Great Britain and Maritime Law: From the Declaration of Paris to the era of Total War.

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1 Great Britain and Maritime Law: From the Declaration of Paris to the era of Total War. Andrew Lambert, Laughton Professor of Naval History, King s College, London. Given the inevitable focus of navies and their lawyers on such pressing issues as piracy in the Horn of Africa, terrorism, drug smuggling, ecological concerns and territorial jurisdiction there is a danger that we might find ourselves learning old lessons. It would be useful to re examine the history of navies and maritime law. In truth there is very little that could be considered new in the military, policing or ecological issues, or in the legal instruments and methods that are employed. History, a deep reservoir of human experience, is a rich resource as long as we are not looking for lessons of immediate applicability. There are no lessons because history is a record of the unique, the contingent and the human, it works as education, not training. As one great historian (Jakob Burckhardt) observed the purpose of history is not to make us clever for today, but to make us wise for ever. The philosopher of war, Carl von Clausewitz, made a similar point about history and war. An understanding of past practice should inform the judgement, not decide the course of action. Maritime Law is merely one of many issues that has to be handled in accordance with the strategic and diplomatic realities of the moment. For all the intellectual effort applied to resolve disputes and codify international practice governments, once at war, invariably apply a legal regime that produces the greatest political and strategic benefit. As a leading authority on law and seapower observed: The law has never been static. Its pliable character has meant that it has been made to serve the purposes of sea power, and so has become a weapon in the naval armoury. Just how it has played this role has depended on the issues that occasioned resort to naval force, but it has always been prominent in giving form and character to the issues as well as in influencing the conduct of those who have sought their resolution. 1 1 O Connell D. P. The Influence of Law Upon Sea Power. (Manchester UP 1975) p.16.

2 It should be stressed that these issues were uniquely important for Britain. As an island nation and global trading empire Britain relied on the sea for her insular and imperial security, together with the prosperity that underpinned the entire structure. These issues are still uniquely important to Britain, which the by far the most global of the G8 nations, with a far higher percentage of total trade being international than the United States, the least global G8 power. Such facts will influence the approach both countries take to the legal regime at sea. Between 1650 and 1945 British security and prosperity depended on naval dominance, secured by a sea control force capable of defeating any realistic combination of rivals. Sea control was the basis for the strategic exploitation of the sea, using economic blockade as a key strategic instrument. Because the law has been a cornerstone of British maritime strategy any significant legal limit on the application of naval power raised fundamental questions about the utility of maritime [and therefore British] strategy. 2 Current Concerns: 1. Ecological. The control of fisheries inspired some of the earliest legal development of maritime law for navies. By the 17 th century the Royal navy was using force to tax foreign vessels fishing on British fishing grounds. To support this policy English and Scots lawyers developed a substantial body of precedent, including some downright fraudulent evidence drawn from the darkest recesses of Anglo Saxon and Roman history. This was the basis of John Selden s Mare Clausum pro domini Maris. (London 1634) set out the English case for Sovereignty of the Seas, on the basis of customary and other vague precedents. The book was closely linked to the Ship Money programme that Charles I introduced in the same year, and the massive battleship Sovereign of the Seas completed in Selden s book was published in Latin, to ensure it was understood by foreign jurists. 2. Right of Search: 2 Ranft, B. Restraints on War at Sea before 1945 in Howard, M. ed. Restraints on War: Studies in the Limitation of Armed Conflict. (Oxford University Press 1979) p John Selden ( ) lawyer and politician

3 Current sensitivities about stopping ships flying certain national flags have a precedent in the 19 th century campaign against the Atlantic Slave Trade. Although the British managed to secure rights of visits and search, under a variety of limits, with most European powers the United States, after bitter experience between 1803 and 1812, refused to allow the Royal Navy to check the legitimacy of the use of their flag, let alone to search for slaves, despite slave trading being illegal under American law. By contrast when Brazil revoked the right of search the British simply treated their slave ships as pirates, the common enemies of mankind, seizing them in their own harbours, under the guns of Brazilian forts. Brazil stopped slave trading within months, but maintained slavery for another four decades. The Atlantic slave trade stopped when the American Civil War ended the demand. In the nineteenth century naval officers heading for the West African and West Indian anti slave trade patrols were issued with vast tomes of international law, detailing the various treaties under which rights of search could, and could not, be exercised. British Foreign Secretaries usually supported the Navy when naval officer s zeal outran their instructions. 3. Piracy: The Royal Navy had extensive experience of dealing with piracy, and learned very early that the solution was not naval. Only when local governments took control of the shore, and imposed authority over the regions concerned was piracy solved. Serious outbreaks of piracy followed the collapse of authority in a verity of nineteenth century states, from rebellious former Spanish Latin American colonies to Greece, China and Morocco. In all cases the re imposition of legitimate and effective government on shore was the ONLY solution. While naval action could limit the damage caused by piracy, and improve the security of British trade, it could not solve the problem. Much of the contemporary debate about piracy appears to have been inspired by other concerns, with non regional powers seeking to use naval force to secure greater influence over key strategic choke points, notably the Malacca Straits. Historically pirates have been used as an excuse for intervention, the imposition extra territorial legal regimes, and the reduction of state sovereignty 4. Territorial Straits.

