omission of the article. It is true that Article 3 appeared in the Russian proposal,1 but that proposal stipulated an obligatory period of grace. With an ordinary period of grace, Article 3 has not the same scope and can be omitted without any disadvantage. His Excellency Mr. van den Heuvel will vote against the omission of Article 3. This article has nothing to do with the character of days of grace, which concerns only vessels that happen to be in an enemy port on the outbreak of hostilities. Article 3 refers to those which left their last port of departure before the outbreak of hostilities, and it is in conformity with justice and equity not to leave exposed to the danger of capture and of destruction a vessel which is unaware of the outbreak of war. The President puts the omission of Article 3 to vote: Voting for omission: Germany, Argentine Republic, Japan, and Russia. Voting against it: Austria-Hungary, Belgium, France, Great Britain, Italy, Norway, Netherlands, Portugal, Serbia, and Sweden. Not voting: United States of America. The President states that, as the vote has resulted in 4 yeas, 10 nays, and 1 not voting, the omission of Article 3 is not adopted. Mr. Kriege states that he withdraws the amendment which he proposed to Article 3, since it is not favored. Mr. Heinrich Lammasch remarks that there is a difference between Article 3 as voted at the fourth meeting of the committee and the one that forms the subject of Great Britain's project. The original Article 3 contained the obligation of providing for the safety of the persons on board and the preservation of the ship's papers, while the British project makes no mention of this obligation. His Excellency Lord Reay replies that this omission is the result of an error. Mr. Guido Fusinato inquires whether the British proposal has intentionally substituted the word "captured" for "confiscated." [1033] His Excellency Lord Reay states that he is not opposed to keeping the word "confiscated." The President states that Article 3 of the British project is adopted, with the substitution of the word "captured" for the word confiscated" and with mention providing for the safety of the persons on board and the preservation of the papers. The PRESIDENT reads Article 4, which is adopted: ARTICLE 4 Enemy cargo on board the vessels referred to in the preceding articles is likewise liable to be detained and restored after the termination of the war without payment of compensation, or to be requisitioned on payment of compensation, with or without the ship. Mr. Kriege says that his vote refers solely to the cargoes of the vessels mentioned in Article 2 and not to those of the vessels referred to in Article 3, which he proposed should be omitted. Captain Behr concurs in this remark. The President reads Article 5: 1 His Excellency Mr. Keiroku Tsudzuki does not think that the belligerent can be considered bound by reason of the vessels which his adversary may allow to depart. Mr. Heinrich Lammasch, replying to the observations of his Excellency Mr. VAN DEN HEUVEL, remarks that the only reason for establishing a difference between vessels is because certain of them can be used for military purposes. But if this concrete possibility should be removed as a result of a provision of international law recognized by the States, the danger will no longer exist and the difference will cease. Again, if it is possible to trust the word of the States, an agreement that they will make not to convert the vessels released does away with the reasons which have led the committee to draw a distinction beween vessels. His Excellency Lord Reay remarks that he has no idea of casting suspicion upon the good faith of Governments, but that the British delegation consider vessels capable of conversion as "potential" fighting ships and therefore as forming part of the naval forces of a belligerent. Hence he considers it necessary to stipulate clearly that such vessels do not enjoy the privileged status granted to the other vessels referred to in the project. Article 5 is the essential condition upon which depends the adoption of the project as a whole by his delegation. The President says that the committee is in agreement on the principle of Article 5, but it is a question of wording it so as to satisfy everyone and do away with arbitrary action. Mr. Guido Fusinato asks whether the British delegation is disposed to support the original reading of Article 5. His Excellency Lord Reay replies in the affirmative, if the committee is unanimously in favor of that reading. [1036] His Excellency Mr. Keiroku Tsudzuki states that the original reading of Article 5 would make the rights of belligerents nugatory, since no one will designate in advance the ships subject to conversion. The