(8) The reference clause in the treaty between Guatemala and Spain is substantially similar to that in the treaty between Mexico and Spain, which reads as follows:

ARTICLE 3. For the decision of questions which, in accordance with this treaty, may be submitted to arbitration, the functions of arbitrator shall be conferred with preference upon a chief of state of one of the Spanish-American republics, or upon a tribunal formed of Mexican, Spanish, or Spanish-American judges and experts.

In the case of not agreeing in the appointment of arbitrators the high contracting parties shall submit themselves to the Permanent International Tribunal of Arbitration established in accordance with the resolutions of the Hague Conference of 1899 with adherence in the latter, and in the former case to the arbitral procedure specified in Chapter III of the said resolutions.

Articles 1 and 2 of this treaty read as follows:

ARTICLE 1. The high contracting parties agree to submit to the decision of arbitrators all controversies which may arise between them during the existence of the present treaty in which they might not have been able to reach an amicable solution by direct negotiation; provided that said controversies affect neither the national independence nor honor.

ART. 2. Neither the national independence nor honor shall be considered to be compromised in the following cases:

A. When treating of pecuniary damages and prejudices suffered by one of the contracting states or by its citizens because of illegal acts or omissions on the part of the other contracting state or its citizens.

B. When treating of the interpretation of the treaties, agreements, and conventions relating to the protection of ownership of artistic, literary, and industrial property, as well as to that of privileges, patents of inventions, trademarks, mercantile firms, money, weights and measures, and sanitary precautions, either veterinary or to exclude phylloxera.

C. When treating of the application of treaties, agreements, and conventions relating to successions, aid, and judicial correspondence.

D. When treating of treaties, agreements, and conventions now in force, or which may be celebrated hereafter, with the object of putting the principles of public or private international law, either civil or penal, into practice.

E. When treating of questions which relate to the interpretation or execution of treaties, agreements, and conventions of friendship, commerce, and navigation.

(9) In this treaty the contracting powers agree to submit to the Hague Tribunal all difficulties which they had agreed to arbitrate previous to the signing of the Hague convention of 1899 for the pacific settlement of international disputes.

(10) The reference articles of this treaty read as follows:

ARTICLE I

Les Hautes Parties Contractantes s'engagent à soumettre à l'arbitrage tous les différends de n'importe quelle nature qui viendraient à s'élever entre Elles et qui n'auraient pu être résolus par les voies diplomatiques. Elles s'adresseront à cet effet à la Cour permanente d'arbitrage, établie à la Haye par la Convention du 29 juillet 1899, à moins d'être convenues d'un tribunal arbitral différent.

ARTICLE IV

Il est entendu qu'à moins que la controverse ne porte sur l'application d'une convention entre les deux Etats, ou qu'il ne s'agisse d'un cas de déni de justice, l'article Ier ne sera pas applicable aux différends qui pourraient s'élever entre un ressortissant de l'une des Parties et l'autre Etat Contractant lorsque les tribunaux auront, d'après la législation de cet Etat, compétence pour juger le contestation.

Those treaties in the list which are not referred to in the foregoing notes make no reference to the Hague Tribunal.

PROPOSED CONFERENCE FOR THE SETTLEMENT OF CERTAIN QUESTIONS OF

MARITIME LAW

The Second Peace Conference at The Hague formulated a project for an international prize court upon the joint proposition of Germany, Great Britain, France, and the United States, and while the project as a whole has been viewed with favor there are not a few questions of importance which militate against the acceptance of the project and the passage of local legislation necessary to give it full effect. It is generally conceded that the establishment of an international prize court would mark a great advance in international law and procedure. For it is elementary that a party accused of an illegal seizure should not be permitted to pass in final resort upon the justness of his act. In the domain of private law the mere suggestion of the possibility of such a travesty on justice would be received with ridicule, yet international custom and usage permits the captor, in courts constituted by him and with judges appointed by him and owing to him allegiance, to determine the validity of the capture, seizure, or confiscation. The conference at The Hague, in establishing a court, opposed international to national judgment, and by composing the court primarily of neutrals, with representation, however, of belligerents, sought to test the validity of the capture by permanent and disinterested judges trained in the law. The advantages and supposed objections to the institution of an international prize court have been fully set forth in the leading articles in

this number. The present editorial comment will deal with one article of the proposed convention - namely, the seventh- which has given rise to much comment and no little criticism, and to consider which Great Britain has summoned a conference of representatives of the maritime powers to meet in London in October, 1908.

Article 7 is as follows:

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 of 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 judg ment 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 (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 consequences of complying therewith are unjust and inequitable.

Such is the text of the article as voted by the Hague Conference after a careful explanation of its meaning and probable consequences contained in the admirable report of Mr. Louis Renault. The material portion of Mr. Renault's report follows:

What rules of law will the new prize court apply?

This is a question of the greatest importance, the delicacy and gravity of which can not be overlooked. It has often claimed the attention of those who have thought of the establishment of an international jurisdiction on the subject we are considering.

