International Law. A Treatise. Volume 2 (of 2) / War and Neutrality. Second Edition

by L. Oppenheim

If the appeal has been entered in time, a certified copy of the notice of appeal must officially be transmitted to the respondent by the Court; if the Court is not sitting, its delegation of three judges must act for it (articles 32 and 48). If in addition to the parties who are before the Court through an appeal having been entered, there are other parties concerned who are entitled to appeal, or if in the case referred to in article 29, third paragraph, the Government which has received notice of an appeal has not announced its decision, the Court may not deal with the case until either the period of one hundred and twenty days from the day the judgment of the National Prize Court has been delivered or notified, or the period of thirty days from the expiry of two years from the date of capture has expired (article 31).

Pleadings and Discussion.

§ 449. The procedure, which follows the entry of an appeal and the preliminary steps in consequence thereof, comprises two distinct phases, namely, written pleadings and oral discussion.

(1) The written pleadings consist of the deposit and exchange of cases, counter-cases, and, if necessary, of replies, the order of which, as also the periods within which they must be delivered, must be fixed by the Court or its delegation of three judges (article 48), and to which all papers and documents the parties intend to make use of must be annexed. The Court must communicate a certified copy of every document produced by one party to the other party (article 34).

(2) After the close of the pleadings the Court must fix a day for a public sitting on which the discussion is to take place (article 35). The discussion is under the direction of the President or Vice-President, or, in case both of these are absent or cannot act, of the senior judge present; but the judge appointed by a belligerent party may never preside (article 38). The discussion takes place with open doors, but a Government which is a party may demand that the discussion take place with closed doors. In any case minutes must be taken and must be signed by the President and Registrar, and these minutes alone have an authentic character (article 39). During the discussion the parties state their views of the case both as to the law and as to the facts, but the Court may at any stage suspend the speeches of counsel in order that supplementary evidence may be obtained (article 35). The Court may order the supplementary evidence to be taken, either in the manner provided for by article 27, or before itself, or before one or more members of the Court provided it can be done without compulsion or intimidation; if steps are taken by members of the Court outside the territory where it is sitting, the consent of the foreign Government must be obtained (article 36). The parties must be summoned to take part in all stages of the taking of supplementary evidence, and they must receive certified copies of the minutes (article 37). If a party does not appear in spite of having been duly summoned, or if a party fails to comply with some step within the period fixed by the Court, the case proceeds without that party and the Court makes its decision on the basis of the material at its disposal, but the Court must officially notify to the parties all decisions or orders made in their absence (article 40).

Judgment.

§ 450. After the discussion follows the judgment of the Court.

The deliberation of the Court in order to agree upon the judgment takes place in private and must remain secret. The Court must take into consideration all the documents, evidence, and oral statements. All questions are decided by a majority of the judges present; if the number of the judges is even and is equally divided, the vote of the junior judge in the order of precedence is not counted (articles 42 and 43). The judgment must be taken down in writing, state the reasons upon which it is based, give the names of the judges taking part in it and of the assessors, if any, and must be signed by the President and Registrar.

The pronouncement of the judgment of the Court takes place in public, the parties being present or having been duly summoned to attend. The judgment must be officially communicated to the parties. After this communication has been made, the Court must transmit to the National Prize Court concerned the record of the case, together with copies of the various decisions arrived at and of the minutes of the proceedings (article 45).

If the Court pronounces the capture of a vessel or cargo to be valid, they may be disposed of in accordance with the Municipal Law of the belligerent captor. If the Court pronounces the capture to be invalid, restitution of the vessel or cargo must be ordered, and the amount of damages, if any, must be fixed, especially in case the vessel or cargo has been sold or destroyed. If the National Prize Court has already declared the capture to be invalid, the International Prize Court must decide on an appeal concerning the damages due to the owner of the captured vessel or cargo (article 8).