Mr. Guido Fusinato is of the opinion expressed by Mr. Louis Renault that it is not possible to go into details now. He does not think that arguments can be deduced from the rules in force in land warfare, in which requisitions are an infringement of the principle of the inviolability of private property, a principle which is not recognized in naval warfare.

His Excellency Mr. Hagerup thinks that the question of principle involved bears upon the question as to whether this indemnity will cover the direct loss or whether it will include the indirect loss as well.

The President asks the committee whether it accepts the Norwegian amendment.1

This amendment is not adopted.

His Excellency Mr. Hagerup says that the object of his amendment was to establish certain rules for the determination of indemnities in the matter of requisitions at sea.

The President does not believe that the examination of this question is within the scope of the committee.

His Excellency Mr. Hagerup replies that the same course might be followed as in the case of bombardment, with regard to which certain rules were laid down.

The President is still of the opinion that the point mentioned by his Excellency Mr. HAGERUP is not within the scope of the program. It is for the Commission to decide whether it wishes to discuss it.

He proposes that the committee postpone to the next meeting the discussion of paragraph 4, as well as of the proposal which the British delegation is to submit in connection with this paragraph.

[986]

EIGHTH MEETING

AUGUST 24, 1907

His Excellency Mr. Martens presiding.

The minutes of the fifth meeting are adopted.

The President recalls that there was a misunderstanding at the last meeting with regard to the votes on the modification of paragraph 1 of the draft regulations concerning the crews of captured merchant ships. His Excellency Mr. VAN DEN HEUVEL has been good enough to draw up a formula which he intends to submit to the committee.

His Excellency Mr. van den Heuvel recalls that the committee was in agreement on the substance of the matter and that it was merely a question of finding a formula that would state this agreement. After careful consideration, he has come to the conclusion that he can propose to the committee the following formula as a final paragraph to the proposal proclaiming the freedom of the crews: "The preceding provisions do not apply to ships taking part in the hostilities."

This formula permits a capturing ship not to set free the crews of merchant ships that take part in hostilities. The acts which may be regarded as such participation are not specified by the committee; this is left to the free judgment of the belligerent. His Excellency Mr. VAN DEN HEUVEL hopes that this formula will be accepted unanimously by the members of the committee.

Mr. Kriege concurs in his Excellency Mr. VAN DEN HEUVEL'S remarks and accepts the formula proposed.

His Excellency Sir Ernest Satow asks time to think the matter over and assures the committee that he will do his best to accept the formula.

The President notes that the committee has raised no objections and that his Excellency Sir ERNEST SATOW asks for time for reflection. He thanks his Excellency Mr. VAN DEN HEUVEL for having sought and found a formula capable of bringing about agreement.

[987] Mr. Kriege requests that the following sentence concerning communica tion by the captor State to its enemy of the list of the ship's crew be added to paragraph 4: "Their names will be communicated to it by the belligerent captor."

The committee adopts this amendment.

Mr. Fromageot (reporter) reads the text of the new article, to wit:

When an enemy merchant ship is captured by a belligerent, the neutral members of its crew shall not be made prisoners of war.

The same rule shall apply in the case of the captain and officers, if they are subjects.

or citizens of a neutral Power, provided they formally promise in writing not to serve on an enemy vessel while the war lasts.

The captain and the officers and the members of the crew, who are enemy subjects or citizens, shall not be made prisoners of war on condition that they engage by formal written promise not to undertake any service connected with the war operations while hostilities last.

A belligerent State is forbidden knowingly to employ an individual who has been released under the above-mentioned condition.

The text is approved with the reservation of the formula, proposed by Mr. KRIEGE, concerning notification of the list of the crew.

The President requests the committee to continue the discussion of the draft provision relative to fishing boats.1

With regard to paragraph 3 Jonkheer van Karnebeek asks whether the words, "in consideration of an indemnity," apply to temporary detention as well as to requisitions. If this is not the case, it will be necessary to modify the wording to make it clear.

Mr. Fromageot replies that the indemnity applies only to requisitions.

His Excellency Mr. Hammarskjöld, however, thinks, if his memory is correct, that in the course of the discussion there has been mention of such temporary use and that the committee has manifested its intention to admit the principle of indemnity in all cases where the owner would naturally suffer loss. The President is of the opinion that the indemnity applies only to requisitions. A comma might be placed after the word "detained."

His Excellency Mr. Hagerup recalls that from the point of view taken by his Excellency Mr. VAN DEN HEUVEL, the word "indemnity" would include any loss. This point of view seems now to be disputed. As the representative of a country where coastal fishing is an essential means of livelihood to a large proportion of the population, he desires to say that the vague and incomplete rule adopted by the committee with regard to requisitions make the draft rather unacceptable and he reserves his vote on the draft as a whole.

The President replies that the committee has already passed upon the matter. Up to the present time international law has created no obligation with regard to indemnities to be awarded fishermen. The agreement upon this point marks considerable progress. As for the committee's vote, it covered only indemnities for requisitions.

Mr. Guido Fusinato insists upon a modification of paragraph 3 to make it read as follows: "The belligerent may give orders. . [988] Mr. Fromageot replies that this remark will be taken into account in the final draft.

With regard to the last paragraph of the draft, his Excellency Sir Ernest Satow recalls that it is the subject of an amendment submitted by the British. delegation to prohibit the use of fishing boats for military purposes. The immunity, which it is proposed to grant to fishing populations and their boats, must have as its corollary the obligation not to take part in the war.