If the laws of maritime warfare were codified, it would be easy to say that the International Prize Court, the same as the national courts, should apply international law. It would be a regular function of the international court to revise the decisions of the national courts which had wrongly applied or interpreted the international law. The international courts and the national courts would decide in accordance with the same rules, which it would be supposed ought merely to be interpreted more authoritatively and impartially by the former courts than by the latter. But this is far from being the case. On many points, and some of them very important ones, the laws on maritime warfare are still uncertain, and each nation formulates them according to its ideas and interests. In spite of the efforts made at the present conference to diminish these uncertainties, one can not help realizing that many will continue to exist. A serious difficulty at once arises here.

It goes without saying that where there are rules established by treaty, whether they are general or are at least common to the nations concerned in the capture (the captor nation and the nation to which the vessel or cargo seized belongs), the international court will have to conform to these rules. Even in the absence of a formal treaty, there may be a recognized customary rule which passes as a tacit expression of the will of the nations. But what will happen if the positive law, written or customary, is silent? There appears to be no doubt that the solution dictated by the strict principles of legal reasoning should prevail. Wherever the positive law has not expressed itself, each belligerent has a right to make his own regulations, and it can not be said that they are contrary to a law which does not exist. In this case, how could the decision of a national prize court be revised when it has merely applied in a regular manner the law of its country, which law is not contrary to any principle of international law? The conclusion would therefore be that in default of an international rule firmly established the international court shall apply the law of the captor.

Of course it will be easy to offer the objection that in this manner there would be a very changeable law, often very arbitrary and even conflicting, certain belligerents abusing the latitude left them by the positive law. This would be a reason for hastening the codification of the latter in order to remove the deficiencies and the uncertainties which are complained of and which bring about the difficult situation which has just been pointed out.

However, after mature reflection, we believe that we ought to propose to you a solution, bold to be sure, but calculated considerably to improve the practice of international law. "If generally recognized rules do not exist, the court shall decide according to the general principles of justice and equity." It is thus called upon to create the law and to take into account other principles than those to which the national prize court was required to conform, whose decision is assailed by the international court. We are confident that the judges chosen by the powers will be equal to the task which is thus imposed upon them, and that they will perform it with moderation and firmness. They will interpret the rules of practice in accordance with justice without overthrowing them. A fear of their just decisions may mean the exercise of more wisdom by the belligerents and the national judges, may lead them to make a more serious and conscientious investigation, and prevent the adoption of regulations and the rendering of decisions which are too arbitrary. The judges of the international court will not be obliged to render two decisions contrary to each other by applying successively to two neutral vessels seized under the same conditions different regulations established by the two belligerents. To sum up, the situation created for the new prize court will greatly resemble the condition which has long existed in the courts of countries where the laws, chiefly customary, were still rudimentary. These courts made the law at the same time that they applied it, and their decisions constituted precedents, which become an important source of the law. The most essential thing is to have judges who inspire perfect confidence. If, in order to have a complete set of international laws, we were to wait until we had judges to apply it, the event would be a prospective one which even the youngest of us could hardly expect to see. A scientific society, such as the Institute of International Law, was able, by devoting twelve years to the work, to prepare a

set of international regulations on maritime prizes in which the organization and the procedure of the international court have only a very limited scope. The community of civilized nations is more difficult to set on foot than an association of jurisconsults; it must be subject to other considerations or even other prejudices, the reconcilement of which is not so easy as that of legal opinions. Let us therefore agree that a court composed of eminent judges shall be intrusted with the task of supplying the deficiencies of positive law until the codification of international law regularly undertaken by the governments shall simplify their task.

The ideas which have just been set forth will be applicable with regard to the order of admission of evidence as well as to the means which may be employed in gathering it. In most countries arbitrary rules exist regarding the order of admission of evidence. To use a technical expression, Upon whom does the burden of proof rest? To be rational one would have to say that it is the captor's place to prove the legality of the seizure that is made. This is especially true in case of a violation of neutrality charged against a neutral vessel. Such a violation should not be presumed. And still the captured party is frequently required to prove the nullity of the capture, and consequently its illegality, so that in case of doubt it is the captured party (the plaintiff) who loses the suit. This is not equitable and will not be imposed upon the international court.

What has just been said regarding the order of evidence also applies to the means of gathering it, regarding which more or less arbitrary rules exist? How can the nationality, ownership, and the domicile be proven? Is it only by means of the ship's papers, or also by means of documents, produced elsewhere? We believe in allowing the court full power to decide.

Finally, in the same spirit of broad equity, the court is authorized not to take into account limitations of procedure prescribed by the laws of the belligerent captor, when it deems that the consequences thereof would be unreasonable. For instance, there may be provisions in the law which are too strict with regard to the period for making appeal or which enable a relinquishment of the claim to be too easily presumed, etc.

There is a case in which the international court necessarily applies simply the law of the captor, namely, the case in which the appeal is founded on the fact that the national court has violated a legal provision enacted by the belligerent captor. This is one of the cases in which a subject of the enemy is allowed to appeal. (Art. 3, No. 2 c, at end.)

Article 7, which has thus been commented upon. is an obvious proof of the sentiment of justice which animates the authors of the draft, as well as of the confidence which they repose in the successful operation of the institution to be created.

It will be seen that the court is vested not merely with judicial but with legislative power; that it not only interprets and develops the law, it does what the conference could not do namely, it legislates, and establishes a code of maritime international law.

The second paragraph of article 7 provides that in the absence of