4 Access rights have been a major legal issue since the middle ages. The regulations surrounding the Danish Straits, and the related Sounds dues that taxed ships passing, frequently came to dominate British foreign policy between the Commonwealth and the First World War. The British attacks on Copenhagen, 1801 and 1807, secured access to the vital trade resources of the Baltic, by removing Danish power to block the passage. During the tortured process of creating an independent Norwegian state in Russia and Germany wished to establish a legal regime that excluded the warships of non riparian powers from the Baltic. The Admiralty was well aware of this, because the Baltic was the key strategic theatre for the coercion of both states by naval action. Therefore it advised the Foreign Office to resist any such measures, and as Denmark rejected the Russo German measure, well aware of what would happen if it stood on the Baltic front line against Britain for a third time, the measure was never raised. Between 1815 and 1914 British policy on the Danish Straits was utterly consistent, free access to the Baltic for naval forces was essential, any attempt to bar it could be casus belli. 5. The British experience While Britain, as the dominant naval power, invariably adopted a different position on maritime legal issues to those of weaker naval rivals and neutrals, the British regime was tempered by practical politics. A clear distinction can be drawn between the legal policy applied in a Total war, when limitation was generally ignored, and a Limited war when the views of significant neutrals influenced the execution of policy. Furthermore, peace time practice generally tried to avoid problems. In individual cases this pragmatism has been misread as concession, but the longer view from the 1750s to the 1940s makes the underlying issues clear. British legal policy was settled in Cabinet, and informed by strategic, diplomatic and legal realities. It was regularly challenged by neutral powers relying on alternative legal concepts, derived from the original self interested Dutch position of Hugo Grotius. These powers tried to minimise the impact of sea power on their interests, either as neutrals or weaker naval belligerents. Between 1793 and 1815 Britain and France engaged in a total war, with economic attrition as the geo strategic front line between land power and sea power. This exerted a profound influence over the Senior Admiralty Court Judge Lord Stowell, whose prize

5 judgements show his deep understanding of the much more complex realities of military strategy, shifting government policy and conflicting economic and social forces. 4 The conflict eventually involved every significant maritime nation. Britain refused to discuss maritime belligerent rights at the Vienna settlement of Post war the issue of rights of search was central to the British policy of suppressing the Atlantic Slave Trade, a policy which the United States and others interpreted as the imposition of a maritime hegemony for commercial ends The Crimean War and the Declaration of Paris. Yet, when Britain next went to war with a major power she accepted significant limits on the use of belligerent rights. Russia had limited maritime interests, and the Crimean War found Britain allied to France. Consequently a effective close blockade could be imposed, removing the need to stop and search neutral shipping on the open seas, and with it the risk of antagonising key neutrals. These included the Scandinavian powers, who controlled strategic access to the Baltic, and the Americans who supply the Tsar with privateers. Despite their different traditions on maritime legal issues Britain and France adopted a joint policy declaration, although Britain explicitly retained the right to revert to the older tradition in future. The policy of 1854 was a much more consensual interpretation of belligerent rights than had been used against Napoleon because a limited war with Russia was not an existential issue. Allied policy required blockades to be effective to be legally enforceable, while neutral flags covered enemy goods on the high seas, and the right of search was restricted to determining nationality and checking for contraband. The British also urged the rest of the world to abandon privateering, clothing self interest with humanitarian examples. 7 After the war this practice was codified, following American prompting, as the Declaration of Paris of Foreign Secretary Clarendon believed Britain would earn 4 Bourguignon, H.J. Sir William Scott, Lord Stowell: Judge of the High Court of the Admiralty, (Cambridge UP 1987) see esp. pp Quote at p Webster, Sir C. The Foreign Policy of Castlereagh: London 1931 pp.147, , Soulsby, H.G. The Right of Search and the Slave Trade in Anglo American Relations, Baltimore Graham (First Lord of the Admiralty) Clarendon (Foreign Secretary) : FO 87/487 8 Piggott, Sir F. The Declaration of Paris London 1919.

