International Law. A Treatise Volume Ii Part 66

The deciding tribunal determines what language it will itself use and what languages may be used before it, but in all cases the official language of the National Courts which have had cognisance of the case may be used before it (article 24).

For all notices to be served, in particular on the parties, witnesses, or experts, the deciding tribunal may apply direct to the Government of the State on whose territory the service is to be carried out. The same rule applies in the case of steps to be taken to procure evidence. The Court is equally ent.i.tled to act through the Power on whose territory it holds its sitting. Notices to be given to parties in the place where the Court sits may be served through the International Bureau (article 27).

[Sidenote: Administrative Council and International Bureau.]

-- 444. The Administrative Council of the Permanent Court of Arbitration at the Hague serves at the same time as the Administrative Council of the International Prize Court, but only representatives of the Powers who are parties to Convention XII. shall be members of it (article 22).

The International Bureau of the Permanent Court of Arbitration acts as Registry of the International Prize Court and must place its offices and staff at the disposal of the Court. This Bureau has the custody of the archives and carries out the administrative work, and its General Secretary acts as Registrar of the International Prize Court. The secretaries necessary to a.s.sist the Registrar, translators, and shorthand writers are appointed by the International Prize Court (article 23).

[Sidenote: Agents, Counsel, Advocates, and Attorneys.]

-- 445. Belligerent as well as neutral Powers concerned in a case may appoint special Agents to act as intermediaries between themselves and the International Prize Court, and they may also engage Counsel or Advocates to defend their rights and interests (article 25).

Private individuals concerned in a case are compelled to be represented before the Court by an Attorney, who must either be an Advocate qualified to plead before a Court of Appeal or a High Court of one of the contracting States, or a lawyer practising before a similar Court, or, lastly, a Professor of Law at one of the higher teaching centres of those countries (article 26).

[Sidenote: Competence.]

-- 446. The general principle underlying the rules of Convention XII.

concerning the competence of the International Prize Court is that on the whole, _although not exclusively_, the Court is competent in cases where neutrals are directly or indirectly concerned. The International Prize Court is, as a rule, a Court of Appeal, all prize cases must, in the first instance, be decided by a National Prize Court of the captor, although the Munic.i.p.al Law of the country concerned may provide that a first appeal must likewise be decided by a National Prize Court. The second appeal may never by decided by a National, but must always be decided by the International Prize Court. However, should the National Court of the First Instance or the National Court of Appeal fail to give final judgment within two years from the date of capture, the case may be carried direct to the International Prize Court (articles 2 and 6).

An appeal against the judgments of National Prize Courts may be brought before the International Court: (1) when the judgment concerns the property of a neutral Power or a neutral individual;[940] (2) when the judgment concerns enemy property and relates to (_a_) cargo on board a neutral vessel, (_b_) an enemy vessel captured in the territorial waters of a neutral Power, provided such Power has not made the capture the subject of diplomatic claim, and (_c_) a claim based upon the allegation that the seizure has been effected in violation, either of the provisions of a convention in force between the belligerent Powers, or of an enactment issued by the belligerent captor. In any case, the appeal may be based on the ground that the judgment was wrong either in fact or in law (article 3).

[Footnote 940: Since the question of enemy or neutral character of individuals--see above, -- 88--is for some parts controversial, the International Prize Court would have to decide the controversy.]

The following Powers and individuals are ent.i.tled[941] to bring an appeal before the International Prize Court:--

(1) Neutral Powers, if the judgment injuriously affects their property or the property of their subjects, or if the capture is alleged to have taken place in the territorial waters of such Powers (article 4, No. 1).

(2) Neutral individuals,[942] if the judgment injuriously affects their property. But the home State of such an individual may intervene and either forbid him to bring the appeal before the International Prize Court, or itself undertake the proceedings in his place (article 4, No.

2).

(3) Subjects of the enemy, if the judgment injuriously affects their cargoes on neutral vessels, or if it injuriously affects their property in case the seizure is alleged to have been effected in violation, either of the provisions of a convention in force between the belligerent Powers, or of an enactment issued by the belligerent captor (article 4, No. 3).

