CONVENTION (XII) RELATIVE TO THE CREATION
OF AN INTERNATIONAL PRIZE COURT
Signed at The Hague, 18 October 1907
[never ratified]
Animated by the desire to settle in an equitable manner the differences
which sometimes arise in the course of a naval war in connection with the
decisions of national prize courts;
Considering that, if these courts are to continue to exercise their
functions in the manner determined by national legislation, it is desirable
that in certain cases an appeal should be provided under conditions
conciliating, as far as possible, the public and private interests involved
in matters of prize;
Whereas, moreover, the institution of an International Court, whose
jurisdiction and procedure would be carefully defined, has seemed to be the
best method of attaining this object;
Convinced, finally, that in this manner the hardships consequent on naval
war would be mitigated; that, in particular, good relations will be more
easily maintained between belligerents and neutrals and peace better
assured;
Desirous of concluding a Convention to this effect, have appointed the
following as their Plenipotentiaries:
(Here follow the names of Plenipotentiaries)
Who, after depositing their full powers, found in good and due form, have
agreed upon the following provisions:
PART I
GENERAL PROVISIONS
Article 1. The validity of the capture of a merchant ship or its cargo is
decided before a prize court in accordance with the present Convention when
neutral or enemy property is involved.
Art. 2. Jurisdiction in matters of prize is exercised in the first instance
by the prize courts of the belligerent captor.
The judgments of these courts are pronounced in public or are officially
notified to parties concerned who are neutrals or enemies.
Art. 3. The judgments of national prize courts may be brought before the
International Prize Court -
1. When the judgment of the national prize courts affects the property
of a neutral Power or individual;
2. When the judgment affects enemy property and relates to -
(a) Cargo on board a neutral ship;
(b) An enemy ship captured in the territorial waters of a neutral
Power, when that Power has not made the capture the subject of a
diplomatic claim;
(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 captors.
The appeal against the judgment of the national court can be based on the
ground that the judgment was wrong either in fact or in law.
Art. 4. An appeal may be brought -
1. By a neutral Power, if the judgment of the national tribunals
injuriously affects its property or the property of its nationals
(Article 3, No. 1), or if the capture of an enemy vessel is alleged
to have taken place in the territorial waters of that Power (Article
3, No. 2(b)).
2. By a neutral individual, if the judgment of the national court
injuriously affects his property (Article 3, No. 1), subject,
however, to the reservation that the Power to which he belongs may
forbid him to bring the case before the Court, or may itself
undertake the proceedings in his place;
3. By an individual subject or citizen of an enemy Power, if the
judgment of the national court injuriously affects his property in
the cases referred to in Article 3, No. 2, except that mentioned in
paragraph (b).
Art. 5. An appeal may also be brought on the same conditions as in the
preceding article, by persons belonging either to neutral States or to the
enemy, deriving their rights from and entitled to represent an individual
qualified to appeal, and who have taken part in the proceedings before the
national court. Persons so entitled may appeal separately to the extent of
their interest.
The same rule applies in the case of persons belonging either to neutral
States or to the enemy who derive their rights from and are entitled to
represent a neutral Power whose property was the subject of the decision.
Art. 6. When, in accordance with the above Article 3, the International
Court has jurisdiction, the national courts cannot deal with a case in more
than two instances. The municipal law of the belligerent captor shall
decide whether the case may be brought before the International Court after
judgement has been given in first instance or only after an appeal.
If the national courts fail to give final judgment within two years from
the date of capture, the case may be carried direct to the International
Court.
Art. 7. If a question of law to be decided is covered by a treaty in force
between the belligerent captor and a Power which is itself or whose subject
or citizen is a party to the proceedings, the Court is governed by the
provisions in the said treaty.
In the absence of such provisions, the Court shall apply the rules of
international law. If no generally recognized rule exists, the Court shall
give judgment in accordance with the general principles of justice and
equity.
The above provisions apply equally to questions relating to the order and
mode of proof.
If, in accordance with Article 3, No. 2(c), the ground of appeal is the
violation of an enactment issued by the belligerent captor, the Court will
enforce the enactment.
The Court may disregard failure to comply with the procedure laid down in
the enactments of the belligerent captor, when it is of opinion that the of
complying therewith are unjust and inequitable.
Art. 8. If the Court pronounces the capture of the vessel or cargo to be
valid, they shall be disposed of in accordance with the laws of the
belligerent captor.
