Prize Law
The prize law ( French prize "taking away") is the part of the naval law and thus also of the international martial law that regulates the measures of warships against neutral and enemy merchant ships - including passenger ships. The right to prizes restricts the principle of freedom of the seas . It only authorizes warring states and is only valid outside of neutral territorial waters . The central peculiarity of the award law compared to the land war law is the right to steal private property.
Status of the award right
Prize law is largely customary international law . A binding international regulation was last attempted in the 1909 London Declaration of the Law of the Sea . It did not come into force, but it is recognized by all those involved as "essentially in accordance with the generally accepted principles" of customary law. Individual states have subsequently under various names ( prize regulations , prize act, prize law) appropriate regulations adopted, but differ in detail from one another. It is unclear to what extent the award law continues to exist after the practice in the world wars, which in some cases differed considerably, and under the changed conditions of naval warfare since then and under the changed international law. The current validity of the following presentation is subject to a certain reservation.
Content of the award law
Belong to prize law
- the right of control,
- the right to sea loot against ships flying an enemy flag and
- the ban property right as well
- the right to block ships flying a neutral flag.
Right of control
The right of control allows the warring parties to stop and check the papers of all merchant ships, and if necessary also to search them, in order to make the determinations necessary for the exercise of the right to award. Only enemy ships, on the other hand, have the right to resist, which, however, allows for violent enforcement of the price measures. Neutral merchant ships escorted by their own warships are excluded from the control right. The association leader is obliged to provide information and possibly an examination.
The further scope of the admissible measures depends exclusively on the flag of the ship, not on the nationality of the owner or skipper. However, changing the flag to circumvent the right to award prices during or shortly before the start of hostilities is ineffective.
Sea booty law
In the case of ships flying an enemy flag, the so-called loading (taking control of the ship), bringing in (moving to a separate port) and confiscation of the ship and cargo is permitted. Personal items belonging to the crew and passengers are excluded here and in all of the following cases. Cargo that is owned more neutral usually has to be returned or compensated. The definition of owner neutrality is controversial and is traced back to both nationality and place of residence.
Ban property right
On neutral ships, banned property may be confiscated and confiscated if it is intended for the enemy. The ship is also subject to confiscation if more than half of the cargo is forbidden. Any further measures against neutrals are only permitted in exceptional cases.
Right to block
A warring party can declare the blockade of enemy-held ports and coasts. As a result, neutral ships attempting to reach these ports or coasts become so-called blockade breakers, who are also subject to detention and confiscation. The parties involved must be notified before the blockade begins, and the blockade must actually be carried out effectively, which is a considerable limitation in practice.
Confiscation and destruction
Ships and goods confiscated are called prizes. Their confiscation must be formally pronounced by the judgment of a prize court on land. This means that ownership of the prize passes to the state in whose name it was applied or confiscated. If the verdict is in favor of the owner, the prize must be returned or compensation paid.
As an alternative to collection and confiscation, the destruction of prizes is permitted under certain circumstances, but in the case of ships only if the passengers, crew and papers of the angry ship are brought to a safe place before the destruction. Lifeboats or dinghies are expressly not considered a safe place if there is no land or another vehicle nearby. In the case of ships in the escort of enemy warships, it is generally assumed that they are part of a military association and that they can therefore also be treated like warships, so the restrictions mentioned do not apply. Subsequent judicial review is also required for prizes destroyed under prize law.
history
From antiquity to the Middle Ages, it is difficult to distinguish between piracy and naval warfare. At first there were only small war fleets. The seafaring population took part directly in the wars. Even at sea, war meant as much as possible the destruction of the enemy and personal enrichment; there were no rights of bystanders. Many continued violent enrichment at the expense of others in peacetime. In the meantime, the pirate nuisance in the Mediterranean was briefly suppressed by the Romans, but then spread throughout Europe. It was only with the increasing importance of sea trade in the High Middle Ages that states became interested in ending this situation. A distinction had to be made, as the right to war should not be compromised. So-called letters of piracy were issued to the officially commissioned private sea warriors, the pirates. In theory the pirate was a warrior, the pirate a criminal. This is where the concept of neutrality came about. Those who were not involved should also remain unmolested by the belligerents. In return, they were required to be neutral . The ban law is based on these. In order to enforce it, there was initially only a right to information; the information had to be sworn.
Since the middle of the 12th century, the issuing of letters of lading was common practice across Europe. Since the pirates continued to hijack neutrals, even after the end of the war, in exceeding their competencies, they soon had to take oaths and securities, which did not solve the problems. So so-called reprisal letters developed almost parallel to the letters of war. With these letters of reprisal, the sovereign of an unlawfully injured party granted him the right to hold harmless against subjects of the letter issuer. This recourse to their own subjects was not in the interests of the belligerents. Therefore, in 1373, during the Hundred Years War , the first prize court was created to control privateer ships in France. The opponent England also granted plaintiffs compensation.
The first known collection of customary law on awards can be found in the “Consolat de Mar”, which was created in Barcelona in the 13th or 14th century. With regard to the right to booty, a consistent distinction is made here between cargo and ship, only enemy property is booty. This marked the first climax of the neutral right. In the period that followed, these rules were also applied and bilateral treaties were based on them, but stronger sea powers often disregarded them when it seemed opportune. With the increasing efficiency of the war fleets, the interests of the larger sea powers began to develop away from those of the continental powers and neutrals.
