The mere enumeration of these figures would amply suffice to show what an enormous economic disturbance would ensue if nitrate were included among the articles that constitute contraband of war.

The opinion that nitrate should be considered contraband of war because it served in the manufacture of powder was warranted fifty or sixty years ago. At that time the production of nitrate was insignificant as compared with its production at the present time, and then it was scarcely used in agriculture, for its fertilizing qualities were not sufficiently well known. It was used chiefly in the manufacture of explosives and powder. But between that time and the present day conditions and the importance of nitrate have wholly changed. Nitrate has become a fertilizer of universally recognized efficacy, and although its production has increased by giant strides, practically all that is produced is destined for agriculture.

With the view of illustrating our demonstration, I am supplementing my remarks with a table in which the increase in the production of nitrate from 1840 to 1904 by five-year periods can be followed.

In conclusion, I must present my excuses for having taken the liberty of calling the Commission's attention to a point which is of great interest to Chile, the only country that produces nitrate, and which involves the vital interests of the agriculture and industries of the whole world.

The President states that the Commission takes official note of these different declarations and that they will be submitted to the committee of examination.

[884] The PRESIDENT reminds the Commission that the program calls for the discussion of the question of days of grace, which has been carried over from last week. The Commission was then unanimously of the opinion that it was desirable to allow a period of grace to enemy merchant ships in belligerent waters on the outbreak of hostilities, but it has not yet passed upon the question whether this period is a right belonging to the enemy merchant ship or a favor that may be refused. The French delegation1 made a proposal on this subject, the examination of which was postponed until to-day's session, because the majority of the delegations at that time were without instructions.

His Excellency Mr. Hammarskjöld declares himself in favor of an obligatory period of grace. However, any proposal tending toward an obligation, even a restricted or conditional obligation, seems to meet with insuperable objections on the part of certain Powers whose co-operation is indispensable. On the other hand, all are unanimous in recognizing that a period of grace should be granted. In these circumstances he believes that it would be advisable to mention this unanimity in the text of the eventual convention. It has at the same time been his desire to combine the Russian 2 and the French proposals, in order to preserve the advantage of the very useful provisions which both of these proposals contain. That is the intent of the Swedish amendment which the Commission has before it. The two proposals which the Swedish amendment combines being already known, his Excellency Mr. HAMMARSKJÖLD hopes that it may be possible to discuss his amendment at this meeting, together with the above-mentioned proposals.

3

His Excellency Mr. Tcharykow requests the floor on a question of revision: The delegation of Russia modifies the reading of its proposal 2 as follows: Article 1, line 3: substitute the word "suffisant" (sufficient) for the words "de faveur" (of grace); and

Article 2, line 2: omit the words "de faveur" (of grace).
These two articles will then read:

ARTICLE 1

In the event of a merchant vessel of either of the belligerents being overtaken by war in the port of the other belligerent, the latter must grant this vessel a sufficient period, in order to allow it, etc.

ARTICLE 2

A merchant ship which, owing to circumstances of force majeure, has been unable to leave the enemy port within the period above mentioned, etc.

His Excellency Vice Admiral Mehemed Pasha observes that the object in allowing days of grace to enemy merchant ships, which on the outbreak of hostilities happen to be in a port belonging to one of the belligerents, is to protect the interests of non-combatants.

If it be left to the pleasure of belligerents to grant this period of grace, the rule which we desire to establish will not be permanently and generally effective. The period of grace should be obligatory and sufficiently long to permit these vessels to reach in safety the nearest port belonging to their Government or to a neutral Government.

[885] His Excellency Lord Reay desires to recall, before the Commission proceeds to vote, that the British delegation supports the formula proposed by his Excellency Count TORNIELLI.

Mr. Louis Renault says that the French delegation is not in favor of the obligatory character of days of grace. Under these circumstances the Swedish proposal, which does not involve any obligation on the part of the belligerents, might be supported. It is, as a matter of fact, difficult to establish by convention a distinction between the vessels which a belligerent may, and those which he may not, detain. This interpretation of days of grace, which is the same as that of his Excellency Lord REAY, permits the Commission to support the Swedish proposal under the reservation of the important amelioration that, although the belligerent has the right to detain, he has not the right to confiscate. The Commission cannot raise any objection to voting for a proposal which, while preserving the period of grace, makes use of the words: "It is desirable...

The President notes that the divergences of opinion which have been expressed in the Commission bear upon the obligatory character of the period of grace. He asks whether the Commission is willing to confine its vote to the question of principle alone, and to leave it to the committee of examination to work out the text of a draft convention.

His Excellency Sir Edward Fry says that two questions must be elucidated, namely: (1) Whether the days of grace will be obligatory or optional; (2) Whether, in the event of their being declared optional, there should be an accompanying declaration to the effect that it is desirable that they be granted.

The President states that the Commission is in unanimous agreement upon this point-that it is desirable to allow days of grace-and proposes that a vote be taken on the optional or obligatory character of the period of grace.

Rear Admiral Sperry says that the delegation of the United States is of the opinion that a well-established principle of international law recognizes that enemy merchant ships, which on the outbreak of hostilities happen to be in the ports of a belligerent, have the right to depart freely. This right is, however, subject to the restrictions dictated by military necessity.

His Excellency Mr. Nelidow believes that there are two distinct questions: (1) that concerning the right of enemy merchant ships, which on the outbreak of hostilities happen to be in belligerent waters, to depart freely without requiring a period of grace; (2) that concerning the right of these same vessels to obtain a period of grace in which to complete their loading or unloading.