If it pronounces the capture to be null, the Court shall order restitution
of the vessel or cargo, and shall fix, if there is occasion, the amount of
the damages. If the vessel or cargo have been sold or destroyed, the Court
shall determine the compensation to be given to the owner on this account.
If the national court pronounced the capture to be null, the Court can only
be asked to decide as to the damages.
Art. 9. The Contracting Powers undertake to submit in good faith to the
decisions of the International Prize Court and to carry them out with the
least possible delay.
PART II
CONSTITUTION OF THE INTERNATIONAL PRIZE COURT
Art. 10. The International Prize Court is composed of judges and deputy
judges, who will be appointed by the Contracting Powers, and must all be
jurists of known proficiency in questions of international maritime law,
and of the highest moral reputation.
The appointment of these judges and deputy judges shall be made within six
months after the ratification of the present Convention.
Art. 11. The judges and deputy judges are appointed for a period of six
years, reckoned from the date on which the notification of their
appointment is received by the Administrative Council established by the
Convention for the pacific settlement of international disputes of the 29
July 1899. Their appointments can be renewed.
Should one of the judges or deputy judges die or resign, the same procedure
is followed for filling the vacancy as was followed for appointing him. In
this case, the appointment is made for a fresh period of six years.
Art. 12. The judges of the International Prize Court are all equal in rank
and have precedence according to the date on which the notification of
their appointment was received (Article 11, paragraph 1), and if they sit
by rota (Article 15, paragraph 2), according to the date on which they
entered upon their duties. When the date is the same the senior in age
takes precedence.
The deputy judges when acting are assimilaged to the judges. They rank,
however, after them.
Art. 13. The judges enjoy diplomatic privileges and immunities in the
performance of their duties and when outside their own country.
Before taking their seat, the judges must swear, or make a solemn promise
before the Administrative Council, to discharge their duties impartially
and conscientiously.
Art. 14. The Court is composed of fifteen judges; nine judges constitute a
quorum.
A judge who is absent or prevented from sitting is replaced by the deputy
judge.
Art. 15. The judges appointed by the following Contracting Powers: Germany,
the United States of America, Austria-Hungary, France, Great Britain,
Italy, Japan, and Russia, are always summoned to sit.
The judges and deputy judges appointed by the other Contracting Powers sit
by rota as shown in the table annexed to the present Convention; their
duties may be performed successively by the same person. The same judge may
be appointed by several of the said Powers.
Art. 16. If a belligerent Power has, according to the rota, no judge
sitting in the Court, it may ask that the judge appointed by it should take
part in the settlement of all cases arising from the war. Lots shall then
be drawn as to which of the judges entitled to sit according to the rota
shall withdraw. This arrangement does not affect the judge appointed by the
other belligerent.
Art. 17. No judge can sit who has been a party, in any way whatever, to the
sentence pronounced by the national courts, or has taken part in the case
as counsel or advocate for one of the parties.
No judge or deputy judge can, during his tenure of office, appear as agent
or advocate before the International Prize Court nor act for one of the
parties in any capacity whatever.
Art. 18. The belligerent captor is entitled to appoint a naval officer of
high rank to sit as assessor, but with no voice in the decision. A neutral
Power, which is a party to the proceedings or whose subject or citizen is a
party, has the same right of appointment; if as the result of this last
provision more than one Power is concerned, they must agree among
themselves, if necessary by lot, on the officer to bc appointed.
Art. 19. The Court elects its president and vice-president by an absolute
majority of the votes cast. After two ballots, the election is made by a
bare majority, and, in case the votes are equal, by lot.
Art. 20. The judges on the International Prize Court are entitled to
travelling allowances in accordance with the regulations in force in their
own country, and in addition receive, while the Court is sitting or while
they are carrying out duties conferred upon them by the Court, a sum of 100
Netherlands florins per diem.
These payments are included in the general expenses of the Court dealt with
in Article 47, and are paid through the International Bureau established by
the Convention of the 29 July 1899.
The judges may not receive from their own Government or from that of any
other Power any remuneration in their capacity of members of the Court.
Art. 21. The seat of the International Prize Court is at The Hague and it
cannot, except in the cases of force majeure, be transferred elsewhere
without the consent of the belligerents.
Art. 22. The Administrative Council fulfils, with regard to the
International Prize Court, the same functions as to the Permanent Court of
Arbitration, but only representatives of Contracting Powers will be members
of it.
Art. 23. The International Bureau acts as registry to the International
Prize Court and must place its offices and staff at the disposal of the
Court. It has charge of the archives and carries out the administrative
work.
