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• Front Matter: Preface
• List of Cases Cited
• Introduction
• Declaration of Paris, 1856 1
• Déclaration De Paris, 1856.
• The Declaration of Paris, 1856.
• Declaration of St Petersburg, 1868 1
• Geneva Convention, 1864 1
• Convention Pour L’amélioration Du Sort Des Militaires Blessés Dans Les Armées En Campagne.
• Convention For the Amelioration of the Condition of Soldiers Wounded In Armies In the Field.
• Articles Concerning Naval Warfare ( La Marine ).
• Geneva Convention, 1906 1
• Convention Pour L’amélioration Du Sort Des Blessés Et Malades Dans Les Armées En Campagne.
• Convention For the Amelioration of the Condition of the Wounded and Sick In Armies In the Field.
• Chapitre Premier. —: Des Blessés Et Malades.
• Chapter I.—: The Wounded and Sick.
• Chapitre II.—: Des Formations Et Établissements Sanitaires.
• Chapter II.—: Medical Units and Establishments.
• Chapitre III.—: Du Personnel.
• Chapter III.—: Personnel.
• Chapitre IV.—: Du Matériel.
• Chapter IV.—: Material.
• Chapitre V.—: Des Convois D’Évacuation.
• Chapter V.—: Convoys of Evacuation.
• Chapter VI.—: Du Signe Distinctif.
• Chapter VI.—: The Distinctive Emblem.
• Chapitre VII.—: De L’application Et De L’exécution De La Convention.
• Chapter VII.—: Application and Carrying Out of the Convention.
• Chapitre VIII.—: De La Répression Des Abus Et Des Infractions.
• Chapter VIII.—: Prevention of Abuses and Infractions.
• Dispositions Générales.
• General Provisions.
• Protocole Final De La Conférence De Revision De La Convention De Genève.
• Final Protocol of the Conference For the Revision of the Geneva Convention.
• The Hague Peace Conferences 1899 and 1907
• The Peace Conference of 1899 1 .
• The Second Peace Conference of 1907 1 .
• Final Acts of the International Peace Conferences.
• The Conventions of the Hague Conferences of 1899 and 1907 1 .
• I.: Convention For the Pacific Settlement of International Disputes.
• 1.: Règlement Pacifique Des Conflits Internationaux.
• 1.: Pacific Settlement of International Disputes
• I.: Convention For the Pacific Settlement of International Disputes 1 .
• II.: The Recovery of Contract Debts.
• II.: Convention Concernant La Limitation De L’emploi De La Force Pour Le Recouvrement De Dettes Contractuelles.
• II.: Convention Respecting the Limitation of the Employment of Force For the Recovery of Contract Debts.
• Convention No. 2. the Limitation of the Employment of Force For the Recovery of Contract Debts 1 .
• III.: Convention Relative to the Commencement of Hostilities.
• III.: Convention Relative à L’ouverture Des Hostilités.
• III.: Convention Relative to the Opening of Hostilities.
• Convention No. 3. The Commencement of Hostilities 1 .
• IV.: Les Lois Et Coutumes De La Guerre Sur Terre.
• II.: Convention Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• IV.: Convention Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• Règlement Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• Section I.: Des Belligérants.
• Section II.: Des Hostilités.
• Section III.: De L’autorité Militaire Sur Le Territoire De L’État Ennemi.
• Section IV.: Des Belligérants Internés Et Des Blessés Soignés Chez Les Neutres.
• IV.: The Laws and Customs of War On Land.
• II.: Convention With Respect to the Laws and Customs of War On Land.
• IV.: Convention Concerning the Laws and Customs of War On Land.
• Regulations Respecting the Laws and Customs of War On Land.
• Section I.: Belligerents.
• Section II. Hostilities.
• Section III.: Military Authority Over the Territory of the Hostile State.
• Convention No. 4. Concerning the Laws and Customs of War On Land 1 .
• Appendix to Note On the Laws and Customs of War On Land. Translation of the Draft of an International Declaration Concerning the Laws and Customs of War Adopted By the Conference of Brussels, 27th August, 1874 1 .
• V.: Neutral Powers and Persons In Land Warfare.
• V.: Convention Concernant Les Droits Et Les Devoirs Des Puissances Et Des Personnes Neutres En Cas De Guerre Sur Terre.
• V.: Convention Respecting the Rights and Duties of Neutral Powers and Persons In War On Land.
• Convention No. 5. Respecting the Rights and Duties of Neutral Powers and Persons In War On Land 1 .
• VI.: Enemy Merchant-ships At the Outbreak of Hostilities.
• VI.: Convention Relative Au Régime Des Navires De Commerce Ennemis Au Début Des Hostilités.
• VI.: Convention Relative to the Status of Enemy Merchantships At the Outbreak of Hostilities.
• Convention No. 6. Relative to the Status of Enemy Merchant-ships At the Outbreak of Hostilities 1 .
• VII.: Conversion of Merchant-ships Into War-ships.