The President remarks that the British amendment covers both the relations between fishermen and their Government and those between fishermen and the belligerent. Hence it follows that it may require a modification in domestic laws.

His Excellency Sir Ernest Satow cannot admit that a Government may employ fishermen who enjoy entire immunity in the transportation of munitions of war, in espionage, or in acts of hostility.

His Excellency Mr. Keiroku Tsudzuki inquires whether it would not suffice to prohibit the use of fishing barks for surreptitious military purposes. In Japan the build of boats does not vary, whether they are used for fishing or for the transportation of troops. All that can be required is that they be not employed, under the disguise of a peaceful occupation, for military purposes.

His Excellency Mr. van den Heuvel thinks that the belligerent should be in a position not to be taken unawares, and that he should know by means of some sign or flag the actual purpose for which the fishing bark is being used.

His Excellency Sir Ernest Satow thinks that the prohibition in the matter of fishing boats should also include their crews and that it is the character of the crew especially that should be considered in determining the purpose for which the boat is being used.

His Excellency Mr. Keiroku Tsudzuki asks whether by flying the naval flag boats may be employed for military purposes.

His Excellency Sir Ernest Satow replies in the affirmative, but lays stress upon the danger in employing fishing boats for military purposes; their immunity demands absolute abstention in this respect.

The President proposes that the words, "It is desirable," be used, as they would have the advantage of leaving the States entirely free and of reserving possible modifications necessary in domestic legislation.

His Excellency Sir Ernest Satow replies that it is evident that his text may lead certain States to modify their domestic laws, but this was likewise the case with the Geneva Convention.

His Excellency Mr. Milovan Milovanovitch believes it quite possible for a State to renounce the employment of fishing populations in military operations. But it may happen that such a population takes part in hostilities. In this case it loses its privilege, and it will lose it whether it acts on its own initiative or by order of its Government.

Mr. Louis Renault points out that the difference between the system of his Excellency Sir ERNEST SATOW and that of his Excellency Mr. KEIROKU TSUDZUKI is that his Excellency Sir ERNEST SATOW aims to remove fishermen and their vessels from the field of war operations. It may be that the vessel

is employed accidentally. If caught in the act, it goes without saying that [989] it may be captured; but if it is not caught in the act, is it still subject to

capture? That is the question to be elucidated. His Excellency Mr. KEIROKU TSUDZUKI, on his side, asks that the boat be subject to military requisition, but that in such case its use be clearly indicated. It goes without saying that it may then be treated as a war-ship and destroyed.

His Excellency Mr. Keiroku Tsudzuki is of this opinion. He again refers to the special character of junks, which have nothing in particular to distinguish them according to the use to which they are put. He adopts Mr. RENAULT'S conclusions as to the consequences of their employment for military purposes. His Excellency Mr. Milovan Milovanovitch distinguishes three different situations:

1. Fishing boats take no part in hostilities.

2. They take part therein openly.

3. Finally, they take part therein, but conceal their true character. In the second case they will be treated as belligerents; in the third case they will be treated in the same way as persons on land who take part in hostilities without being belligerents.

His Excellency Sir Ernest Satow proposes that only the first two paragraphs be retained in the draft provision1 and that the rest be omitted.

His Excellency Mr. van den Heuvel is disposed to accept this suggestion, but it is necessary to look into its consequences. The present law, which gives the belligerent State the right of requisition over all the property of its subjects, will continue; but we must know whether the State has the same right of requisition on the high seas with respect to the barks of its enemy.

Mr. Kriege supports the British proposal.

His Excellency Mr. Keiroku Tsudzuki asks his Excellency Sir ERNEST SATOW whether this provision preserves a prohibition as regards belligerents in the matter of fishing boats.

His Excellency Sir Ernest Satow replies that any participation in hostilities is ground for withdrawal of the immunity.

At the request of Baron von Macchio, the omission of the last two paragraphs of the draft provision is put to vote:

Yeas: Germany, United States of America, Belgium, Brazil, Great Britain, Italy, Japan, Norway, Russia, and Serbia.

Nays: Austria-Hungary, France, and Sweden.

Not voting: Netherlands.

Jonkheer van Karnebeek desires to give his reason for not voting. By voting for the omission of the two paragraphs, he would be sacrificing the indemnity in case of requisition. By voting against it he would be running the risk of aiding in the defeat of the very principle of exemption.

The President proposes that the committee discuss the question of the destruction of neutral prizes. He recalls that the Commission has before [990] it a British 2 and a Russian proposal, and Japanese amendments. The Russian proposal, being of a general character, can be used as a starting

point in the discussion.

3

His Excellency Count Tornielli remarks that in the Third Commission the Italian delegation presented a proposal permitting belligerent ships to bring their neutral prizes into a neutral port, to be sequestered there. The attitude of certain States on the destruction of neutral prizes may depend upon the fate of this proposal.

The President proposes that the committee pass upon the general principle and postpone to a later date consideration of its consequences.

His Excellency Mr. Keiroku Tsudzuki states that there has been on the part of the Japanese delegation a slight misunderstanding as to the scope of the British proposal. In Japanese jurisprudence capture and destruction of merchant ships, which are in the service of the State, are ordinarily within the jurisdiction of prize courts. The inference might be drawn that these merchant ships were included in the term "neutral prizes" used in the British proposal. But according to the English proposal, as well as in English jurisprudence, it appears 1 Annex 54.

Annex 39. 3 Annex 40. Annex 41.