International Law. A Treatise Volume Ii Part 65

[Footnote 932: _De la saisie des batiments neutres_ (1759), vol. II. p.

21.]

A somewhat similar proposal was made by Tetens[933] in 1805.

[Footnote 933: _Considerations sur les droits reciproques des puissances belligerantes et des puissances neutres sur mer, avec les principes du droit de guerre en general_ (1805), p. 163.]

Other proposals followed until the Inst.i.tute of International Law took up the matter in 1875, appointing, on the suggestion of Westlake, at its meeting at the Hague, a Commission for the purpose of drafting a _Projet d'organisation d'un tribunal international des prises maritimes_. In the course of time there were mainly two proposals before the Inst.i.tute, Westlake's and Bulmerincq's.

Westlake proposed[934] that Courts of Appeal should be inst.i.tuted in each case of war, and each Court should consist of three judges--one to be nominated by the belligerent concerned, another by the home State of the neutral prizes concerned, and the third by a neutral Power not interested in the case. According to Westlake's proposal there would therefore have to be inst.i.tuted in every war as many Courts of Appeal as neutrals concerned.

[Footnote 934: See _Annuaire_, II. (1878), p. 114.]

Bulmerincq proposed[935] that two Courts should be inst.i.tuted in each war for all prize cases, the one to act as Prize Court of the First Instance, the other to act as Prize Court of Appeal; each Court to consist of three judges, one judge to be appointed by each belligerent, the third judge to be appointed in common by all neutral maritime Powers.

[Footnote 935: See _R.I._ XI. (1879), pp. 191-194.]

Finally, the Inst.i.tute agreed, at its meeting at Heidelberg in 1887, upon the following proposal, which is embodied in ---- 100-109 of the _Reglement international des prises maritimes_:[936]--At the beginning of a war each belligerent inst.i.tutes a Court of Appeal consisting of five judges, the president and one of the other judges to be appointed by the belligerent, the three remaining to be nominated by three neutral Powers, and this Court to be competent for all prize cases.

[Footnote 936: _Annuaire_, IX. (1887), p. 239.]

No further step was taken in the matter during the nineteenth century.

But, during the South African War, the conviction became general that the exclusive jurisdiction of belligerents over captured neutral vessels is incompatible with the modern condition of the oversea commerce of neutrals. At the Second Peace Conference of 1907, therefore, Germany, as well as Great Britain, brought forward a project for real International Prize Courts.

[Sidenote: German Project of 1907.]

-- 439. The German project[937] was embodied in a draft of thirty-one articles dealing in three chapters with "Competence in Prize Cases,"

"Organisation of the International Prize Court," and "Procedure before the International Prize Court," and made the following proposals:--National Prize Courts should only be competent in the first instance, every appeal to go to the International Prize Court, and the latter to be competent not only in case of capture of neutral vessels, but in every case of capture of merchantmen. At the beginning of every war an International Prize Court should be established, but, in case there were more than two parties to a war, as many International Prize Courts should be established as there were couples of States fighting against each other. Each Court every time it sat should consist of five judges, three of whom should be members of the Permanent Court of Arbitration at the Hague, and two should be admirals. The admirals should belong to the navies of the belligerents, but the three members of the Permanent Court of Arbitration should be chosen by neutral Powers, each belligerent authorising one neutral Power to select one member, and these two neutrals to appoint a third neutral Power which would select the third member. The Court should sit at the Hague, have its first meeting when the first appeal case arose, and be dissolved after the conclusion of peace. The International Bureau of the Permanent Court of Arbitration should serve as the Registry of every International Prize Court. Each belligerent and the owners of the captured vessels or cargoes should have the right to bring an appeal before the International Prize Court.

[Footnote 937: _Deuxieme Conference, Actes_, II. p. 1071.]

[Sidenote: British Project of 1907.]

-- 440. The British project[938] was embodied in a draft of sixteen articles, and made the following proposals:--The International Prize Court should be competent in such cases only as directly concerned a neutral Power or its subjects, an appeal to be brought before the International Court only after the case had been decided by the highest National Prize Court of the belligerent concerned. Neutral Powers only, and not their subjects, should have the right to enter an appeal, and each neutral Power should represent its subjects concerned in a prize case. In contradistinction to the German project, the British draft proposed the establishment once for all of a Permanent International Prize Court, each Power whose mercantile marine at the date of the signature of the proposed convention exceeded a total of 800,000 tons, should, within three months from the date of ratification, nominate a prominent jurist as a member of the Court, and another as his deputy.