• VII.: Convention Relative à La Transformation Des Navires De Commerce En Bâtiments De Guerre.
• VII.: Convention Relative to the Conversion of Merchantships Into War-ships.
• Convention No. 7. Convention Relative to the Conversion of Merchant-ships Into War-ships 1 .
• VIII.: Automatic Submarine Contact Mines.
• VIII.: Convention Relative à La Pose De Mines Sous-marines Automatiques De Contact.
• VIII.: Convention Relative to the Laying of Automatic Submarine Contact Mines.
• Convention No. 8. Relative to the Laying of Automatic Submarine Contact Mines 1 .
• IX.: Bombardment By Naval Forces In Time of War.
• IX.: Convention Concernant Le Bombardement Par Des Forces Navales En Temps De Guerre.
• IX.: Convention Respecting Bombardment By Naval Forces In Time of War.
• Convention No. 9. Respecting Bombardment By Naval Forces In Time of War 1 .
• X.: Conventions For the Adaptation of the Principles of the Geneva Convention to Maritime War (1899 and 1907)
• X.: La Convention De Genève Et La Guerre Maritime 1 .
• III.: Convention Pour L’adaptation à La Guerre Maritime Des Principes De La Convention De Genève Du 22 Août, 1864.
• X.: Convention Pour L’adaptation à La Guerre Maritime Des Principes De La Convention De Genève.
• X.: The Geneva Convention and Maritime Warfare 1 .
• III.: Convention For the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864.
• X.: Convention For the Adaptation of the Principles of the Geneva Convention to Maritime War.
• Convention No. 10. The Adaptation of the Principles of the Geneva Convention to Maritime Warfare 1 .
• A Convention Relating to Hospital Ships, Signed At the Hague, the 21st December, 1904 2 .
• XI.: Restrictions On Capture In Maritime War
• XI.: Convention Relative à Certaines Restrictions à L’exercice Du Droit De Capture Dans La Guerre Maritime.
• XI.: Convention Relative to Certain Restrictions On the Exercise of the Right of Capture In Maritime War.
• Convention No. 11. Relative to Certain Restrictions On the Exercise of the Right of Capture In Maritime War.
• XII.: Establishment of an International Prize Court.
• XII.: Convention Relative à L’Établissement D’une Cour Internationale Des Prises.
• XII.: Convention Relative to the Establishment of an International Prize Court.
• Annex to Article 15. Distribution of Judges and Deputy Judges By Countries For Each Year of the Period of Six Years.
• Convention No. 12. Relative to the Establishment of an International Prize Court 1 .
• XIII.: Neutral Rights and Duties In Maritime War.
• XIII.: Convention Concernant Les Droits Et Les Devoirs Des Puissances Neutres En Cas De Guerre Maritime.
• XIII.: Convention Respecting the Rights and Duties of Neutral Powers In Maritime War.
• Convention No. 13. The Rights and Duties of Neutral Powers In Maritime War 1 .
• Declarations (1899 and 1907) Prohibiting Discharge of Projectiles, Etc. From Balloons
• Les Déclarations De 1899 Et 1907.
• Déclaration I.: Des Projectiles Et Des Explosifs Du Haut De Ballons.
• XIV.: Déclaration Relative à L’interdiction De Lancer Des Projectiles Et Des Explosifs Du Haut De Ballons.
• The Declarations of 1899 and 1907.
• Declaration I.: Projectiles and Explosives From Balloons.
• XIV.: Declaration Prohibiting the Discharge of Projectiles and Explosives From Balloons.
• Declaration Ii (1899).
• Des Gaz Asphyxiants Ou Délétères.
• Asphyxiating Or Deleterious Gases.
• II.: Declaration Prohibiting the Use of Asphyxiating Or Deleterious Gases 1 .
• Declaration Iii (1899).
• Des Balles à Enveloppe Dure Etc.
• Bullets With a Hard Envelope Etc.
• III.: Declaration Prohibiting the Use of Expanding Bullets 1 .
• Annexe Au Premier Vœu émis Par La Deuxième Conférence De La Paix 1 .
• Projet D’une Convention Relative à L’Établissement D’une Cour De Justice Arbitrale.
• Draft Convention Relative to the Creation of a Judicial Arbitration Court.
• The Draft Convention Relative to the Creation of a Judicial Arbitration Court 1 .
• The Results of the Second Peace Conference.
• Table of the Deposits of Acts of Ratification and Accessions to the Conventions and Declarations Signed the 29th July, 1899, At the First Peace Conference.
• Table of Signatures.
• Final Protocol of the London Naval Conference.
• Protocole De Clôture.
• Final Protocol.
• The Declaration of London, 1909
• Déclaration Relative Au Droit De La Guerre Maritime.
• Declaration Concerning the Laws of Naval War 1 .
• General Report On the Declaration Presented to the Naval Conference On Behalf of Its Drafting Committee 1 . ( Translation 2 .)
• Appendix. Instructions to British Delegation At the Second Peace Conference.
• Addenda and Errata.

