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Published online by Cambridge University Press: 04 May 2017
Two projects for the creation of an international prize court were laid before the Second Hague Peace Conference on the same day (June 22, 1907) one by the German and one by the British delegation. The United States at the time and France later warmly approved the proposed institution, and a joint project in the nature of a compromise was drafted and presented to the Conference by the four Powers, which, after much debate, prolonged discussion, opposition on the part of some delegations and hesitation on the part of others, was adopted with some amendments by the Conference and forms what is known as the Convention Relative to the Establishment of an International Prize Court of October 18,1907. Although signed by thirty-three Powers, the court contemplated by the convention has not been established by reason, it would seem, of objections raised by Great Britain to Article 7 of the convention, to remedy which a conference of leading maritime nations was called by Great Britain to agree upon important principles of law to be applied by the court, when constituted, in the decision of certain classes of prize cases. In this conference, known as the International Naval Conference, held at London from December 4, 1908, to February 26, 1909, representatives of Germany, the United States, Austria-Hungary, France, Great Britain, Italy, Japan, The Netherlands, Russia, and Spain participated. An agreement, called the Declaration of London, dated February 26,1909, upon the principles of law to be applied by the proposed court, in accordance with Article 7 of the original convention, was reached. Like the original convention, it was also in the nature of a compromise. It met with the approval of the British Government, for it was signed by the delegates of that government acting under instructions, as is the wont of diplomatic conferences, and it seemed at the time that it removed the objections to the ratification of the original convention and to the establishment of the Prize Court in so far as Great Britain was concerned. The government considered it satisfactory and introduced a bill in both Houses of Parliament, modifying British practice in such a way as to meet the requirements of the Prize Court Convention, as modified by the Declaration of London. It passed the House of Commons, but failed in the House of Lords, owing to the unexpected, bitter and persistent opposition on the part of the public, so that the government has up to the spring of 1914 ratified neither the Hague Convention nor the Declaration of London. The signatories of the original convention and of the Declaration have waited, and are still waiting, for favorable action by Great Britain upon these two international documents, apparently unwilling to create the International Prize Court without the co-operation of Great Britain, and to bind themselves by the provisions of the Declaration framed by a conference called by Great Britain to meet British objections, unless it be ratified by Great Britain. The establishment of the Prize Court, therefore, is thus made to depend upon the action of Great Britain.
1 Printed in Supplement to this Journal, Vol. 2, p. 174.
2 Ibid., Vol. 3, p. 184.
3 4 Moore’s Arbitrations, pp. 3911–3923.
4 Foreign Relations of the United States, 1874, pp. 570–572; ibid., 1875, Pt. I, p. 655.
5 Treaties, Conventions, etc., between the United States of America and other Powers, Vol. III, compiled by Garfield Charles, p. 331.
6 Treaties, Conventions, etc., Vol. III, p. 325.
7 Supplement to this Journal, Vol. 4, p. 102.
8 Treaties, Conventions, etc., Vol. III, p. 263.
9 Si la question juridique á décider a déjà été réglée par une convention dont les Puissances en litige sont signataires, la decision de la cour sera conforme aux stipulations de la convention.
A défaut d’une convention, si toutes les nations civilisées se trouvent être d’accord sur un point juridique, la cour devra également rendre un arrêt conforme á cette opinion générale.
Oú ces conditions n’existent pas la cour rendra sa décision en appliquant les principes du droit international. Actes et Documents, 2eme Conférence de la Paix, Vol. 2, pp. 1076–7.
9a The full text of the report is printed in the Supplement to this number of the Journal, pp. 88–144.
10 Actes et documents, Vol. I, p. 190.
11 Westlake, International Law, Part 2, pp. 293–294.
12 Westlake, International Law, Part, 2, p. 294.
13 Ibid., p. 294.
14 Ibid., p. 296.
15 British parliamentary paper, Miscellaneous, No. 5 (1909), p. xix.
16 10 Moore’s Privy Council, 37, 50 (1855).
