Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1910
The Secretary of State to Chargé Rives.
Washington , November 3, 1909 .
Sir: Referring to the department’s cable of March 5, 1909 (see p. 603), proposing alternative procedure for the international prize court and the investment of this tribunal with the functions of a court of arbitral justice, a copy of which was transmitted to the Austro-Hungarian foreign office and to the foreign offices of the countries represented at the recent naval conference at London, the department desires you to transmit immediately to the minister of foreign affairs the inclosed identic circular note, to express to him the great interest which your Government takes in the acceptance of the proposals contained in the identic circular note and to request as early action as the importance of the proposals will permit.
These instructions have been sent, mutatis mutandis, to diplomatic representatives of the United States at Berlin, Paris, London, Rome, Tokyo, St. Petersburg, The Hague, and Madrid.
I am, etc.,
Identic circular note of the Secretary of State of the United States proposing alternative procedure for the international prize court and the investment of the international prize court with the functions of a court of arbitral justice.
The convention of October 18, 1907, for the establishment of an international court of prize, was signed ad referendum by the delegates of the United States to the Second Hague Peace Conference, as by the law of this country treaties and conventions require the approval of the Senate before binding the Government and before ratifications can be exchanged with the contracting parties.
The convention appeals strongly to the sense of justice by which this Government is animated, as the establishment of the prize court would substitute, for a national decision, a judgment of an international and disinterested tribunal, composed of a majority of judges selected from neutral countries and thus able and desirous to safeguard neutral rights and protect neutral property. The interest this Government takes in the establishment of the international prize court and the benefits to be derived from its successful operation are [Page 598] evidenced by the following passage from President Roosevelt’s annual message to Congress, dated December 3, 1907:
A further agreement of the first importance was that for the creation of an international prize court. The constitution, organization, and procedure of such a tribunal were provided for in detail. Anyone who recalls the injustices under which this country suffered as a neutral power during the early part of the last century can not fail to see in this provision for an international prize court the great advance which the world is making toward the substitution of the rule of reason and justice in place of simple force. Not only will the international prize court be the means of protecting the interests of neutrals, but it is in itself a step toward the creation of the more general court for the hearing of international controversies to which reference has just been made. The organization and action of such a prize court can not fail to accustom the different countries to the submission of international questions to the decision of an international tribunal, and we may confidently expect the results of such submission to bring about a general agreement upon the enlargement of the practice.
Action upon the prize convention has been postponed owing to the dissatisfaction expressed by several powers concerning the status of the law to be administered by the court by virtue of article 7 of the convention, which dissatisfaction culminated in a formal invitation by Great Britain to Germany, the United States, Austria-Hungary, Spain, France, Italy, Japan, the Netherlands, and Russia, to meet in December, 1908, in order to reach an agreement upon the law to be administered by the court in the absence of special conventions or universally recognized principles of international law. Pursuant to this invitation, the representatives of the powers assembled at London and remained in session until February 26, 1909,1 when a comprehensive, progressive, and satisfactory declaration on maritime law was unanimously approved by the conference and recommended for adoption by the nonparticipating powers.
The objection to the prize court convention made by several powers at the Second Hague Peace Conference has, therefore, ceased to exist, and it is gratifying to the United States to learn that these powers are prepared to ratify the convention and to participate in the labors of the court when established. The delegation of the United States signed the declaration of London, formulated at the conference of London, and its action has been approved by the Department of State, although the Senate of the United States has not as yet had opportunity to take formal action, as it seems desirable to this Government to consider at one and the same time the convention for the establishment of the international prize court and the declaration of London.
