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"Current legal status of Letters of Marque and Reprisal" Topic


26 Posts

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1,127 hits since 2 Jan 2018
©1994-2018 Bill Armintrout
Comments or corrections?

Winston Smith Supporting Member of TMP02 Jan 2018 9:07 p.m. PST

Letters of Marque and Reprisal are privateering licenses. They were widely used in the 18th and 19th Century, and previously, including the Napoleonic Wars, American Revolution, American Civil War, etc.
The US Constitution specifically grants Congress the power to issue them. Interestingly, not to the President.
So, if President ***** wanted to issue Letters of Marque and Reprisal against Somali Pirates, a Naval Blackwater, he couldn't. Congress could. An interesting legal battle, if they were still valid.

Are Letters of Marque and Reprisal still valid in international law?

Charlie 12 Inactive Member02 Jan 2018 9:42 p.m. PST

No. The Paris Declaration Respecting Maritime Law of 16 April 1856 abolished privateering. It was further clarified under the 1907 Hague Convention and is considered as part of the general principles of international law. Although the United States is not a signatory, it has always, always abided by its provisions.

Letters of Marque and Reprisal hold NO validity in international law, no matter WHO issues them.

An interesting legal battle? Only if you want to look like a damned fool on the international stage.

Cyrus the Great02 Jan 2018 10:25 p.m. PST

There goes John's dream of being a pirate!

Charlie 12 Inactive Member02 Jan 2018 10:51 p.m. PST

They were widely used in….. American Civil War, etc.

NO Letters of Marque were issued by the United States during the war. And any Letters of Marque issued by the Confederacy would be invalid since it lacked recognition as a sovereign state.

Dn Jackson02 Jan 2018 11:07 p.m. PST

"NO Letters of Marque were issued by the United States during the war. And any Letters of Marque issued by the Confederacy would be invalid since it lacked recognition as a sovereign state."

Neither were the colonies when they revolted and the letters issued during the Revolution were recognized by France, Holland, Spain, etc before the US was recognized.

The reason no Confederate privateers were hung as pirates was because the US refused to recognize The Paris Declaration Respecting Maritime Law of 16 April 1856 because the USN supplemented its strength during the AWI and War of 1812 with privateers.

Unless Congress ratified the Hague Convention or the Paris Declaration making them treaties, the original wording of the Constitution is valid and letters could, in theory, still be issued. Also, plenty of legal scholars would argue that a treaty can't trump the Constitution and even if they were in effect as treaties unless that part of the Constitution were repealed via the amendment process it is still in effect.

Realistically speaking the idea of letters of marque is a relic of a by gone age and there is little to no chance of one being issued in the 21st Century.

McWong7302 Jan 2018 11:18 p.m. PST

Do a search on PMCs that offer naval services, sure there's a few?

Lion in the Stars03 Jan 2018 12:10 a.m. PST

There are a decent number of PMCs that offer protection against pirates, usually by standing armed guard on someone else's ship.

There are no PMCs that have their own ship and hunt down non-pirates.

Winston Smith Supporting Member of TMP03 Jan 2018 7:51 a.m. PST

"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

I don't read that to mean that the Constitution trumps a treaty. I read it to mean that they're equal. Which keeps me up at night worrying about it! grin

Personal logo Cacique Caribe Supporting Member of TMP03 Jan 2018 8:03 a.m. PST

Uh oh, all this time I thought mine were still valid! :)

Dan

Winston Smith Supporting Member of TMP03 Jan 2018 8:26 a.m. PST

Check the time stamp, Dan.

Further reading shows that the US passed a law ending the practice of paying naval officers Prize money.

As for the Union not issuing Lettred of Marque, it did issue prize money. Most notoriously in the Red River campaign, where the Navy seized and condemned bales of cotton. They were stenciled CSA/USN. Army wags said it stood for "Cotton Stealing Agency of the United States Navy".

The United States has not signed any treaties abolishing privateering. So, Dan, there's still hope.

Red Jacket Supporting Member of TMP03 Jan 2018 8:40 a.m. PST

Winston – you are quoting the supremacy clause of the Constitution which is intended to make it clear that federal law trumps state law. The federal law that is supreme to state law encompasses the Constitution, federal laws and treaties. This is not a provision that is attempting to establish a ranking for the Constitution and the laws and treaties made pursuant to the Constitution. Because the Constitution is the document that creates the ability of the federal government to make laws and treaties, the Constitution has to be superior to those laws and treaties. If it was not there would be no basis to find a law unconstitutional (you could change the Constitution with a simple law). I agree with Dn Jackson, the US could legally issue letters of marque but no foreign country is obliged to recognize them. As the whole purpose of letters of marque was to give privateers cover – clothing them with governmental authority – to avoid the death penalty if captured, without multinational recognition letters of marque are useless.

zoneofcontrol Inactive Member03 Jan 2018 8:40 a.m. PST

"I don't read that to mean that the Constitution trumps a treaty. I read it to mean that they're equal."

I'm no Leegel Skolar and I haven't stayed at a Holiday Inn lately, but I think you are only partly correct.

I think that if the US Gubbermint officially ratifies a treaty, it attains the status of being equal to US law. If not ratified, there are things like a President's executive order and various agency policies and procedures that can be put in place to conform to the treaty. However, these can be challenged (and overturned) in court as to constitutionality. They can also be changed by the next President or agency head who comes in the door.