With the beginning of the modern era , sea trade experienced another huge expansion due to the overseas discoveries. A struggle between the Western European states for supremacy at sea began. In the course of these conflicts in the second half of the 16th century there was a considerable tightening of booty law in favor of the sea powers: ship and cargo became booty if only one was enemy property. Again, this rule was often applied on an opportunity basis. The Netherlands in particular managed to maintain the right to transport hostile goods in bilateral agreements. In the period that followed, the interpretation of the term `` banngut '' also fluctuated between the restriction to goods for immediate use in war and the inclusion of raw materials and food.
In 1584 the Netherlands also declared the first blockade in today's sense against the coast of Spanish Flanders. Blockages had previously been enforced in individual cases through contractual agreements with the neutrals. The exception is the fictitious blockade, which was already used by England in the Hundred Years War, in the form of the threat that every foreign ship destined for France would be "taken away and burned". England and Great Britain were to continue to practice this practice well into the 20th century, although it was never really considered lawful. Legal auxiliary constructs such as the legal presumption of the effectiveness of a declared blockade and a right of prevention and pursuit of action proved helpful in the British sense.
With the end of the Seven Years' War , Great Britain achieved a worldwide position of sole dominance in the peace of Paris in 1763. Therefore, the aforementioned conflict of interests was now constant between Great Britain and the other powers. The armed neutralities of 1780 and 1800, which wanted to enforce the principle of the Dutch treaties “neutral flag protects hostile goods other than banned goods”, were directed against British piracy in the American War of Independence and in the Second Coalition War against revolutionary France . The positions were incompatible: Great Britain reacted by destroying the Danish fleet off Copenhagen. In 1785, in a Prussian-US-American treaty, the law of sea loot was abolished for the first time. As a result, the USA in particular consistently insisted on universal recognition of the inviolability of private property.
It was not until the Crimean War that Great Britain and its previous main rival France were on one side. Britain was ready to make concessions to its ally. In the course of the peace negotiations, the first multilateral agreement on the right to award prizes was reached in 1856 , the Paris Declaration of the Law of the Sea : privateering is officially abolished, the inviolability of all goods under a neutral flag, with the exception of goods under ban, is recognized, as is the inviolability of neutral goods under a hostile flag. It was stipulated that blockades must actually be carried out with sufficient strength. Only the term “banned goods” remained open. However, the complete abolition of the law of looting could not be enforced against Great Britain, so the USA refused to give its consent.
In 1907, at the second Hague Peace Conference, an attempt was made to carry out a comprehensive codification of the law of sea warfare, similar to what was actually achieved there for land warfare. A few agreements on this were reached. The planned creation of a naval order analogous to the land war order was postponed to a follow-up conference. This took place in London in 1909, where the agreement on the London Declaration of the Law of the Sea was also initially successful. Both the XII. The Hague Agreement on the establishment of an international prize court and the London Declaration of the Law of the Sea ultimately failed due to the refusal of the British House of Lords to ratify them. The London Declaration of the Law of the Sea nevertheless retained great importance as a generally recognized collection of applicable customary law. Several states, including Germany in 1909, adopted national prize regulations on this basis.
In the First World War , as in the Second World War , there were widespread disregard of the recently established award law. Great Britain used armed merchant ships, extended the control right into a nationwide system of bureaucratic cargo control, which was already exercised in the ports of the neutral states by British embassy officials by issuing so-called Navicerts , and forced neutral ships to sail in British convoys with the lights on. On the German side, especially by submarines, merchant ships were sunk without any warning and without any possibility of rescue for the crews. In the Pacific region, the US waged the submarine war with the same means. It is disputed to what extent the illegal exercise of the award right by individual parties represented permissible reprisals .
In addition to the undoubtedly prevailing viewpoints of opportunity, the different understandings of the nature of the belligerents are decisive for the different interpretations of the right to award awards in the world wars. While the Anglo-Saxon view saw the peoples as belligerents and derived the nature of war as total economic war , in the traditional continental European view the states were considered belligerents and the actions of private and neutrals should not be affected by war in principle. Since the situation had in fact at the same time clearly developed in the direction of "absolute war" in the sense of Clausewitz , the application of prize law came under pressure from various sides.
With the fundamental change in the legal situation in the area of the use of force between states following the Second World War through the Charter of the United Nations , the right to award has lost its importance, but in principle it still applies and is enshrined in law or regulation in many countries.
literature
- Ludwig Geßner: Le droît des neutres sur mer. 2nd Edition. Heymann, Berlin 1876.
- Ludwig Geßner: Pinch. In: Adolf Bruder (Ed.): Staatslexikon. Published on behalf of the Görres Society. Volume 4: Austria-Hungary - Switzerland. Herder, Freiburg im Breisgau 1895.
- Knut Neuss: The development of prize law through the Second World War . Würzburg 1966 (Würzburg, Univ., Dissertation of November 7, 1966).
- Heinrich Dietz: Problems of martial law in the area of prize law. Investigations in international law following the German prize judicature of the Second World War . Würzburg 1977 (Würzburg, Univ., Diss., 1977).
- Alexander Meyer: Berthold Schenk Graf von Stauffenberg (1905–1944). International Law in Resistance (= Tübingen writings on international and European law . Volume 57 ). Duncker & Humblot, Berlin 2001, ISBN 3-428-10121-9 (also: Tübingen, Universität, Diss., 1999).
- Eugen Saalfrank: The condensation of German and Austrian merchant ships by the Belgian award court in 1919. Schmidt & Klaunig, Kiel 1925 (at the same time: Kiel, University, dissertation, 1925).