17 Wharton, International Law Digest, Vol. 3, section 361.
18 Moore, Digest of International Law, Vol. VII, p. 783, quoting Halleck, Int. Law (3d ed. by Baker), Vol. II, p. 186.
19 “ I t appears that principle, authority, and usage unite in calling on me to reject the new doctrine that, to carry on trade with a blockaded port, is or ought to be a municipal offense by the law of nations.”—Per Dr. Lushington in The Helen, 1866, L. R. 1 Ad. & Ecc. 1.
20 The Betsey, 1 C. Robinson (1798).
21 The Nancy, 1 Acton, 57 (1799).
22 Per Dr. Lushington in The Franciska, 2 Spinks, Ecclesiastical and Admiralty Reports (1855), 113, 128.
23 Moore’s International Law Digest, Vol. VII, p. 797.
24 For the practice of the United States, see Moore’s International Law Digest, Vol. VII, pp. 780–858.
25 1 C. Robinson, 86–87.
26 Ibid., 154–156.
27 The Franciska, 2 Spinks, 113, pp. 126–127.
28 Hall’s International Law, 4th edition, p. 722.
29 1 C. Robinson, 152.
30 Correspondence and Documents respecting the International Naval Conference, held in London, Dec. 1908-Feb. 1909. Miscellaneous No. 4 (1909), pp. 41–42; Treaties, Conventions, etc., Vol. 3 (Charles), p. 293.
31 In the leading case on the subject, The Springbok, 5 Wallace (1866), 1, it was evident from the ship’s papers and other documentary evidence that the cargo, ostensibly for Nassau in the Bahama Islands, was to be transshipped from this point to a blockaded port of the Confederate States. The cargo was condemned. A claim for its value came before the British and American Claims Commission, under the Treaty of 1871, but was unanimously rejected (4 Moore’s International Arbitrations, pp. 3928–3935).
32 1 C , Robinson, 86, p. 87.
33 2 C. Robinson, 128, p. 130.
34 6 C. Robinson, 61, p. 62.
35 Parliamentary Papers, Miscellaneous No. 4 (1909), pp. 25–27.
36 12 Moore P. C. 168 (1858), at page 184.
37 12 Moore P. C , 168, p. 186. The cases referred to as establishing the rule are the following decisions by Lord Stowell: The Alexander, 4 C. Robinson, 93 (1801); The Adonis, 5 C. Robinson, 256 (1804); The Exchange, Edwards, 39 (1808); The James Cook, Edwards, 261 (1810).
38 De Jure Belli ac Pacis, lib. iii, c. i., § 5.
39 The Stoat Embden, 1 C. Rob. 31 (1798).
40 The Imina, 3 C. Rob. 167 (1800).
41 Deuxtème Conference de la Paix, Actes et Documents, Vol. 3, 4th Commission, first session, p. 742.
42 The following 26 states voted for the British proposition: Argentine, Austria-Hungary, Belgium, Brazil, Bulgaria, Chile, China, Cuba, Denmark, Santo Domingo, Spain, Great Britain, Greece, Italy, Mexico, Norway, Paraguay, Holland, Peru, Persia, Portugal, Salvador, Servia, Siam, Sweden, Switzerland.
The following 5 states voted against it: Germany, United States, France, Montenegro, Russia.
The following 4 states abstained from voting: Japan, Panama, Roumania, Turkey. (Deuxième Conf. de la Paix, Actes et Documents, Vol. 1, p. 259, note 5.)
43 Equality as a legal consideration of the law of nations has perhaps never been more clearly stated than in the following passage from the judgment of Chief Justice Marshall, speaking for the Supreme Court of the United States in the case of the Antelope, decided in 1825:
“ In this commerce slave trade thus sanctioned by universal assent, every nation had an equal right to engage. How is his right to be lost? Each may renounce it for its own people; but can this renunciation affect others?
“No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be divested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it” (The Anlelope, 1825, 10 Wheaton, 66, 122).
