In part one of this series, the new book The Laws of Yesterday’s War (edited by Samuel White) was introduced by looking at the relevance of Indigenous Australian laws of wars to cyber. In part two, contributor Andrew Read considers the parallels between the Russian invasion of Ukraine and pirates and privateers in the Elizabethan era.
The commencement of President Vladimir Putin’s recent attack against Ukraine on 24 February 2022 — preceded by the Russian Federation’s recognition of Luhansk and Donetsk People’s Republics — was accompanied by an address by him to the Russian people in which he asserted that the Russian Federation’s actions were in accordance with Article 51 of the United Nations Charter. Article 51 provides for the use of force by States for the purposes of self-defence. There has subsequently been substantial denunciation of this purported legal basis, which argues the president’s attack reflected an unlawful use of force against Ukraine, contrary to Article 2(4) of the same Charter President Putin was purporting to invoke.
Pronouncements of the legality of blatantly aggressive State conduct are not novel in international affairs. Nor are similar pronouncements about legally dubious State-supported activities, which sit below a threshold likely to trigger outright inter-State conflict through their ambiguity. However, these often still severely denigrate the regulating norms of State intercourse which could otherwise underpin mutual inter-State stability. As the associated book chapter ‘Pirates and Privateers in Elizabethan England’ considered, prevailing international legal paradigms and norms being abused, and their provisions selectively construed and applied in the pursuance of State objects, is a recurrent aspect of international affairs.
The chapter outlined that the Elizabethan Era (1558-1603) marked a period where a relatively weak and inexperienced Elizabeth I of England was faced with significant security challenges. The most prominent challenge being that posed by King Phillip II of Spain. This relative weakness caused England to rely heavily on private economic warfare — characterised in the chapter as the tacit tolerance of the actions of, or direct and attributable employment of private ships for the realisation of State outcomes. Such reliance was affected by England in a legally amorphous context, and in such manner that the use of private actors was intended, through their plausible distance from the sovereign, to avoid outright hostilities between States from being instigated. The employment of such actors often occurred in circumstances where the State could arbitrarily deny sponsorship of the underlying activity or claim that the operator possessed legitimising lawful authority.
The operating environment ranged from pirates concerned with their own enrichment, to privateers and corsairs, operating with ‘letters of marque’. Such devices reflected empowering legal instruments bestowed by their respective States which authorised those actors to seize the seaborne assets of foreigners to amend losses caused to the aggrieved by that foreigner’s compatriots. Issuing such instruments was highly arbitrary and weak State enforcement action against citizens whose piracy was directed against rival States was a persistent feature of the era.
Today, factors including: the increasing preponderance of State-directed disinformation operations in the media; the proxy use by States of malign cyber actors; and, the claim by some States that acts of military aggression have a legitimising lawful basis, suggest that the rather arbitrary international legal order of the Elizabethan era in its application to piracy and privateering, has some points of comparison to today’s increasingly subverted international peace and security apparatus.
As Elizabeth I was extremely careful to maintain a veneer of commitment to taking action against piracy perpetrated by her subjects when the actions of such individuals threatened to provoke wars, comparable deference to the value and importance of the information space is critically relevant today. For example, the paradigm now includes the potential for States to propagate graphic fake videos for the purposes of deceiving the public in matters of international relations. Similar to the way that individuals like Sir Francis Drake claimed to be acting legitimately when they were often engaged in what could be argued to have been illegitimate pursuits, so too did we see armed men — ostensibly Russian soldiers — operating apparently consistently with President Putin’s strategic objectives within Crimea in 2014, but who were characterised by him as local ‘self-defence groups’.
As the letter of marque system was often used in the Elizabethan era to validate seemingly dubious maritime undertakings, we are seeing comparable use of the United Nations Charter now to assert the lawfulness of President Putin’s actions in Europe.
While an extremely bold approach to the interpretation and application of regulating international law norms might have suited Elizabethan England in the age of sail, any State conduct which now degrades the efficacy of the international provisions designed to uphold international peace and security cannot be tolerated by the international community. The failures of the ill-fated League of Nations show us the potential results if the international community cannot rely on consistent and responsible State adherence to acceptable norms. The effect of undermining international restraining norms could be relatively limited in the Elizabethan era, though the same cannot be said for today’s economically interconnected and weaponised community of nations.
Andrew Read is a government lawyer practising in Queensland. The views expressed are his, and do not necessarily reflect an official position.