§ 438. Numerous inconveniences must naturally result from a condition of International Law which has hitherto prevailed and according to which the Courts of the belligerent whose forces had captured neutral vessels exercised jurisdiction without any control by neutrals. Although, as shown above in § [437], neutrals frequently interfered after a trial and succeeded in obtaining recognition for their claims in face of the verdicts of Prize Courts, great dissatisfaction has long been felt at the condition of matters hitherto obtaining, and proposals have been made for so-called mixed Prize Courts.
The first proposal of this kind was made in 1759 by Hübner,[932] who suggested a Prize Court composed of judges nominated by the belligerent and of consuls or councillors nominated by the home State of the captured neutral merchantmen.
[932] De la saisie des bâtiments neutres (1759), vol. II. p. 21.
A somewhat similar proposal was made by Tetens[933] in 1805.
[933] Considérations sur les droits réciproques des puissances belligérantes et des puissances neutres sur mer, avec les principes du droit de guerre en général (1805), p. 163.
Other proposals followed until the Institute of International Law took up the matter in 1875, appointing, on the suggestion of Westlake, at its meeting at the Hague, a Commission for the purpose of drafting a Projet d'organisation d'un tribunal international des prises maritimes. In the course of time there were mainly two proposals before the Institute, Westlake's and Bulmerincq's.
Westlake proposed[934] that Courts of Appeal should be instituted in each case of war, and each Court should consist of three judges—one to be nominated by the belligerent concerned, another by the home State of the neutral prizes concerned, and the third by a neutral Power not interested in the case. According to Westlake's proposal there would therefore have to be instituted in every war as many Courts of Appeal as neutrals concerned.
[934] See Annuaire, II. (1878), p. 114.
Bulmerincq proposed[935] that two Courts should be instituted in each war for all prize cases, the one to act as Prize Court of the First Instance, the other to act as Prize Court of Appeal; each Court to consist of three judges, one judge to be appointed by each belligerent, the third judge to be appointed in common by all neutral maritime Powers.
[935] See R.I. XI. (1879), pp. 191-194.