The secretary general of the International Bureau acts as registrar.
The necessary secretaries to assist the registrar, translators and
shorthand writers are appointed and sworn in by the Court.
Art. 24. The Court determines which language it will itself use and what
languages may be used before it.
In every case the official language of the national courts which have had
cognizance of the case may be used before the Court.
Art. 25. Powers which are concerned in a case may appoint special agents to
act as intermediaries between themselves and the Court. They may also
engage counsel or advocates to defend their rights and interests.
Art. 26. A private person concerned in a case will be represented before
the Court by an attorney, who must be either 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.
Art. 27. For all notices to be served, in particular on the parties,
witnesses, or experts, the Court 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 being taken to procure evidence.
The requests for this purpose are to be executed so far as the means at the
disposal of the Power applied to under its municipal law allow. They cannot
be rejected unless the Power in question considers them calculated to
impair its sovereign rights or its safety. If the request is complied with,
the fees charged must only comprise the expenses actually incurred.
The Court is equally entitled to act through the Power on whose territory
it sits.
Notices to be given to parties in the place where the Court sits may be
served through the International Bureau.
PART III
PROCEDURE IN THE INTERNATIONAL PRIZE COURT
Art. 28. An appeal to the International Prize Court is entered by means of
a written declaration made in the national court which has already dealt
with the case or addressed to the International Bureau; in the latter case
the appeal can be entered by telegram.
The period within which the appeal must be entered is fixed at 120 days,
counting from the day the decision is delivered or notified (Article 2,
paragraph 2).
Art. 29. If the notice of appeal is entered in the national court, this
Court, without considering the question whether the appeal was entered in
due time, will transmit within seven days the record of the case to the
International Bureau.
If the notice of the appeal is sent to the International Bureau, the Bureau
will immediately inform the national court, when possible by telegraph. The
latter will transmit the record as provided in the preceding paragraph.
When the appeal is brought by a neutral individual the International Bureau
at once informs by telegraph the individual's Government, in order to
enable it to enforce the rights it enjoys under Article 4, paragraph 2.
Art. 30. In the case provided for in Article 6, paragraph 2, the notice of
appeal can be addressed to the International Bureau only. It must be
entered within thirty days of the expiration of the period of two years.
Art. 31. If the appellant does not enter his appeal within the period laid
down in Articles 28 or 30, it shall be rejected without discussion.
Provided that he can show that he was prevented from so doing by force
majeure, and that the appeal was entered within sixty days after the
circumstances which prevented him entering it before had ceased to operate,
the Court can, after hearing the respondent, grant relief from the effect
of the above provision.
Art. 32. If the appeal is entered in time, a certified copy of the notice
of appeal is forthwith officially transmitted by the Court to the
respondent.
Art. 33. If, in addition to the parties who are before the Court, there are
other parties concerned who are entitled to appeal, or if, in the case
referred to in Article 29, paragraph 3, the Government who has received
notice of an appeal has not announced its decision, the Court will await
before dealing with the case the expiration of the period laid down in
Articles 28 or 30.
Art. 34. The procedure before the International Court includes two distinct
parts: the written pleadings and oral discussions.
The written pleadings consist of the deposit and exchange of cases,
counter-cases, and, if necessary, of replies, of which the order is fixed
by the Court, as also the periods within which they must be delivered. The
Parties annex thereto all papers and documents of which they intend to make
use.
A certified copy of every document produced by one Party must be
communicated to the other Party through the medium of the Court.
Art. 35. After the close of the pleadings, a public sitting is held on a
day fixed by the Court.
At this sitting the Parties state their view of the case both as to the law
and as to the facts.
The Court may, at any stage of the proceedings, suspend speeches of
counsel, either at the request of one of the Parties, or on their own
initiative, in order that supplementary evidence may be obtained.
Art. 36. The International Court may order the supplementary evidence to be
taken either in the manner provided by Article 27, or before itself, or one
or more of the members of the Court, provided that this can be done without
resort to compulsion or the use of threats.
If steps are to be taken for the purpose of obtaining evidence by members
of the Court outside the territory where it is sitting, the consent of the
foreign Government must be obtained.
Art. 37. The Parties are summoned to take part in all stages of the
proceedings and receive certified copies of the minutes.
Art. 38. The discussions are under the control of the president or vice-
president, or, in case they are absent or cannot act, of the senior judge
present.
The judge appointed by a belligerent Party cannot preside.
