It follows from the foregoing examination that the provisions of the Convention of 1899 are to a great extent of a nature to be applied to naval warfare, and in effect these provisions are inspired by principles which are applicable not to war on land alone. Nevertheless, the examination likewise proves that in several respects the application would necessitate not only changes of form, but also modifications in the substance. Instead, therefore, of confining ourselves simply to a reference to the Convention of 1899-for this would not be sufficient-it would be necessary to draw up for naval warfare as for war on land, special, precise, and detailed regulations. These regulations would have the advantage of substituting certainty, based upon definite prescriptions, for the uncertainty of a reference to principles that are more or less vague, and which in their new applications are susceptible of various interpretations. Should we insert in the regulations respecting the laws and customs of war at sea the different drafts elaborated or still to be elaborated by the committee of examination concerning the crews of enemy merchant ships captured by a belligerent; the draft concerning fishing barks; that concerning the treatment of enemy merchant ships on the outbreak of hostilities; that concerning the destruction of neutral prizes, etc.? Like the system adopted in 1899, the provisions of these drafts would then serve only as a basis for the instructions that the contracting parties would engage to give to their naval forces. Will it be preferable, on the contrary, to make these provisions the subject of separate conventions? There would be a certain advantage in combining all in the same regulations, but it might be felt that none of these drafts would concern the usages of naval warfare properly so called. It was thought that this report might be confined to bringing up and defining these questions, as was done in regard to those brought up by the examination of the text itself of the Convention of 1899. It is for the committee to solve them. FOURTEENTH MEETING SEPTEMBER 10, 1907 JOINT SESSION OF THE COMMITTEES OF EXAMINATION OF THE FOURTH COMMISSION AND OF THE SECOND SUBCOMMISSION OF THE THIRD COMMISSION His Excellency Mr. Martens presiding. On opening the meeting, his Excellency Mr. Martens states that at the thirteenth meeting of the committee of examination of the Fourth Commission it was decided, in conjunction with his Excellency Count TORNIELLI, President of the Third Commission, to unite the two committees of examination of the Fourth Commission and of the second subcommission of the Third Commission to consider the question of the destruction of neutral prizes and the right of belligerents to bring prizes into neutral ports. His Excellency Mr. MARTENS begs his Excellency Count TORNIELLI to take the presidency of the two united committees. His Excellency Count Tornielli declines this proposal, remarking that it is his intention to take an active part in the debate and that he would therefore prefer to remain entirely free. He proposes therefore that the presidency remain in the hands of his Excellency Mr. MARTENS. His Excellency Mr. Martens, having accepted the presidency, states that the committee of examination of the second subcommission of the Third Commission has adopted provisionally1 the following draft of an article on the right to bring prizes into neutral ports: ARTICLE 23 The neutral Power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. If the prize is convoyed by a war-ship, the prize crew may go on board the convoying ship. If the prize is not under convoy, the prize crew are left at liberty. [1069] The project establishes the right of neutral States to permit the sequestration of prizes in their ports. The question is whether such a provision would not influence the action to be taken on the right to destroy neutral prizes. His Excellency Sir Ernest Satow desires to remark that the projected Article 23, which has just been read by the PRESIDENT, does not represent by any means the result of a general agreement in the committee of examination of the second subcommission of the Third Commission. Reservations were made with regard to this article by the delegations of Germany, of the United States of America, of Great Britain, of Japan, and of Russia. Moreover, the Italian delegation has announced that its vote on the question of the destruction of prizes would depend upon the acceptance of Article 23 of the project. Under these circumstances, he thinks that the united committees should first of all take definite action on the proposed Article 23. In explanation of the negative vote that the British delegation will cast on this article, his Excellency Sir ERNEST SATOW presents the following observations: The article in question makes no mention of the fundamental difference between enemy prizes and neutral prizes. International law recognizes that the belligerent has the right to sink merchant ships of the enemy, capture having made them the property of the captor State, which consequently may make such disposition of them as it sees fit. If it sinks them, it alone suffers loss, the owner having been dispossessed by the act of capture. Therefore to allow a belligerent to bring an enemy prize into a neutral port would be giving him the privilege of making use of this port for his own advantage. So far as neutral