President replies that the words "designated in advance" do not imply an express designation by the belligerent's specific act, but a designation that might follow from circumstances of fact. His Excellency Mr. Keiroku Tsudzuki inquires what, under those circumstances, would be the effect of substituting the word "intended" for the expression "designated in advance." Mr. Fromageot, in his capacity as reporter of the committee, recalls that no rule was fixed at the preceding meetings as to the manner of the designation for conversion. The designation remains a question of fact, which must be determined from all the circumstances, such as the vessel's build, its registration on the list of vessels to be used in war, etc., etc. Mr. Kriege thinks that this is not the meaning of the expression "designated in advance." This designation must be established by virtue of a specific act on the part of the competent authorities and cannot follow simply from the vessel's build. After an exchange of views on the construction to be put on Article 5 of the revised project, the President turns to Mr. LOUIS RENAULT and requests him to give his opinion on the question under discussion by the committee. Mr. Louis Renault states that he shares Mr. KRIEGE's opinion with regard to the meaning of the word "designated," but he prefers this expression to the phrase "intended to be converted into war-ships," which is open to arbitrary interpretations. The words "capable of being converted" seem to him of still broader scope than the expression "intended to be converted." His Excellency Mr. A. Beernaert concurs in Mr. RENAULT's opinion, pointing out that the word "designation" implies designation by some one or some thing, and consequently presupposes a governmental act or a concrete fact, such, for example, as the vessel's build. On the proposal of the President, Mr. Heinrich Lammasch reads his amendment to Article 5 of the English project. Mr. Kriege agrees to this amendment, withdrawing for the moment his proposal to eliminate Article 5. His Excellency Lord Reay rejects Mr. HEINRICH LAMMASCH's amendment. Yeas: Germany, Austria-Hungary, Netherlands, Russia, Serbia. Not voting: United States of America, Belgium, France, Italy, Sweden. [1037] In view of this vote, which does not seem to be a decisive one, the President proposes that a vote be taken on Article 5 as it appears in the project of the British delegation.1 His Excellency Count Tornielli asks whether the English delegation would accept the following phraseology for Article 5: "These rules do not affect merchant ships which are destined in advance for conversion into fighting ships." His Excellency Mr. A. Beernaert, in turn, proposes the following form: These rules do not affect enemy merchant ships which, according to their build, are capable of being converted into fighting ships. His Excellency Count Tornielli having stated that he prefers the English reading to the Belgian amendment and his Excellency Lord Reay having accepted the latter text, Mr. Kriege insists that a vote be taken on his original proposal that Article 5 be omitted. The committee proceeds to vote on this proposal. Voting for the omission of Article 5: Germany, Austria-Hungary, Belgium, Norway, Netherlands, Russia, Serbia, Sweden. Voting against this omission: Argentine Republic, France, Great Britain. Japan, Portugal. Not voting: United States of America, Italy. Article 5 of the English proposal1 is stricken out. His Excellency Mr. Keiroku Tsudzuki states that he cannot accept the project as a whole except with the express reservation that he does not bind himself with regard to the vessels mentioned in Article 5 of the project. His Excellency Mr. Carlos Rodriguez Larreta makes reservations on the project as a whole. His Excellency Lord Reay recalls that as far as Great Britain is concerned Article 5 is an essential part of the project. After an exchange of views by the President, Mr. Kriege, his Excellency Count Tornielli and Mr. Guido Fusinato, the committee decides to proceed to a vote on the entire project, as just determined by the committee, namely, Articles 1-4 as revised, and Article 5 as originally worded, in accordance with the deliberations of the committee of examination, by the reporter.2 1 Annex 26. 