- D. Hunter (law student)
Would Captain Jack Be Criminally Charged in Canada?
Jack Sparrow. The Captain of the Black Pearl and legendary pirate of the Seven Seas, Captain Jack Sparrow is the irreverent trickster of the Caribbean. Fictional run-ins with the East India trading company, stealing treasure, and ultimately fighting for territory seems like quite far-fetched from reality. But the truth is Piracy, not even in its online form, but rather maritime piracy is making a sizeable come back in certain areas of the globe, and the problem is prosecution of these pirates, and protecting yourself from them, is not as easy as it once was or appears in the Pirates of the Caribbean.
According to Paul Bruno, most sea piracy is a crime of opportunity. Pirates, like other criminals, avoid operating in difficult environments. If controlling factors are not present then the possibility of piracy grows along with the severity of pirate attacks. The main reasons for piracy are not exclusive to crimes against ships. Social acceptance, lack of legal consequence, chronic unemployment, and opportunity all play a role in supporting a criminal enterprise.”
The Criminal Enterprise aspect is large. The Pirates are not part of an organized syndicate, like what we would see in Pirates of the Caribbean, or the historically pirate culture, rather they are often disenfranchised individuals picked up by larger organizations, promised what they think is a lot of money, and sent off to steal and kidnap. Some Pirates have actually been found to be functioning at the behest of terrorist organizations who gain a portion of the ransom or funds collected by the pirates. So how do various nations who utilize this shipping route combat piracy? Can they actually prosecute them, or do they need to be deterred away via military and lethal force?
The issue is that the legal strategy is constantly changing, only in a few American cases were pirates actually criminally charged by the country of the citizens they attacked. In other cases, the Pirates are charged on the basis of the flag they fly on their vessel. Hugh Williamson reports in the Canadian Naval Review that, “Because most of the piracy was rooted in Somalia, under the authority of several UN Security Council Resolutions, the universal jurisdiction for high seas piracy was extended into the territorial seas and on to the land of Somalia. This allowed foreign militaries to take action against suspected pirate vessels or pirate bases ashore. It was made very plain, however, that this situation applied only to Somalia, and did not expand the international laws dealing with piracy with respect to other states.
The report also identifies three methods of prevention, however international law and criminal law may actually hinder the self-protection. In theory, the first solution is for the vessels to defend themselves, or arm themselves with deterrents. Current international law does not recognize the ability to arm yourself, even though in centuries prior arming your vessel to protect yourself from piracy was totally legal. Insurance companies also warn against it on the basis that there is a lack of specialized training, and it may lead to more harm than good. The second remedy to Piracy is to have Canadian Warships escort the vessels, which in theory sounds good, but also actually violates international law unless every time they are in another territory water they get permission. As stated by the Canadian Naval Review, “Any Canadian warship accompanying them would be in violation of the rules of innocent passage and could only be present with the consent of the coastal state.”
The final but more common option is hiring a private protection company. This is does not come without its own issues. There have been instances where the private protection has occasionally tortured or killed surrendered pirates. One security team set fire to a small pirate boat filled with bound pirates and was intentionally circulated online as a warning to other pirates. This is its own legal issue, specifically an issue of jurisdiction regarding federalism. The shipping itself and maritime laws falls under the federal government, while the regulation of private security companies comes under provincial jurisdiction. Therefore the protection against piracy becomes even more complex.
If we really break this down, it is both difficult to prosecute or protect from modern day pirates. There is no set legal process for dealing with international pirates, and there defending yourself may end up having you criminally charged regarding various policies of both Canadian maritime law, and the laws of the state whose water you happen to be in. While the title of this article was meant to be remotely humourous, the reality is we not actually be able to prosecute Captain Jack Sparrow, or defend yourself from the black pearl, especially if he is operating in or out of Somalia.