Art. 39. The discussions take place in public, subject to the right of a
Government who is a Party to the case to demand that they be held in
private.
Minutes are taken of these discussions and signed by the president and
registrar, and these minutes alone have an authentic character.
Art. 40. If a Party does not appear, despite the fact that it has been duly
cited, 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 gives
judgment in accordance with the material at its disposal.
Art. 41. The Court official notifies to the Parties decrees or decisions
made in their absence.
Art. 42. The Court takes into consideration in arriving at its decision all
the facts, evidence, and oral statements.
Art. 43. The Court considers its decision in private and the proceedings
are secret.
All questions are decided by a majority of the judges present. If the
number of judges is even and equally divided, the vote of the junior judge
in the order of precedence laid down in Article 12, paragraph 1, is not
counted.
Art. 44. The judgment of the Court must give the reasons on which it is
based. It contains the names of the judges taking part in it, and also of
the assessors, if any; if is signed by the president and registrar.
Art. 45. The sentence is pronounced in public sitting, the parties
concerned being present or duly summoned to attend; the sentence is
officially communicated to the parties.
When this communication has been made, the Court transmits to the national
prize court the record of the case, together with copies of the various
decisions arrived at an of the minutes of the proceedings.
Art. 46. Each party pays its own costs.
The party against whom the Court decides bears, in addition, the costs of
the trial, and also pays 1 per cent of the value of the subject-matter of
the case as a contribution of the general expenses of the International
Court. The amount of these payments is fixed in the judgment of the Court.
If the appeal is brought by an individual, he will furnish the
International Bureau with security to an amount fixed by the Court, for the
purpose of guaranteeing eventual fulfilment of the two obligations
mentioned in the preceding paragraph. The Court is entitled to postpone the
opening of the proceedings until the security has been furnished.
Art. 47. 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 and in the annexed table. The
appointment of deputy judges does not involve any contribution.
The Administrative Council applies to the Powers for the funds requisite
for the working of the Court.
Art. 48. When the Court is not sitting, the duties conferred upon it by
Article 32, Article 34, paragraphs 2 and 3, Article 35, paragraph 1, and
Article 46, paragraph 3, are discharged by a delegation of three judges
appointed by the Court. This delegation decides by a majority of votes.
Art. 49. The Court itself draws up its own rules of procedure, which must
be communicated to the Contracting Powers.
It will meet to elaborate these rules within a year of the ratification of
the present Convention.
Art. 50. The Court may propose modifications in the provisions of the
present Convention concerning procedure. These proposals are communicated,
through the medium of the Netherlands Government, to the Contracting
Powers, which will consider together as to the measures to be taken.
PART IV
FINAL PROVISIONS
Art. 51. The present Convention does not apply as of right except when the
belligerent Powers are all parties to the Convention.
It is further fully understood that an appeal to the International Prize
Court can only be brought by a Contracting Power or the subject or citizen
of a Contracting Power.
In the cases mentioned in Article 5, the appeal is only admitted when both
the owner and the person entitled to represent him are equally Contracting
Powers or the subjects or citizens of Contracting Powers.
Art. 52. The present Convention shall be ratified and the ratifications
shall be deposited at The Hague as soon as all the powers mentioned in
Article 15 and in the table annexed are in a position to do so.
The deposit of the ratifications shall take place, in any case, on the 30
June 1909, if the Powers which are ready to ratify furnish nine judges and
nine deputy judges to the Court, qualified to validly constitute a Court.
If not, the deposit shall be postponed until this condition is fulfilled.
A minute of the deposit of ratifications shall be drawn up, of which a
certified copy shall be forwarded, through the diplomatic channel, to each
of the Powers referred to in the first paragraph.
Art. 53. The Powers referred to in Article 15 and in the table annexed are
entitled to sign the present Convention up to the deposit of the
ratifications contemplated in paragraph 2 of the preceding article.
After this deposit, they can at any time adhere to it, purely and simply. A
Power wishing to adhere, notifies its intention in writing to the
Netherlands Government transmitting to it, at the same time, the act of
adhesion, which shall be deposited in the archives of the said Government.
The latter shall send, through the diplomatic channel, a certified copy of
the notification and of the act of adhesion to all the Powers referred to
in the preceding paragraph, informing them of the date on which it has
received the notification.
Art. 54. The present Convention shall come into force six months from the
deposit of the ratifications contemplated in Article 52, paragraphs 1 and
2.