Although the London conference has removed the international objection to the approval of the convention for the establishment of the prize court, there is, on the part of this Government, shared, it is believed, by various signatories of the convention, a constitutional and, therefore, a national and internal difficulty which requires patience and no little good will to overcome. There is a deep-rooted objection, based upon constitutional reasons, which it is therefore unnecessary to set forth in detail, to the allowance of an appeal from a national judgment, as contemplated by the convention, which may result in the reversal of a national judgment by an international tribunal. Therefore, the United States instructed its delegates to the London conference to propose—
An additional article or protocol for the consideration of and eventual acceptance by the conference, by which each signatory of the convention of October 18, 1907, [Page 599] shall possess the option, in accordance with local legislation, either to submit the general question of the rightfulness of any capture to the determination of the international prize court, or to permit an appeal from the judgment of a national court in a specific case direct to the international prize court, as contemplated by the convention of October 18, 1907.1
The American delegation acted as directed, and after a careful and conscientious discussion of the proposal and the difficulties it was meant to obviate, the conference adopted unanimously the following voeu:
The delegates of the powers represented at the naval conference which have signed or expressed the intention of signing the convention of The Hague of the 18th October, 1907, for the establishment of an international prize court, having regard to the difficulties of a constitutional nature which, in some States, stand in the way of the ratification of that convention in its present form, agree to call the attention of their respective Governments to the advantage of concluding an arrangement under which such States would have the power, at the time of depositing their ratifications, to add thereto a reservation to the effect that resort to the international prize court in respect of decisions of their national tribunals shall take the form of a direct claim for compensation, provided always that the effect of this reservation shall not be such as to impair the rights secured under the said convention, either to individuals or to their Governments, and that the terms of the reservation shall form the subject of a subsequent understanding between the powers signatory of that convention.2
Upon receipt of the text of the voeu this Government, on March 5, 1909, cabled to its diplomatic agents accredited to the powers represented at the conference its intention to—
Send an identic circular note to each of the participating powers, setting forth at length the reasons which influence the United States to request a rehearing de novo of a question involved in a national prize decision, and the means whereby this change of procedure may be effected without interfering with the rights of Governments or individuals under the prize court convention.
In pursuance, therefore, of this express notice and of the deep and abiding interest the United States takes in the establishment of the international prize court, the Department of State has the honor to submit to your considerate examination the following observations:
The court contemplated by the prize convention of October 18, 1907, is preeminently a court of appeal, with full power to review the decision of a national court of justice, both as to facts and as to the law applied, and, in the exercise of its judicial discretion, not only to affirm or reverse, in whole or in part, the national decision from which the appeal is lodged, but also to certify its judgment to the national court for proceedings in accordance therewith. The international prize court, therefore, is an ultimate court of appeal of which, by the convention, national courts are intermediate instances. The purpose of the convention and of the conference which adopted it undoubtedly was and is to secure determination by an international tribunal of a controversy affecting neutral rights and property arising from capture and confiscation in war and by a series of well-considered judgments to establish, by international decisions the principles of international prize law. The Government of the United States is in hearty accord with this purpose and desires to cooperate in its realization, but is, however, of the opinion that the end in view may be effectuated without violating the spirit of the convention and, indeed, without amending it, so that, for those countries unable or unwilling to submit the judgments of their national courts to international review, a simple expedient may be devised by virtue of which the [Page 600] question in controversy, instead of the actual judgment of the national court, may be submitted to the international court at The Hague for final determination without sacrificing substance to form, and without interfering with the practice of the United States in such matters. To illustrate this position by concrete examples taken from controversies with Great Britain arising out of the Civil War:
Questions involved in the following cases upon which decisions had been rendered by the Supreme Court of the United States were afterwards submitted to arbitration by the United States under the British-American Claims Convention, sitting under article 12 of the treaty of Washington, dated May 8, 1871, for decision1 according to justice and equity”:
- Questions which the international tribunal decided adversely to the decision of the Supreme Court of the United States, which international decisions were obeyed by the United States: The Hiawatha, 2 Black, 635, 4 Moore’s International Arbitrations, 3902; The Circassian, 2 Wallace, 135, 4 Moore, 3911; The Springbok, 5 Wallace, 1, 4 Moore, 3928; The Sir William Peel, 5 Wallace, 517, 4 Moore, 3935; The Volant, 5 Wallace, 179, 4 Moore, 3950; The Science, 5 Wallace, 178, 4 Moore, 3950.
- Questions in which the decision of the international tribunal upheld the decision of the Supreme Court of the United States: The Peterhoff, 5 Wallace, 28, 4 Moore’s International Arbitrations, 3838; The Dashing Wave, 5 Wallace, 170, 4 Moore, 3948; The Georgia, 7 Wallace, 32, 4 Moore, 3957; The Isabella Thompson, 3 Wallace, 155, 3 Moore, 3159; The Pearl, 5 Wallace, 574, 3 Moore, 3159; The Adela, 6 Wallace, 266, 3 Moore, 3159.
It is therefore evident that the demands of justice would be satisfied by submitting the question involved to impartial international determination, for although the controversy is based upon the decision of a national court of justice, the judgment of the international tribunal, while satisfying the claimant and settling the principle of international law involved, would not affect the validity of the national judgment within its jurisdiction. The national decision would remain in full force so far as the nation is concerned, in that it is not reversed by an international tribunal; but the international law properly applicable to the case would have been determined by an international tribunal, thus establishing for the community of nations the correct principle of international law.