Convention No. 12. Relative to the establishment of an International Prize Court¹ .

The need for an International Prize Court.Decisions of belligerent Prize Courts, though they purport to follow the rules of international law, are not infrequently determined by orders from the supreme authority of the state. “Prize Courts are subject to the instructions of their own sovereign² ,” and Prize Courts during the era of the Napoleonic wars were forced to follow the changing views of their Governments as recorded in such enactments as the various orders in Council and the Milan and Berlin decrees. Neutral states do not consider themselves bound by decisions of Prize Courts, and not infrequently judgments adverse to the claims of their nationals give rise to diplomatic negotiations of an acrimonious character whereby peace itself is endangered. The objections to the present system of national Prize Courts are that the captor is both judge and party in his own cause with a natural leaning in favour of his own side, and that though nominally administering international law they are dominated by the laws of their own country³ . These considerations do not appear so striking in the case of captures from an enemy as when neutral property is concerned, and various proposals from the time of Hübner, a Danish publicist, in 1759¹ , have been made for a reform of Prize Court procedure. The most important suggestions came from the Institut de Droit International, which in Articles 100-9 of the “Règlement international des prises maritimes,” adopted at its meeting at Heidelberg in 1877, proposed that a Court of Appeal should be established at the commencement of a war by either belligerent, consisting of five judges, two to be appointed by the belligerents and the remainder by three neutral Powers named by the belligerents² . The question of an International Prize Court was also discussed by the International Law Association at Christiania in 1905, when opinions on the advisability or feasibility of establishing such a Court were divided.

The subject of an International Prize Court was not mentioned in Count Benckendorff’s Circular of the 3rd April, 1906, but at the Second Plenary Meeting of the Conference on the 19th June, 1907, Baron Marschall von Bieberstein announced that he had been charged by the German Government to present to the Conference proposals for the establishment of an international court to discuss the lawfulness of the capture of prizes in maritime wars. No objection was raised; on the contrary, Sir Edward Fry welcomed the announcement and stated that he also had been entrusted by the British Government with proposals for the same object and would gladly co-operate with Baron Marschall to extend the principles of arbitration³ . General Porter, on behalf of the United States, supported the proposals⁴ . The subject was assigned to the Second Sub-Committee of the First Committee, under the presidency of M. Léon Bourgeois (France), M. Renault being Reporter, and at the first meeting of the Committee the proposals of Germany and Great Britain were handed in.

The German draft.The German draft contained 31 Articles⁵ . It proposed that a Tribunal should be composed of five members, two admirals and three members of the Permanent Court of Arbitration. Each belligerent within a fortnight after the commencement of war should nominate an admiral, and ask two neutral Powers to nominate one member each, the fifth member to be nominated by the two neutral Powers. The Court was thus to be one constituted ad hoc, on the outbreak of hostilities, and was competent to deal with matters affecting belligerents. Appeal lay directly to it from the National Prize Court of first instance by a private individual aggrieved.

The British draft.The British draft contained 16 Articles. The essential principle was the following: “Each of the signatory Powers whose mercantile marine at the date of signature of the proposed agreement exceeds a total of 800,000 tons, shall, in the course of three months following the ratification of the present Act, nominate a jurisconsult of recognised competence in international maritime law, enjoying the highest moral reputation and disposed to accept the function of Judge of the Court. Each Power shall also nominate a Deputy Judge with similar qualifications” (Art. 4)¹ . The Court was therefore to be permanent and composed solely of lawyers and, unlike that of the German scheme, it was competent only where neutrals were concerned. It was also intended only to be a Court of final appeal from the highest National Prize Court, and again differing from the German proposal, which contemplated action being taken by the aggrieved individual, it was to be endowed with competence for all cases where a Prize Court had given a decision which directly affected the interests of a neutral Power or its subjects, and where that Power asserted that the decision was not just either in point of law or in point of fact (Art. 2).

The Questionnaire.As the British and German proposals were based on different principles M. Renault proposed that a small Committee should be appointed to prepare a Questionnaire for solution by the Sub-Committee. This was done, and Sir Edward Fry, Herr Kriege and M. Renault, who composed the Committee, after several meetings agreed upon eight questions² . The Questionnaire was discussed at the meetings of the Second Sub-Committee on the 4th and 11th July³ . On the first question, Is it advisable to institute an international Court of Appeal?, Baron Marschall and Sir Edward Fry spoke in support of their respective proposals, and the discussion was favourable to the establishment of a Court⁴ .

The second question: Shall the Court to be established deal only with cases between the belligerent state which has captured the prize and the state which claims for its subjects injured by the capture, or can it be seized of the case directly by individuals who assert that they have suffered injury? Sir Edward Fry supported the British view that states, the subjects of international law, should be parties to the proceedings before the proposed Court, while Herr Kriege defended the German proposal to allow individuals to appear¹ .

The third question: Is the Court to take cognizance of all prize cases or only of cases in which the interests of neutral Governments or neutral individuals are concerned? Sir Edward Fry argued in favour of the latter, Herr Kriege of the former of these two positions.

