The Reality of International Law

Courtesy Reuters

"The law had been broken by a sea Power but was still the law; it was necessary that this should be brought before the public mind. The law was not like a teacup or a pitcher which, once broken, was irretrievably ruined." -- Elihu Root at the Washington Disarmament Conference of 1921.

THE City of Flint, flying the American flag, sailing from New York to England, was captured in October 1939 by a German warship and taken by a German prize crew to a neutral port. The case raised serious questions involving the interests of Great Powers. As this article is written, the four governments concerned -- the United States, Germany, Norway and Russia -- have been arguing the case not in terms of force or power, but on principles of law -- international law. Throughout modern history, similar cases have arisen on the high seas over and again, and for three hundred years governments have habitually argued them on the basis of the applicable rules of international law. For three hundred years, belligerents have habitually established "prize courts" to adjudicate the lawfulness of such captures. The Belgian prize court, dealing with a World War case, remarked that "although it has not been codified, prize law is nevertheless governed by certain essential and precise rules . . . ." "A Prize Court must of course deal judicially with all questions which come before it for determination," said the Judicial Committee of the British Privy Council in Great Britain in 1916. ". . . the law which the Prize Court is to administer is not the national . . . law, but the law of nations -- in other words, international law." Search the published records of governments and you find them full of questions and answers about problems of international law.

Why do Foreign Ministers and Secretaries of State consult legal advisers about international law?

In the Department of State in Washington there is a Legal Adviser with a staff of some two dozen lawyers to assist him. It would not be an unfair

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