The proposal of the United States leaves untouched and unquestioned the composition of the court, its jurisdiction and procedure, and only affects the question of appeal in its technical rather than its equitable sense, because dissatisfaction with the decision of a national court is the cause of the proceeding before the international tribunal, and the judgment of this august tribunal is binding upon the signatory powers by virtue of article 9. The advantage of the proposal lies in the fact that it does not bring national and international decisions into conflict, with a reversal of the former by the latter, and without wounding national susceptibility, leaves unaffected the constitutional law of the signatories.
The proposition of the United States is based upon the alternative remedy contained in the second sentence of the second paragraph of article 8 of the international prize court convention, combined with [Page 601] the statements contained in the final paragraph of article 3 and article 42. For the sake of clearness, these provisions of the convention follow:
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. (Art. 8, second sentence of second paragraph.)
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. 3, final paragraph.)
The court takes into consideration in arriving at its decision all the facts, evidence, and oral statements. (Art. 42.)
Analyzing these articles, it is apparent that the convention assumes that the captured vessel or cargo may have been sold, destroyed, or otherwise be beyond the power of the captor, in which case only the question of liability with compensation in damages can be considered. In like manner the convention contemplates, in appropriate cases, the retrial of the controversy de novo, because the court is made competent not merely to consider the law, but also the facts involved in the case and to take evidence, by virtue of articles 27 and 35, either at the request of one of the parties or upon the court’s initiative, and such evidence may be produced before the court itself or before one or more of its members (art. 36). It is thus seen that the convention not only permits evidence to be taken in order to ascertain the facts in controversy, but provides adequate machinery for its presentation, thus permitting a trial of the case de novo both as to the facts involved and the law to be applied.
Lest the alternative method contained in the proposal be considered to militate against the speedy determination of the controversy, and that the signatory powers, their subjects and citizens, may seem to be deprived of their right of presenting the controversy to an international court within the time and in the manner prescribed by the convention, the department states specifically that the rights secured under the convention, both as to parties and to the periods within which the proceedings shall begin, are expressly recognized by the United States.
This Government therefore proposes that in the instrument of ratification of the international prize court convention each of its signatories specify, on account of the difficulties of a constitutional nature which, in some States, stand in the way of the ratification of the convention for the establishment of the international prize court, signed October 18, 1907, that any signatory may insert a reservation to the effect that resort to the international prize court in respect of decisions of its national tribunals shall take the form of a direct claim for compensation; that the proceedings thereupon to be taken shall be in the nature of a trial de novo of the question at issue; that the judgment of the court shall consist of compensation for the illegal capture, irrespective of the decision of the national court whose judgment is thus called in question, although a certified copy of the national judgment may be submitted to the international prize court for its consideration and information; provided, however, that the effect of this reservation shall not be such as to impair the other rights secured under the said convention either to individuals or to their Governments, including the periods within which resort to the international prize court shall be made.[Page 602]
The acceptance of this proposal might be expressed in the following manner:
Whereas objections of a constitutional nature in certain signatory States render the ratification of the convention for the establishment of an international prize court, signed at The Hague October 18, 1907, difficult or impossible; and
Whereas it is highly desirable that all the powers represented at the Second Hague Peace Conference may be enabled to ratify the convention and cooperate in the labors of the international prize court:
Therefore, the Government of, for itself and as far as the signatories of the international prize court are concerned, agrees that any signatory of the aforesaid convention may insert in the act of ratification thereof a reservation to the effect that resort to the international prize court in questions affecting judgments of its national tribunals may take the form of a direct claim for compensation, as provided in article 8, second paragraph, last sentence, of the said convention; that the proceedings thereupon to be had shall be in the nature of a trial de novo of the question of liability involved in the alleged illegal act of the captor; that the judgments of the international prize court shall thereupon, in accordance with article 8 of the aforesaid convention, decree compensation for the illegal capture, irrespective of the decision of the national court involved, although a certified copy of the national judgment and the records of the case shall be submitted upon request to the international prize court for its consideration and information; and that each signatory consenting to the exercise of this optional and alternative procedure, under article 8 of the aforesaid convention, for States with the constitutional difficulties aforementioned, shall specify its consent to such optional and alternative procedure in the instrument of ratification of the international prize court convention:
Provided, however, That the effect of this reservation shall not impair the other rights secured under the aforesaid convention either to governments, their subjects or citizens, or the periods within which resort to the international prize court shall be made.
The Department of State assures the signatories of the convention of October 18, 1907, for the establishment of an international prize court, that the acceptance of this or a substantially similar protocol and its incorporation in the instrument of ratification will remove the constitutional objection to the establishment of the proposed court and will enable the United States to participate in its highly beneficent labors.