6 international goodwill by renouncing an arbitrary system which could not be used in future. In addition he was anxious to outflank the Americans, knowing they would not agree to abolish privateering. Prime Minster Palmerston stressed: of course such engagements would be binding only as between countries which might be parties to them. 9 Palmerston s deft approach left the United States almost entirely isolated, the major advantage for Britain from the new legal regime. 10 While the four terms of the Declaration are often cited: 1. Privateering is, and remains abolished; 2. The neutral flag covers enemy s goods, with the exception of contraband of war; 3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy s flag; 4. Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. The text went on to say: The present Declaration is not and shall not be binding, except between those powers who have acceded to it, or shall accede, to it. 11 This was clearly designed to stop the Americans using the Declaration in an Anglo French war. Furthermore, as Clarendon stressed, the impact of the Declaration depended on the definition of contraband, which was deliberately left unsettled. 12 He knew that economic warfare could only be waged with an effective blockade, while this had been easily arranged against Russia it would be a very different problem in a war with France, which had two long coasts and access to neutral American shipping. 13 The Declaration, like any other treaty between nations, was ineffective in wartime, and Palmerston expected that limits on British action against neutrals could be ignored or revoked once another belligerent broke the terms. Between 1856 and 1900 the British Government resisted all attempts to register new, or widened legal powers that might limit British action in wartime. In fact the greatest threat Anderson, O. A Liberal State at War: British Politics and Economics During the Crimean War. London 1967 esp. pp for a discussion for the wider policy concerns that influenced these decisions. 9 Palmerston Clarendon : BL: Add. MSS 48,680 f ibid f69 11 For the full text see: Roberts, A. & Guelff, R. eds. Documents on the Laws of War (Oxford 2000, 3 rd edn.) pp Foreign Office Admiralty : ADM 1/ Lord Stanley of Alderley minute : FO 87/487.

7 to British power came from prominent, if unimaginative naval officers who saw in new legal ideas such as the immunity of private property at sea an opportunity to focus naval warfare onto purely military lines, ignoring the vulgar and distracting seizure of merchant shipping, and commercial blockades in favour of battle. This wholly erroneous, unrealistic analysis, posed a fundamental threat to imperial security. Only a deterrent strategy based on seizing the initiative and threatening rivals with dire consequences could protect so vast a spread of territory, interests and assets. Mere passive defence was an invitation to disaster. Despite this reality Britain publicly adhered to a legal regime that limited the offensive impact of naval mastery. Fortunately Civil War led the American government to accept British practice. 14 Britain rejected an American proposal that private property be immune because: it would reduce the power in the time of war, of all states having a military as well as a commercial marine. 15 Very soon the Federal regime, dominant at sea, found it strategically imperative to adopt a remarkably British approach to belligerent rights. American Courts employed Lord Stowell s Napoleonic era case law to blockade the Southern Confederacy! In the 1890s the Admiralty concluded that the blockade remained the basis of naval strategy, rather than a close blockade. This would require a wider definition of belligerent rights to be effective against merchant shipping. 16 The Foreign Office stressed the need to avoid agreements that might prove irksome or embarrassing. 17 Four decades of the historical precedent suggested: it would be far better that this country should retain a free hand, and not subscribe to any further Regulations which might be prejudical to its interests in any future wars. 18 Throughout the second half of the nineteenth century the British maintained a realist position. While neutral powers would inevitably dispute the British view of belligerent 14 Russell (Foreign Secretary) to Lyons (British Minister in Washington) : FO 87/ Cited in Edward Hertslet Foreign Office Confidential Print on Extending the Declaration of Paris to Private Property no. 6307: FO 881/ Marder, A. The Anatomy of British Sea Power. (London 1940) pp Hertslett Minute on Admiralty letter : FO 97/572 pp Confidential Print on Extending the Declaration of Paris to Private Property no. 6307: FO 881/6307