The fourth question: When does the jurisdiction of the International Prize Court begin? Should it be seized of the case from the time when the Courts of first instance shall have given their verdict on the validity of the capture, or must it wait until the final decision has been given by the captor’s state? Sir Edward Fry supported the latter view, which Herr Kriege admitted from the theoretical point of view, but urged that owing to the long delays which often occurred in obtaining a definitive decision appeals should be allowed from Courts of first instance² .

The fifth question: Shall the International Court have a permanent character or shall it only be constituted at the outbreak of each war? The German delegate, while admitting that a permanent Court would be more likely to ensure continuity of international legal principles, considered that the difficulties in constituting such a Court were insuperable, as it should for this purpose contain representatives from all states, and this would make it too unwieldy. He then proceeded to criticise the British proposal to exclude from membership states with a small mercantile marine. M. Ruy Barbosa (Brazil) supported the British proposal for a permanent institution³ .

The sixth question: Whether the Court be permanent or temporary what elements shall enter into its composition? Only jurists nominated by nations having a mercantile marine of definite importance, or admirals and lawyers who are members of the Permanent Court of Arbitration nominated by the belligerents and neutral states? Should judges of the nationality of an interested state be excluded? Herr Kriege put forward the views of the German Delegation in favour of the two admirals and three jurists, urging the necessity of the former for giving technical explanations, and of the latter for safeguarding neutral rights. He was supported by M. de Martens. Mr Choate at this stage spoke at some length with a view of conciliating the opposing views of the British and German proposals, and suggested their consideration by a small Committee; M. Huber (Switzerland) urged the inclusion of inland Powers in the Court as their commercial interests were important⁴ .

The seventh question: What legal principles should the international High Court apply? Baron Marschall considered this question answered by the British proposals. In the first place any treaties to which the contending Powers are parties must be applied, failing these the general principles of international law. Sir Edward Fry welcomed this view of the German delegate and accepted it as an augury of success of the scheme¹ .

The eighth question: Is it advisable to settle the order and method of taking evidence in the High Court? M. Hagerup (Norway) urged that the general rule of evidence throwing the burden of proof on the captor should apply, though there was a presumption in favour of the captor. M. Nélidow (Russia) raised the question whether the law of the country of the captor should apply, to which Sir Edward Fry replied that the object was to avoid the multiplicity of national laws in prize cases and to establish a uniform international law. M. Nélidow agreed. Other speakers having supported the general principle of the establishment of an International Prize Court, M. Bourgeois closed the discussion, and in accordance with Mr Choate’s suggestion a Committee consisting of the three authors of the Questionnaire, the members of the Bureau of the Sub-Committee, together with three representatives of states nominated by the British and German Delegations respectively, was appointed to prepare a draft for consideration of the Committee. Sir Edward Fry nominated the United States, Italy and Portugal, Baron Marschall von Bieberstein proposed Russia, Norway and Holland. Russia declined the nomination and Sweden was substituted² .

The Committee was appointed on the 11th July and during the next month negotiations took place between the British and German delegates and those of the United States and France, and when the Examining Committee met on the 12th August a draft Convention consisting of 57 Articles was submitted for its consideration³ . This draft was with slight modifications adopted and approved by the Committee and presented to the Sixth Plenary Meeting of the Conference on the 21st Sept. 1907, with an interesting Report prepared by M. Renault which, after sketching the various suggestions previously made for the establishment of an International Prize Court, summarises the work of the Committee and adds an explanatory note to each of the Articles of the Convention⁴ .

The Convention.The Convention is divided into four parts: 1. General provisions. 2. Organisation of the International Prize Court. 3. Procedure before the International Prize Court. 4. Final provisions. Each Article will not here be discussed separately, especially as many of those relating to procedure are based on the Convention for the Pacific Settlement of International Disputes, as noted in the text of the Convention.

The order in which the Convention deals with matters of prize is in the main that of the Questionnaire.

The competence of the International Prize Court.The general principle that every case of prize shall be decided by the National Prize Court of the captor, whether neutral or enemy property is concerned, is laid down by Article 1. Any questions affecting a belligerent’s treatment of his own subjects for such matters as trading with an enemy are excluded from this Convention. Such matters are governed by national not by international law¹ . National Prize Courts will therefore continue as in the past to be governed as regards their constitution and procedure by the laws of their own countries. Precautions for avoiding the too frequently long delays before appeals can reach the International Court are provided in Article 6. The British and German schemes are combined and questions affecting both neutrals and belligerents may come before the newly established Court.

Appeals from National Prize Courts.Articles 3-5 deal with the cases which may be brought before the International Prize Court (Art. 3) and the parties by whom such appeals may be brought (Arts. 4 and 5).

When the judgment of the National Court affects property of a neutral Power or individual there is always a right of appeal; the Court is to be established for the purpose of more easily maintaining good relations between neutrals and belligerents. When it affects belligerents there is only an appeal in the three special cases set forth in Article 3:—

(a) When the judgment relates to enemy cargo on board a neutral ship. This under the Declaration of Paris is free from capture unless it is contraband of war, or unless the condemnation of the ship involves condemnation of the cargo as may happen in certain cases of breach of blockade or unneutral service.

