656
THE GREEN BAG
Let us now examine the text 1 of the "Project for a Convention for the Estab lishment of an International Prize Court." Titre I consists of nine articles, and con tains "general provisions" relating to the conditions under which, and the states and individuals by whom, an appeal may be made, and the kind of law which shall be applied by the court. Art. 3 provides that an appeal may be made to the International Court from the decisions of national tribunals: (1) When these concern the property of neutral Pow ers or of neutral individuals; (2) When they concern enemy property in cases (a) of merchandise conveyed upon a neutral ship; (6) of an enemy ship captured in the territorial waters of a neutral Power, pro vided the neutral Power has not made this capture the subject of a diplomatic claim; and (c) in case of a claim founded upon the allegation that the capture has been effected in violation of a provision of a convention in force between the belligerent Power or of a legal regulation issued by the belligerent captor. An appeal against the decision of a national tribunal may be based upon the allegation that this decision is not justified either in fact or in law.3 1 go 7. There seems to be a contradiction between the statement that "in default of an international regulation firmly established, International Juris diction will apply the law of the captor," and the assertion that "if rules generally recognized do not exist, the court will decide in accordance with the general principles of justice and equity." They may perhaps be reconciled by a comparison with Sections 2 and 4-5 of Art. VII of the Convention. Sees. 4 and 5 of Art. VII read as follows: "If, in conformity with Sec. 2c of Art. Ill, recourse is founded upon a violation of a legal provision ordained by the belligerent captor, the court shall apply this provision. "The court cannot take into consideration the defects in the procedure enacted by the legisla tion of its belligerent captor in cases in which it is of the opinion that the consequences would be the contrary to justice and equity." 1 See the Courier de la Conference for Sept. 2 2, Sept. 24, and Oct. 2, 1907.
- It thus appears that the right of appeal of a
Art. 4 provides that the right of appeal may be exercised under prescribed condi tions: (1) By a neutral Power; (2) by a neutral individual; (3) by an individual dependent upon an enemy Power. Art. 6 declares that the right of jurisdiction of national tribunals cannot be exer cised in more than two instances. "The legislation of the belligerent captor shall determine whether appeal is open after a decision has been given by. a Court of Appeal or the Supreme Court. In case the national tribunals have failed to give a final decision within two years from the date of capture, the Court may be directly seized of the case." Art. 7 provides that in the absence of conventions or national legislation, the court shall apply the rules of international law. // generally recognized rules do not exist, the Court shall decide in accordance with the general principles of justice and equity." Justice and equity shall even be applied in cases where the rules of proceedure enacted by the belligerent captor is defective. According to Art. 9, "the Signatory Powers agree to submit in good faith to the decisions of the International Prize Court and to execute them with as little delay as possible." Titre II deals with the organization of the court in seventeen articles. The Signatory Powers agree within six months after the date of ratification of the Convention, to appoint judges and substitutes for these judges who shall be " juris-consults of recognized competence in questions of inter national maritime law." The term of appointment for both classes is for six years and they may be reappointed. The judges are equal and enjoy diplomatic privileges, but shall rank in accordance with the dates belligerent is limited, whereas that of a neutral is unlimited. As M. Renault remarks, a belligerent can never ground an appeal on a "violation of a rule of customary law or of a general principle of the law of nations."