The President of the Court should be nominated by the signatory Powers in their alphabetical order, should remain in office one year only, and should have a casting vote. If a legal question were to be decided which had already been provided for in a convention between the parties in dispute, the Court should base its decision on such convention. In the absence of such a convention, and if all civilised nations were agreed on a point of legal interest, the Court should base its decision thereon, otherwise the Court should decide according to the principles of International Law.

[Footnote 938: _Deuxieme Conference de la Paix, Actes_, II. p. 1076.]

[Sidenote: Convention XII. of the Second Peace Conference.]

-- 441. The Second Peace Conference, after having studied and discussed the German and the British projects, produced the "Convention (XII.) respecting the establishment of an International Prize Court" which, on the whole, follows more closely the lines of the British project, but includes several features of the German, and others which originate neither with the British nor the German project. It comprises fifty-seven articles and is divided into four parts headed respectively "General Provisions" (articles 1-9), "Const.i.tution of the International Prize Court" (articles 10-27), "Procedure in the International Prize Court" (articles 28-50), and "Final Provisions" (articles 51-57). The Convention was signed by all the Powers represented at the Conference, except Brazil, China, Domingo, Greece, Luxemburg, Montenegro, Nicaragua, Roumania, Russia, Servia, and Venezuela. Ten States--namely, Chili, Cuba, Ecuador, Guatemala, Haiti, Persia, Salvador, Siam, Turkey, and Uruguay--entered a reservation against article 15 of the Convention because they did not agree with the principle of the composition of the Court embodied in this article.

As eleven States did not sign the Convention and ten of the signatory States refused to accept the composition of the Court as regulated by article 15, it cannot be said that the Convention is based on universal agreement. Yet the fact that, with the exception of Russia, all the Great Powers and a great number of the minor Powers have signed it without a reservation, offers sufficient guarantee for the success of the Court when once established. Nothing prevents a future Peace Conference from making such alterations in the Convention as would meet the wishes of the Powers which at present refuse to sign the Convention or to accept article 15.

It should be mentioned that, according to article 55, the Convention remains in force for twelve years from the date it comes into force, and is to be tacitly renewed for six years, unless denounced one year at least before the expiry of the period for which it is in force. And article 57 stipulates that two years before the expiration of the period for which it is in force, any contracting Power may demand a modification of the provisions concerning its own partic.i.p.ation in the composition of the Court. The demand must be addressed to the Administrative Council which, on its part, must examine it and submit proposals as to the measures to be adopted to all the contracting Powers. These Powers must, with the least possible delay, inform the Administrative Council of their decision. The result is at once, or at any rate one year and thirty days before the expiry of the period of two years, to be communicated to the Power which made the demand for a modification of the provisions concerning its partic.i.p.ation in the composition of the Court.

II

CONSt.i.tUTION AND COMPETENCE OF THE INTERNATIONAL PRIZE COURT

Westlake, II. pp. 288-297--Lawrence, -- 192--Ullmann, -- 196--Bonfils, Nos. 1440'1-1440'3--Despagnet, Nos. 683-683 _bis_--Fiore, Code, Nos. 1897-1901--Dupuis, _Guerre_, Nos.

232-276--Bernsten, -- 14--Lemonon, pp. 293-335--Higgins, pp.

435-444--Barclay, _Problems_, pp. 105-108--Scott, _Conferences_, pp. 466-511--Nippold, I. ---- 16-19--Fried, _Die zweite Haager Konferenz_ (1908), pp. 121-130--Lawrence, _International Problems_ (1908), pp. 132-159--Hirschmann, _Das internationale Prisenrecht_ (1912), ---- 39-41--Gregory, White, and Scott in _A.J._ II. (1908), pp. 458-475, and 490-506, and V. (1911), pp. 302-324--Donker Curtius in _R.I._ 2nd Ser. XI. (1909), pp. 5-36.

[Sidenote: Personnel.]

-- 442. The International Prize Court consists of judges and deputy judges, a judge who is absent or prevented from sitting being replaced by a deputy (article 14). The judges and the deputies are appointed by the contracting Powers from among jurists of known proficiency in maritime International Law, and of the highest moral reputation, each Power appointing one judge and one deputy for a period of six years (articles 10 and 11). The judges are all of equal rank and have precedence according to the date of the notification of their appointment to the Administrative Council of the Permanent Court of Arbitration at the Hague, but, if they sit by rota in conformity with article 15, paragraph 2, they have precedence according to the date on which they entered upon their duties, and, when the date is the same, the senior takes precedence; deputies rank after the judges (article 12). The judges--and the deputies when taking the places of judges--must, when outside their own country, be granted diplomatic privileges and immunities in the performance of their duties; they must, before taking their seats, take an oath, or make a solemn affirmation, before the Administrative Council, that they will discharge their duties impartially and conscientiously (article 13). No judge or deputy judge may, during the tenure of his office, appear as agent or advocate before the International Prize Court, nor act for one of the parties in any capacity whatever (article 17).

