consideration in a plenary meeting of the Conference, which has adopted with applause the vœu formulated by the delegation of Great Britain.

This precedent is decisive. But we do not need it in order to make clear the limits of our competence in our deliberations.

It would be absurd indeed to attribute to the decision of those alone who convoke an assembly of States the power of restraining the latter from exceeding the limits they wish to impose upon them.

Assuredly the invitation should be accompanied by a program explaining it, justifying it, and indicating the determining views and the principal subjects. But this program is no more than an invitation. It could never be a limitation of powers. For there is entirely lacking in those who call the meeting any authority to fix them in a binding way upon the States convoked. The latter are sovereign States. They bear of themselves powers limited only by their own will. Therefore from the moment that they are agreed of their own free will as independent sovereignties to profit by their meeting in order to give attention to a subject which by its urgency or its necessity imposes itself upon their attention. nothing can prevent them from doing so if the consent is general.

These notions are obvious to our common sense, and need no evidence, for they cannot be mistaken. A head of a State can convoke other nations in a plenary assembly. But he is the head only in his own State. The others, when once convoked, and met, meet with no barrier to their discretion other than in their mutual rights and reciprocal duties. This right could not be withheld from us except by reducing us to the condition of subjects of the head of the State convoking us.

Now as that is unthinkable, the doubt that has arisen on this point cannot continue. But although the right in question is incontestable we should not lose this opportunity of affirming it by a categorical vote, since apart from the general interest of the question, there is also that of showing by a decision upon a special point that in the view of the Second Peace Conference the etiquette of war is not more respectable than the rights of neutrality, nor the guaranties of offense more sacred than those of defense among nations. (Applause.)

His Excellency Mr. Nelidow desires to express his opinion on the question of principle. It is evident to him that the question of laying of mines by neutrals was not foreseen by the Russian program which had reference only to the right of belligerents in this respect. He shares the opinion of his Excellency Sir ERNEST SATOW. The examination of this question is not included in the program of the Third Commission; it would therefore be a brand new subject, and it is too late to undertake it. He likewise shares the ideas expressed by Vice Admiral RÖELL, who has justly pointed out the danger of allowing neutrals

complete liberty as to the use of mines. In reply to his Excellency Mr. [368] RUY BARBOSA, who has alluded to the sovereign right of States with respect to the program of the Conference, he observes that this right was kept in mind at the time of the convocation of the Conference. The program was submitted to them. The Russian Government took into consideration the reservations formulated; it is as a consequence of that course that the Conference has dealt with points not included in the program.

His Excellency Mr. Tcharykow, in continuation of the ideas expressed by his Excellency Mr. NELIDOW, presents in the name of the delegation of Russia,.

a proposal intended to secure observance on the part of neutrals as well as on the part of belligerents of the rules of a technical kind relating to the use of mines. The proposal is thus worded:

ARTICLE 11

The technical conditions to which the use of submarine mines is subject under the present convention, shall be observed by all the States, both belligerent and neutral, that sign it or adhere to it.

His Excellency Mr. Ruy Barbosa again takes the floor and speaks as follows:

I am under the necessity of answering the remarks offered by Mr. NELIDOW. In spite of the high authority of his Excellency and the respect with which he inspires us, his remarks have not shaken the opinion that I had expressed on the subject of debate.

My illustrious opponent does not question the sovereignty of States and the rights that flow therefrom as regards the program of the Conference, its organization, and changes to be introduced into it. But according to him the States came into the Conference with this authority which is not denied them, and fixed the program when they answered the circular of the imperial Government of Russia and acquiesced therein. Since that time, among those who agreed upon the terms of the Russian proposal, there has been a pact limiting precisely the rights of the contracting parties; and if Great Britain has been able to bring up the question of armaments, it is because she took care to make reservations in that sense.

To maintain my position in the debate, I do not need to deny this kind of contractual bond that is alleged to exist between the nations consenting to the program. I have said enough about it to permit me not to recur to it. But even if we admit without restriction the theory of my respectable opponent, it remains true that the scope of this Convention could not extend beyond the terms of its text.

