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The International Court of Prize
Published online by Cambridge University Press: 04 May 2017
Extract
On February 15, 1911, the Senate of the United States advised and consented to the ratification of the International Prize Court Convention adopted by the Second Hague Peace Conference and signed by the American delegates October 18, 1907. Although transmitted to the Senate with the various Hague conventions on February 27, 1908, and favorably recommended by the President and Secretary of State, action upon the convention was deferred by the Committee on Foreign Relations because the convention in its original form involved an appeal from the Supreme Court of the United States to the international court at The Hague. This feature of the otherwise acceptable convention raised doubts as to its constitutionality, because Article 3, section 1, of the Constitution provides that “ the judicial power of the United States shall be vested in one Supreme Court.” An appeal from the Supreme Court to the court at The Hague seemed to some inconsistent with this provision, for a court can not be considered supreme if an appeal lies from its decisions. To this it may be answered that the court to be established at The Hague is not a court of the United States, and, therefore, is not contemplated by the Constitution; for the Hague court is a diplomatic tribunal for the settlement of questions which would otherwise be adjusted by diplomacy, or referred to a mixed commission specially constituted for their determination, or which if not determined by either of these methods, might result in war.
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- Copyright © American Society of International Law 1911
References
1 Printed in Supplement, 2:174.
2 Printed in Supplement, 4:102.
3 Printed in Supplement, p. 95.
4 See Senate Resolution, Supplement, p. 99.
5 The effect of the Declaration of London (printed in Supplement to this Journal, 3:179) is not considered in this connection as it has not been ratified as yet by Great Britain or the United States.
6 Article 8 is thus modified by the Additional Protocol for such nations as care to avail themselves of it:
Art. 2. In the case of recourse to the international court of prize, in the form of an action for damages, Article 8 of the convention is not applicable; it is not for the court to pass upon the validity or the nullity of the capture, nor to reverse or affirm the decision of the national tribunals.
If the capture is considered illegal, the court determines the amount of damages to be allowed, if any, to the claimants.
7 In the alternative procedure provided by the Additional Protocol Article 28 ia thus modified:
Art. 5. In derogation of Article 28, paragraph 1, of the convention, the suit for damages can only be brought before the international court of prize by means of a written declaration addressed to the International Bureau of the Permanent Court of Arbitration; the case may even be brought before the bureau by telegram.
8 Article 29 is thus modified by the Additional Protocol:
Art. 6. In derogation of Article 29 of the convention the international bureau shall notify directly, and if possible by telegram, the Government of the belligerent captor of the declaration of action brought before it.
The Government of the belligerent captor, without considering whether the prescribed periods of time have been observed, shall, within seven days of the receipt of the notification, transmit to the international bureau the case, appending thereto a certified copy of the decision, if any, rendered by the national tribunal.
9 Article 45 is thus modified by the Additional Protocol:
Art. 7. In derogation of Article 45, paragraph 2, of the convention the court rendering its decision and notifying it to the parties to the suit shall send directly to the Government of the belligerent captor the record of the case submitted to it, appending thereto a copy of the various intervening decisions as well as a copy of the minutes of the preliminary proceedings.