“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 vocabulary of ratified accords on underwater arms in martial law. Scholars of various nationalities 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 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-Boot-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 established 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.
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 Law31, no. 4 (1937): 659–65, 659.
3. Nyon Agreement, Preamble; for the full text of the accord, see Dietrich Schindler and Jirí 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 Law19 (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.