8 rights, and receive support from France, the issue was always one of expediency, not principle. They based their analysis on the actions, not the arguments of other powers. The British position was confirmed at the end of the nineteenth century by historical and strategic analysis. British policy makers reflected on the lessons of the last major conflict, the Great War of , as distilled by scholars who believed in the lessons of history. The influential naval strategist Captain Alfred T. Mahan USN persuaded the world that command of the sea, or Sea Power had given Britain the edge over her continental rivals, and secured global domination. His Sea Power books of 1890 and 1892 gave the British renewed confidence in their national strategy, and their national service. 19 Mahan argued that the Wars of the French Revolution and Empire had been primarily economic wars of attrition. 20 Phrases and passages from these books would be quoted, paraphrased or plagiarised for the next three decades. Immediately taken up as the occasion for an enlarged navy, they also provided the intellectual basis for opposition to new legal restraint on war at sea. 21 For Mahan Sea Power cut French economic links and food supplies. Neutrals who complained were smashed, like the Danes in 1801, or cowed, like the United States into accepting the British regime. The British deliberately detained neutral ships that could not be condemned as legal prize, because the inconvenience was a very powerful deterrent. 22 In typically Darwinian language the whole system illustrated the natural workings of so great a force as the Sea Power of Great Britain then was. 23 Britain used control of the seas, and even licensed trade with the enemy, to fund the overthrow of Napoleon. His defeat was directly attributed to economic pressure, which drove him to invade Spain and Russia to complete his pan European Continental System. This successful strategy was based on naval mastery, not a mass army. 24 As French commerce 19 Mahan. A.T. The Influence of Sea Power Upon History (Boston 1890). Lambert, A. D. The Foundations of Naval History: John Knox Laughton, the Royal Navy and the English Historical Profession. (Chatham 1998) 20 Mahan, A.T. The Influence of Sea Power upon the Wars of the French Revolution and Empire. (Boston 1892, 2 vols.). 21 Semmel pp Otte, T. G, Eyre Crowe and British Foreign Policy: A Cognitive Map. In Otte & Pagedas, Personalities, War and Diplomacy: Essays in International History (London 1997) pp A practice revived in Mahan The Influence of Sea Power upon the French Revolution and Empire London 1892 vol. II p ibid. p.386.

9 and economic life shrivelled away the British pressed ever harder, using stringent, even forced, interpretations of international law. Even provisions (and it will be well for Great Britain of the present day to recall the fact) were claimed to be contraband of war, on the ground that, in the then condition of France, when there was a reasonable hope of starving her into peace, to supply them contributed to prolong hostilities. 25 Mahan used history to advocate a maritime strategy for total war. His countrymen needed to understand that there would be no security for their shipping without a powerful navy. Mahan stressed that Britain had to cut American trade with France, both to protect her own economy, and to hurt France. 26 Napoleon s Continental System provided a priceless opportunity or an excuse. Although patently illegal, British action could be justified by the natural law of self preservation. 27 Mahan believed America had been drawn into the conflict on the wrong side, by maritime complaints, when her real interests lay in the defeat of Napoleonic hegemony a lesson President Wilson would remember in Despite Mahan s books the American government still planned to press their concept of making private property immune from capture at the First Hague Peace Conference in Fortunately Mahan, their naval delegate, ensured it was not tabled. Anticipating the 20 th century Anglo American global partnership Mahan wanted to keep the economic weapon in the arsenal of the sea powers. He was complemented by the dynamic British delegate, Admiral Sir John Fisher, who opposed any attempt to regulate the conduct of war. For Fisher the ability to inflict economic misery on an enemy was a key deterrent capability. 28 The immunity of private property was conveniently left for future consideration. The British Government recognised that no mere legal form would ensure the wartime security of maritime commerce. 7. History, Strategy and the Law: The career of Sir Julian Corbett: In the decade preceding the First World War lawyer historian Julian Corbett ( ) transformed British strategic thinking. By 1902 Corbett was involved in the provision of 25 ibid. p.395. The similarities with Caprivi s Reichstag speech of 1892 year are striking. 26 Crouzet, F. L èconomie britannique et le blocus continental ( ) 2 vols., Paris Mahan 1892 II pp Mackay, R F. Fisher of Kilverstone Oxford 1973 pp

