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The Reporter proposes that, in accordance with the suggestion just made by his Excellency Mr. HAMMARSKJÖLD, the words, "to this end," be stricken

out.

This proposal and paragraph 7 are adopted without comment.

The President then reads Articles 1 and 21:

ARTICLE 1

Belligerents are bound to respect the sovereign rights of neutral States and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any State, constitute a violation of neutrality.

ARTICLE 2

Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war-ships in the territorial waters of a neutral State, constitutes a violation of neutrality and is strictly forbidden.

which are adopted successively without comment.

In connection with Article 3:

When a ship has been captured in the territorial waters of a neutral State, this State must take the necessary measures, if the prize is still within its jurisdiction, to release the prize with its officers and crew, and to intern the prize crew.

If the prize is not in the jurisdiction of the neutral State, the latter addresses the belligerent Government, which must liberate the prize with its officers and crew.

His Excellency Mr. Hagerup remarks that on the first reading it was decided to replace the words, "take the necessary measures," by the words, "employ .. the means at its disposal.”

.

This substitution being accepted, the first paragraph of Article 3 is adopted. Rear Admiral Siegel then makes the following observations concerning the provision of the second paragraph:

By the terms of this second paragraph, the neutral State in whose waters a vessel has been captured must, if the prize is no longer within its jurisdiction, address the belligerent Government, which must release the prize, together with its officers and crew. The neutral State must therefore in all such cases employ diplomatic measures to have the wrong that has been done it redressed. [623] But the question has been decided in a different way in the project concerning the International Prize Court. Article 3 of that project says:

The judgments of national prize courts may be brought before the International Prize Court:

1. When the judgment of the national prize courts affects the property of a neutral Power or individual;

2. When the judgment affects enemy property and relates to:

(b) An enemy ship captured in the territorial waters of a neutral Power, when that Power has not made the capture the subject of a diplomatic claim.

The report contains the following observation with regard to this provision:

There is another case in which a neutral Power may intervene to safeguard its sovereignty. This is when it is alleged that the capture of an enemy ship has taken place in its own territorial waters. In such circumstances the neutral Power may choose between two procedures. It may select the diplo1 Annex 63.

matic channel and address itself directly to the Government of the captor in order to obtain satisfaction; or it may leave the owner of the captured ship, if the legislation of the captor permits, to take his complaint of the irregularity of the seizure before the national tribunals, and then, if in spite of his so doing the irregularity is not admitted, it may take the matter to the International Court.

To harmonize the two projects, it is therefore necessary to change the wording of paragraph 2, so that the neutral State may have a choice between a claim through diplomatic channels and an appeal to the International Court.

His Excellency Sir Ernest Satow asks what would happen, if paragraph 2 were omitted, to a prize taken in the territorial waters of a neutral State by a belligerent who has not signed the Prize Court Convention; through what legal channel should this neutral take action to have his neutrality respected? With the present text the owner has two chances of having his property restored.

His Excellency Mr. Tcharykow is of the opinion that it would be preferable to strike out the paragraph in question, which was drawn up before the adoption of the Convention concerning the Prize Court.

The Reporter explains that, if the captor is a signatory of the Prize Court Convention, the neutral State may choose between recourse to the Court and diplomatic channels; if, on the contrary, the captor is not a signatory of the aforesaid Convention, the neutral State may make claim only through diplomatic channels.

It would be better, perhaps, to strike out paragraph 2, explaining in the report the reasons for this omission.

The President remarks that, in order to meet the wishes of his Excellency Sir ERNEST SATOW, who asks that the paragraph be retained so as to avoid leaving a gap, it would perhaps be sufficient to replace the expression, "the latter addresses the belligerent Government," by the following, "the latter may address."

His Excellency Sir Ernest Satow observes that it is necessary for the neutral to address the belligerent Government, for this paragraph has also the effect of giving a certain guaranty to the belligerent State whose rights have been disregarded. He recalls that the Prize Court Convention was voted with 15 abstentions. It is therefore likely that there would be many cases in which recourse could not be had to that tribunal.

[624] His Excellency Mr. Hammarskjöld requests the retention of the paragraph with the change proposed by the PRESIDENT. He thinks it advisable to mention expressly in this Convention the obligation of releasing the prize, together with its officers and crew, and not to refer to another Convention. Rear Admiral Siegel accepts the expression "may address."

The President puts to vote the text of the second paragraph of Article 3 of the draft:

There are 6 yeas, 6 nays, and 2 abstentions.

Yeas: Brazil, Spain, Great Britain, Italy, Japan, and Turkey.

Nays: Germany, Denmark, France, Netherlands, Russia, and Sweden.
Abstentions: United States of America, Norway.

The committee then votes on the modified text, which is as follows:

If the prize is not in the jurisdiction of the neutral State, the latter may address the belligerent Government, which must liberate the prize with its officers and crew.

There are 9 yeas, 4 nays, and 1 abstention.

Yeas: Germany, Denmark, France, Italy, Norway, Netherlands, Russia, Sweden, and Turkey.

Nays: Brazil, Spain, Great Britain, and Japan.
Abstentions: United States of America.

The President reads Article 4, worded as follows:

A prize court cannot be set up by a belligerent on neutral territory or on a vessel in neutral waters.

This article is approved without discussion.

The President then reads Article 5:

Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any other apparatus for the purpose of communicating with the belligerent forces on land

or sea.

He remarks that this article constitutes a provision similar to that which has been adopted respecting war on land.

Sir Ernest Satow inquires whether there has not been an inadvertent omission. At the meeting of August 26 he proposed, in effect, that the provision contained in Article 10b1 of the British proposal should be added to the article in question.

This addition was approved by 10 votes to 4, with 1 abstention. [625] The President thinks that perhaps the provision in question, which treats of the replenishment of supplies, should rather be made part of Article 18 of the draft Convention.