(b) When the judgment relates to an enemy ship captured in the territorial waters of a neutral Power, when that Power has not made the capture the subject of a diplomatic claim. Attention must be drawn to 13 H. C. 1907, Art. 3, in which it is laid down that if the prize is not within the neutral jurisdiction the captor Government, on the demand of the neutral Power, must release the prize with its officers and crew. If the neutral Power does not make the demand, and weak neutrals have sometimes found it difficult to enforce their claims against strong belligerents for such violation of their territory, the neutral Power, not the enemy owner, may appeal to the International Prize Court¹ . The enemy owner would have no rights in the belligerent’s Prize Court, for a capture in violation of neutral territory is valid as between the belligerents² .

(c) When the claim of an enemy is based on 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. In this case also the enemy would have no rights in the belligerent’s Court, but under this Article he will be enabled to appeal to the International Prize Court and the fact of this procedure being open will ensure the more careful examination of the case before the National Court³ .

The appeal in all cases may be in the nature of a rehearing, as the International Prize Court has jurisdiction in questions of law and fact and may order supplementary evidence to be taken (Art. 36). Such a question as Did the capture take place in territorial waters? may well involve a combination of law and fact, so also would the question whether a ship had been guilty of a breach of blockade.

Who may appeal?One of the points of difference between the German and British proposals was whether states or individuals should have the right of appeal. A compromise is made in Article 4. Individuals may appeal, but a neutral Government may in some cases think it necessary to intervene to protect the interests of a subject, or even to prevent him from appealing. The Court itself is judge of its own competence as to matters coming before it under the Convention. Article 6 allows of only two trials of a case in the National Courts and provides that if no final judgment is given within two years from the date of capture by the National Courts the case may go direct to the International Court.

The law to be administered⁴ .The question as to what rules of law shall be applied by the International Prize Court is one of the greatest importance. The absence of a code of maritime international law, and the uncertainty of the rules on many important questions threatened to render the Convention nugatory. Clearly where a question of law to be decided is covered by a relevant Convention the Court will be governed by the principles of the treaty, and where generally recognised rules of international law exist the Court will apply them, but if none exist what are the “general principles of justice and equity” in accordance with which the Court is to decide? M. Renault says “the situation will to a great extent resemble the condition which has for a long time existed in Courts of countries where the laws, chiefly customary, were still rudimentary. They made the law at the same time as they applied it, their decisions formed precedents which became an important source of law. The essential is to have magistrates who inspire every confidence.” The analogy to the growth of such systems as the English Common Law does not appear to be well founded. English judges were controlled by the sovereign power in the state, and the Austinian doctrine that the sovereign commands what he permits receives its best illustration in England.

The possibility of a codification of the rules of international law applicable to naval warfare seemed to M. Renault to be extremely remote: “ce serait une perspective sur laquelle ne pourraient guère compter les plus jeunes d’entre nous.” Some few points in dispute were settled by the Conference but as has already been noted agreement was not reached on the more important such as blockade, contraband, sinking of neutral prizes, etc. A strong feeling was manifested in Great Britain and other important naval Powers against the signature of this Convention so long as vagueness and uncertainty existed as to the principles which the Court, in dealing with appeals brought before it, would apply to questions of far-reaching importance affecting naval policy. On the invitation of the British Government delegates from the great Powers of Europe, the United States, Japan, Spain and Holland met in London during the months of December, 1908—February, 1909, and signed a Declaration consisting of 71 Articles dealing with and settling many of the most important points on which divergence had been expressed¹ . M. Renault himself prepared the Report on the Declaration, which if acceded to and ratified by the states of the world will form a solid basis of international law which the International Prize Court will, in the last resort, be called upon to administer.

Articles 8 and 9 called forth no discussion in Committee. If the Court declares the capture of vessel or cargo to be valid, the laws of the belligerent captor decide their ultimate destination. If not, there are various alternatives dealt with, restitution of vessel with or without the cargo and with or without damages. In case of destruction of either, compensation to the successful appellant. Lastly, the National Prize Court may have annulled the capture, but not given damages or given what the appellant thinks insufficient: the Appeal Court in either of these cases may be asked to make an award. If the captor has failed before the National Prize Court there is no appeal¹ .

Constitution of the International Prize Court.Part ii., containing Articles 10-27, deals with the constitution of the International Prize Court. The Judges and Deputy Judges are appointed by the contracting Powers, the appointments to be made within six months after the ratification of the Convention (Art. 10). They are appointed for a period of six years, and in case of death or resignation the newly appointed Judge or Deputy is appointed for a full period of six years (Art. 11). They are all equal in rank and have precedence according to the date of notification of their appointment, and if they sit by rota, according to the date on which they enter on their duties. When the date is the same, the senior in age has the precedence, but Deputy Judges when acting as Judges rank after the Judges (Art. 12). The Court is composed of 15 Judges, nine of whom constitute a quorum, any Judge absent or prevented from sitting being replaced by a Deputy Judge (Art. 14). The method of appointment is dealt with in Article 15, which is the governing Article of this part and round which the discussions centred. This Article provides that the Judges appointed by Great Britain, Germany, the United States of America, Austria-Hungary, France, Italy, Japan and Russia—in other words, the eight great Powers of the world—are always summoned to sit. The Judges and Deputy Judges appointed by the other contracting Powers sit by rota as shown in the Table annexed to the Convention.

