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4. THE INTERNATIONAL PRIZE COURT

The Conference of 1907

each

At the second plenary session of the conference - the first business one Baron Marschall von Bieberstein, of Germany, electrified the members by declaring that his government had instructed him to present to the conference propositions concerning the establishment of an international court to decide on the legality of captures made in naval war, the said court to be a high court of justice functioning as a court of appeal, while national tribunals should deliberate in the first instance. Sir Edward Fry, of Great Britain, immediately arose and expressed the great satisfaction with which he had listened to the statement of his German colleague, and said that the British delegation had received instructions of the same kind. General Porter, of the United States, before submitting the American proposition concerning the forcible collection of debts, also cordially indorsed the German suggestion.

At the first session of the I Commission, the German and British plans for the proposed court were presented, and were referred to the commission's second subcommission, whose sole duty it was to deliberate and decide upon this question.

The two plans were found to have the common object of permitting an appeal from the decision of national prize courts, but each sought to attain this object in a different. way. A committee of three members1 was accordingly appointed to draw up a list of questions based on the differ

1 Sir Edward Fry, Dr. Kriege, of Germany, and Professor Renault, of France.

ences in the two plans, these questions to be answered by the subcommission, and the answers to form the basis of a common agreement.

The first question, Shall an international court of appeal for prizes be established, was answered by the Baron von Bieberstein, in his opening speech before the subcommission, as follows:

"According to a principle universally admitted in the law of nations, every maritime prize must be confirmed by a judicial decision. At present, this decision proceeds exclusively from the jurisdiction of the captor's government. It is this government which establishes the tribunals and usually the procedure. Whatever may be the organization of this jurisdiction in the various countries, it can not be denied that this state of things is not satisfactory and is associated with grave inconveniences from the point of view both of the principles of justice and equity, and of the interests of individuals, as well as from that of the interests of neutral states and of the belligerents themselves.

“Prizes are made in the name of the state and, in principle, for the account of the state. Hence, in the inquest as to the validity of the prize, the rôle of the captor state is that of the defendant. Its interest is engaged in having the prize declared valid; it is a question of securing for the state the profit of the prize; the state must dread, quite naturally, to see the military acts of its armed forces nullified and declared illegal. The prize tribunals established by the captor state act involuntarily more or less under the influence of these interests of their country. At all events, these national tribunals do not enjoy that high judicial authority which is based on confidence in the entire independence and impartiality of judges.

"It is a natural consequence of this state of things that the national adjudication of prizes gives rise to constant disputes between the belligerents themselves, and with neutral nations; and these disputes do not cease to envenom international relations.

"It is, then, highly desirable that an international jurisdiction be established, whose impartiality can not be doubted. Its purpose is twofold: first, to protect the rights of individuals; second, - and this is a very important one, to relieve the captor state from re

sponsibility for the adjudication of prizes, which can thenceforth become no longer the subject of diplomatic claims. It is this twofold purpose which is sought by the German project now within your hands, which proposes to internationalize jurisdiction over prizes by the establishment of an International High Court, composed of representatives of the belligerent powers and of neutral states, and summoned to pass, in the second and last instance, on the legality of prizes adjudged, in the first instance, by the national tribunals of belligerent powers. . . .

"We have confidence that the conference will succeed in finding the right solution of the problems connected with the jurisdiction of prizes. And we shall be happy to coöperate in a spirit of conciliation with our colleagues in the achievement of this noble task. The good reception which has been accorded to our plan by two of the largest maritime powers confirms our confidence."

Sir Edward Fry, in replying Yes to the first question, said that, "in the present state of things, each nation proclaims for itself what it believes to be international law; the courts of each country thus feel bound by their national system of jurisprudence in regard to prizes. In order that an international court may apply the veritable international law, its members must be free from all prejudice and from all partiality."

M. Ruy Barbosa, of Brazil, inquired why the proposed court should be one of appeal only; but, while expressing the hope of a future agreement which would establish both original and appellate jurisdiction, he also answered Yes to the first question. M. Tsudzuki, of Japan, while expressing his cordial indorsement of the proposed court as an ideal to be striven for, said that his delegation would abstain from voting for such a court until a clear and precise code of international prize law should be agreed upon. This objection had already been anticipated by Baron von Bieberstein in his opening speech, and had been answered

by the statement that the Declaration of Paris of 1856 and certain treaties had already become the basis of a conventional law on the subject, and that he had strong hopes that the conference would complete or amplify the code. M. Hammarskjöld, of Sweden, indorsed the proposed court as "one of the greatest steps of progress, and one of the richest in its promise for the future," and begged that the plan be not halted by difficulties of a rather doctrinaire character.

At a little later stage of the discussion, Ambassador Choate expressed the American delegation's cordial indorsement of the project by saying:

"Representing as we do a widely extended maritime nation, and a nation which hopes and confidently expects always in the future to be a neutral nation, we deem the establishment of an international court of prize by this conference to be a matter of supreme importance. . . . It will certainly be a tremendous triumph of justice and peace if this conference, before it dissolves, shall succeed in creating such an arbiter between the nations. . . . One great international court will be a marked advance in the progress of the world's peace, and will go far to satisfy the universal demand which presses upon us so strongly from every section of the world.”

Mr. Choate's address was designed to secure a compromise between the divergent features of the German and British plans, and he moved to refer the two plans to a committee of examination to decide upon this compromise. This motion was adopted, but not until the divergence of view had been plainly revealed.

The question, Whether the court should have jurisdiction only between two governments or between one government and individual citizens of another, was answered by Sir Edward Fry in the first sense, for the reason that in

an international court it is logical that only governments, and not individuals, should be suitors. Dr. Kriege, of Germany, on the other hand, argued that injured individuals and not their government should come before the court, and for the following reasons: this would prevent a dispute between two governments, and would prevent a prize case from being exaggerated into an arbitration; it would prevent a claimant state from being forced into the embarrassing position of either neglecting the defense of its citizens' interests, where it was impossible to make a careful examination of their claims, or of supporting ill-founded claims; it would enable individuals to apply to the court without difficulty, and yet, by requiring them to bear the expense of unsustained suits, they would be deterred from presenting ill-founded claims. M. Hagerup, of Norway, and Colonel Borel, of Switzerland, in adopting the German view of this question, added the arguments that small powers would often be stopped by political considerations from making an appeal on behalf of their citizens, and that individual appeal is in line with the progress of international law.

M. Bustamente, of Cuba, proposed as a compromise to permit both individuals and their governments to apply to the court; and Mr. Choate, while favoring the right of individual suitors, suggested that the question might be left to the determination of each country. The compromise actually adopted was that governments could institute the suit in some specified classes of cases, and that individuals could do so in other specified classes, unless forbidden to do so by their own governments.

3 The next question, Whether the court should have jurisdiction over all cases of capture, or over only those in which neutrals are concerned, was answered by Sir Ed

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