however, already in contemplation, repealing the acts of 1864
and 1894, consolidating and re-enacting their main provisions
and making such statutory provisions as will permit of the
ratification of a convention adopted at the second Hague
Conference (1907) for the establishment of an International
Prize Court.
The Convention referred to above contains an elaborate scheme of 50 articles setting out the constitution and procedure of the court. It begins with the following declaration of its objects:—
Animated by the desire to settle in an equitable manner the differences which sometimes arise in the course of a naval war in connexion with the decisions of national prize courts: Considering that, if these courts are to continue to exercise their functions in the manner determined by national legislation, it is desirable that in certain cases an appeal should be provided under conditions conciliating, as far as possible, the public and private interests involved in matters of prize:
Whereas, moreover, the institution of an international court, whose jurisdiction and procedure would be carefully defined, has seemed to be the best method of attaining this object: Convinced, finally, that in this manner the hardships consequent on naval war would be mitigated; that, in particular, good relations will be more easily maintained between belligerents and neutrals, and peace better assured .....
It prescribes that the court shall be composed of fifteen members out of the whole panel (art. 14). Of these Great Britain, France, Germany, Austria-Hungary, Russia, Italy, the United States and japan each appoint one (art. 15). A schedule of the other powers is appended to the Convention, under which they take their turn to sit to the number of seven, making up together the prescribed hfteen. As composed under the first year's distribution, the other judges would be appointed by Argentina, Colombia, Spain, Greece, Norway, Holland and Turkey. There are also full provisions as to the procedure and conduct of the proceedings in the court, but the only provisions of concern to general readers are those relating to international law, which are as follows:-
1. The validity of the capture of a merchant-ship or its cargo is decided before a prize court in accordance with the present convention when neutral or enemy property is involved.
2. jurisdiction in matters of prize is exercised in the first instance by the prize courts of the belligerent captor. The judgments of these courts are pronounced in public or are officially notified to parties concerned who are neutrals or enemies.
3. The judgments of national prize courts may be brought before the international prize court:-
i. When the judgment of the national prize courts affects the property of a neutral power or individual;
ii. Viffien the judgment affects enemy property and relates to:- (a) Cargo on board a neutral ship;
(b) An enemy ship captured in the territorial waters of a neutral power, when that power has not made the ca ture the subject of a diplomatic claim;
(c) A claim based upon the allegation that the seizure has been effected in violation, either of the provisions of a convention in force between the belligerent powers, or of an enactment issued by the belligerent captor. The appeal against the 'udgment of the national court can be based on the ground that the judgment was wrong either in fact or in aw.
4. An appeal may be brought:-
i. By a neutral power, if the judgment of the national tribunals injuriously affects its property or the property of its nationals (art. 3 [(i.)]), or if the capture of an enemy vessel is alleged to have taken place in the territorial waters of that Power (art. 3 (ii.) (b))}, 3
ii. By a neutral individual, if the judgment of the National Court injuriously affects his property (art. 3 (i.)), subject, however, to the reservation that the power to which he belongs may forbid him to bring the case before the court, or may itself undertake the proceedings in his place; iii. By an individual subject or citizen of an enemy power, if the judgment of the national court injuriously affects his property in the cases referred to in art. 3 (ii.), except that mentioned in paragraph (b).
5. An a peal may also be brought on the same conditions as in the preceding artic e, by persons belonging either to neutral states or to the enemy, deriving their rights from and entitled to represent an individual qualified to appeal, and who have taken part in the proceedings before the national Court. Persons so entitled may appeal separately to the extent of their interest. The same rule applies in the case of persons belonging either to neutral states or to the enemy who derive their rights from and are entitled to represent a neutral power whose property was the subject of the decision.
6. When, in accordance with the above art. 3, the international court has jurisdiction, the national courts cannot deal with a case in more than two instances. The municipal law of the belligerent captor shall decide whether the case may be brought before the international court after judgment has been given in first instance or only after an appeal.
If the national courts fail to give judgment within two years from the date of capture, the case may be carried direct to the international court.
7. If a question of law to be decided is covered by a treaty in force between flue belligerent captor and a power which is itself or whose subject or citizen is a party to the proceedings, the court is governed by the provisions of the said treaty.
In the absence of such provisions, the court shall apply the rules of international law. If no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity.
The above provisions apply equally to questions relating to the order and mode of proof.
If, in accordance with art. 3 (ii.) (0), the ground of appeal is the violation of an enactment issued by the belligerent captor, the court shall enforce the enactment.
The court may disregard failure to comply with the procedure laid down in the legislation of the belligerent captor, when it is of opinion that the consequences of complying therewith are unjust and inequitable.
8. If the court pronounces the capture of the vessel or cargo to be valid, they shall be disposed of in accordance with the laws of the belligerent captor.
If it pronounces the capture to be null, the court shall order restitution of the vessel or cargo, and shall fix, if there is occasion, the amount of the damages. If the vessel or cargo have been sold or destroyed, the court shall determine the compensation to be given to the owner on this account.
If the national prize court pronounced the capture to be null, the court can only be asked to decide as to the damages. 9. The contracting powers undertake to submit in good faith to the decisions of the international prize court, and to carry them out with the least possible delay.
The British delegates, in their report on the work of the Conference, wrote that it was to them a subject of satisfaction that they had been able to accomplish the task thus laid upon them, “ not, indeed, in the form of an adaptation of the machinery of the existing court, but in the form of a new institution”; and that the convention drawn appeared to them to be “ a very noteworthy step in the history of law as the first attempt to constitute a really international court, and as the first device to produce uniformity in any branch of international law.' ' Here, however, the delegates overstated the scope of the work done, and in order to obtain that uniformity a further conference was held in London (Dec. 1908-Feb. 1909) “ to arrive at an agreement as to what are the generally recognized rules of international law within the meaning of art. 7 ” of the Convention. The London Conference drew up a series of rules which it declared “correspond in substance with the generally recognized principles of international law” on Blockade (q.v.), Contraband of War (q.v.), Unneutral service, Destruction of Neutral Prizes, Transfer to a Neutral Flag, Enemy Character, Convoy (q.v.), Resistance to Search and Compensation. These rules, if ratified, will bind the international court.
The proposal to submit captures in war to a special international jurisdiction has often been made, and in fact it suggests itself whenever there are two opinions concerning the justice of a prize court's decision.
The Institute of International Law in 1887, after adopting a Very full code of prize law, consisting of no fewer than 122 articles and covering every branch of the subject, forwarded them to the different European governments, with the expression of a wish that “in the future reform might take a still more complete shape by the institution of an international tribunal for trial of prize cases.”
The subject was brought up at the session in 1905 at Christiania of the International Law Association. The discussion showed that there was much to be said on both sides. Mr Justice Phillimore inter alias seemed favourable to the institution of an independent court of appeal only.
This was the position of the discussion at the opening of the