Lion in the Stars03 Jan 2018 8:52 a.m. PST

@ZoC: Sure, that makes a ratified treaty equal to a law passed by Congress.

Which still has to pass constitutional muster. So a major treaty banning the private possession of firearms that the US signed could be challenged and found in violation of the 2nd Amendment.

Winston Smith Supporting Member of TMP03 Jan 2018 9:08 a.m. PST

It all depends on which port the prize is taken to.
France is not about to zoom in and free a Somali Pirate vessel seized by Blackwater. However, according to American precedent
link
in the Appam case, if France is neutral, it's ports cannot be used to condemn the seized vessel.
Or Uganda. Or Chad. grin
But if Kenya is Party to the policy, Blackwater could use ITS ports.

International Law pertains to the nations that recognize it. So if the US wanted to go back to issuing Letters of Marque and Reprisal, all we have to do is have Congress authorize them. It would probably then pass the buck to the Navy. Or Coast Guard. Or Alcohol, Tobacco and Firearms.

Winston Smith Supporting Member of TMP03 Jan 2018 9:10 a.m. PST

@Red Jacket
Thanks for the clarification. Now I can get some sleep at night. grin

Personal logo miniMo Supporting Member of TMP03 Jan 2018 10:07 a.m. PST

So if I'm reading this right, then:

Bearers of duly authorised Congressional Letters would not be subject to legal trial *in* the US for operating under the terms of their Letter.

They would be subject to legal action in countries which do recognise International Law.

Winston Smith Supporting Member of TMP03 Jan 2018 11:27 a.m. PST

Maybe…..
grin

It would make sense to have a nearby friendly port to operate out of where one can land his prize.
Regarding Somali Pirates, Kenya comes to mind. With bearers of Letters operating out of Kenya.
Regarding drug smugglers, well, the entire coast of the United States would suffice.

But, can you see France or Britain protecting Somali Pirates? Russian or Chinese navies?
If these governments wish to protest, I would not land my prize in their client state's ports. Yemeni ports would depend on who is currently controlling them.

As with all laws, International Law is only as good as the willingness of its adherents to enforce it.

doug redshirt Inactive Member03 Jan 2018 11:54 a.m. PST

What if it was space ships instead of sea ships?

Winston Smith Supporting Member of TMP03 Jan 2018 12:12 p.m. PST

Then all would be good.

zoneofcontrol Inactive Member03 Jan 2018 1:18 p.m. PST

"What if it was space ships instead of sea ships?"

"Great kid. Don't get cocky."

They could always take the impounded spacecraft "where no man has gone before."

Personal logo miniMo Supporting Member of TMP03 Jan 2018 9:58 p.m. PST

Winston, you underestimate the levels of corruption and brigandage in the Kenyan police, military, courts, and government.

Many years ago, I was preparing to travel to a conference in Kenya. I received a travel advisory from the U.S. State Department warning both of robbers who disguise themselves as Kenyan Police, and of Kenyan Police who rob people on their own time when they're off-duty.

I have a friend who is over there now, she travels regularly to help the Samburu tribe. Some years ago, Somali raiders came and stole half their cows. The Samburu reported this to the Kenyan Police, who sent in helicopters, shot up the Samburu village, and stole the remaining cows.

The Samburu's diet is entirely dairy-based, they've been working ever since to try to rebuild their herd and stave of a major famine. The long-running drought has been making this work harder.

China has a strong interest in the oil deposits that straddle the Somali-Kenyan border, and will finance whatever undertakings that might help them get control of the oil. Their navy wouldn't intervene, but they would pull strings and spread cash to further their interests.

It's a real wild west there, so never trust any of the sherifs or judges!

Charlie 12 Inactive Member04 Jan 2018 8:25 p.m. PST

The reason no Confederate privateers were hung as pirates was because the US refused to recognize The Paris Declaration Respecting Maritime Law of 16 April 1856 because the USN supplemented its strength during the AWI and War of 1812 with privateers.

Wrong. The US had every intention of applying the treaty provisions.

In June 1861, the US Navy captured the southern privateer Savannah and placed the crew of 13 on trial for piracy. In response, the CS government threatened to execute 13 US POWs (going so far as publish the names of the 13 POWs chosen). In light of this, the government dropped the charges. The 13 were remanded as POWs and later exchanged. In a manner of speaking, by treating the 13 as POWs, the US had conveyed belligerent rights.

Charlie 12 Inactive Member04 Jan 2018 8:46 p.m. PST

But if Kenya is Party to the policy, Blackwater could use ITS ports.

Then you'd have picked the wrong country. Kenya is a signatory of the UN Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. Which outlaws piracy and letters of marque. And they have a lot of company (165 other nations).

Winston Smith Supporting Member of TMP07 Jan 2018 6:31 p.m. PST

And if Kenya decided to be "flexible" in its interpretation of its interests concerning that treaty?
Everyone hops on the bandwagon regarding popular treaties, until their interests are at stake.

Charlie 12 Inactive Member07 Jan 2018 6:44 p.m. PST

Which is how International Law works; following it is in YOUR best interest. Kenya going rogue wouldn't be in its best interest; it has too much else at stake. As do many, many other nations…

LORDGHEE08 Jan 2018 9:27 p.m. PST

Best bet . . . .

DO NOT GET CAUGTH AS A PIRATE OPPS PRIVATEER!!!!

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