10 higher education for naval officers, and by 1904 was advising Admiral Sir John Fisher, the First Sea Lord, on a wide range of issues. 29 Corbett s particular assets were his financial, and therefore intellectual, independence, the depth of his historical understanding and his legal background. He used these assets to analyse contemporary strategic problems with uncommon clarity. He codified a decade of teaching strategy and the theory of war to senior officers in Some Principles of Maritime Strategy. 30 This was the closest thing the British had to a written strategic doctrine in Corbett first addressed the issue of belligerent rights in He stressed that the power to blockade, and capture all outlying territory, gives England, in spite of her military weakness, so commanding a position in Europe. He also addressed the legal basis of enforcement. 31 He returned to the subject in his 1907 paper The Capture of Private Property at Sea which Mahan applauded and republished. Here he argued against any further attempts at limitation at the Second Hague Conference. 32 Anxious to demolish the position adopted by the Lord Chancellor, Lord Loreburn, Corbett stressed that the main advocates of abolition were continental military powers, who had expedient motives for their policy. By contrast the British concession of Free Ships Free Goods had been a unique act of self abnegation, weakening national strategy. Basing himself on Grotius and Vattel he demonstrated that the right to take or destroy enemy property on land and sea was universally accepted, and remained a legitimate means of coercion. As a student of Clausewitz he accepted that international law had no power to restrain a nations resort to force. 33 Any restraints adopted on land were for operational convenience, to maintain troop discipline, or avoid guerilla action, and did not prevent occupied territory being used to coerce the enemy through the stoppage of national life, citing German practice in as a case in point. He also attacked Loreburn s confusion over contraband and 29 Schurman, D. Julian S. Corbett: Historian of British Maritime Power from Drake to Jellicoe (London, Royal Historical Society 1981). 30 Corbett J. S., Some Principles of Maritime Strategy. (London, Longmans 1911) New edition, ed. Grove, E., (USNIP 1988). All references are to the 1988 edition. 31 Corbett, J. introduction to: Taylor, T.E Running the Blockade. (London, John Murray, 1896) p.vii. 32 Corbett, J. The Capture of Private Property at Sea The Nineteenth Century June The paper was reprinted in Mahan, A.T. Some Neglected Aspects of War. (London, Sampson, Low, 1907) at pp Schurman p.71 makes clear that this paper was written with Fisher s blessing. 33 Clausewitz, C. On War. (various editions) This fundamental point is set out on the opening page. Book One, Chapter One, Section Two.

11 local blockades, which were not morally distinct from general blockades. Loreburn was advised to read the letters of his eighteenth century predecessor Lord Hardwicke if he wanted to understand British policy and practice. He also cited Mahan s latest book, The Influenceof Sea Power upon the War of 1812 in support of the British position. The right to capture was the key to British security because it was the one instrument that could make naval power effective on land. In defending economic warfare as a key instrument for a British total war strategy Corbett invested this policy with a moral quality. It was not commerce destruction, merely prevention. No form of war indeed causes so little human suffering as the capture of property at sea. It is more akin to process of law, such as distress for rent, or execution of judgement, or arrest of a ship, than to a military operation. The object was the counter the moral case being cited against capture. He also contrasted the current approach with the lamentable cruelty of privateering (the modern analogue for this would be unrestricted submarine warfare). 34 Such random predatory warfare had been replaced by a proper system to secure strategic control of the enemy s communications. The local, tactical blockade of an individual port had been: supplemented by a strategic blockade of the great trade routes. In moral principle there is not difference between the two. Admit of the principle of tactical or close blockade, and as between belligerents you cannot condemn the principle of strategical or distant blockade. Except in their effect upon neutrals, there is no juridical difference between the two. 35 For Corbett blockade, including the capture of enemy property was the basic British strategic weapon. To limit it without applying equal constraint to operations on land would be unrealistic, and any significant change in the legal rights of belligerents on either element would make war more, and not less likely. His arguments helped to prevent any explicit move by the Cabinet, leaving the question of national policy open until war broke out in Ibid. p ibid. p.97.