The Department of State considers the adoption of the alternative method of procedure for the international prize court as calculated to secure not only its definitive establishment, but, in addition, to render possible the composition of the court of arbitral justice. To bring this subject to the attention of the powers represented at the maritime conference at London, the Department of State on February 6, 1909, instructed its delegates as follows:
In order to confer upon the prize court the functions of an arbitral court contemplated in the first recommendation of the final act of the second conference, the department proposes the following article additional to the draft protocol concerning the prize court, next to the last paragraph of your instructions:
“And any signatory of the convention for the establishment of the prize court may provide further in the act of ratification thereof that the international court of prize shall be competent to accept jurisdiction of and decide any case arising between signatories of this proposed article submitted to it for arbitration, and the international prize court shall thereupon accept jurisdiction and adopt for its consideration and decision of the case the project of convention for the establishment of a court of arbitral justice adopted by the second Hague conference, the establishment of which was recommended by the powers through diplomatic channels.
“Any signatory of the convention for the establishment of the international court of prize may include in its ratification thereof the proposed articles and become entitled to the benefits thereof.”
The department earnestly hopes and urges adoption of proposed articles.
The proposal was accordingly made by the American delegation, but it was deemed more advisable to prosecute through diplomatic [Page 603] channels a matter of such magnitude. Therefore, on March 5, 1909, the department notified the countries represented at the maritime conference of its intention to prepare and transmit an identic circular note, showing—
The advisability of investing the prize court with the jurisdiction and functions of a court of arbitral justice in order that international law may be administered and justice done in peace as well as in war by a permanent international tribunal; that this close connection between the two courts was contemplated by the framers of the arbitral court as appears from article 16 of the draft convention by virtue of which the judges of the arbitral court might exercise the functions of judges in the prize court. The failure to constitute the arbitral court, although the method of appointing judges was substantially the same for both courts, renders this provision ineffective, but it is possible to carry out the intent of the proposers in this and to constitute the arbitral court by investing the prize court with the functions of an arbitral court and to prescribe the draft convention of the arbitral court as a code of procedure when so acting.
It is not the intention of this Government to use pressure of any kind to secure the acceptance of its views, but the United States feels that the constitution of the arbitral court as a branch or chamber of the prize court for the nations voluntarily consenting thereto would not only enhance the dignity of the prize court, but by creating a permanent court of arbitration would contribute in the greatest possible manner to the cause of judicial, and therefore peaceable, settlement of international difficulties.
Pursuant to this notification the Department of State has the honor to make the following observations:
It has been a subject of profound regret to the Government and people of the United States that a court of arbitral justice, composed of permanent judges and acting under a sense of judicial responsibility, representing the various judicial systems of the world and capable of insuring continuity in arbitral jurisprudence, was not established at the Second Hague Peace Conference, and the United States likewise regrets that the composition of the proposed court of arbitral justice has not yet been effected through diplomatic channels, in accordance with the following recommendation of the conference:
The conference recommends to the signatory powers the adoption of the project, hereunto annexed, of a convention for the establishment of a court of arbitral justice and its putting into effect as soon as an agreement shall have been reached as to the choice of the judges and the constitution of the court.
A careful consideration of the project and of the difficulties preventing the constitution of the court, owing to the shortness of time at the disposal of the conference, has led the Government of the United States to the conclusion that it is necessary in the interest of arbitration and the peaceful settlement of international disputes to take up the question of the establishment of the court as recommended by the recent conference at The Hague and secure through diplomatic channels its institution.
The necessary and close connection between the international prize court and the proposed court of arbitral justice was indicated in article 16 of the draft convention of the court of arbitral justice, as follows:
The judges and deputy judges, members of the judicial arbitration court, can also exercise the functions of judge and deputy judge in the international prize court.
The reason which existed in 1907 and led to the formulation of the article still continues. It has therefore occurred to the United States that the difficulty in the way of reaching an agreement upon the composition of the court would be obviated by giving practical effect to article 16 by an international agreement by virtue of which the judges of the international prize court should be competent to sit as judges [Page 604] of the court of arbitral justice for such nations as may freely consent thereto, and that when so sitting the judges of the international prize court shall entertain jurisdiction of any case of arbitration submitted by a signatory for their determination and decide the same in accordance with the procedure perscribed in the draft convention. In proposing to invest the international prize court with the jurisdiction and functions of the proposed court of arbitral justice the United States is actuated by the desire to establish a court of arbitration permanently in session at The Hague for the peaceful solution of controversies arising in time of peace between the nations accepting and applying in their foreign relations the principles of an enlightened and progressive international law.
It is a truism that it is easier to enlarge the jurisdiction of an existing institution than to call a new one into being, and as the judges and deputy judges of the international prize court must be thoroughly versed in international law and of the highest moral reputation, there can be no logical or inherent objection to enlarging their sphere of beneficent influence in vesting them with the quality of judges of the proposed court of arbitral justice.
