Prize courts: their continuing relevance

It is commonly asserted that war has been subject to some form of normative influence since classical times. Such claims have an air of wishful thinking about them when they are judged against the history of warfare. Clausewitz famously stated in On War, that ‘Attached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it’. His thinking was, of course, a product of his times and heavily influenced by his personal experience of wars fought on land by France under Napoleon. He should not go unchallenged, however, especially in relation to war at sea. The Emperor has never been noted for consulting legal advisers before resorting to war. Nevertheless, he was certainly aware of the Law of Nations, often referring to it in justifying his strategic decisions. One element of it with which he appears to have been very familiar was that relating to war at sea. In exile on the island of St Helena he wrote a good deal about war, including about ‘the law of nations governing maritime war’, of which he was especially critical. Unsurprisingly, he was not favourably disposed towards Britain’s use of naval power, claiming that the Royal Navy’s actions demonstrated that the law ‘remained in a state of utter barbarism’. He had three relevant criticisms of it. First, he objected to the confiscation of private property during action against enemy commerce. Second, he deplored the vulnerability of civilian crews of merchant ships to capture and incarceration. Finally, he disliked neutral vessels being subject to interdiction, seizure or destruction if carrying contraband. His observations were directly related to both the strategic purpose and the operational/tactical conduct of economic warfare at sea, that function of navies subject to the regulatory influence of Prize Law. Prize was a feature of war at sea during all of the major maritime conflicts fought during the era of maritime imperial rivalry, from the Anglo-Dutch Wars of the 17th century to the two World Wars of the 20th. That era is now at an end. The maritime empires have passed into history, as have the general and prolonged naval wars in which they frequently engaged. Given the current rise in Chinese naval power and a resurgence in that of Russia, however, there is arguably an increasing possibility of major naval confrontation, which might lead to war at sea. If it did, a return to economic warfare at sea is at least possible. It is appropriate, therefore, to assess the future relevance of Prize Law and the Prize Courts whose function has been to administer it. This demands an examination of State practice and legal thinking in the relatively recent past. Nevertheless, some understanding of the historical development of Prize Law serves to reveal its purpose, as well as fluctuations in its application and interpretation. We start, therefore, with comment about the development of Prize Law since the 17th century, before going on to examine its application since the end of the Second World War. We will then draw some conclusions