The adhesions shall take effect sixty days after notification of such
adhesion has been received by the Netherlands Government, or as soon as
possible on the expiration of the period contemplated in the preceding
paragraph.
The International Court shall, however, have jurisdiction to deal with
prize cases decided by the national courts at any time after the deposit of
the ratifications or of the receipt of the notification of the adhesions.
In such cases, the period fixed in Article 28, paragraph 2, shall only be
reckoned from the date when the Convention comes into force as regards a
Power which has ratified or adhered.
Art. 55. The present Convention shall remain in force for twelve years from
the time it comes into force, as determined by Article 54, paragraph 1,
even in the case of Powers which adhere subsequently.
It shall be renewed tacitly from six years to six years unless denounced.
Denunciation must be notified in writing, at least one year before the
expiration of each of the periods mentioned in the two preceding
paragraphs, to the Netherlands Government, which will inform all the other
Contracting Powers.
Denunciation shall only take effect in regard to the Power which has
notified it. The Convention shall remain in force in the case of the other
Contracting Powers, provided that their participation in the appointment of
judges is sufficient to allow of the composition of the Court with nine
judges and nine deputy judges.
Art. 56. In case the present Convention is not in operation as regards all
the Powers referred to in Article 15 and the annexed table, the
Administrative Council shall draw up a list on the lines of that article
and table of the judges and deputy judges through whom the Contracting
Powers will share in the composition of the Court. The times allotted by
the said table to judges who are summoned to sit in rota will be
redistributed between the different years of the six-year period in such a
way that, as far as possible, the number of the judges of the Court in each
year shall be the same. If the number of deputy judges is greater than that
of the judges, the number of the latter can be completed by deputy judges
chosen by lot among those Powers which do not nominate a judge.
The list drawn up in this way by the Administrative Council shall be
notified to the Contracting Powers. It shall be revised when the number of
these Powers is modified as the result of adhesions or denunciations.
The change resulting from an adhesion is not made until 1 January after the
date on which the adhesion takes effect, unless the adhering Power is a
belligerent Power, in which case it can ask to be at once represented in
the Court, the provision of Article 16 being, moreover, applicable if
necessary.
When the total number of judges is less than eleven, seven judges form a
quorum.
Art. 57. Two years before the expiration of each period referred to in
paragraphs 1 and 2 of Article 55 any Contracting Power can demand a
modification of the provisions of Article 15 and of the annexed table,
relative to its participation in the composition of the Court. The demand
shall be addressed to the Administrative Council, which will examine it and
submit to all the Powers proposals as to the measures to be adopted. The
Powers shall inform the Administrative Council of their decision with the
least possible delay. The result shaD be at once, and at least one year and
thirty days before the expiration of the said period of two years,
communicated to the Power which made the demand.
When necessary, the modifications adopted by the Powers shall come into
force from the commencement of the fresh period.
In faith whereof the Plenipotentiaries have appended their signatures to
the present Convention.
Done at The Hague, 18 October 1907, in a single copy, which shall remain
deposited in the archives of the Netherlands Government, and duly certified
copies of which shall be sent, through the diplomatic channel to the Powers
designated in Article 15 and in the table annexed.
(Here follow signatures)
ANNEX TO ARTICLE 15
Distribution of Judges and Deputy Judges
by Countries for Each Year of the Period of Six Years
DEPUTY DEPUTY
JUDGES JUDGES JUDGES JUDGES
First Year Second Year
1 Argentine Paraguay Argentine Panama
2 Colombia Bolivia Spain Spain
3 Spain Spain Greece Romania
4 Greece Romania Norway Sweden
5 Norway Sweden Netherlands Belgium
6 Netherlands Belgium Turkey Luxemburg
7 Turkey Persia Uruguay Costa Rica
Third Year Fourth Year
1 Brazil Dominican Rep. Brazil Guatemala
2 China Turkey China Turkey
3 Spain Portugal Spain Portugal
4 Netherlands Switzerland Peru Honduras
5 Romania Greece Romania Greece
6 Sweden Denmark Sweden Denmark
7 Venezuela Haiti Switzerland Netherlands
Fifth Year Sixth Year
1 Belgium Netherlands Belgium Netherlands
2 Bulgaria Montenegro Chile El Salvador
3 Chile Nicaragua Denmark Norway
4 Denmark Norway Mexico Ecuador
5 Mexico Cuba Portugal Spain
6 Persia China Serbia Bulgaria
7 Portugal Spain Siam China
