66 severer kind would have been inconsistent with international law); in letters which appeared in your columns on August 6, 17, and 30, 1904; and in a paper on " Neutral Duties in a Maritime War, as illustrated by recent events," read before the British Academy in April last, a French translation of which is in circulation on the Continent. I am, Sir, your obedient servant, Temple, June 29 (1905). T. E. HOLLAND. The Russian circular of April 3, 1906, inviting the Powers to a second Peace Conference, included among the topics for discussion: "Destruction par force majeure des bâtiments de commerce neutres arrêtés comme prises," and the British delegates were instructed to urge the acceptance of what their Government had maintained to be the existing rule on the subject. The Conference of 1907 declined, however, to define existing law, holding that its business was solely to consider what should be the law in future. After long discussions, in the course of which frequent reference was made to views expressed by the present writer (see Actes et Documents, t. iii. pp. 991-993, 1010, 1016, 1018, 1048, 1171), the Conference failed to arrive at any conclusion as to the desirability of prohibiting the destruction of neutral prizes, and confined itself to the expression of a wish (vou) that this, and other unsettled points in the law of naval warfare, should be dealt with by a subsequent Conference. This question was, accordingly, one of those submitted to a Conference of ten maritime Powers, which was called together by Great Britain, for reasons upon which something will be said in the next section, and met in London on December 4, 1908. The question of sinking was fully debated in this Conference, with the assistance of memoranda, in which the several Powers represented explained their divergent views upon it, and of reports prepared by committees specially appointed for the purpose. It soon became apparent that the British proposal for an absolute prohibition of the destruction of neutral prizes had no chance of being accepted; while, on the other hand, it was generally agreed that the practice is permissible only in a exceptional cases. (See Parl. Paper, Miscell. No. 5 (1909), pp. 2–53, 99-102, 120, 189, 205, 215, 223, 248, 268-278, 323, 365.) Articles 48-54 of the Declaration, signed by the delegates to the Conference on February 26, 1909, relate to this question. After laying down, in Art. 48, the general principle that " neutral prize cannot be destroyed by the captor, but should be taken into such port as is proper for the legal decision of the rightfulness of the capture," the Declaration proceeds, in Art. 49, to qualify this principle by providing that "exceptionally, a neutral vessel captured by a belligerent warship, which would be liable to confiscation, may be destroyed, if obedience to Art. 48 might compromise the safety of the warship, or the success of the operations in which she is actually engaged." SECTION 6 An International Prize Court The forecast, incidentally attempted in the following letters, of the general results likely to be arrived at by the second Peace Conference, has been justified by the event. As much may be claimed for the views maintained in these letters upon the topic with which they were more specifically concerned. Instead of letting loose the judges of the proposed International prize Court to "make law," in accordance with what might happen to be their notions of "the general principles of justice and equity," a serious attempt has been made to supply them with a Code of the law which they would be expected to administer. Some account will be given at the end of this section of the steps which have so far been taken towards the establishment of an International Court of Appeal in cases of prize. AN INTERNATIONAL PRIZE COURT SIR,-The idea suggested by the question addressed on February 19 to the Government by Mr. A. Herbertviz. that the appeal in prize cases should lie, not to a Court belonging to the belligerent from whose Court of first instance the appeal is brought, but to an international tribunal, has a plausible appearance of fairness, but involves many preliminary questions which must not be lost sight of. Prize Courts are, at present, Courts of enquiry, to which a belligerent Government entrusts the duty of ascertaining whether the captures made by its officers have been properly made, according to the views of international law entertained by that Government. There exists, no doubt, among Continental jurists, a considerable body of opinion in favour of giving to Courts of Appeal, at any rate, in prize cases a wholly different character. This opinion found its expression in Articles 100-109 of the Code des Prises Maritimes, finally adopted at its Heidelberg meeting, in 1887, by the Institut de Droit International. Article 100 runs as follows: “Au début de chaque guerre, chacune des parties belligérantes constitue un tribunal international d'appel en matière de prises maritimes. Chacun de ces tribunaux est composé de cinq membres, designés comme suit: L'état belligérant nommera lui-même le président et un des membres. Il désignera en outre trois états neutres, qui choisiront chacun un des trois autres membres." In the abstract, and supposing that a tribunal perfectly satisfactory both to belligerents and neutrals could be constituted, whether antecedently or ad hoc, there might be much to be said for the proposal; subject, however, to one condition-viz. that an agreement had been previously arrived at as to the law which the Court is to apply. At the present time there exists, on many vital questions of prize law, no such agreement. It will be sufficient to mention those relating to the list of contraband, the distinction between "absolute" and "conditional" contraband, the doctrine of "continuous voyages," the right of sinking a neutral prize, the moment from which a vessel becomes liable for breach of blockade. Just as the Alabama arbitration would have been impossible had not an agreement been arrived at upon the principles in accordance with which neutral duties as to the exit of ships of war were to be construed, so, also, before an international Court can be empowered to decide questions of prize, whether in the first instance or on appeal, it is indispensable that the law to be applied on the points above mentioned, and many others, should have been clearly defined and accepted, if not generally, at least by all parties concerned. The moral which I would venture to draw is, therefore, that although questions of fact, arising out of the capture of a prize, might sometimes be submitted to a tribunal of arbitration, no case, involving rules of law as to which nations take different views, could possibly be so submitted. One is glad, therefore, to notice that the Prime Minister's reply to Mr. A. Herbert was of the most guarded character. The settlement of the law of prize must necessarily precede any general resort to an international Prize Court; and if the coming Hague Conference does no more than settle some of the most pressing of these questions, it will have done much to promote the cause of peace. I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 20 (1907). A NEW PRIZE LAW SIR,-The leading articles which you have recently published upon the doings of the Peace Conference, as alsó the weighty letter addressed to you by my eminent colleague, ! Professor Westlake, will have been welcomed by many of your readers who are anxious that the vital importance of some of the questions under discussion at The Hague should not be lost sight of. The Conference may now be congratulated upon having already given a quietus to several proposals for which, whether or not they may be rightly described as Utopian, the time is admittedly not yet ripe. Such has been the fate of the suggestions for the limitation of armaments, and for the exemption from capture of private property at sea. Such also, there is every reason to hope, is the destiny which awaits the still more objectionable proposals for rendering obligatory the resort to arbitration, which by the Convention of 1899 was wisely left optional. Should the labours of the delegates succeed in placing some restrictions upon the employment of submarine mines, the bombardment of open coast towns, and the conversion of merchant vessels into ships of war; in making some slight improvements in each of the three Conventions of 1899; and in solving some of the more pressing questions as to the rights and duties of neutrals, especially with reference to the reception in their ports of belligerent warships, it will have more than justified the hopes for its success which have been entertained by persons conversant with the difficulty and complexity of the problems involved. But what shall we say of certain proposals for revolutionising the law of prize, which still remain for consideration, notably for the establishment of an international Court of Appeal, and for the abolition of contraband? It can hardly be supposed that either suggestion will win its way to acceptance. |