Now the terms of the program of the Conference suffice to show us in a decisive fashion that it does not strictly limit the contracting parties to the subjects enumerated therein. Indeed, in the note of the Legation of Russia at Rio de Janeiro, April 21, communicating the program to the Brazilian Government, we were told "the Imperial Government proposes as the program of the contemplated meeting the following principal points:

The enumeration that follows and constitutes the program contains therefore only the principal points. Consequently these points being only the principal ones of the program, are not the only ones. The program thus clearly embraces points not specified in its enumeration.

What then are these points? Naturally those that deal with the questions enumerated and are connected with them. We find this well determined in the program, which, while excluding from our competence matters concerning

political relations between States or the order of things established by [369] treaties, declares also: "nor must the deliberations of the projected meeting bear, in general, on questions not entering directly into the program adopted."

It cannot be denied that relationship is a direct bond between the two subjects that it connects with each other. Therefore, even if the program had not said

expressly, as it does, that the questions it enumerates are only the principal ones that the Conference is to study, the other clause to which I have just alluded would of itself alone be sufficiently expressive to permit us here to take up any matter directly attached to, that is to say, connected with, those designated in the text of the program.

But, that being admitted (and I do not see how one can refuse to admit it), is it not incontestable, by reason of the most direct of relationships, that the Conference, called to regulate the rights and duties of belligerents during naval war, is implicitly, but clearly and precisely, not only authorized but even obliged to lay down the corresponding rights and duties of neutrals during maritime war?

This correlation is manifest. Think of the situation created by the rupture of peace. Every war has two faces, belligerency and neutrality. As soon as hostilities are declared and so long as they last there is conflict on the one side and on the other abstention. But these two opposing situations may come into conflict with each other. The interests of the war have a tendency to invade the field of neutrality, whilst on the other hand the exercise of neutrality sometimes gives rise to embarrassment in the legitimate operations of war. How then prevent the clash between these two positions with their delicate mutual relations? Naturally by tracing with precision the frontier which should hold each in its own legal domain. In what way? By fixing for the two parties the duties and the rights of each.

But it is necessary to do so for both parties at the same time, and not for one alone; for between two legal situations existing side by side, whose tendencies may be found in antagonism, what really and practically places a limitation upon the duties and the rights of one of them, is the fixing of the duties and the rights of the other. Thus belligerents will be confined within the bounds of their permissible action only when neutrals are guaranteed against action on the part of belligerents that is not permissible.

Now let us examine the case in question, that of mines. What is in the mind of the neutrals when they claim the right of making use of them in their waters? To resist invasion by belligerents for the purpose of carrying on opera- . tions there which the rules here adopted do not permit in that region of the sea. Therefore the declaration of the right of neutrals concerning this subject is only the other face, the reverse, the counterpart itself of the right of belligerents.

Is it permitted you to neglect the latter while occupying yourselves with the former? That would be, on the part of the Peace Conference a flagrant act of partiality towards war. For to what are neutrals looking when they defend their coast by means of mines?

Is it to commit hostilities against belligerents? No. It is to shelter themselves from the blows of war. Are you going to refuse to the peaceful the means of defense when you place in the hands of the warring the means of aggression?

Such cannot be your thought. But the question has still another aspect. In truth, if you declare yourselves without competence, what you are doing is not solving the question; it is leaving it untouched. The result would therefore be that as regards neutrals the use of mines would remain not forbidden but without any regulation. Then, while with respect to belligerents the [370] use of mines would become subordinated to conventional provisions, it would be free, arbitrary and unlimited with respect to neutrals.

Now weigh well the consequences. The abuse of that dangerous instrument, to which selfishness or panic might push certain neutral countries would become a scourge or a menace for the others. With a defensive purpose, mines might be used that would create one of the gravest of offensives against the whole world. Commerce would not know where it stood between the war zone sown with murderous engines by belligerents and the peace zone covered by neutrals without regulation with the same terrifying instruments.

Therefore, not only for the defense of neutrals, but for the general security of all, for the universal good of commerce, of navigation and of maritime relations between peoples, it is necessary to regulate the use of mines both on the part of belligerents and on that of neutrals by recognizing the rights of them both but by forbidding to both of them excess, abuse, or license, which are so much to be feared here.

You will see, gentlemen, that I have no interest in combating the testimony of the illustrious President of the Conference when he assured us that in the preliminary work of the program there was never any thought of the rights of neutral, on this subject. His Excellency would be incapable of departing from the truth. But, if that is so, it was an oversight and a most serious one.. It would not bind us, especially as the text of the program itself, by this accidental and deplorable omission would then have said the contrary of what was in the minds of its organizers.

