neutral Power or a neutral individual; (2) when the judgment concerned enemy property and related to (a) cargo on board a neutral vessel, (b) an enemy vessel captured in the territorial waters of a neutral Power, provided that it had not made the capture the subject of a diplomatic claim, and (c) a claim based upon the allegation that the seizure had 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 any case, the appeal might be based on the ground that the judgment was wrong either in fact or in law.

The following Powers and individuals were to be entitled 1 to appeal.

(1) Neutral Powers, if the judgment injuriously affected their property or the property of their subjects, or if the capture was alleged to have taken place in their territorial waters.

(2) Neutral individuals, if the judgment injuriously affected their property. But the home State of such an individual might intervene and either forbid him to bring the appeal, or itself undertake the proceedings in his place.

(3) Subjects of the enemy, if the judgment injuriously affected their cargoes on neutral vessels, or if it injuriously affected their property in case the seizure was alleged to have 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.

(4) Subjects of neutral Powers or of the enemy deriving rights from such individuals as were themselves qualified to appeal, provided they had taken part in the proceedings of the national court or courts.

1 But note Article 51 of Convention XII.

2 See above, vol. i. § 289.

(5) Subjects of neutral Powers or of the enemy deriving rights from a neutral Power whose property was the subject of the judgment, provided that they had taken part in the proceedings of the national

court or courts.

§ 444. As regards the law to be applied by the pro- What Law to be posed International Prize Court, Article 7 contained the following provisions and distinctions:

(1) If a question of law to be decided was covered by a treaty in force between the belligerent captor and a Power which was itself, or whose subject was, a party to the proceedings, the court had to apply the provisions of that treaty.

(2) In absence of such a treaty, the court had to apply the rules of International Law.

(3) If there were no generally recognised rules of International Law which could be applied, the court had to base its decision on the general principles of justice and equity.

(4) If the ground of appeal was the violation of an enactment issued by the belligerent captor, the court had to apply such enactment.

(5) The court was to be empowered to disregard failure on the part of an appellant to comply with the procedure laid down by the Municipal Law of the belligerent captor, if it was of opinion that the consequences of such Municipal Law were unjust or inequitable.

applied.

§ 445. The proceedings before the International Prize ProceedCourt were to comprise two distinct phases, namely, ings and written pleadings and oral discussion.

(1) The written pleadings were to consist of the deposit and exchange of cases, counter-cases, and, if necessary, of replies, and to these pleadings all papers and documents which the parties intended to use had to be annexed.

Judg.

ment.

(2) After the close of the pleadings the court was to fix a day for a public sitting at which the discussion was to take place. The parties were then to state their views both as to the law and as to the facts, but the court might at any stage suspend the speeches of counsel in order that supplementary evidence might be obtained. After the discussion the judgment of the court was to be given. Questions were to be decided by a majority of the judges present; if the number of the judges was even and equally divided, the vote of the junior judge in the order of precedence was not to be counted. The judgment was to be taken down in writing, was to state the reasons upon which it was based, give the names of the judges taking part in it and of the assessors, if any, and was to be signed by the President and Registrar.

If the court pronounced the capture of a vessel or cargo to be valid, they might be disposed of in accordance with the Municipal Law of the belligerent captor. If the court pronounced the capture to be invalid, restitution of the vessel or cargo had to be ordered, and the amount of damages, if any, had to be fixed, especially in case the vessel or cargo had been sold or destroyed. If the national Prize Court had already declared the capture to be invalid, the International Prize Court might only determine on appeal the damages due to the owner of the captured vessel or cargo. Action in § 446. According to the constitution of the United Damages States of America, and probably that of some other Appeal.1 States, no appeal may be brought against a judgment of their highest courts. These States could not, therefore, in any case, ratify Convention XII. or take part in the establishment of the International Prize Court without previously altering their constitution. As such

instead of

1 See Scott in A.J., v. (1911), pp. 302-324; Butte, Amerikanische Pri

sengerichtsbarkeit (1913), pp. 18-65, and in A.J., vi. (1912), pp. 799-829.

alteration would be a very complicated and precarious matter, the Naval Conference of London of 1908-1909 agreed to call the attention of the Governments to the advantage of concluding an arrangement according to which the States involved in such constitutional differences would, in depositing their ratifications, have power to add a reservation to the effect that the right of recourse to the International Prize Court in connection with decisions of their national courts, should take the form of a direct action for damages, provided, however, that this reservation should not impair the rights guaranteed by Convention XII. to private individuals as well as to Governments.

To carry out this recommendation, Great Britain, Germany, the United States of America, Argentina, Austria-Hungary, Chili, Denmark, Spain, France, Japan, Norway, Holland, and Sweden signed on September 19, 1910, at the Hague an Additional Protocol1 to the convention relative to the establishment of an International Prize Court. According to Article 1 of the protocol, States prevented by difficulties of a constitutional nature from accepting Convention XII. in its unaltered form, were to have the right, in ratifying the convention or acceding to it, to declare that in prize cases over which their national courts had jurisdiction, recourse to the International Prize Court might only be had in the form of an action in damages for the injury caused by the capture. If such a declaration were made the procedure in the International Prize Court was to be modified as provided in the protocol.

Position

§ 447. The very wide powers proposed to be given Present to the court with regard to the law to be applied by of the it led the Powers to convene the Naval Conference of Hague Project.

1 Sharply criticised by Butte in A.J., vi. (1912), pp. 799-829, and in

Amerikanische Prisengerichtsbarkeit

(1913), pp. 18-65.

London of 1908-1909 to formulate a code of prize law. But that code, embodied in the Declaration of London, was not ratified; and until some such code has been agreed upon and ratified, there is no hope of seeing an International Prize Court established. With the Declaration of London fell also Hague Convention XII. and the Additional Protocol. The World War was fought without any International Prize Court. Whether any further steps will ever be taken with regard to the Hague project time alone can show.