THIRD MEETING AUGUST 12, 1907 His Excellency Mr. Martens presiding. The President requests that the committee postpone until the next meeting the adoption of the minutes, which have just been distributed. Mr. Guido Fusinato and his Excellency Mr. Ruy Barbosa remark that since they received no call to the last meeting, they were unable to participate in the voting that took place. The President invites the committee to continue the discussion on days of grace. Articles 1 and 2 of the Swedish proposal have been voted, but there was not time to discuss the proposal made by his Excellency Lord REAY to add to Article 2 paragraph 3 of Jonkheer VAN KARNEBEEK's proposal.1 His Excellency Lord Reay requests that the following words be added: "Permission to leave and days of grace may be refused to enemy merchant ships designated or destined in advance to be converted into war-ships." Mr. Louis Renault observes that this modification is entirely out of harmony with the spirit of the articles already voted. According to the committee's draft, a vessel can never have the right to leave. A provision could not prohibit departure and days of grace, unless under other circumstances such departure and days of grace were of an obligatory character. Jonkheer van Karnebeek desires to state that in his project paragraph 3 was linked to paragraph 1, which was worded on the basis of such an obligatory character. Mr. Louis Renault does not mean to criticize Mr. VAN KARNEBEEK's proposal, but merely the joining of paragraph 3 to the articles already voted by the committee. His Excellency Mr. Hammarskjöld concurs, from a strictly legal point of view, in Mr. RENAULT'S comment. He believes, however, that he sees the reason for the modification requested by his Excellency Lord REAY, which is that even the belligerent who admits a period of grace may nevertheless limit this provision to vessels that are not designated to be converted. The wording of the article might be modified so as to remove all appearance of contradiction. It would seem that Article 1 would be a better place for the addition proposed by Lord REAY. [943] His Excellency Lord Reay desires the wording to be perfectly clear with regard to refusing permission to leave and a period of grace to vessels capable of conversion. He can see no objection to adding his amendment to Article 1. The President asks whether it is the State in whose port the vessel is that is to be the judge of whether it may be detained or allowed to leave freely. 1 His Excellency Lord Reay answers in the affirmative. Mr. Louis Renault thinks it would be difficult to mention these reservations in the draft Convention. They might appear in a report or in a statement of reasons. His Excellency Mr. Keiroku Tsudzuki asks whether in case a period of grace is refused them, vessels capable of conversion are subject to confiscation. Mr. Fromageot (reporter) replies that they are covered by the terms of Article 2; they are not confiscated but detained and are liable to requisition. His Excellency Mr. Keiroku Tsudzuki states that under these conditions he makes reservations. His Excellency Mr. Milovan Milovanovitch thinks that when a belligerent State may forbid the departure of enemy merchant ships that happen to be in its ports at the time of a declaration of war and if no special treatment is to be adopted for vessels detained because of their possible conversion, it is better not to mention them. His Excellency Mr. van den Heuvel believes that his Excellency Lord REAY'S proposal intends that Article 1 shall state a merchant ship not designated to be converted into a war-ship . . . it is desirable that . . .' Mr. Louis Renault says that under these conditions it will be necessary to have another vote and to combine it with the first in the wording of the article. His Excellency Lord Reay concurs in the proposal of his Excellency Mr. VAN DEN HEUVEL. The President requests that a new reading be proposed by his Excellency Lord REAY, so that it may be discussed at the next meeting. The committee then passes to Article 3 of the Swedish proposal,1 which the PRESIDENT reads: ARTICLE 3 Merchant ships of belligerents, which are overtaken at sea by the outbreak of war, may not be captured if they have left their port of origin or another port before the outbreak of hostilities. When military necessities require, these vessels may be detained and requisitioned. After these vessels have touched at a port of their country or at a neutral port, they become subject to the laws and customs of naval warfare. Mr. Kriege does not think he can accept this article. The committee has decided not to grant a period of grace to merchant ships in enemy ports. It has admitted the possibility of detaining and requisitioning them. This measure is always possible in the port itself, but for certain Powers that have no naval stations in all parts of the world