Introduction to “The Concept of Piracy”

Daniel Heller-Roazen

Humanity: An International Journal of Human Rights, Humanitarianism,

and Development, Volume 2, Number 1, Spring 2011, pp. 23-25 (Article)

Published by University of Pennsylvania Press

DOI: https://doi.org/10.1353/hum.2011.0000

For additional information about this article

https://muse.jhu.edu/article/421342

[ Access provided at 14 Nov 2020 11:17 GMT from University of Athens (or National and Kapodistrian Univ. of Athens) ]
 Daniel Heller-Roazen

Introduction to ‘‘The Concept of Piracy’’

‘‘All political concepts, images, and terms have a polemical meaning. They are focused
on a specific conflict and are bound to a concrete situation; the result [ . . . ] is a
friend-enemy grouping, and they turn into empty and ghostlike abstractions when
this situation disappears.’’1 Schmitt published these words in 1932. One might wonder
whether they themselves, being ‘‘bound to a concrete situation,’’ were intended to
incite or contribute to a ‘‘friend-enemy grouping.’’ But it is certain that Schmitt’s
dictum holds for the brief essay he wrote five years later, ‘‘The Concept of Piracy,’’
for it was manifestly ‘‘focused on a specific conflict.’’ When the Spanish Civil War
broke out in July 1936, the international waters surrounding Iberia were immediately
affected. Submarines began targeting neutral merchant vessels bearing goods to and
from the Spanish coast. No state claimed responsibility for these actions, but, as one
contemporary observer noted, ‘‘the attacks were obviously of strategic importance in
cutting the flow of supplies from Soviet Russia to the Spanish Government, as both
those governments violently denounced the attacks and openly accused Italy of being
responsible for them.’’2 Soon the range of targets grew wider, and war vessels
belonging to neutral powers were also struck. To offer a united response to such
maritime assaults on nonbelligerent vessels, the British and French authorities
summoned an international conference in Nyon, Switzerland, in September 1937.
Nine Mediterranean states, including Bulgaria, Romania, and the Soviet Union but
excluding both Italy and Germany, met to discuss this urgent issue: ‘‘attacks [ . . . ]
repeatedly committed in the Mediterranean by submarines against merchant ships not
belonging to either of the conflicting Spanish parties.’’ The authors of the Nyon
Arrangements concluded that the recent submarine attacks were ‘‘violations of the
rules of international law.’’ Then they took a further step. They declared the assaults
committed by the underwater vessels ‘‘acts contrary to the most elementary dictates
of humanity, which should be justly treated as piracy.’’3
That statement introduced an unexpected term into the discussion of the law of
war. It is the one to which Schmitt dedicated his concise paper: ‘‘piracy.’’ The
submarine, to be sure, had long been a controversial subject in martial law. The
Germans had employed their U-Boot in the First World War to spectacular effect,
while numerous British and American authors had contested its legality in war. Only
with the Nyon Arrangement of 1937, however, did piracy enter the technical vocab-
ulary of ratified accords on underwater arms in martial law. Scholars of various nation-
alities were quick to comment that the development was illegitimate. They recalled
that pirates are criminals, not sovereign states.4 But no jurist reacted to the
Arrangement with more vehemence than Carl Schmitt. In a letter to Ernst Jünger

