The proposal was accordingly made by the American delegation, but it was deemed more advisable to prosecute through diplomatic 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 adminis tered 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 constitu tion 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 dis

posal 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 articles 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 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 prescribed 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 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 th 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 coöperation in the matter of the Prize Court possible and to secure the constitution of the Court of Arbitral Justice, but is en

deavoring 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.

P. C. KNOX,

Secretary of State.

OCTOBER 18, 1909.