns, though not entirely, with the principle of fundamental justice that is mentioned in the Charter of Rights and Freedoms.⁹ The latter was of a greater magnitude, in that it found CIL principles of Jus Cogens to be a just cause for action in civil claims seeking remedy, thus solidifying the role of Jus Cogens with jurisprudential precedent.¹⁰

Are We Breaking The Law?

Noted Canadian legal journalist, Heather Gardiner, seems to think that we are—at least, she did 17 years ago. She wrote an article for the Canadian Lawyer Magazine, decrying Canadian failures in trying Somali pirates, which I stumbled upon by chance about a week ago. It was a fiery and aggressive call to action that, not unexpectedly, went unheeded. As a side note, she also makes an interesting point about Commonwealth precedent that I unfortunately do not have the time to properly interrogate, but there may be a future blog on that topic.¹¹

Are we breaking the law by not trying pirates? By utilizing an economically fruitful catch-and-release policy instead? It’s hard to say. Canadian law is a fluid thing, incredibly so; much of its specific contours are impossible to fully sketch out. International law is that, but even more so, an endless mess of overlapping jurisdictions.

Taking the least codified and shakiest parts of international law and trying to unify it with Canadian law is not a simple feat. Further, anything relatively concrete that could be said on the topic could just as easily be invalidated on a whim at the Supreme Court or by the Federal Government. Heck, even the King could probably enact a large enough shift to unravel it. I’m mixing my metaphors here, but the point is that anything I could say in answer to this question is at best theoretically correct and at worst utterly meaningless.

With that point made, if I were pressed to answer, I would lean towards saying yes, we are violating international law by not fulfilling our obligations in this respect.

My strongest argument in favour of that assertion is that the United Nations Convention on the Law of the Sea (UNCLOS)—which we have ratified—Article 100 states that “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State,”¹² and I think it would be fair to say that refusing to try pirates, despite having existing statute designed to do specifically that,¹³means that Canada is not cooperating in the repression of piracy to the fullest extent possible.

If this question of Jus Cogens obligation ever comes before the Supreme Court in full focus, and I highly doubt it ever will, I think the late Mahmoud Cherif Bassiouni’s paper “International Crimes: Jus Cogens and Obligatio Erga Omnes”¹⁴ would be cited as persuasive literature on the subject. It is very convincing in arguing that states have an obligation to prosecute Jus Cogens crimes like piracy.¹⁵ I highly recommend you give it a read if you have the time.

If we recognize the principle of Jus Cogens, and that principle carries with it an obligation that we are failing to act in accordance with, and it is established that pirates must be dealt with per Jus Cogens, then that surely means we are not putting the proper effort into dealing with pirates and are contravening UNCLOS article 100.

Unless the parameters of Jus Cogens crimes have shifted as a result of state actions in the modern day, which they might have. Welcome to the mess that is law on the international scale!

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Endnotes

1. Criminal Code, RSC 1985, C-46, ss 74–75, Last Modified: 2025-04-08.
2. Maritime Anti-Piracy Act, 2022., Indian Code 2023Accepted: 2023-10-16T06:15:31Z; Piracy Act 1837, UK Crim Code 1837.
3. The Canadian Press, “Navy must still “catch and release” Somali pirates”, CBC News (24 January 2012), online: <https://www.cbc.ca/news/politics/navy-must-still-catch-and-release-somali-pirates-1.1210954>; “Modern Day Pirates: Attack Numbers and Types – Desteia” (27 May 2024), online: <https://desteia.com/blog/modern-pirates>.
4. The Canadian Press, supra note 2.
5. Ibid; Heather Gardiner, “Canada shouldn’t be playing the pirates’ game” (2 July 2009), online (Canadian Lawyer): <https://www.canadianlawyermag.com/news/features/canada-shouldnt-be-playing-the-pirates-game/267609>.
6. M Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes” (1996) 59:4 Law Contemp Probl 63–74; Douglas Richard II Burgess, Hostis humani generis : piracy, terrorism and a new international law University of British Columbia, 2003) DOI: 10.14288/1.0077587.
7. Draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)(2022).
8. Bassiouni, “International Crimes”, supra note 5.
9. Kazemi Estate v Islamic Republic of Iran, [2014] 3 SCR 176 at paras 150–151; “Charterpedia – Section 7 – Life, liberty and security of the person”, s 3, online: Gov Can <https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art7.html> Last Modified: 2025-07-14.
10. “A Hard Case Makes New Law: The Adoption of Customary International Law into Canadian Common Law” (2021) Univ West Ont Law J, online: <https://ojs.lib.uwo.ca/index.php/uwojls/announcement/view/158>; Nevsun Resources Ltd v Araya, [2020] 1 SCR 166.
11. Gardiner, supra note 4; “Heather Gardiner | LinkedIn”, online: <https://www.linkedin.com/in/heathergardinermedia/>.
12. United Nations Convention on the Law of the Sea, 1982 art 100.
13. Criminal Code, RSC 1985, C-46, ss 74–75, Last Modified: 025-04-08.
14. Bassiouni, “International Crimes”, supra note 5.
15. Ibid at 63–66.