AN INTERNATIONAL PRIZE COURT Theoretically, it might seem very desirable to establish an International Prize Court wholly composed of neutrals, but in practice it seemed wise not to attempt too wide a departure from present methods of ad judication. The transition from purely belligerent to purely neutral prize courts had perhaps better be made gradually.1 The partizans of the British project main tained that its advantages were threefold: "First, the court would consist (solely) of expert juris-consults; secondly, it would be established on an eminently neutral basis; thirdly, it would be established in time of peace and be secure from the influences of passions and prejudices so easily 2 and widely excited in time of war." The discussions in committee which fol lowed revolved about the following points were put in the form of a series of questions : (i) Should an International Prize Court of Appeal for the adjudication of maritime prizes be instituted? (2) Should the juris diction of the court be confined to cases arising between the belligerent state making the capture and the state claiming that its subjects had been injured by capture, or should it extend directly to individuals claiming to have been injured? (3) Should this jurisdiction extend to all matters re lating to prizes or merely to captures in which governments or neutral individuals are interested? (4) When shall the role of international jurisdiction begin? Should it commence as soon as the national tribunals of first instance shall have rendered their decision upon the validity of the capture or should it be deferred until a final sen tence shall have been obtained in the state of the captor? (5) Should the court be permanent or should it be instituted ad hoc upon the outbreak of war? Other ques tions (6, 7, and 8) framed by the comiti d' examen related to the composition of the 1 See writer's letter from The Hague to the New York Evening Post for July 20, 1907. 'London Times (weekly) for June 28, 1907, p. 405-
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court, principles of international law to be applied, and the nature of the proof re quired in behalf of the claimant. It was unanimously agreed that an Inter national Prize Court of Appeal was neces sary, although Mr. Tsudzuki, the first Jap anese delegate, expressed the hope that before such a court be instituted, the Con ference would reach an agreement on the codification of rules affecting prize cases. In answer to the second and third ques tions, Baron Marshall von Bieberstein and Professor Kriege of Germany urged that the right of appeal should belong to individuals rather than to states, inasmuch as the action of the latter might be influenced by political considerations. Moreover, before championing the cause of its nationals, a state should examine their claims in fact as well as in law — a work which it is often very difficult, if not impossible to accom plish. It would seem preferable that indi viduals themselves be required to prove the validity of their claims before the Interna tional Court. War being a conflict between states and not between individuals, the subjects of belligerent states are entitled to the same protection as are those of neutral states. The majority of the members of the committee seemed to agree with the German attitude on these questions, even Sir Edward Fry failing to advance any arguments in favor of his contention that neutral states alone should have the right of appeal. In answer to the fourth question the German delegates argued that the appeal should lie from a national court of first instance on the ground that an appeal from the highest national court might lead to friction and loss of respect for the court in case its verdict were quashed. It was also urged that such a procedure would be long and very onerous. But Sir Edward Fry maintained that all national instances should be exhausted before having recourse to the International Court. Respecting the permanency and composi
