Redefining Piracy as Harm to the Commons

helenhall5
2 hours ago
5 min read

Laurence Atkin-Teillet, Hourly Paid Lecturer and PhD candidate at NLS https://www.ntu.ac.uk/staff-profiles/law/laurence-teillet

In previous posts which will be linked below, I argued that the current definition of piracy under Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) is both inadequate and dangerous. Its overly broad criteria, paired with the extensive powers it grants to States through universal jurisdiction, risk perpetuating colonial dynamics under the guise of international enforcement.

This piece aims to build on that reflection by discussing an idea for the redefinition of piracy – one that tries to revive its original purpose as a response to conduct that threatens the international legal order as a whole, while rejecting the colonial residues that continue to impact its application.

Piracy was historically conceived as a crime capable of damaging the foundations of a Westphalian, State-centric international order. Pirates were labelled hostis humani generis – enemies of all mankind – an expression that can be traced back to Cicero. Their acts, often targeting the freedom of maritime commerce, were seen as so destabilising that pirates were cast outside the bounds of legality, occupying the status of “rightless enemies”.

This framing led scholars such as Karl Binding and Carl Schmitt to propose that “the consensual enemy must give right to consensual opposition”, in reference to the jurisdictional powers States may exercise when prosecuting piracy. But this raises a question: what amounts to a ‘consensual enemy’ today? Most contemporary instances of piracy do provoke some international condemnation – but not universally so. For instance, while the United Nations Security Council has taken action against Somali piracy, some scholars have pointed to the colonial legacies that shaped this phenomenon, arguing that Somali pirates should also be seen as a marginalised and impoverished group. Likewise, so-called “environmental pirates” have generated considerable controversy, with States divided over whether this label is appropriate for environmental activists operating on the high seas to defend the global commons. Can pirates still be understood as a threat to the international community as a whole?

To reconstruct piracy as a strictly universal concern, one not driven by the ambitions of powerful States, we might consider reframing it through the lens of the Common Heritage of Humankind (CHH). Piracy, after all, occurs in areas beyond national jurisdiction (ABNJs) – where no State holds territorial sovereignty. These ABNJs are governed by principles that transcend national interests. Historically, the dominant principle was that of freedom: open access, unrestricted use, and a presumption of abundance, especially favoured by Western maritime powers.

But by the mid-twentieth century, the assumption of limitless resources was already being challenged. Latin American States, amongst others, warned of the ecological consequences of unregulated exploitation. In response, international law gradually shifted towards a new paradigm: the principle of the Common Heritage of Humankind (CHH).

Could piracy be redefined not simply as violence at sea for private ends, but as an attack on the common heritage of humankind? In such a reframing, the enemy of humankind would be understood not in the abstract or imperial sense, but as one who endangers the shared interests and ecological future of humanity.

Although the CHH remains a concept without a rigid legal definition, its core components are generally agreed upon as:

First, areas designated as part of the common heritage cannot be subject to appropriation by any State, corporation, or individual.
Second, they must be reserved for peaceful purposes.
Third, any resource exploitation must benefit all of humanity – especially developing countries, future generations, and the natural environment.

The common in common heritage implies non-ownership – not even by humanity collectively. The CHH principle is based on access, stewardship, and equity, rather than dominion. The term heritage evokes a birthright: a legacy passed from one generation to the next. And humankind signals that governance over these areas must reflect the collective interests of humanity, not purely the aggregated will of States.

In this light, piracy could be re-envisioned as a category of conduct that threatens our shared ecological and legal inheritance. This would allow us to reclaim the gravity originally associated with the term. A piracy framework based on the defence of humankind’s common heritage could offer a genuinely consensual basis for universal jurisdiction – one aligned not with domination, but with responsibility.

Under a framework grounded in the CHH, piracy would no longer be confined to acts of violence for private ends on the high seas. Instead, it would be reimagined as conduct that endangers the integrity, sustainability, and equitable use of the global commons. Pirates, in this redefined sense, would be those whose actions violate the spirit and substance of the CHH.

For instance, actors involved in large-scale, unregulated exploitation of marine biodiversity, deep-sea mining without international oversight, or activities causing irreversible harm to fragile ecosystems in ABNJs could be considered pirates. Such conduct weakens the principle of equitable use and intergenerational responsibility that lies at the heart of the CHH. Here, the “enemy of mankind” is the ecological aggressor who commodifies or destroys that which belongs to no one.

Likewise, entities seeking to monopolise access to genetic resources – such as marine genetic material for pharmaceutical development – without benefit-sharing mechanisms would fall within this broader understanding of piracy. By transforming the commons into private capital without redistributing benefits to humanity at large – especially to developing countries and marginalised populations – those actors breach the CHH’s distributive logic. These acts could justifiably be described as biopiracy in a legal, not merely metaphorical, sense.

States or private actors exercising coercive, military, or surveillance control over ABNJs in ways that restrict peaceful access or impose exclusive claims would also qualify. Such practices reflect a claim of dominance over the commons, treating them as strategic assets rather than shared spaces of stewardship.

Finally, piracy could extend to the obstruction of scientific research intended for the benefit of humankind – particularly where such interference serves commercial secrecy or national interest. The denial of knowledge which is central to collective decision-making and environmental protection strikes at the heart of what the CHH seeks to preserve.

In summary, under this reformed framework, piracy is less about interpersonal violence and more about structural and ecological harm inflicted upon the commons. The pirate is no longer the archetypal armed individual in a skiff, but the powerful actor that disregards the shared responsibilities and rights embedded in the CHH. Such a shift would return the concept of piracy to its original function as a response to universally threatening conduct, while aligning it with contemporary commitments to sustainability, equity, and global justice.

I recognise that this proposition represents a radical shift, and that the current boundaries of international law may not yet be equipped to support such an approach. However, if this blogpost can generate new ideas and open discussions about how piracy might be reframed as a useful legal tool to protect what remains vulnerable on the high seas and in other ABNJs, then it will have served its purpose.

Redefining Piracy as Harm to the Commons

Further reading:

Recent Posts

Comments