There was no difficulty in reaching an agreement on Articles 10-14. The number of 15 Judges for the Court is the maximum, but nine constitute the necessary quorum. How were these 15 to be obtained? The proposals of Germany and Great Britain were, as has already been noticed, based on totally different principles, the former providing for a Court to be established at the commencement of each war and composed of five members (two admirals and three lawyers), the latter providing for a permanent Court composed of Judges or Deputy Judges nominated by states whose mercantile marine exceeded 800,000 tons. The Court established by the Convention is to be a really permanent tribunal (unlike the body called into being for the purposes of arbitration under the First Convention of 1899), therein following the British principles, but its members instead of being chosen from states possessing a great mercantile marine are provided from the ranks of the great Powers, lesser Powers contributing in proportions settled by the annexed Table. The German scheme provided for the belligerent’s representation; the Convention adopts this principle by providing that if a belligerent Power has, according to the rota, no Judge sitting in the Court, it may ask that a Judge appointed by it shall take part in the settlement of all cases arising from the war. Lots are then drawn as to which of the Judges entitled to sit according to the rota shall be withdrawn, but this does not affect the other belligerent. It must be noticed also that this does not affect the members of the Court nominated by the eight great Powers enumerated in Article 15 (Art. 16). The German proposal for the presence of a naval officer is adopted in Article 18, but with the proviso that he sits as Assessor and has no vote.

The adoption of Article 15 was not effected without prolonged and strenuous objections on the part of the smaller states whose case was ably put forward by M. Ruy de Barbosa (Brazil). Mr Eyre Crowe at the first meeting of the Examining Committee on the 12th August explained the principle on which the Committee had proceeded, namely a combination of political power and mercantile shipping, and M. Renault’s Report deals with the same point. Numerous ingenious schemes, he says, were put forward, but were not acceptable to those Powers whose support was indispensable for the success of the project, and smaller states are reminded that if they consider their treatment unfavourable the states which are privileged in being always represented are those which are making the most real sacrifice in supporting the institution of an International Court. It is they who are most likely to be belligerents, and it is they who consent that the decisions of their Prize Courts shall be brought before the International Court, and that the actions of their naval officers shall be adjudicated by it. The commercial interests of small states have much to gain and little to lose; they can count on the impartiality of the Court and different legal systems will always be represented. The belligerent will always be entitled to have a Judge of his own country as a member of the Court¹ .

M. Ruy de Barbosa (Brazil) fought the principle of Article 15 throughout, and recorded the only vote given against the draft Convention at the Sixth Plenary Meeting of the Conference on the 21st Sept. 1907. In a long and elaborate speech at the second meeting of the Examining Committee on the 17th August he argued that the extent of the mercantile marine should be taken into consideration in fixing the rota of Judges. He produced a table of the merchant fleets of the world in support of his contention, and he concluded by pointing out that under the scheme of the Convention, out of the three states, Switzerland, Luxemburg and Servia not possessing a single ship, Switzerland was in a better position than Brazil with a mercantile marine of 217,000 tons¹ . The Norwegian delegate (M. Hagerup), as representing a country with a mercantile marine third on the list, supported the proposals of the Committee in order to assist in the accomplishment of a work which it was hoped would have so great consequences for the development of international law² . M. Ruy Barbosa subsequently returned to the subject and argued that on the ground both of commercial interests and ships of war his country was entitled to a higher rank than that assigned to it³ . Again, before the full meeting of the First Committee on the 10th September the Brazilian delegate, on behalf of his own and other American states, criticised the proposed composition of the Court. There were three methods, he said, on which to proceed: the value of the mercantile marine, the value of sea-borne commerce and the value of the fighting navy; he had taken all three into account and Brazil was inequitably treated in every respect. “This palpable iniquity in the foundations of a judicial institution, this ostensible affirmation of the power of force against reason in the work of the most august assembly in the world, convoked for the organisation of peace by means of law, is infinitely sad for the victims. My country will not resign itself to it⁴ .”

On signing the Convention the following states made reservations on Article 15, thereby refusing to accept the principle of the composition of the Court therein laid down: Chili, Cuba, Ecuador, Guatemala, Hayti, Persia, Salvador, Siam, Turkey and Uruguay.

Parts iii. and iv. occasioned but slight discussion; their general principles are those adopted in the Convention for the Pacific Settlement of Disputes, and more especially in the projected Judicial Arbitration Court. By Article 52 it is provided that the Convention shall be ratified and the ratification shall be deposited at the Hague as soon as the Powers mentioned in Article 15 and in the Table annexed are in a position to do so. The deposit of ratifications shall take place, in any case, on the 30th June, 1909, if the Powers which are ready to ratify can furnish nine Judges and nine Deputy Judges to the Court, duly qualified to constitute a Court. If not the deposit shall be postponed until this condition is fulfilled. By Article 53 the Powers referred to in Article 15 and in the Table annexed are entitled to sign up to the date of the deposit of the ratification contemplated in the second paragraph of Article 52. After this deposit, they can at any time accede to it purely and simply. The Convention shall come into force six months from the deposit of ratification contemplated in Article 52, paragraphs 1 and 2 (Art. 54).