3 Annex 25. fact constitute an unfortunate distinction between converted ships on the one hand and war-ships on the other. The amendment of the delegation of the United States of America is put to vote. Voting against this amendment: Austria-Hungary, Belgium, France, Italy, Norway, Netherlands, Russia, Serbia, Sweden. Voting for it: United States of America, Great Britain, Portugal. The amendment is not adopted. ARTICLE 6 A belligerent who converts a merchant ship into a war-ship must, as soon as possible, announce such conversion in the list of war-ships. Article 6 is adopted without discussion. The President puts the project as a whole to vote. The project is unanimously adopted, except for Rear Admiral SPERRY'S reservation with regard to Article 5. The order of business being exhausted. the President announces that Jonkheer VAN KARNEBEEK has just filed his report1 on the application to naval warfare of the provisions of the 1899 Convention concerning war on land. This report was drawn up in collaboration with his Excellency Mr. BEERNAERT, President of the Second Commission, and propounds a series of questions to be decided by the committee at its next meeting on Monday, September 9. [1041] Annex INVIOLABILITY OF ENEMY PRIVATE PROPERTY AT SEA REPORT TO THE COMMITTEE OF EXAMINATION 2 The status of enemy private property at sea is the second question which was entrusted to the Fourth Commission for examination. In 1899 the adoption of the principle of inviolability was proposed by the delegation of the United States of America. Its discussion at that time had been set aside, as not figuring in the program; but the vau had been expressed $ to postpone the examination of it to a later Conference. In compliance with this vau the question has been included in the Russian program of April 6, 1906. In the questionnaire prepared under the direction. of our president, it was expressed in the following form: 1 See report to the committee of examination annexed to the minutes of the thirteenth meeting of the committee; see also report to the Conference, vol. i, p. 259 [264]. 'Reporter, Mr. HENRI FROMAGEOT, See also the report to the Conference, vol. i, p. 240 [245]. Proceedings of the First Peace Conference, part i, pp. 46-49 [31-33], fifth plenary meeting, July 5, 1899. See vol. i, in initio. Post, Fourth Commission, annex 1; Questionnaire, 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? There were laid before the Commission by the delegations of the United States of America,1 Austria-Hungary, Italy, the Netherlands, Brazil, Denmark, Belgium and France ten propositions, declarations or amendments, to the examination of which the Commission devoted no less than six of its sessions, in whole or in part. In the meantime and during this long discussion, the Commission was happy to commend the declaration made on July 17 by his Excellency Mr. DE VILLA URRUTIA, first delegate of Spain, announcing that the Royal Government would henceforth adhere to the Declaration of Paris of 1856 in its entirety.10 [1042] The proposition of the United States of America, contemplating the absolute abolition of the right of capture, except in cases of the transportation of contraband or a violation of blockade, served as a basis for the exhaustive discussion of the question of inviolability. It was in these words: The private property of all citizens of the signatory Powers, with the 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. All the arguments in favor of inviolability were made with an eloquence and logical force which it would be difficult to surpass. The American delegation " mentioned especially the continuity of the so-tospeak historic doctrine of the United States from BENJAMIN FRANKLIN to President ROOSEVELT, from the negotiation of the treaty between the United States and Great Britain in 1783 and the conclusion of the treaty with Prussia in 1785 to the treaty of 1871 with Italy, the efforts made concerning the Declaration of Paris of 1856, the manifestations of public or parliamentary opinion in Germany, the example supplied for more than forty years by the Italian code for merchant marine, the highest authority of the greatest political personages of England, the opinion of numerous eminent jurists in favor of the freedom of enemy commerce. The analogy with the rules prohibiting pillage in war on land, the trivial practical military advantage that the destruction of commerce gives nowadays, reasons of humanity, the unjustifiable disturbance of transactions which are of as much interest to all neutrals as to the belligerents themselves, the necessity 1 Post, Fourth Commission, annex 10. 1907. 2 Ibid., annex 17 and minutes of the second meeting of the Commission, June 28, 1907. Ibid., annexes 12, 15 and minutes of the fourth meeting of the Commission, July 10, Ibid., annex 16. 'See ibid., minutes of second meeting, June 28, 1907; third meeting, July 5; fourth meeting, July 10; sixth meeting, July 17; seventh meeting, July 19; twelfth meeting, August 7. 10 11 See Fourth Commission, sixth meeting, July 17, 1907. Speech of his Excellency Mr. CHOATE (second meeting of the Fourth Commission, June 28, 1907) and of his Excellency Mr. URIAH ROSE (third meeting, July 5, 1907). |