Volume Ii Part 64 (2/2)

[Footnote 923: It would seem to be obvious that condemnation of the vessel involves the loss of the vessel at the date of capture; see _Andersen_ v. _Marten_, L.R. (1907) 2 K.B. 248.]

[Footnote 924: See above, vol. I. -- 163.]

[Sidenote: Trial after Conclusion of Peace.]

-- 436. It is a moot question whether neutral vessels captured before conclusion of peace may be tried after the conclusion of peace.[925] I think that the answer must be in the affirmative, even if a special clause is contained in the Treaty of Peace, which stipulates that captured but not yet condemned vessels of the belligerents shall be released. A trial of neutral prizes is in any case necessary for the purpose of deciding the question whether capture was justified or not, and whether, should condemnation not be justified, the neutral vessels may claim costs and indemnities. Thus, after the conclusion of the Abyssinian War, in December 1896, the Italian Prize Commission, in the case of the _Doelwijk_,[926] claimed the right to try the vessel in spite of the fact that peace had been concluded between the time of capture and trial, declared the capture of the vessel and cargo to have been justified, but p.r.o.nounced that, peace having been concluded, confiscation of vessel and cargo would no longer be lawful.

[Footnote 925: See Perels, -- 57, p. 309, in contradistinction to Bluntschli, -- 862. But there is, of course, no doubt that a belligerent can exercise an act of grace and release such prizes. Thus, in November 1905, at the end of the Russo-j.a.panese War, the Mikado proclaimed the unconditional release of all neutral prizes captured after the signing but before the ratification of the Peace of Portsmouth. Thereby, three German vessels, two English, and one Norwegian escaped confiscation, which in strict law--see above, p. 534, note 4--would have been justified.]

[Footnote 926: See Martens, _N.R.G._ 2nd Ser. XXVIII. pp. 66-90.]

Different from the question whether neutral prizes may be tried after the conclusion of peace is the other question whether they may be condemned to be confiscated. In the above-mentioned case of the _Doelwijk_ the question was answered in the negative, but I believe it ought to have been answered in the affirmative. Confiscation of vessel and cargo having the character of a punishment, it would seem that the punishment may be inflicted after the conclusion of peace provided the criminal act concerned was consummated before peace was concluded. But nothing, of course, stands in the way of a belligerent taking a more lenient view and ordering his Prize Courts not to p.r.o.nounce confiscation of neutral vessels after the conclusion of peace.

The Declaration of London does not settle either the former or the latter question, and it would therefore be the task of the International Prize Court to evolve a uniform practice in the cases concerned.

[Sidenote: Protests and Claims of Neutrals after Trial.]

-- 437. Hitherto, if a trial led to condemnation, and if the latter was confirmed by the Court of Appeal, the matter as between the captor and the owner of the captured vessel and cargo was finally settled. But the right of protection,[927] which a State exercises over its subjects and their property abroad, may nevertheless have been the cause of diplomatic protests and claims on the part of the neutral home State of a condemned vessel or cargo, in case the verdict of the Prize Courts was considered to be not in accordance with International Law or formally or materially unjust. It is through such protests and claims that the matter, which was. .h.i.therto a mere munic.i.p.al one, became of _international_ importance. And history records many instances of cases of interposition of neutral States after trials of vessels which had sailed under their flags. Thus, for instance, in the famous case of the Silesian Loan,[928] it was the fact that Frederick II. of Prussia considered the procedure of British Prize Courts regarding a number of Prussian merchantmen captured during war between Great Britain and France in 1747 and 1748 as unjust, which made him in 1752 resort to reprisal and cease the payment of the interest of the Silesian Loan. The matter was settled[929] in 1756, through the payment of 20,000 as indemnity by Great Britain. Thus, further, after the American Civil War, articles 12-17 of the Treaty of Was.h.i.+ngton[930] provided the appointment of three Commissioners for the purpose, amongst others, of deciding all claims against verdicts of the American Prize Courts. And when in 1879, during war between Peru and Chili, the German vessel _Luxor_ was condemned by the Peruvian Courts, Germany interposed and the vessel was released.[931]

[Footnote 927: See above, vol. I. -- 319.]

[Footnote 928: See above, -- 37.]

[Footnote 929: See Martens, _Causes Celebres_, II. p. 167.]

[Footnote 930: See Martens, _N.R.G._ XX. p. 698.]

[Footnote 931: See above, -- 404.]

The ratification of the Declaration of London and the establishment of the International Prize Court would finally do away with such grave international disputes.

CHAPTER VII

THE INTERNATIONAL PRIZE COURT

I

PROPOSALS FOR INTERNATIONAL PRIZE COURTS

Geffcken in Holtzendorff, IV. pp. 785-788--Boeck, Nos.

743-764--Dupuis, No. 289, and _Guerre_, Nos. 224-231--Higgins, pp.

432-435--Lemonon, pp. 280-293--Nippold, I. -- 15--Trendelenburg, _Lucken im Volkerrecht_ (1870), pp. 49-53--Gessner, _Kriegfuhrende und neutrale Machte_ (1877), pp. 52-58--Bulmerincq and Gessner in _R.I._ XI. (1879), pp. 173-191, and XIII. (1881), pp. 260-267.

[Sidenote: Early Projects.]

-- 438. Numerous inconveniences must naturally result from a condition of International Law which has. .h.i.therto prevailed and according to which the Courts of the belligerent whose forces had captured neutral vessels exercised jurisdiction without any control by neutrals. Although, as shown above in -- 437, neutrals frequently interfered after a trial and succeeded in obtaining recognition for their claims in face of the verdicts of Prize Courts, great dissatisfaction has long been felt at the condition of matters. .h.i.therto obtaining, and proposals have been made for so-called mixed Prize Courts.

The first proposal of this kind was made in 1759 by Hubner,[932] who suggested a Prize Court composed of judges nominated by the belligerent and of consuls or councillors nominated by the home State of the captured neutral merchantmen.

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