12 Throughout the First World War Corbett provided vital historical and analytical stiffening for Admiralty opposition to concessions proposed by the Foreign Office. 36 In 1915 he produced a pamphlet defending British policy against those at home who favoured a more liberal regime, another in 1917 was designed to persuade the Americans that Freedom of the Seas was unnecessary. 37 At the end of the war Corbett addressed the implications of the proposed League of Nations for maritime law. It was widely assumed a League of Nations would enshrine Freedom of the Seas, the complete abolition of maritime belligerent rights. 38 Corbett argued that the original concept of a League was to avoid war; more recent plans were restricted to limiting the horrors of war, and controlling the impact of war on civilians. Furthermore the pre war concept of Freedom of the Seas had never been in accord with the realities of naval warfare. In peace all seas are free, and if the League achieved its ultimate aim, of preventing war, then the question of belligerent rights would never arise. But this was hardly likely. In fact the advocates of Freedom wanted to abolish the right of belligerents to stop commercial shipping on the high seas, and seize that belonging to enemies, or that of neutrals found to contain contraband. However, the right to interfere with non combatants and private property was the key to an effective naval strategy, just as it was on land. Naval warfare was not a mater of navies fighting navies: It is only by the prevention of enemy s commerce that fleets can exercise the pressure which armies seek, in theory or practice, to exercise through victories ashore; and it is only by the capture and the ability to capture private property at sea that prevention of commerce can be brought about. Without the right to capture private property Naval battles become meaningless as a method of forcing the enemy to submit. It come then to this that if Freedom of the Seas is pushed to its logical conclusion of forbidding altogether the capture and destruction of private property at sea, it will in practice go far to rob fleets of all power of exerting pressure on an enemy, while armies would be left in full enjoyment of that power. The balance of 36 Schurman pp Corbett, J. The Spectre of Navalism (London, Darling & Sons 1915). Corbett, J. League of Peace and a Free Sea (New York, Hodder & Stoughton, 1917) 38 Corbett, J.S. The League of Nations and the Freedom of the Seas Oxford University Press 1918 p.1

13 Naval and Military power, which has meant so much for the liberties of the world, would be upset, and the voice of the Naval Powers would sink to a whisper beside that of the Military Powers. 39 He could see no reason why naval powers, like Britain, would consent to such a development. Furthermore the exercise of those very belligerent rights would be the key to making any League an effective instrument for peace. 40 Blockade, or in modern parlance embargo would be the most readily applied, and the most immediate and humane sanction against recalcitrant powers. 41 Corbett found support for his views from President Wilson. In his original pronouncement on a League Wilson called for the sea to be open for the common unhindered use of all the nations of the world, but his message to Congress of 9 January 1918, was rather different. A closer understanding of the realities of war, an unrestricted submarine campaign and the strategic use of economic blockade persuaded him to reverse that simplistic stance. Now Wilson recognised the need to retain belligerent rights as the key to enforcing League authority. To concede the original programme would be to put the future of the world in the hands of the military powers, and Corbett implied that Germany would support the plan. While the extension of belligerent rights at sea had been a feature of current war the answer did not lay in Freedom of the Seas. In such a conflict old fashioned neutrality simply did not exist. The only remedy was a League, one with the power to coerce the recalcitrant, and to this end it must be disassociated from notions of Freedom of the Seas so that the naval powers could uphold the rights of the minor powers against the military powers. The example of Belgium, Germany and Britain in 1914 must have been in his mind as he wrote, although it remained unused. While Corbett s case is well made, and entirely plausible, the deeper import is skilfully obscured. A League, with full naval powers, would be a powerful force for stability, and bind many nations to protect the interests of both the smaller states, and the larger. 39 ibid pp ibid p.2 41 ibid p.9 a typical example of Corbett s foresight, combining logic, legal insight and hard won understanding of past practice. As he anticipated the use of such embargoes has been the key instrument of United Nations coercion.

14 Within such a League the British Empire would be able to build coalitions against aggression and other threats to peace. Conclusion: The advent of Total War in 1914 led the British to tear up the agreements and limitations so painfully compiled over the preceding sixty years to govern limited wars in which Britain expected to remain neutral. They did so because they thought it would be beneficial, and because they would not suffer any adverse effect. Ultimately the rule of law is merely one aspect of the rule of force: in 1914 Britain still ruled the waves, and used that power to settle the law that would apply. The realities of the law as it affects the use of force at sea are strikingly simple: power decides. The evolution of maritime law has always reflected the concerns and power of interested states. The big issues of the present are little different from those of the past, although the legal regime is larger, and far more complex. At present the need for consensus and agreement limits the application of force, but when the stakes are raised to total war, to existential struggles, such rules are among the first casualties. The career of Sir Julian Corbett demonstrated the absolute imperative to ensure the international legal framework was in line with national policy and strategy. Through a combination of historical analysis and close contact with serving officers at the highest levels not least Sir John Fisher Corbett worked legal concerns into national strategy and defeated attempts to water down key belligerent rights that would be the bed rock of allied victory in two world wars, a task in which he worked closely with his American contemporary Alfred T. Mahan, the victories of 1918 and 1945 owed a great deal to these far sighted strategist/historians. The law in this area is an instrument of power, and must never be confused with moral absolutes.