The Convention is to endure for 12 years from the date at which it comes into force as determined by Article 54, paragraph 1, even for Powers acceding to it subsequently, and there shall be a tacit prolongation for periods of six years unless denounced by notification a year before the expiry of the period for which it is to last. If all the Powers referred to in Article 15 are not parties to the Convention provision is made in Article 56 enabling the Administrative Council to draw up a list of Judges and Deputy Judges in accordance with the principles of that Article. A desire having been expressed in the Sub-Committee for a revision in the future of Article 15 it is provided in Article 57 that two years before the periods of expiry of the Convention a demand for revision may be addressed to the Administrative Council.

Signatory Powers.The Convention has been signed by all the Powers represented at the Conference except Brazil, China, Dominica, Greece, Luxemburg, Montenegro, Nicaragua, Roumania, Russia, Servia and Venezuela. The ten Powers previously mentioned¹ have made a reservation in regard to Article 15. Eleven states, therefore, have not signed the Convention, and ten more have refused to accept the composition of the Court under Article 15.

The future of the International Prize Court is not yet assured. It remains to be seen whether the signatory Powers will also ratify, and in many cases there may be difficulties in passing legislation necessary to give effect to its provisions in states where such legislation is necessary.

If the Declaration of London and the Conventions signed at the Hague are ratified, the Court will have a considerable body of written law to administer. That they may be ratified is a wish which all who desire a peaceful settlement of international difficulties and the due maintenance of the rights of neutrals will cherish. The Convention provides for the creation for the first time of a really permanent Court with obligatory jurisdiction and is a distinct evidence of the progress towards a more definite rule of law in international matters.

Constitutional difficulties regarding the establishment of the Court.There are however constitutional difficulties in some states, notably the United States of America, which stand in the way of the ratification of a Convention to submit the judgment of a National Final Court of Appeal to an International Tribunal. The question was raised at the Naval Conference held in London, Dec. 1908—Feb. 1909, and with a view of solving the problem, the delegates included in the Protocole de Clôture signed on the 26th February, 1909, the following Vœu:

“The delegates of the Powers represented at the Naval Conference, which have signed or have expressed the intention of signing the Hague Convention of the 18th October, 1907, for the establishment of an International Prize Court, taking into consideration the difficulties of a constitutional nature which, as regards certain states, stand in the way of the ratification of that Convention in its present form, agree to call the attention of their respective Governments to the advantage of concluding an arrangement under which the said states would, at the time of the deposit of their ratifications, have the power to add thereto a reservation to the effect that the right of recourse to the International Prize Court in connection with the decisions of their National Courts, shall take the form of a direct claim for compensation, provided, however, that the effect of this reservation shall not be such as to impair the rights guaranteed by the said Convention either to individuals or to their Governments, and that the terms of the reservation shall form the subject of a subsequent understanding between the signatory Powers of the same Convention¹ .”

The explanation of the situation by M. Renault at the meeting of the Conference on the 25th February, 1909, which was confirmed by Rear-Admiral Stockton, one of the United States delegates, was the following. The working of the International Prize Court is not reconcilable with the constitutions of some states; the decisions of National Prize Courts cannot be annulled by foreign decision in certain countries, such as the United States of America. Recourse to the International Prize Court might have the effect of annulling a decision of the Supreme Court of the United States of America, a conclusion which is incompatible with their constitution. The United States Delegation has therefore endeavoured to find a way out of the difficulty. When there is a complaint with reference to a decision of a Prize Court of their country, application shall be made to the International Prize Court to obtain compensation on account of an alleged illegal capture. The Court would decide the case de novo, and if it came to the conclusion that the prize was illegal it would award compensation to the party injured. In this way national decisions will be respected. But the essential object of the establishment of the International Prize Court would be attained, by allowing a party interested to be protected against unjust decisions of a national tribunal. According to the Vœu, the delegates are to point out to their Governments the advantage there will be in arriving at an agreement of a kind to dispel the difficulties of a constitutional nature which face some of them. It is a question of attaining the same end under another form; instead of annulling a decision, the International Court will award compensation. The result however remains the same: the individual affected will be able to obtain a new trial which will in the end do him justice. The method is different, that is all.

In order to attain the object desired by the United States, it will be necessary to modify the Prize Court Convention in this sense that the signatory states can, on ratifying, reserve to themselves the right of recourse to a procedure different from that which is provided for by this Convention; only the 31 signatory Powers¹ will be able to decide on these modifications if they all agree.

The United States Government will be able, after the Conference, to make a proposal in accordance with the spirit of the Vœu, and this proposal must be accepted by the whole of the signatory states² .

XIII.

Neutral Rights and Duties in Maritime War.