it will be very difficult to carry it out on the high seas. [944] His Excellency Mr. Milovan Milovanovitch requests that Article 3 be made to conform to Article 1 and that vessels encountered on the high seas unaware of the outbreak of hostilities be subjected to the same treatment as that provided in Article 1. His Excellency Mr. Keiroku Tsudzuki concurs in Mr. KRIEGE's opinion. His Excellency Mr. Hammarskjöld remarks that the suppression of Article 3 would leave the belligerent the right to sink vessels encountered on the high seas unaware of the outbreak of hostilities. This right appears exorbitant, if it is believed that the vessel left port unaware of the outbreak of 1 Annex 21. war, without even having a suspicion thereof and without having been able to avoid the threatening misfortune. Mr. Kriege replies that the right to sink the vessel is incontestable and that it is indispensable to the Power that has no means of detaining it. This right is indeed a very harsh one, but it is inseparable from the maintenance of the right of capture. Mr. Guido Fusinato is of Mr. KRIEGE's opinion. It is certain that the right to sink is not questioned except as regards neutral vessels. Moreover the right of capture is not founded upon a fault on the part of the vessel, but is considered a means of defense. His Excellency Mr. Hammarskjöld does not intend to dispute the right to sink the captured vessel, but he wishes to make it clear that in claiming the right to capture the vessels in question, it is the right to sink them that is contemplated. Mr. Louis Renault fears that the opponents of the right of capture desire to push the system to excess in order to prove the correctness of their opinion. It is possible to favor the right of capture, and yet to wish to temper its severities in certain respects. The committee has not admitted the right of confiscation of enemy merchant ships taken unawares in the ports of the belligerent. It cannot be denied that the situation of the merchant ship on the high seas is still more favorable. Mr. Kriege maintains his opinion. He remarks that it is in harmony with theory and practice, which have generally allowed a period of grace to vessels in port but not to those on the high seas. Rear Admiral Sperry points out that the refusal of days of grace will cause great injury to commerce, which will remain paralyzed during the period of tension for fear of having its vessels captured. The assurance of obtaining days of grace would, on the contrary, leave it entire freedom of action up to the last minute, and for these reasons, in the common interest of belligerents, an exception has been made to the ancient right of capture in the case of vessels in port. Mr. Guido Fusinato is of the opinion that vessels on the high seas should be assured the same treatment as those in port. His Excellency Mr. Milovan Milovanovitch proposes, in order to meet Mr. KRIEGE's views, that a distinction be drawn between vessels capable of conversion and those that are not, that the former be subject to the right of capture and that the latter be left free. Mr. Kriege points out the difficulty that the making of this distinction would involve. His Excellency Mr. Keiroku Tsudzuki concurs in this request. Mr. Guido Fusinato asks that vessels on the high seas and those in port receive the same treatment. [945] Mr. Fromageot points out the excessive right that will result from the suppression of Article 3. It is indeed neither just nor lawful to sink a vessel which had a right to count on peace, which set sail and is pursuing its course in full confidence, unaware of the existence of war. It would be very difficult, on the other hand, to allow this vessel entire freedom, especially if it is carrying contraband of war. Mr. FUSINATO's proposal that the vessel in port be assured the same treatment as the vessel at sea would appear to be most in harmony with justice; it does not inflict an unjust loss upon the owner and it safeguards the right of the belligerent. Again, the difference between the vessel that can be used in time of war and the vessel that cannot is very difficult to establish. We might, therefore, refer to Article 1 and say "shall be treated as stated above." His Excellency Mr. Milovan Milovanovitch says that the suggestion was inspired by the modifications which it is desired to introduce in Article 1. Mr. Kriege thinks that the loss incurred by the owner, who will receive an indemnity, will very rarely be covered by the indemnity. On the other hand, the objection based upon contraband of war is answered by the system followed in the matter of contraband, which is the subject of a special examination. His Excellency Lord Reay accepts the German point of view, as set forth by Mr. KRIEGE. 