44 It was proposed by Spain at the Conference that additions to the categories of contraband should be made by common agreement. The amendment proposed to Article 2 respecting contraband was: “Articles and materials that are exclusively used for war may be added to the list of absolute contraband by a common agreement among the Powers” (Annex No. 60, Parliamentary Papers, Miscellaneous, No. 5, 1909, p. 248). This amendment was filed January 27, 1909, by the Spanish delegation in the seventh meeting of the commission and was intended to apply not only to Article 2, then under discussion, but also to Article 4. In view of the great importance of the question thus raised, it was decided to have, the documents printed and distributed before discussing it. In the report to the commission, Annex No. 111, at page 303, the reporter said:
“Some have considered excessive the right given to a Power to make an addition to the list by a mere declaration and it has been proposed to require the consent of the other Powers. But it was objected that the consent of all the Powers would not be easy to obtain in time of peace and that in time of war it would be singular to require the consent of the hostile Power. In reply to the objection, it was proposed to make a distinction between time of peace and time of war by requiring the consent of the other Powers only in time of peace. This amounted practically to doing away with the right in time of peace, and the proposal was finally withdrawn. It should be noticed that this right does not present the dangers attributed to it. In the first place, of course the declaration is operative only for him who makes it, in the sense that the added article will be contraband only for him as a belligerent; other states may likewise make a similar declaration. The addition can only concern articles exclusively used for war; at the present time it would be difficult to indicate such objects not appearing in the list. The future is left free.”
45 Reported in 5 C. Robinson, 385.
46 5 C. Robinson, 395, pp. 395–397. See also the leading American case of the Stephen Hart, Blatchford’s Prize Cases,. 387 (1863).
47 Correspondence and Documents respecting the International Naval Conference held in London, December 1908-February 1909; Miscellaneous No. 4 (1909), p. 94.
48 Quoted from Professor Westlake’s letter to London Times, Jan. 31, 1911. For Professor Holland’s dissenting opinion, see his letter to the Times, dated Feb. 16, 1911, in his “Letters to the Times upon War and Neutrality,” 2nd edition (1914), pp. 186–189.
49 Treaties, Conventions, etc., between the United States and other Powers, Vol. 3 (Charles), pp. 300–301.
50 Treaties, Conventions, etc., between the United States and other Powers, Vol. 3 (Charles), p. 301.
51 Treaties, Conventions, etc., Vol. 3 (Charles), pp. 301–302.
52 1 C. Robinson, pp. 194–195.
53 Professor Westlake’s letter to the London Times, Feb. 25, 1911.
64 “Resolved further, as a part of this act of ratification, that the United States approves this convention with the understanding that recourse to the permanent court for the settlement of differences can be had only by agreement thereto through general or special treaties of arbitration heretofore or hereafter concluded between the parties in dispute; and the United States now exercises the option contained in Article fifty-three of said convention, to exclude the formulation of the ‘compromis’ by the permanent court, and hereby excludes from the competence of the permanent court the power to frame the ‘compromis’ required by general or special treaties of arbitration concluded or hereafter to be concluded by the United States, and further expressly declares that the ‘compromis’ required by any treaty of arbitration to which the United States may be a party shall be settled only by agreement between the contracting parties, unless such treaty shall expressly provide otherwise.” Resolution of ratification by the U. S. Senate, April 2, 1908. (Treaties and Conventions, Vol. 2, p. 2247.)
55 195 U. S. 439, pp. 465–466.
56 Parliamentary Papers, Miscellaneous No. 4 (1909), p. 24. French practice is thus stated in the memorandum submitted by the French Government: “Vessels and the innocent cargo are released unless the contraband composes three-fourths of the cargo in value, in which case the entire cargo and the vessels are confiscated.” Ibid., p. 29.
57 “The statement of the King’s Advocate is in my opinion the law of nations upon this point.—To escape from the contagion of contraband: the innocent articles must be the property of a different owner.” Per Lord Stowell in the Staadt Emden, 1 C. Robinson, 26, pp. 30–31 (1798).
58 Professor Holland, perhaps the stoutest opponent of the Declaration, seems to concede this in the following passage:
“In defence of the change, it is alleged that of the cases on blockade to be found in the Reports, not one relates to a capture made otherwise than in the neighbourhood of the blockading squadron. Even if this can be shown, it would not prove that no such captures had taken place, or that the mere existence of the rule had not checked blockade-running.” (Proposed Changes in Naval Prize Law, 1911, p. 11, footnote.)
