International Law Studies


Andrew Clapham


This article considers the so-called belligerent rights of States in times of war. In particular it focuses on booty of war, blockade, and the capture of merchant ships and their cargo. It is suggested that, while the rules may not often be applied today, they nevertheless continue to exert a certain influence, contributing to confusion about the boundaries of the legitimate use of force and a blurring of the distinction between military objectives and civilian objects.

Considering that the UN Charter has outlawed the use of force, the article also questions why such rules concerning capture should continue to have place in international law and its manuals. An application of the rules in effect rewards an aggressor State with the belligerent right to acquire enemy or neutral property. The chapter ends with suggestions for a radical rethink of the rules on seizure of enemy and neutral ships and the cargoes they are transporting. It asks why being at war should entitle States to capture and permanently acquire enemy or neutral property. In sum, it questions whether prize law should exist at all today. The article is part of a larger enquiry into how the concept of war permeates our thinking with often-disastrous effects.