Page:The Green Bag (1889–1914), Volume 19.pdf/694

 AN INTERNATIONAL PRIZE COURT whom shall this jurisdiction belong? In fact, it is exercised by the captor. "Rationally, the captor should play the role of claimant in order to validate the seizure and secure confiscation, whether of the ship or cargo. But it is generally other wise — the one whose goods have been seized is claimant and he must prove the illegality of the capture. "In fact, if one goes to the bottom of things, one finds .that the prize courts are national tribunals which decide international questions. They must apply the laws of their country without inquiring whether these laws do or do not conform to inter national law. That is to say, a state may regulate as it wishes international relations by its own laws or regulations. It is respon sible however, to other states for every violation of the principles of the law of nations, whether such violation be the result of a defective legislation or jurisprudence, or of arbitrary acts on the part of the govern ment or its agents." This report goes on to say that "under such circumstances, one should not be astonished that the decisions of prize courts have often given rise to well-founded com plaints. " If the government to which individuals make these complaints is strong, it presents diplomatic claims which may lead to international controversies. In answer to the important question, "What rules of law shall the new prize court apply? " M. Renault said : "If the law of maritime warfare were codified, it would be easy to say that the International Prize Court, like the -national tribunals, should apply international law, but this is far from being the case. Upon very many points of which some are of great importance, the law of maritime warfare is still uncertain, and each state formulates it in accordance with its own ideas and interests. In spite of the efforts made at the present conference to diminish these in certitudes, it is impossible to conceal the fact that very many > uncertainties still

remain. Hence there arises a serious difficulty. "It goes without saying that even in the absence of a formal convention, we may have a customary rule which is recognized as the tacit expression of the will of states. But what will happen if the positive law, written or customary, is silent? The solu tion indicated by strict principles of judicial reasoning do not appear doubtful. In de fault of an international regulation firmly established, international adjudication will apply the law of the captor. "It is doubtless easy to object and say that we shall thus have a law which is very changeable, often very arbitrary and even crude, and that certain belligerents will abuse the latitude left them by the positive law. This will be a reason for hastening its codification in order to get rid of the gaps and uncertainties of which complaint is made. "Nevertheless, after ripe reflection, we believe that we should propose a solution which is doubtless bold, but of a nature seriously to ameliorate the practice of in ternational law. '// rules generally recog nized do not exist, the court will decide in accordance with the principles of justice and equity.' 1 It will thus be called upon to make law and to take account of other principles than those applied by the national prize courts whose decisions are challenged before the International Court. We have the confidence that the magistrates chosen by the Powers will realize their high mis sion, and that they will act with modera tion and firmness. They will modify the practice in the spirit of justice without overthrowing it. "Let us then accept a court composed of magistrates charged with supplying the deficiencies of positive law until the codifi cation of international law, effected by the governments, simplifies their task." 2 1 Sec. 2 of Art. VII. port, see Le Courier de la Conference for Sept. io,
 * For a digest or summary of M. Renault's re