His Excellency Mr. Hagerup spoke as follows:

I permit myself to offer some remarks in my capacity of president of the committee which has had to examine this question. In the first place, so far as concerns the competence of this Commission to deal with the question, it goes without saying that only the Conference in plenary session can decide whether a question is within or without the program of this Conference. But the Conference needs information that can be furnished by preliminary discussion in one of its commissions and no other commission could be more fitted to prepare the resolution of the Conference than this one, the only one that has taken up the question of submarine mines.

As regards the question whether the placing of mines by neutrals is within the scope of our program, I do not wish to oppose the point of view maintained by his Excellency the first delegate of Russia, especially as he did not come to the conclusion that the subject in question should be excluded from discussion. Nor shall I enter into an examination of the general considerations just developed by the first delegate of Brazil. But I would like to point out the danger in interpreting the programs of these conferences too narrowly. It is admitted, even by those who maintain that the placing of submarine mines by neutrals is not on the program of the Conference, that the contrary opinion can well be supported by the very terms of the Russian program that speaks also of the rights and duties of neutrals. Now it is evident that the Governments that have desired to see this question discussed and which have understood it to be within the terms of the program have found no necessity to propose in advance an extension of the program. If the program is interpreted in the narrowest sense, these Governments will

therefore be deceived in a certain measure. Another consideration that also [371] shows the danger of an interpretation of the program that is too narrow is the following: If during the discussion of a question that is on the program it is found that another question which has not been thought of by the

author of the program is intimately related to the first question so that the two ought to be settled together, we evidently ought to have the right to take up the two questions. The Conference ought not to leave a noticeable gap in its regulations, and that would happen if the placing of submarine mines by belligerents were regulated without subjecting mines placed by neutrals to the same rules to a certain extent.

In the third place I would like to say some words on the proposal to adjourn the question made by his Excellency, Sir ERNEST SATOW. We are, without any doubt, all agreed that we ought at this moment, above all, to think of bringing our work to a close and not of entering upon discussion of new questions. But can it be truly said here that it is a new question? I shall permit myself to remind the Commission that two months ago the Netherland delegation as well as the delegation of Brazil submitted to the Third Commission proposals relating to the right of neutrals to place submarine mines along their coasts to defend their neutrality. The question of the right of neutrals in this regard has been raised in debate by myself as president of the first subcommission of the Third Commission in the meeting held July 11. Nobody then objected to this question being studied, and the proposals of the two above-mentioned delegations were referred to the committee of examination. In that committee we had at first drawn up the regulations in a way to include also neutrals. In the course of our debates the question of competence which has been submitted to you to-day was raised. If the Conference settles this question in the affirmative, there will be left only a little drafting to do. His Excellency Mr. TCHARYKOW has submitted a draft to you. I myself have intended to propose the following text: "With regard to the submarine mines that a State places before its own coasts, the same rules will be applied to neutrals and to belligerents." It is seen that there is no great difficulty in finding a formula that will give satisfaction to the desire to regulate the placing of mines by neutrals. In case of an affirmative answer to the question of competence, these rules might be submitted to the decision of the Conference at the same time as the other rules concerning mines without any lengthening of the Conference as a result.

The floor is then given to his Excellency Mr. van den Heuvel who states that there are two questions to be examined, a question of competence and a question of opportuneness. As to competence, three opinions have been stated.

His Excellency Mr. NELIDOW has expressed the idea, as it seems to me, that the Conference would not be competent for the reason that the Russian program, as understood by its authors, did not extend to the use of mines by neutral States. But I will observe that, if the authors of this program did not extend it to this point, the greater part of those who considered it and adhered to it were led by the very examination of the terms employed to give it a different interpretation. The phraseology used seems to permit of including all subjects of maritime warfare; they refer to the acts of belligerents and those of neutrals in a general way, and if they point out certain topics definitely, it is only by way of example.

[372] If the Russian program did not refer to the question under discussion explicitly, the Conference could still be competent by virtue of individual initiative. The regulations provide in Article 9 for the filing of special pro'Text of regulations, vol. i, p. 58 [61].