The President replies that the Commission must pass upon the following questions: (1) Must or may the belligerent allow vessels to depart? (2) If these vessels have a right, is this right a limited or an unlimited one?

His Excellency Mr. Ruy Barbosa remarks that his Excellency Mr. NELIDOW raises a different question from that which was submitted to the Commission. The obligation of permitting vessels to depart freely but immediately must not be confused with that of granting a period of grace.

His Excellency Mr. Nelidow replies that this distinction was suggested to him by Rear Admiral SPERRY'S declaration.

The President believes that the Commission must pass upon the question whether the belligerent is obliged to permit or may permit the vessel to [886] depart. Matters of detail like those contained in the French proposal concerning the right to detain and requisition are within the province of the committee of examination.

His Excellency Mr. Choate asks that the question upon which the Commission is to vote be drawn up in writing.

Mr. Kriege requests that a vote on the obligatory character of days of grace be deferred until after the question has been studied by the committee of examination. Certain delegations, a very few, do not recognize this obligatory character. The question which seems to concern them above all is that of merchant ships that are capable of being converted into war-ships. The Netherland proposal meets what they have in mind. If the committee could draw up a project taking their ideas into consideration, it would perhaps be easy to reach an agreement. If the Commission does not now adopt this view, if it desires to proceed to a vote to-day, the German delegation will vote in the affirmative on the obligatory character of the period of grace, reserving the right to vote for modifications and amendments that are capable of bringing about an agreement among the delegations.

His Excellency Lord Reay being of a similar opinion, on the proposal of the President the Commission concurs in the views expressed by Mr. Kriege and directs the committee of examination to make a report.

The President opens the discussion on questions IX and X of the questionnaire, which read as follows:

IX. Is it necessary to modify the terms of the Declaration of Paris of 1856 as to blockade in time of war?

X. Is it desirable to determine, in the convention to be concluded, the universally recognized consequences of the breaking of an effective blockade?

The PRESIDENT remarks that the question of blockade is not specifically included in the program drawn up by the Russian Government. The Commission might therefore have raised objections thereto, but its abstention implies its consent to pass to a discussion thereof. The basis of the question is to be found in the Declaration of Paris of 1856, which is itself founded upon the convention of the League of Neutrals of 1780.

His Excellency Mr. Ruy Barbosa files the following proposal, which is an amendment to the Italian proposal 2 on blockade :

1. A blockade is effective, under the conditions stipulated in the Italian proposition (Article 2), only when it is limited to ports, roadsteads, anchorages, bays, or other landing places on the enemy shore, as well as places giving access thereto.

2. The Conference shall fix a certain number of miles, calculated from the coast, at low tide, or from an imaginary line between the extremities of the port or of the bay, as well as from the said extremities along the coast, in order to limit the area within which the blockading fleet shall carry on blockade opera

tions.

1 Annex 36.

2 Annex 34.

3. When a vessel is captured within these limits, the above-mentioned conditions having been fulfilled, no question as to the effectiveness of the blockade may be raised.

4. Notice as provided in Article 4 of the Italian proposition shall, in all cases, be presumed to be known, unless the contrary is proved, to vessels [887] which have left ports within the jurisdiction of the notified Government seven whole days after the date of the said notice.

5. Changes in the blockade must likewise be notified and shall not bind neutrals unless the geographical limits are indicated in accordance with the provision above, Article 2.

His Excellency Count Tornielli states that he cannot vote upon the Brazilian proposal without having previously studied it.

The Italian delegation has prepared an explanatory statement with regard to its proposal, which Mr. Guido Fusinato reads:

Mr. President, contraband and blockade are the two great restrictions which war has placed upon the commerce of neutrals in the present state of positive international law. But while the whole world is agreed as to the principle upon which the prohibition of contraband of war rests, whatever may be the divergences and difficulties in its practical application, there is no such agreement in the matter of blockade. The different points of view as regards its nature and its foundation engender, moreover, striking divergences in the legal regulation of this institution. The broadest application of blockade cannot be justified except by recognizing that belligerents have the right to forbid all commerce between neutrals and a portion of the enemy coast. It is only on this theory that we can speak of the obligation on the part of neutrals to respect the prohibition declared in this regard by the belligerent and of the belligerent's right to punish neutrals whenever their intent to infringe such a prohibition in any place whatever is clearly proved. The employment of force would be merely a means of carrying out this right and the belligerent might resort to it at his pleasure.

But this view of blockade is utterly at variance with the principles of positive international law, which lay down the general rule of absolutely free trade between neutrals and belligerents, with the exception of contraband of war. Aside from this, the belligerent has no right to prohibit neutral commerce and neutrals are not obliged to obey him.

On their side, however, belligerents have the right to carry out any military operation which they deem calculated to aid in bringing about final victory, subject to the limitations which international law impose upon them. They may, in naval warfare, blockade any enemy port or any portion of his coast, just as they may besiege a city in land warfare. Blockade is indeed merely the isolation of a portion of the coast and a prohibition of access thereto by means of force. This results in a restriction on commerce which neutrals are necessarily obliged to suffer, just as they are obliged to submit to the inevitable consequences of acts of war on the part of belligerents. It is the operation of war as such which they are bound to respect. It is from these principles that the justification of blockade, as well as the limits of its application, is derived.

The divergences in the conception of blockade and in its establishment have been the subject of well-known historical controversies between maritime States.