1 Rear Admiral Sperry recalls that the United States, which filed a proposal relative to the inviolability of private property, has rejected all half measures presented on this subject. But Article 3 pertains to the question of contraband. In the American proposal the necessity of maintaining the notions of contraband and blockade was recognized. Without special instructions he cannot therefore vote for this text. Mr. Fromageot: Articles 1 and 3 do not refer to "goods." Besides, these goods are, under the hypothesis, loaded before there is a state of war. We cannot therefore speak of contraband. Addressing Mr. KRIEGE, he asks him whether a period of grace has not at times been granted to vessels encountered on the high seas. It seems to himand in case he should be mistaken, he would ask Rear Admiral SPERRY to correct his assertion that during the Spanish-American war the American Admiralty fixed this period at thirty days. Rear Admiral Sperry replies that the proclamation of the President of the United States, dated April 25, 1898, at the time of the war with Spain, referred only to vessels bound for ports in the United States. Mr. Kriege thinks that the practice of granting such a period is not so general as the speaker seems to imply. Rear Admiral Sperry says that the offense of carrying conditional contraband cannot exist until after notice has been given to neutrals, according to the proposal of the delegation of the United States. It is evident, however, that before such notice has been given, the belligerent may prevent the escape of absolute contraband of war, such as mines and munitions. 3 The President: We must set aside the question of contraband. which we shall take up later. For the time being we are to vote on the principle of the period to be granted or not to be granted to vessels encountered at sea, as presented by the Russian and the French delegations, and as set forth in [946] Article 3 of the amendment of the delegation of Sweden. Those in favor of this period of grace will vote Yes, that is to say, for the pres ervation of Article 3; those opposed will vote No, that is to say, for its omission. The question being thus put, the committee proceeds to vote, with the following results: 6 yeas; 6 nays; 3 not voting. Voting against the preservation of the article: Germany, Great Britain, United States of America, Argentine Republic, Austria-Hungary, Japan. Voting for its preservation: Belgium, Brazil, France, Netherlands, Russia, Sweden. Not voting: Italy, Norway. Mr. Guido Fusinato desires to state the reason for his vote. He did not wish to subject vessels encountered on the high seas to more rigorous treatment than that received by vessels in enemy ports. On the other hand, he did not want to preserve Article 3, as Mr. KRIEGE'S comments seem to him exceedingly just. What he would like is equality of treatment. The President requests Mr. FUSINATO to make a proposal, which will be voted upon without discussion together with that to be submitted by the British delegation with reference to Article 2. The PRESIDENT reads Article 4 of the Swedish amendment. He remarks that in case Article 3 is omitted, this text will have no relation to Articles 1 and 2. ARTICLE 4 If any of the above-mentioned vessels put into an enemy port, they shall enjoy the periods of grace and immunities indicated in the foregoing article. Mr. Kriege deems it advisable to discuss now the fate of the cargo. Mr. Fromageot (reporter): The cargo should be considered as separate and distinct from the vessel, both in the interest of the owner and of the belligerent. Not having been loaded in violation of a duty of neutrality, it cannot be considered contraband. It must therefore be given a legal status analogous to that given the vessels. To this end he asks that the following sentence be added to Article 1: "The cargo, like the vessel, shall be subject to seizure and requisition." Mr. Kriege says that a provision concerning the fate of the cargo had better be the subject of a separate article. Jonkheer van Karnebeek asks, with regard to the amendment made by the British delegation,1 whether he may take advantage of this opportunity to return to the first two articles and submit some proposals which he has already drafted respecting them. The President remarks that these articles have already been discussed. [947] Jonkheer van Karnebeek says that it is not the purpose of the proposals he desires to present to affect points already settled nor to modify the wording. They touch upon the substance itself and were inspired by the desire to protect these articles as adopted from certain well-founded criticisms which might be made regarding them. The President: It is too late to offer new proposals on these texts. But if Mr. VAN KARNEBEEK wishes to explain what he has in mind, his remarks will appear in the minutes. Jonkheer van Karnebeek thanks the PRESIDENT and will be satisfied, for the time being, with a mere indication of the points he has in mind. 1 Annex 27. * Annex 21. |