Attention should be drawn to the fact that the Court, if once established, will be permanent, and the judges, if once appointed, will always be at hand, although in time of peace they will not sit.

[Sidenote: Deciding Tribunal.]

-- 443. The judges appointed by the contracting Powers do not, as a body, decide the appeal cases brought before the Court. From among the great number of judges appointed, a deciding tribunal is formed which is composed of fifteen judges, nine of whom const.i.tute a quorum; and a judge who is absent or prevented from sitting is replaced by a deputy (article 14). The judges appointed by Great Britain, Germany, the United States of America, Austria-Hungary, France, Italy, j.a.pan, and Russia are always summoned to sit, but the judges appointed by the remaining contracting Powers are only in rotation summoned to sit, and their duties may successively be performed by the same person, since the same individual may be appointed as judge by several of these Powers (article 15). If a belligerent Power has, according to the rota, no judge sitting in the deciding tribunal, it has a right to demand that the judge appointed by it shall take part in the settlement of all cases arising from the war, and lots shall then be drawn to decide which of the judges ent.i.tled to sit by rota shall withdraw, but the judge of the other belligerent party does not take part in the drawing of lots (article 16). No judge may sit who has been a party, in any way whatever, to the sentence p.r.o.nounced by the National Prize Court against which the appeal has been made, or who has taken part in the case as counsel or advocate for one of the parties (article 17). The summoning by rota of the judges appointed by the minor Powers takes place according to the following list:--

JUDGES DEPUTY JUDGES

_First Year_

1. Argentina Paraguay 2. Colombia Bolivia 3. Spain Spain 4. Greece Roumania 5. Norway Sweden 6. Holland Belgium 7. Turkey Persia

_Second Year_

1. Argentina Panama 2. Spain Spain 3. Greece Roumania 4. Norway Sweden 5. Holland Belgium 6. Turkey Luxemburg 7. Uruguay Costa Rica

_Third Year_

1. Brazil Domingo 2. China Turkey 3. Spain Portugal 4. Holland Switzerland 5. Roumania Greece 6. Sweden Denmark 7. Venezuela Haiti

_Fourth Year_

1. Brazil Guatemala 2. China Turkey 3. Spain Portugal 4. Peru Honduras 5. Roumania Greece 6. Sweden Denmark 7. Switzerland Holland

_Fifth Year_

1. Belgium Holland 2. Bulgaria Montenegro 3. Chili Nicaragua 4. Denmark Norway 5. Mexico Cuba 6. Persia China 7. Portugal Spain

_Sixth Year_

1. Belgium Holland 2. Chili Salvador 3. Denmark Norway 4. Mexico Ecuador 5. Portugal Spain 6. Servia Bulgaria 7. Siam China

The deciding tribunal elects its President and Vice-President by an absolute majority of the votes cast, but after two ballots the election is made by a bare majority, and, in case the votes are equal, by lot (article 19).

The judges--as well as the deputies when they sit--receive, while carrying out their duties, a salary of one hundred Netherland florins (about 8, 4s.) _per diem_, besides travelling expenses. The salaries and travelling expenses are to be paid by the International Bureau of the Permanent Court of Arbitration, and the judges must not receive any other remuneration either from their own Government or from any other Power (article 20).

The belligerent captor, as well as a neutral Power which is herself, or whose national is, a party, may appoint a naval officer of high rank to sit as _a.s.sessor_, but he has no voice in the decision. If more than one neutral Power is concerned in a case, they must agree among themselves, if necessary by lot, on the naval officer to be appointed as a.s.sessor (article 18).

The seat[939] of the deciding tribunal is at the Hague, and it may not, except in the case of _force majeure_, be transferred elsewhere without the consent of both belligerents (article 21). When the Court is not sitting, the duties conferred on it by certain articles of Convention XII. are discharged by a delegation of three judges appointed by the Court; this delegation comes to a decision by a majority of votes, and its members must, of course, reside at the Hague while they fulfil their duties (article 48).

[Footnote 939: The working-order (_ordre interieur_) of the International Prize Court is to be drawn up by the Court itself; see details in article 49.]