The proposal of the United States does not involve the modification either of the letter or spirit of the draft convention, nor would it require a change in wording of any of its articles. It would, however, secure the establishment of the court of arbitral justice as a chamber of the world’s first international judiciary and thus complete through diplomatic channels the work of the Second Hague Conference by giving full effect to its first recommendation.
In proposing this solution of the difficulty the United States is influenced by daily practice and procedure in its national courts of justice, where one and the same judge administers law and equity, admiralty and prize, which, under its system of procedure, are different systems of law. The United States therefore proposes that in the instrument of ratification of the International Prize Court Convention, signed at The Hague October 18, 1907, any of its signatories consenting to invest the international prize court with the powers of a court of arbitral justice shall signify its assent thereto in the following form:
Whereas it is highly desirable that the Court of Arbitral Justice, approved and recommended by the Second Hague Peace Conference, be established through diplomatic channels; and
Whereas investing the International Prize Court with the duties and functions of the proposed Court of Arbitral Justice would constitute for the consenting powers the said Court of Arbitral Justice, as recommended by the first voeu of the final act of the said conference;
Therefore, the Government of agrees that the International Court of Prize, established by the convention signed at The Hague October 18, 1907, and the judges thereof, shall be competent to entertain and decide any case of arbitration presented to it by a signatory of the international court of prize, and that when sitting as a court of arbitral justice the said international court of prize shall conduct its proceedings in accordance with the Draft Convention for the establishment of a court of arbitral justice, approved and recommended by the Second Hague Peace Conference on October 18, 1907.
The United States is not without precedent in suggesting a modification of a convention of The Hague Peace Conference, for it is common knowledge that article 10 of the Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention [Page 605] of August 22, 1864, was by agreement through diplomatic channels omitted from the ratification of the convention. Germany, the United States, Great Britain, and Turkey objected to article 10 and, on signing, excepted it from the convention. Therefore, M. de Beaufort, minister for foreign affairs of the Netherlands, addressed an identic circular note, dated January 29, 1900, to the signatory powers, in which he said:
This obligation, which the above-mentioned powers did not feel warranted in accepting, as is especially the case with regard to Great Britain, would not be in conformity with the legislation of certain other powers, and, therefore, would meet with opposition in the Parliaments which would have to give their approval in this matter.
Under the circumstances, and also by reason of the desirability that there should be a uniformity established in the respective obligations resulting from this convention for the contracting powers, a uniformity which would be endangered by the reservations made by four of them, the Government of Her Majesty the Queen of the Netherlands deems there should be a means of excluding the ratification of the said article 10, which of itself otherwise is only of secondary interest.
It is to be hoped that if this proposition is accepted—and I am happy to be able to inform you that the Imperial Russian Government entirely agrees with us in our views on this, the subject of the exclusion of the above-mentioned article—the ratification would not meet with any other difficulty of internal form in the different countries, and it could be effected with little delay, which would be highly desirable.
As the result of an exchange of views, the minister of the Netherlands, at Washington, informed the Department of State on April 30, 1900, that:
The former proposition of the Government of the Queen, which formed the subject of Mr. de Beaufort’s communication No. 1109, of January 29 last, addressed to Mr. Stanford Newel, suggesting the exclusion of the ratification of article 10 of the convention for the adaptation to maritime warfare of the principles of the Geneva convention, has received the consent of all the States which up to the present have made known their views.
These powers being in the majority, and the adoption of the proposition by the other interested States being probable, it is important that, with a view of expediting the filing of these acts of ratification, a uniform method for emphasizing this exclusion should be established now.
The cabinet of St. Petersburg has suggested, for this purpose, a combination which consists in inserting in the act of ratification a copy of the convention in which the text of article 10 would be replaced by the word “exclu” (excluded) while still preserving the proper numbering of the articles.
Copies prepared in conformity with the method above indicated will be placed at the disposal of those Governments who wish them.
In thus proposing an alternative method for the decision of prize cases submitted to the international prize court and urging the creation of a court of arbitral justice by an apt clause in the instrument of ratification of the convention for the establishment of the international prize court, the United States is influenced by the sincere desire not merely to render its cooperation in the matter of the prize court possible and to secure the constitution of the court of arbitral justice, but is endeavoring in a thoroughly disinterested manner to advance the cause of international justice and peace.
As the Department of State desires to submit the prize court convention as thus understood and explained and the draft convention for the creation of the court of arbitral justice to the approaching session of the Senate for approval and ratification, an early reply to this circular note is earnestly requested.