must release all neutral vessels that he is unable to bring before a prize court.1 The President makes record of these declarations, which will be printed and distributed. His Excellency Mr. Choate reads the following proposal: The private property of all citizens of the signatory Powers, with the · [743] exception of contraband of war, shall be exempt from capture or seizure at sea by the armed vessels or military forces of the said Powers. However, this provision in no way implies the inviolability of vessels which may attempt to enter a port blockaded by the naval forces of the above-mentioned Powers, nor of the cargoes of the said vessels.2 The President makes record of this proposal, which will be printed and distributed. His Excellency Mr. Ruy Barbosa expresses his approval of the system proposed by the President with regard to the method of procedure. He points out, however, that in order to avoid confusion in the discussions, it might be advisable to divide the questions by meetings, so that they may be studied by the Commission in regular order. Each meeting should have its program drawn up in advance, and the program should include a certain group of questions. The President states that his intention is in all respects in conformity with the remarks of His Excellency the first delegate of Brazil. It is understood that the questions will be submitted to the Commission for examination in the order of the questionnaire, unless the discussion should lead to a modification thereof. He therefore proposes that the next meeting be devoted to an examination of the first questions of the questionnaire. The meeting adjourns at 3:25 o'clock. 1 Annex 39. 'Annex 10. [744] SECOND MEETING JUNE 23, 1907 His Excellency Mr. Martens presiding. The meeting is opened at 2:40 o'clock. The President asks whether the Commission has any remarks to make on the minutes of the preceding meeting. The minutes are adopted. The President is happy to note the presence of the Honorable President of the Conference, who has come to take part in the deliberations of the Commission. He recalls that according to the minutes of the last meeting the Commission is to begin to-day its study of the questionnaire, and will take up questions I, II, and III. He informs the Commission that he has received proposals from the British delegation and the Italian delegation on the points covered by the first three questions. As these proposals were filed only a few hours before the meeting, they could not be submitted to the members of the Commission. The PRESIDENT remarks in this connection that it is necessary that proposals concerning points to be discussed be sent to the president in time to be printed and distributed at least twenty-four hours in advance of the meeting. He asks whether the Commission would nevertheless be disposed to begin the discussion thereof. His Excellency Sir Edward Fry states that he does not insist upon an immediate discussion. The President proposes therefore that the meeting begin with a discussion of question I and a general exchange of views on question II, reserving the discussion of the British proposal. On the invitation of the PRESIDENT, Mr. Fromageot, Secretary of the Commission, reads the Italian proposal, which is worded as follows: A merchant ship may not be converted into a war-ship unless it is placed under the command of a naval officer of its State and unless it has a crew governed by all the rules of military discipline. [745] Vessels that leave the territorial waters of their country after the outbreak of hostilities may not change their character either on the high seas or in the territorial waters of another State.3 The President proposes that the discussion of this project be postponed until the next meeting. 'Annex 1. Annex 2. ⚫ Annex 4. He then asks the Commission to pass upon question I: Is it recognized, in practice and in law, that belligerent States may convert merchant ships into war-ships? No delegation having demanded the floor, his Excellency Count Tornielli has this silence recorded, which, according to him, is to be interpreted as an affirmative reply to question I, provided, however, that the conversion of the merchant ship into a war-ship be complete. His Excellency Sir Edward Fry is of the same opinion, with the reservation of the conditions under which the conversion will be legal. The President states that there can be no doubt as to the view of the Commission: the belligerent has the right to convert merchant ships into war-ships and this right may be assimilated to that of engaging militia to reinforce the army on land. This point of view is unanimously adopted. The President reads question II: When merchant ships are converted into war-ships, what legal conditions should the belligerent States observe? He remarks that a general exchange of views on this subject would be very useful, taking into account the British and Italian proposals.1 His Excellency Vice Admiral Jonkheer Röell reads the following proposal: 1. It is permissible to convert a merchant ship in the service of the State into a war-ship. 2. Converted vessels must be commanded by a naval officer and their crews must be wholly or partially military. 3. A converted ship must fly at its gaff and at its masthead the manof-war flag and the pennant or flag of its commander. 4. In time of war, conversion may be effected only in a national port; the converted vessel must there be provided with a commission furnished by the competent authority of the Government whose flag it flies. 5. The commander of a converted vessel must respect the laws and customs of war at sea. 6. All vessels claiming to be war-ships, which do not comply with the above-mentioned conditions, shall be treated as pirate ships. The proposal will be printed and distributed.2 Mr. Heinrich Lammasch proposes that there be added to the conditions enumerated by His Excellency Vice Admiral Jonkheer RÖELL that as long as hostilities last the conversion shall be permanent and reconversion into a merchant ship shall be forbidden. [746] With a view to greater clearness in the discussion, Captain Behr asks permission to define a war-ship. He therefore proposes, in the name of the Russian Government, the following formula: Every vessel commanded by a naval officer in active service and having a crew governed by the military code is considered a war-ship. The vessel must, by order of its Government, fly the man-of-war flag, and as soon as this order is issued the vessel is considered as registered in the list of the war-ships of its country. The proposal will be printed and distributed.3 Annexes 2 and 4. Annex 5. Annex 3 His Excellency Mr. Keiroku Tsudzuki