[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 41, 146-182; La Deuxième Confér. T. i. pp. 165, 188-229; T. ii. pp. 11-33, 783-856, 1071-1106; Livre Jaune, pp. 68-74; Sir T. Barclay, Problems of international practice, etc. p. 105; Bonfils-Fauchille, Droit international public (5th ed.), §§ 14401, 16911; Bulmerincq, Le droit des prises maritimes, Rev. de droit intern. Vol. x. pp. 185, 384, 595; Vol. xi. pp. 152, 321, 561; Vol. xii. p. 187; Vol. xiii. p. 447; Vol. xiv. p. 114; J. Pawley Bate, Prize Courts and an International Prize Court of Appeal, International Law Association, 23rd Report (1906), p. 151; H. B. Brown, The proposed International Prize Court, Am. Journ. of Int. Law, Vol. ii. p. 476; F. D. Curtius, La Cour international des prises, Rev. de droit intern. Vol. xi. (2nd series), p. 5; G. B. Davis, International Law, p. 372; F. Despagnet, Cours de Droit international public (3rd ed.), § 683 (with bibliography); Ch. Dupuis, Le droit de la guerre maritime, etc. § 289; A. Ernst, L’œuvre de la deuxième Conférence, p. 36; A. H. Fried, Die zweite Haager Konferenz, pp. 121-130; C. N. Gregory, The proposed international prize court and some of its difficulties, Am. Journ. of Int. Law, Vol. ii. p. 458; T. J. Lawrence, International Problems, etc. pp. 141-159, 182-197; E. Lémonon, La seconde Conférence de la Paix, pp. 280-335; L. Oppenheim, International Law, Vol. ii. § 438; Tableau général de l’Institut de droit international, p. 195; T. R. White, Constitutionality of the proposed international prize court, Am. Journ. of Int. Law, Vol. ii. p. 490; J. Westlake, War, p. 288; J. B. Scott, The Hague Peace Conferences, pp. 465-511.

[2 ]The Amy Warwick (2 Sprague, 123).

[3 ]F. Despagnet, op. cit. p. 794; Dr Pawley Bate, however, points out that two out of every five of the decisions of Lord Stowell collected in Roscee’s English Prize Cases (1905) and numbering between 150 and 160, were given in favour of neutrals (op. cit. p. 157).

[1 ]De la saisie des bâtiments neutres.

[2 ]Annuaire, Vol. ix. 1877), p. 239.

[3 ]See Instructions (No. 10), Appendix.

[4 ]Parl. Papers, Misc. No. 4 (1908), p. 14; La Deux. Confér. T. i. p. 58.

[5 ]La Deux. Confér. T. ii. p. 1071.

[1 ]La Deux. Confér. T. ii. p. 1076.

[2 ]Ibid. p. 1078.

[3 ]Ibid. pp. 785-813.

[4 ]Ibid. pp. 785-9.

[1 ]La Deux. Confér. T. ii. pp. 789-791.

[2 ]Ibid. p. 793.

[3 ]Ibid. p. 796.

[4 ]Ibid. pp. 799-805. Mr Choate’s speech in English is given on pp. 810-813.

[1 ]La Deux. Confér. T. ii. pp. 505-6.

[2 ]Ibid. pp. 806-9.

[3 ]Ibid. p. 1079.

[4 ]Parl. Papers, Misc. No. 4 (1908), pp. 146-174; La Deux. Confér. T. i. pp. 180-218.

[1 ]La Deux. Confér. T. i. p. 185.

[1 ]See Article 4 (3) and post, p. 462.

[2 ]The Florida, 101 U.S. p. 37. The capture of a vessel in neutral waters “might constitute a ground of claim by the neutral Power whose territory had suffered trespass, for apology or indemnity. But neither an enemy, nor a neutral acting the part of an enemy, can demand restitution on the sole ground of capture in neutral waters” (The Sir William Peel, 5 Wallace, p. 535).

[3 ]La Deux. Confér. T. i. p. 186.

[1 ]See post, pp. 540-566.

[1 ]Parl. Papers, Misc. No. 4 (1908), p. 155; La Deux. Confér. T. i. p. 193. (Report of M. Renault.)

[1 ]La Deux. Confér. T. i. p. 196.

[1 ]La Deux. Confér. T. ii. pp. 832-6.

[2 ]Ibid. p. 836.

[3 ]Ibid. pp. 849-852.

[4 ]Ibid. pp. 11-13.

[1 ]See ante, p. 441.

[1 ]Parl. Papers, Misc. No. 4 (1909), p. 71; Ibid. Misc. No. 5 (1909), pp. 222, 379.

[1 ]There are now 33 signatory Powers; Great Britain and Japan signed the Prize Court Convention after the conclusion of the International Naval Conference.

[2 ]Parl. Papers, Misc. No. 5 (1909), pp. 222-3.

[⁴]See on this topic J. Westlake, War, pp. 293-6; T. J. Lawrence, International Problems, etc. pp. 141-9; J. B. Scott, The Hague Peace Conferences, Vol. i. pp. 488-497.