His Excellency Sir Ernest Satow says that, as he recalls it, it was decided to make this a part of Article 5.

The Reporter states that this was indeed decided upon at the meeting of August 26, but that the delegation of Russia had formulated reservations on the subject.

His Excellency Mr. Tcharykow thanks the reporter and states that he maintains contingently the reservations to which attention has been called.

After an exchange of views by the President, his Excellency Mr. Tcharykow, his Excellency Sir Ernest Satow, and the Reporter, it is agreed that Article 10b of the British project shall be made the subject of a new Article 5 bis, his Excellency Mr. TCHARYKOW and Rear Admiral SIEGEL having made known the fact that they would be obliged to reject Article 5 in its entirety, if Article 10b were added to it in the form of a new paragraph.

The new Article 5 bis would therefore be worded as follows:

Belligerent vessels are likewise forbidden to revictual in neutral waters by means of auxiliary vessels of their fleet.

There being no opposition to Article 5, the President declares it adopted.
He then puts the new Article 5 bis to vote.

This article is adopted by 5 yeas to 3 nays, with 6 abstentions.
The President then reads Article 6:

1 Annex 44.

The supply, in any manner, directly or indirectly, by a neutral State to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.

No objections being raised to this article, it is declared adopted.

The President then passes to Article 7, reading as follows:

A neutral State is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet.

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This article also is adopted after an exchange of explanations by Sir Ernest Satow, the President, and the Reporter as to the retention of the words to an army." It is recognized that there can indeed be no doubt of the right to export or to convey by sea munitions or material necessary to an army. The President then reads Article 8:

A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming within its jurisdiction of any vessel which it has reason to [626] believe is intended to cruise, or engage in hostile operations, against a Power with which that Government is at peace, and also to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, this vessel having been adapted entirely or partly within the said jurisdiction for use in war.

This article is adopted without discussion, as is also Article 9, after it is decided to add the words, "roadsteads or territorial waters," after the words, "admission into its ports."

Article 9 would therefore read as follows:

A neutral State must apply impartially to the two belligerents the conditions, restrictions, or prohibitions made by it in regard to the admission into its ports, roadsteads, or territorial waters, of belligerent war-ships or of their prizes.

Nevertheless, a neutral State may forbid a belligerent vessel which has failed to conform to the orders and regulations made by it, or which has violated neutrality, to enter its ports.

On his Excellency Sir ERNEST SATOW's observing that he would like to see the principle upheld in this article that a neutral State may always forbid belligerents to enter its ports, the Reporter observes that the object of paragraph 2 of Article 9 is simply to explain the deviation from the rule of equality of treatment of belligerents by the neutral laid down in paragraph 1.

The object of the provision contained in paragraph 2 is to define the right of the neutral State to withdraw from that one of the belligerents which may have violated the prescriptions of neutrality, the privilege of entering its ports, while continuing to allow that privilege to the other belligerent. The right of the neutral State to forbid belligerents in general to enter its ports is not in question in Article 9, but follows from its right to enact general prescriptions and prohibitions.

The President then reads Article 10, which is worded as follows:

The neutrality of a State is not affected by the mere passage through its territorial waters of war-ships or prizes belonging to belligerents.

His Excellency Mr. Hammarskjöld states that he reserves his opinion on this article until after the reading of the explanations that will be made regarding it in the report.

Mr. Vedel makes the same reservation.

His Excellency Turkhan Pasha states that Article 10 being a reduction of Article 32 of the English proposal contained in the "Questions involved in the propositions made by the Japanese, Spanish, British, and Russian delegations," he reiterates, with regard to this article, the declaration that he made in the name of the Imperial delegation at the meeting of July 30, which declaration appears in the minutes of that meeting, and requests the eminent reporter to be good enough to insert the text therof in his report.

Rear Admiral Sperry states that he makes the same reservations with regard to this article that he has already made in the name of his delegation.

The President officially acknowledges these reservations, which will be mentioned in the minutes and in the report. It is likewise understood that the votes of Sweden and Denmark are reserved until after the reading of the report. Article 10 is adopted under these conditions.

[627] The President then reads Article 11:

A neutral State may allow belligerent war-ships to employ its licensed pilots.

This article is adopted without discussion, after Rear Admiral Siegel has stated that he must reserve his opinion on this article until after the reading of the report.

The President passes to Article 12, worded as follows:

In the absence of special provisions to the contrary in the law of a neutral State, belligerent ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said State (situated in the immediate proximity of the theater of war) for more than twenty-four hours, except in the cases covered by the present Convention.

He remarks that the words "situated in the immediate proximity of the theater of war" have been placed in parenthesis because the discussion on this point has not yet resulted in any definite action.

His Excellency Sir Ernest Satow would like certain explanations as to the scope of the expression, "special provisions to the contrary in the law of a neutral State." Does this constitute an unlimited privilege in favor of the neutral State?

The President replies that the meaning is as follows: If there is no special law enacted by the neutral State, the 24-hour law is the rule. It is naturally lawful for the neutral State to specify some other time limit; but the wording of the article makes it obligatory for States which do not want the 24-hour rule to establish a special rule of their own.

Rear Admiral Siegel then asks permission to set forth more completely than he was able to do at the time of the first reading the considerations in explanation of what the German delegation means by the expression, "theater of war."

As these considerations must serve as a statement of reasons for the amendment which the German delegation will submit, they are prefixed to that amend

ment.2

His Excellency Mr. Tcharykow, in the name of the delegation of Russia, warmly supports in its entirety this proposal which was submitted with a view to conciliation. There is a very great divergence between the two doctrines before the committee. It is therefore extremely desirable to reach a compromise,

1 Annex 49.

• Annex 64.

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