(4) Subjects of neutral Powers or of the enemy deriving rights from the rights of such individuals as are themselves qualified to bring an appeal before the International Prize Court, provided they have intervened in the proceedings of the National Court or Courts concerned.

Individuals so ent.i.tled may appeal separately to the extent of their interests (article 5, first paragraph).

(5) Subjects of neutral Powers or of the enemy deriving rights from the rights of a neutral Power whose property was the subject of the judgment. Individuals so ent.i.tled may likewise appeal separately to the extent of their interest, provided they have intervened in the proceedings of the National Court or Courts concerned (article 5, second paragraph).

[Footnote 941: But note article 51 of Convention XII.] [Footnote 942: See above, vol. I. -- 289, p. 365.]

[Sidenote: What Law to be applied.]

-- 447. As regards the law to be applied by the International Prize Court, article 7 of Convention XII. contains the following provisions and distinctions:--

(1) If a question of law to be decided be covered by a treaty in force between the belligerent captor and a Power which is itself, or whose subject is, a party to the proceedings, the Court must apply the provisions of such treaty.

(2) In absence of such provisions, the Court must apply the rules of International Law.

(3) If there be no generally recognised rules of International Law which could be applied, the Court must base its decision on the general principles of justice and equity.

(4) If--see article 3, No. 2 (_c_) of Convention XII.--the ground of appeal be the violation of an enactment issued by the belligerent captor, the Court must apply such enactment.

(5) The Court is empowered to disregard failure, on the part of an appellant, to comply with the procedure laid down by the Munic.i.p.al Law of the belligerent captor, if it is of opinion that the consequences of such Munic.i.p.al Law are unjust or inequitable.

The very wide powers of the International Prize Court with regard to the law to be applied by it, have been considerably narrowed down by the fact that the Declaration of London provides a code of Prize Law, which in time will be universally accepted, but those powers are still very wide.

III

PROCEDURE IN THE INTERNATIONAL PRIZE COURT

See the literature quoted above at the commencement of -- 442.

[Sidenote: Entering of Appeal.]

-- 448. As a rule there are two ways of entering an appeal against the judgment of a National Prize Court, namely, either by a written declaration made in the National Court against whose judgment the appeal is directed, or by a written or telegraphic declaration addressed to the International Bureau. In either case the appeal must be entered within one hundred and twenty days from the day the judgment was delivered or notified (article 28). But the appeal must be addressed to the International Bureau only, if a party intends to carry a case direct to the International Prize Court on account of the National Courts having failed to give final judgment within two years from the date of capture, and in such case the appeal must be entered within thirty days from the expiry of the period of two years (article 30).

If the appeal has been entered in the National Court, this Court must, without considering the question as to whether the appeal was entered in time, transmit within seven days the record of the case to the International Bureau. On the other hand, if the declaration of appeal has been sent to the International Bureau, this Bureau must immediately, if possible by telegraph, send information to the National Court concerned which must within seven days transmit the record of the case to the Bureau. And should the appeal be entered by a neutral individual, the International Bureau must immediately by telegraph inform the Government of the respective individual in order to enable such Government to come to a decision as to whether it will--see article 4, No. 2--prevent the individual from going on with the appeal, or will undertake proceedings in his stead (article 29).

If the appeal has not been entered in time, the Court must reject it without discussion of the merits of the case. But the Court may grant relief from the effect of this rule and admit the appeal, if the appellant is able to show that he was prevented by _force majeure_ from entering the appeal in time, and that he has entered the appeal within sixty days after the circ.u.mstances which prevented him from entering it earlier ceased to operate (article 31).

If the appeal has been entered in time, a certified copy of the notice of appeal must officially be transmitted to the respondent by the Court; if the Court is not sitting, its delegation of three judges must act for it (articles 32 and 48). If in addition to the parties who are before the Court through an appeal having been entered, there are other parties concerned who are ent.i.tled to appeal, or if in the case referred to in article 29, third paragraph, the Government which has received notice of an appeal has not announced its decision, the Court may not deal with the case until either the period of one hundred and twenty days from the day the judgment of the National Prize Court has been delivered or notified, or the period of thirty days from the expiry of two years from the date of capture has expired (article 31).

