XVI AN INTERNATIONAL PRIZE COURT THE proposal to submit captures to a special international jurisdiction has often been made,1 and in fact it suggests itself, whenever there are two opinions concerning the justice of a Prize Court's decision. The Institute of International Law some years ago (1887) after adopting a very full code of Prize Law, consisting of no fewer than 122 Articles and covering every branch of the subject, forwarded them to the different European Governments, with the expression of a wish that "in the future reform might take a still more complete shape by the institution of an International Tribunal for the trial of prize cases." The recommendation arose out of a proposal made to the Institute in 1876 by Mr. Westlake to form a Commission "for the examination of a project to organise an International Prize Court." In 1877 the Institute adopted the following resolutions:"L'Institut déclare que le système actuel des tribunaux et de l'administration de la justice en matière de prises est défectueux, et considère comme urgent de porter remède à cet état de choses par une nouvelle institution internationale. Il est d'avis qu'il y a lieu : "1. De formuler par traité les principes généraux en matière de prises; "2. De remplacer les tribunaux jusqu' ici exclusivement composés de juges appartenant à l'Etat belligérant par des tribunaux internationaux qui donnent aux particuliers intéressés de l'Etat neutre ou ennemi de plus amples garanties d'un jugement impartial; "3. De s'entendre sur une procédure commune à adopter en matière de prises. "Toutefois l'Institut croit devoir déclarer que dès à présent il considérerait comme un progrès l'institution de tribunaux mixtes soit de première instance, soit d'appel, sur les bases du projet élaboré par M. Westlake." Later on, when the code of prize regulations was drawn up by the Institute, the proposal was narrowed down to the sug gestion of an International Appeal Court only. 1 A question on the subject was put on February 19, 1907, by Mr. A. Herbert, who asked "whether the Government will instruct the British representatives at the forthcoming Hague Conference to press upon the Powers the adoption of an international agreement providing for an ultimate appeal from all Prize Courts to The Hague Tribunal." Sir H. Campbell-Bannerman replied: "This subject is not one of those expressly included in the Russian programme, but it will not be lost sight of, and has, in fact, already been mentioned by H.M. Government as a subject which might be included. I cannot, however, make statements about the instructions to be given to the British representatives as long as discussions about the programme are still proceeding." The subject was brought up at the session in 1905 at Christiania of the International Law Association by M. Marais, advocate at Rouen, M. Thorvald Boye, of Christiania, and Mr. Pawley Bate, Lecturer at the Inns of Court. The discussion showed that there is much to be said on both sides. Mr. Justice Phillimore inter alios seemed favourable to the institution of an independent Court of Appeal, but not to one of first instance. The question requires careful consideration. Sir William Scott, in the case of the Swedish ship Maria, in 1799 (1 Rob. 349), prefaced his judgment by the following fine vindication of judicial impartiality in prize cases:— "In forming my judgment," he said, "I trust it has not escaped my anxious recollection for one moment of what it is that the duty of my station calls for from me; namely, to consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out without distinction to independent States, some happening to be neutral and some belligerent. The seat of judicial authority is indeed locally here in the belligerent country according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here, to determine this question exactly as he would determine the same question if sitting at Stockholm: to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances, and impose no duties on Sweden as a neutral country which he would not admit to belong to Great Britain in a similar character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question; a question regarding one of the most important rights of belligerent nations relatively to neutrals." Nevertheless, under the present practice, a defeated defendant in a prize suit generally feels that his position might have been more impartially considered by a judge unconnected with the country of either litigant. Yet, is it certain that a stricter or more impartial justice would be meted out by a Court constituted otherwise than at present? Justice is, in itself, rather an ideal than a reality, as is sufficiently proved by the large number of cases which are reversed on appeal, not only in England, but in every country of Europe. The necessity of adopting procedure to bring cases to an end, the necessary uncertainty of evidence, the fact that a decision must be given upon the evidence forthcoming, whether complete or not, the different temperaments and prejudices, inherent to our faulty human nature, of both judges and advocates, their differing degrees of ability, circumstances, pressure of business, accidents of procedure, all tend to qualify, impede, and distort justice, as given in courts of law. In practice, the least among these shortcomings is, probably, the partiality of the judge. Indeed, it is only in a special court, outside the turmoil of ordinary litigation, where the procedure is calm and leisurely, and there is nothing to prevent a full and careful examination of the facts, that the judge's possible bias might become of any importance among the possibilities. Let us examine, however, how this bias may affect a prize suit. In such a suit the captor is a belligerent ship and the prize property belongs to the subject of a neutral State. The interests of the civilised world in time of war are divisible into three groups, namely, the respective interests of the two belligerents and the interests of the neutrals. In practice the interests of the neutrals are against the making of captures. Under the system hitherto prevailing, it is the judge appointed by the captor who decides whether the capture was a legitimate one or not. He hears the cause and gives his judgment in the face of the whole neutral world, at all times the larger part of civilised mankind, and one which has now much greater facilities for making its voice heard than it had a century ago, when a powerful belligerent maritime State was, out of all proportion to any neutral combination, able to enforce its views as regards neutral property. This change, by the way, was recently exemplified in the case of the Bundesrath, when a neutral Power, of no great maritime strength, dictated to some extent to the most formidable maritime State in the world the way in which it ought to deal with neutral merchant ships on the high seas, and claimed and obtained what were practically penal damages for the stoppage of a ship, though effected in accordance with the rights of warfare, as hitherto practised. Let us now assume that the case were being judged by an International Court. The International Court could only be composed of jurists, belonging either to both belligerents and neutrals, or to one belligerent and neutrals, or to neutrals exclusively. Whichever of these alternatives should be chosen, the decision would obviously always be with the neutral judge or judges, in the last resort. In this respect there is not much to distinguish as between Courts of First Instance and Courts of Appeal, and the question is whether the neutrals might not be as much subject to bias against the belligerent States as the judges of belligerent States are assumed to be biassed at present against neutral Powers. The check of a specially interested belligerent public opinion would obviously be less effective than that of a general neutral opinion in the reverse case. It would not make much difference that the neutral judges were of different countries, as the neutral interest is in principle homogeneous. In an International Court, in fact, the only difference would possibly be that the bias instead of being against the neutral would be against the belligerent. Prince von Bülow has been credited with suggesting in his correspondence on the question of the Bundesrath that a tribunal of arbitration should be instituted to deal with all questions of capture. At any rate, on January 19, 1900, he wrote that the German Government had proposed that all the points then in dispute should be submitted to arbitration. The British Government declared their concurrence in the institution of a tribunal to arbitrate upon the claims for compensation. Whether this bears the construction a writer in the Times of January 25, 1900, placed upon it as being in favour of arbitration in prize cases generally, I think is open to doubt; but, if it does, the suggestion that the "interests of neutrals have been neglected, and that rarely have damages been awarded to them even when vessels were released," will have to be carefully examined. That Sir William Scott should have condemned the captors in costs and damages "in only ten or a dozen cases, not one in a thousand," is obviously not in itself a proof of his injustice or bias. 1 See a suggested clause in this sense, p. 167. A clearer understanding of neutral obligation, and a stricter enforcement of it by domestic legislation, especially the adoption of the suggestions made in Chapters IX., X., and XV., and, on the other hand, international undertakings, leaving as little as possible to the discretion of prize judges,2-would tend to prevent breaches of neutrality, and possibly to eliminate doubtful cases altogether. 2 A restrictive definition of contraband of war, such as proposed in Chapter XIII, and Draft No. 10, and the abolition of constructive notice of blockade as proposed in Draft No. 9, would much simplify prize cases. |