prizes are concerned, the adoption of Article 23 would imply the abandonment of the principle which we stand for and by virtue of which these prizes should be released. Article 23 was proposed, if I am not mistaken, by the Italian delegation in the hope that its adoption would facilitate the retirement from their position of those who uphold the right to destroy neutral prizes in certain cases of force majeure. Since the two committees of examination are assembled here, there is no irregularity in quoting what was said in the committee of the Fourth Commission. At its meeting of August 28 one of the delegates said "that it is certain that the proposal will have the effect of restricting cases in which destruction will be a necessary measure, but it will not remove them all; there will remain, to be specific, the case of proximity of the enemy and that of a cargo of absolute contraband." Another member said that "the proposal will not be sufficient to do away with the destruction of neutral prizes: (1) because it is not certain that neutral ports will be willing to be places of sequestration; (2) because there are cases in which it is impossible to bring a vessel into a neutral port-for example, if the ship is in such bad condition as to render it impossible to bring it in or if the approach of enemy forces or other reasons threaten its recapture, or if the crew of the war-ship is insufficient to man the vessel adequately." These two statements, which are not wanting in clearness, show of what little advantage would be the adoption of the article in question. Moreover, there would be danger for the neutral to admit prizes of belligerents to its ports. In fact, a belligerent will not look with indifference upon the internment in a neutral port of prizes taken by the enemy. It is therefore to be feared that there may follow from such a situation serious complications between [1070] the neutral State and the belligerent State that feels itself aggrieved. It is true that the originators of the project allow the neutral the right to close his ports to the prizes of belligerents; but it will be very difficult and dangerous for him to exercise this freedom of action and consequently he would do well to refrain from doing so. I find myself therefore constrained to vote against Article 23, even at the risk of losing the Italian delegation's support of our proposal with regard to the destruction of neutral prizes. The President puts to vote Article 23 of the draft Convention concerning the rights and duties of neutral Powers in naval war. He states that the vote does not prejudge the wording of the article. Voting for Article 23: Germany, Belgium, Brazil, France, Italy, Netherlands, Russia, Serbia, Sweden. Voting against it: Great Britain, Japan. Not voting: United States of America, Austria-Hungary, Denmark, Spain, Norway, Turkey. The President proposes that the committee pass to the question of the destruction of neutral prizes. He recalls that the Fourth Commission has before it three proposals relating to this question. The British delegation 1 and the delegation of the United States have formulated proposals prohibiting such destruction. The amendment to the British proposal submitted by the Japanese delegation was afterwards withdrawn. Again, the Russian delegation has submitted to the Commission a project prohibiting the destruction of neutral prizes except in certain cases of force majeure. He opens the discussion on these three proposals. 4 3 His Excellency Baron von Macchio makes the following statement: Drawing my inspiration from the spirit that guides the delegation of AustriaHungary in all questions of maritime law, I commend the principle set forth in the proposal of the British delegation concerning the destruction of prizes, stipulating the absolute prohibition of such destruction. Nevertheless, in applying this principle to actual cases of so many different kinds that may occur in practice, it seems to me that it would be very difficult not to take cognizance of the different situations in which the various Powers are placed, and not to admit exceptions where it would be absolutely impossible for the commander of a naval force to refrain from such destruction. It is these exceptions that are referred to in the Russian proposal. At the eighth meeting of the committee of examination Captain BEHR set them forth in full and gave examples showing how difficult might be the position in which circumstances might place the commanding officer. It appeared to me impossible to disregard the force of these arguments, and that is why the delegation of Austria-Hungary will find itself obliged to [1071] declare itself in favor of the principle prohibiting destruction, but also in favor of admitting the exceptions which the Russian project aims to have recognized. Official note is made of this declaration. His Excellency Turkhan Pasha is in favor of the principle of the prohibition of the destruction of neutral prizes, but he thinks that, if the destruction cannot be absolutely prohibited in certain cases of force majeure, it should at least be stipulated that the commanding officer must take every precaution to safeguard the crews as well as the ship's papers. His Excellency Sir Ernest Satow thinks that all the arguments that can be made on the proposals concerning this question seem to have been exhausted 1 Annex 39. 2 Annex 42. • Annex 40. |