Finally, the Institute agreed, at its meeting at Heidelberg in 1887, upon the following proposal, which is embodied in §§ 100-109 of the Règlement international des prises maritimes:[936]—At the beginning of a war each belligerent institutes a Court of Appeal consisting of five judges, the president and one of the other judges to be appointed by the belligerent, the three remaining to be nominated by three neutral Powers, and this Court to be competent for all prize cases.
[936] Annuaire, IX. (1887), p. 239.
No further step was taken in the matter during the nineteenth century. But, during the South African War, the conviction became general that the exclusive jurisdiction of belligerents over captured neutral vessels is incompatible with the modern condition of the oversea commerce of neutrals. At the Second Peace Conference of 1907, therefore, Germany, as well as Great Britain, brought forward a project for real International Prize Courts.
German Project of 1907.
§ 439. The German project[937] was embodied in a draft of thirty-one articles dealing in three chapters with "Competence in Prize Cases," "Organisation of the International Prize Court," and "Procedure before the International Prize Court," and made the following proposals:—National Prize Courts should only be competent in the first instance, every appeal to go to the International Prize Court, and the latter to be competent not only in case of capture of neutral vessels, but in every case of capture of merchantmen. At the beginning of every war an International Prize Court should be established, but, in case there were more than two parties to a war, as many International Prize Courts should be established as there were couples of States fighting against each other. Each Court every time it sat should consist of five judges, three of whom should be members of the Permanent Court of Arbitration at the Hague, and two should be admirals. The admirals should belong to the navies of the belligerents, but the three members of the Permanent Court of Arbitration should be chosen by neutral Powers, each belligerent authorising one neutral Power to select one member, and these two neutrals to appoint a third neutral Power which would select the third member. The Court should sit at the Hague, have its first meeting when the first appeal case arose, and be dissolved after the conclusion of peace. The International Bureau of the Permanent Court of Arbitration should serve as the Registry of every International Prize Court. Each belligerent and the owners of the captured vessels or cargoes should have the right to bring an appeal before the International Prize Court.
[937] Deuxième Conférence, Actes, II. p. 1071.
British Project of 1907.
§ 440. The British project[938] was embodied in a draft of sixteen articles, and made the following proposals:—The International Prize Court should be competent in such cases only as directly concerned a neutral Power or its subjects, an appeal to be brought before the International Court only after the case had been decided by the highest National Prize Court of the belligerent concerned. Neutral Powers only, and not their subjects, should have the right to enter an appeal, and each neutral Power should represent its subjects concerned in a prize case. In contradistinction to the German project, the British draft proposed the establishment once for all of a Permanent International Prize Court, each Power whose mercantile marine at the date of the signature of the proposed convention exceeded a total of 800,000 tons, should, within three months from the date of ratification, nominate a prominent jurist as a member of the Court, and another as his deputy. The President of the Court should be nominated by the signatory Powers in their alphabetical order, should remain in office one year only, and should have a casting vote. If a legal question were to be decided which had already been provided for in a convention between the parties in dispute, the Court should base its decision on such convention. In the absence of such a convention, and if all civilised nations were agreed on a point of legal interest, the Court should base its decision thereon, otherwise the Court should decide according to the principles of International Law.
[938] Deuxième Conférence de la Paix, Actes, II. p. 1076.
Convention XII. of the Second Peace Conference.