[Sidenote: Pleadings and Discussion.]

-- 449. The procedure, which follows the entry of an appeal and the preliminary steps in consequence thereof, comprises two distinct phases, namely, written pleadings and oral discussion.

(1) The written _pleadings_ consist of the deposit and exchange of cases, counter-cases, and, if necessary, of replies, the order of which, as also the periods within which they must be delivered, must be fixed by the Court or its delegation of three judges (article 48), and to which all papers and doc.u.ments the parties intend to make use of must be annexed. The Court must communicate a certified copy of every doc.u.ment produced by one party to the other party (article 34).

(2) After the close of the pleadings the Court must fix a day for a public sitting on which the _discussion_ is to take place (article 35).

The discussion is under the direction of the President or Vice-President, or, in case both of these are absent or cannot act, of the senior judge present; but the judge appointed by a belligerent party may never preside (article 38). The discussion takes place with open doors, but a Government which is a party may demand that the discussion take place with closed doors. In any case minutes must be taken and must be signed by the President and Registrar, and these minutes alone have an authentic character (article 39). During the discussion the parties state their views of the case both as to the law and as to the facts, but the Court may at any stage suspend the speeches of counsel in order that supplementary evidence may be obtained (article 35). The Court may order the supplementary evidence to be taken, either in the manner provided for by article 27, or before itself, or before one or more members of the Court provided it can be done without compulsion or intimidation; if steps are taken by members of the Court outside the territory where it is sitting, the consent of the foreign Government must be obtained (article 36). The parties must be summoned to take part in all stages of the taking of supplementary evidence, and they must receive certified copies of the minutes (article 37). If a party does not appear in spite of having been duly summoned, or if a party fails to comply with some step within the period fixed by the Court, the case proceeds without that party and the Court makes its decision on the basis of the material at its disposal, but the Court must officially notify to the parties all decisions or orders made in their absence (article 40).

[Sidenote: Judgment.]

-- 450. After the discussion follows the judgment of the Court.

The deliberation of the Court in order to agree upon the judgment takes place in private and must remain secret. The Court must take into consideration all the doc.u.ments, evidence, and oral statements. All questions are decided by a majority of the judges present; if the number of the judges is even and is equally divided, the vote of the junior judge in the order of precedence is not counted (articles 42 and 43).

The judgment must be taken down in writing, state the reasons upon which it is based, give the names of the judges taking part in it and of the a.s.sessors, if any, and must be signed by the President and Registrar.

The p.r.o.nouncement of the judgment of the Court takes place in public, the parties being present or having been duly summoned to attend. The judgment must be officially communicated to the parties. After this communication has been made, the Court must transmit to the National Prize Court concerned the record of the case, together with copies of the various decisions arrived at and of the minutes of the proceedings (article 45).

If the Court p.r.o.nounces the capture of a vessel or cargo to be valid, they may be disposed of in accordance with the Munic.i.p.al Law of the belligerent captor. If the Court p.r.o.nounces the capture to be invalid, rest.i.tution of the vessel or cargo must be ordered, and the amount of damages, if any, must be fixed, especially in case the vessel or cargo has been sold or destroyed. If the National Prize Court has already declared the capture to be invalid, the International Prize Court must decide on an appeal concerning the damages due to the owner of the captured vessel or cargo (article 8).

[Sidenote: Expenses and Costs.]

-- 451. The _general expenses_ of the International Prize Court are borne by the contracting Powers in proportion to their share in the composition of the Court as laid down in article 15 of Convention XII.; the appointment of deputy judges does not involve any contribution (article 47).

As regards _costs_, each party pays its own, but the party against whom the Court has given its decision, must bear the costs of the trial and, in addition, must pay one per cent. of the value of the subject matter of the case as a contribution to the general expenses of the International Prize Court. The amount of the payments must be fixed in the judgment of the Court (article 46, first and second paragraphs). If the appeal is brought by an individual, he must, after having entered the appeal, furnish the International Bureau with security to an amount fixed by the Court or--see article 48--by its delegation (article 46, third paragraph).