makes the following proposal: The Japanese delegation submits to the consideration of the Commission the following proposal with regard to the places where the conversion of a merchant ship into a war-ship may be effected: A merchant ship may not be converted into a war-ship except in the national ports or territorial waters of the State to which the merchant ship in question belongs, or in the ports or territorial waters occupied by its naval or military forces.1 The President proposes that the discussion of these various proposals be deferred until the next meeting. The PRESIDENT reads question III: Should the practice now in vogue relative to the capture and confiscation of merchant ships under an enemy flag be continued or abolished? The PRESIDENT directs Mr. Fromageot to read the proposal made by the United States of America at the last meeting on this point.2 His Excellency Baron von Macchio reads the following declaration: In taking up the examination of question III of the questionnaire submitted to the Fourth Commission, the Austro-Hungarian delegation desires to call attention to the fact that in its opinion the principle of the inviolability of private property at sea in time of war having been the subject of so much serious consideration and legal study is now so universally recognized that further discussion on the question of principle would seem to be merely a recapitulation of opinions, more or less identical, again and again expressed by the most competent and learned savants. Austria-Hungary, taking into account the great interest of individuals and the essentially humanitarian object of this principle, long ago adopted it and has conformed thereto, whenever such a case has arisen. Consequently the Austro-Hungarian delegation is in a position to declare at this time that its Government takes the most liberal view in the matter of the capture and confiscation of merchant ships under enemy flags. His Excellency Mr. Ruy Barbosa takes the floor and speaks as follows: Mr. President, the question which you have put in No. III of your questionnaire, asking us whether the practice now in vogue with regard to [747] the capture and confiscation of merchant ships under an enemy flag should be continued or abolished is not, in my opinion, an appeal to theory, but rather a question of a practical character addressed to the gov ernments and statesmen in the light of the results of experience, the lessons of history, the traditions of the several countries, and the general tendency of public opinion among modern nations. I do not, indeed, lose sight of the part that theory is called upon to play in the solution of this problem. But it is for others, for the masters, for the recognized leaders in legal instruction, for the great representatives of legal culture to determine the principles, to set them forth in their full force and luminous influence, although it seems to me that the matter has been thrashed out to the point of exhaustion, so lavishly have both those who clamor for 1 Annex 6. 2 Annex 10. reform and those who cry out against it expended reason, authority and eloquence in this debate, which has lasted more than a century. Hence as regards this phase of our work, my participation would be very weak, if not utterly worthless, and I would not be so rash as to deprive others of a place to which I have no right. But the historic attitude of my country with respect to the idea which the American proposal, already submitted to your examination, urges you to adopt, imposes upon me the duty of taking the floor to make a statement which, by recalling our international past in this controversy, shall clearly and firmly define the Brazilian attitude on the question. Ours is a rather modest place, as we are well aware, in the concert of nations, where the great Powers are dominant with all the majesty of their preponderance. But we set no less store by our logic and we have no less respect for our traditions. We are faithful to our worthy national memories when we find that time and our interests have maintained them and have caused them to take firmer root and to be more and more present with us. From this point of view there is nothing more remarkable than the example of the United States in the matter of the condemnation of the right of capture, whether it is exercised by privateers or whether it is the privilege of war-ships. The proposal submitted to the Peace Conference of 1899 and that of 1907 is merely a repetition of a thesis contemporaneous with the birth of the great republic, a thesis maintained successively in 1783 in its negotiations with Great Britain, in 1785 in its treaty with Prussia, in 1823 in the draft convention with Russia, in 1854 in the reply of BUCHANAN to Lord CLARENDON with regard to the Crimean War, and, finally, in 1856-1858 by its refusal to accede to the Declaration of the Congress of Paris. From that time-that is to say, from the moment when this question was first laid before us-the Brazilian Government has adhered to the principle of the inviolability of private property at sea. As you know, gentlemen, the United States refused to subscribe to the abolition of privateering, considering this abolition as inconsequential, iniquitous, and as such inadmissible, unless linked with the absolute rule of the inviolability of private property in naval warfare. Beginning in the eighteenth century the North American Republic has never ceased to maintain that these two liberal aspirations, the suppression of privateering and the abolition of the right of capture, are inseparable. In opposing for this reason Article 1 of the Declaration of Paris, which abolished only privateering, the Washington cabinet addressed, under date of November 5, 1856, a note to the cabinet of Rio de Janeiro, inviting the latter to join with it on these two points. Two years earlier, Mr. BUCHANAN had used similar language to Lord CLARENDON, and President PIERCE had expressed himself to the same effect in his message of December 4, 1854. "Should the leading Powers of Europe," said the latter, "concur in proposing as a rule of international law to exempt private property upon the [748] ocean from seizure by public armed cruisers as well as by privateers, the United States will readily meet them upon that broad ground." Similarly, in the above-mentioned note the minister of the United States. at Rio de Janeiro said to the Imperial Government two years later: The undersigned has been directed by the President to propose to the Government of Brazil that the two countries enter into an agreement to acquiesce in the four principles of the Declaration of the Congress, provided there be a modification |