Letters to "The Times" upon War and Neutrality (1881-1920)Holland, Thomas Erskine
History
Letters to "The Times" upon War and Neutrality (1881-1920)
Holland, Thomas Erskine
Neutrality; War (International law)
Sir H. Campbell-Bannerman admits that "it is desirable, and it may be
essential, that, before legislation can be undertaken to make such a
Court effective, the leading maritime nations should come to an
agreement as to the rules regarding some of the more important subjects
of warfare which are to be administered by the Court"; and his
subsequent eulogy of the Court presupposes that it is provided with "a
body of rules which has received the sanction of the great maritime
Powers." What is said as to the necessary postponement of any
legislation in the sense of The Hague Convention must, of course, apply
_a fortiori_ to the ratification of the Convention.
We have here, for the first time, an authoritative repudiation of the
notion that fifteen gentlemen of mixed nationality composing an
international prize Court, are to be let loose to "make law," in
accordance with what may happen to be their conceptions of "justice and
equity." It seems at last to be recognised that such a Court cannot be
set to work unless, and until, the great maritime Powers shall have come
to an agreement upon the rules of law which the Court is to administer.
I may add that it is surely too much to expect that the rules in
question will be discussed by the Powers, to use Sir H.
Campbell-Bannerman's phrase, "without any political _arrière pensêe._"
Compromise between opposing political interests must ever remain one of
the most important factors in the development of the law of nations.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 11 (1907).
Although the establishment of an International Prize Court of
Appeal was not one of the topics included in the programme of
the Russian invitation; to a second Peace Conference, no
objection was made to its being taken into consideration, when
proposals to that effect were made by the British and American
delegates to the Conference. The idea seems first to have been
suggested by Hübner, who proposed to confer jurisdiction in
cases of neutral prize on Courts composed of ministers or
consuls, accredited by neutrals to the belligerents, together
with commissioners appointed by the Sovereign of the captors or
of the country to which the prize has been brought, as also,
perhaps, "des personnes pleines de probité et de connaissances
dans tout ce qui concerne les Loix des Nations et les Traités
des Puissances modernes." The Court is to decide in accordance
with treaties, "ou, à leur défaut, la loi universelle des
nations." _De la Saisie des Bâtiments neutres_ (1759), ii. pp.
45-61. The Institut de Droit International, after discussions
extending over several years, accepted the principle of an
International Court of Appeal, though only in combination with
a complete scheme of prize law, in its _Code des Prises
maritimes_, completed in 1887, section 100.
Public-domain text, read in full here on John Shaqi.
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