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 dated November 14, 1937, Schmitt recalled that ‘‘the essay ‘The Concept of Piracy’
emerged from the affect that is provoked in me when I see how cold-bloodedly the
Anglo-Saxons are pursuing the World War, and how they seem to have succeeded at
Nyon in achieving the very thing that, throughout the war, we sought to avoid—
namely, the renunciation of the honor of the U-Boot weapon [das Verzicht auf die Ehre
der U-Bott-Waffe].’’5 Schmitt appears to have composed his essay on the Arrangement
with remarkable speed. Once he had finished it, he mailed it to the Oberkommando
of the German marine. This office responded in October 1937, commending Schmitt
for his scholarly refutation of the ‘‘defamatory concept of piracy.’’6 Schmitt’s essay
appeared in print in an issue of Völkerbund und Völkerrecht the very month the Nyon
Arrangement was signed, and in 1938 his paper was also published in Italian.7
The legal argument of ‘‘The Concept of Piracy’’ is largely conventional.8 Schmitt
contends that, for three reasons, the classical title of ‘‘pirate’’ cannot be attributed to
the representatives of a sovereign nation, such as state ships of war. But Schmitt’s
essay also contains one more original and provocative proposition. Schmitt argues that
the terms of the Nyon Arrangement announce a political conflict distinct, in its legal
and political form, from the rule-bound wars of sovereign states. In the terms ‘‘cold-
bloodedly’’ proposed by ‘‘the Anglo-Saxons,’’ Schmitt maintains, the guerre en forme
of the modern law of nations will be replaced by a new type of battle: a conflict pitting
all established nations against a single, lawless antagonist. This will be a war of
humanity, in short, against its oldest imagined foe: the pirate. Schmitt concludes by
enjoining his readers to dismiss this new development, remaining faithful to the estab-
lished terms of modern European martial law. However one wishes to interpret this
thesis and this injunction, there can be no doubt that Schmitt’s essay is intensely
‘‘political’’ in the sense he gave to that word. ‘‘Focused on a specific conflict and [ . . . ]
bound to a concrete situation,’’ his essay seeks to discredit the criminalization of the
German U-Boot and, by implication, to justify the arms of National Socialist
Germany. His is, as he noted, a defense of ‘‘the honor of the U-Boot weapon.’’ At the
same time, however, ‘‘The Concept of Piracy’’ constitutes an incisive analysis of the
polemical force and function of the invocation of humanity and piracy in war.
Schmitt’s essay underlines one undeniable yet discomforting fact: namely, that, to
evoke a united humanity, no name works quite as well as that of the enemy of all.
This fact constitutes one reason why, today, long after the obsolescence of legal
debates on submarines, the specter of ‘‘universal enemies’’ remains. There will be talk
of pirates as long as something called ‘‘humanity’’ goes to war.

NOTES

1. Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University of
Chicago Press, 2007), 30.
2. George A. Finch, ‘‘Piracy in the Mediterranean,’’ American Journal of International Law
31, no. 4 (1937): 659–65, 659.
3. Nyon Agreement, Preamble; for the full text of the accord, see Dietrich Schindler and Jiřı́
Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and Other Documents,
3rd ed. (Dorchecht: Nijhoff, 2004), 887–89.
4. See ‘‘The Nyon Arrangements: Piracy by Treaty?,’’ British Yearbook of International Law 19

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(1938): 198–208, 199. Finch observes, moreover, that seeds of the full-fledged formula may be found
in Woodrow Wilson’s statement before the Congress of April 2, 1917, that ‘‘the present German
submarine warfare is a warfare against mankind. It is a war against all nations’’ (‘‘Piracy in the
Mediterranean,’’ 665). Cf. Raoul Genet, ‘‘La qualification de ‘pirates’ et le dilemme de la guerre
civile,’’ Revue internationale française du droit des gens 3 (1937): 13–25, and ‘‘The Charge of Piracy
in the Spanish Civil War,’’ American Journal of International Law 32, no. 2 (1938): 253–63, esp. 254.
5. Schmitt, letter to Jünger, November 14, 1937, in Helmuth Kiesel, ed., Briefe, 1930–1983:
Ernst Jünger, Carl Schmitt (Stuttgart: Klett-Cotta, 1999), 69–70.
6. See the notes in Carl Schmitt, Frieden oder Pazifismus? Arbeiten Zum Völkerrecht und Zur
Internationalen Politik, 1924–1978, ed. Günther Maschke (Berlin: Duncker & Humblot, 2005), 517.
7. Schmitt, ‘‘Il concetto della pirateria,’’ La vita italiana 26 (1938): 189–94.
8. For a fuller account of Schmitt’s argument in its historical setting, see Daniel Heller-
Roazen, The Enemy of All: Piracy and the Law of Nations (New York: Zone Books, 2009), 142–46.

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