whether it is possible to reach a more favorable result in the matter of contraband of war.

His Excellency Count Tornielli recalls that among the questions submitted to the consideration of the Fourth Commission was that of blockade. To it the Commission devoted three meetings; the committee has given it only one. There was a discussion on the Italian proposal1 which did not result in an agreement. It would be desirable, however, that some tangible evidence of this discussion should be preserved, for example, a report, no matter how short. Again, all hope of reaching an agreement on the question of blockade has not yet been lost. It is evident that, if the work of the Conference were to come to an end forthwith, this hope would be lost, but since it is otherwise, we shall be able to see within a few days whether there is occasion to call a meeting of the committee to examine the question of blockade.

The President asks that this meeting do not take place unless there is agreement among the Powers most interested in the question and unless the question can therefore be decided at a single meeting.

His Excellency Count Tornielli insists that in any event the work that has been done in the matter of blockade be made the subject of a report.

His Excellency Mr. Hammarskjöld recalls the relationship between Article 23 of the project on the rights and duties of neutrals at sea and the subject of the report which Mr. FROMAGEOT has read. We must therefore ask ourselves whether under these circumstances the report can be examined by the Fourth Commission the day after to-morrow and whether it ought not to be examined by the Third and Fourth Commissions combined. It is rather unlikely that a positive result would be reached thereby, but it would be more proper, since there is a relationship between Article 23 and the destruction of neutral prizes, to preserve this relationship in outward form and take a single vote on the two questions.

The President observes that the discussion on this point produced a negative result and that it is probable that the meeting of the two Commissions will not change it.

His Excellency Sir Ernest Satow observes that the Fourth Commission will have half a dozen reports to approve, and it is unlikely that the work can be completed at a single meeting. In so far as the destruction of neutral prizes is concerned, his Excellency Sir ERNEST SATOW has no intention of re-opening the discussion, but such may not be the intention of all the delegations. He asks

himself whether under these circumstances it would not be preferable to [1098] bury the questions upon which it is ascertained that it is impossible to reach an agreement and the further discussion of which would only serve to accentuate the divergent opinions.

His Excellency Mr. Hammarskjöld insists upon the necessity of a conclusion-the report contains none-and states that the Commission alone has power to take a definitive stand on the question.

The President thinks that the Commission should vote on the conclusions of the report.

His Excellency Mr. Hammarskjöld says that it is necessary to vote on the conclusions of the report and on Article 23.

His Excellency Sir Ernest Satow observes that some will not vote for

1 Annex 34.

Ante, Third Commission, annex 63.

Article 23 unless the right to destroy neutral prizes is recognized, while others will not recognize this right unless Article 23 is voted. Under these circumstances, there is no hope that the question will ever be definitely settled. It is therefore preferable not to mention it further.

The President proposes under these circumstances that the final sentence of the report be omitted.

Mr. Kriege is of the same opinion as his Excellency Sir ERNEST SATOW. There is no hope of reaching a result with regard to the question of the destruction of neutral prizes. The report can therefore, without any disadvantage, be suppressed; but we must not do likewise with the reports on questions where results have been reached.

His Excellency Count Tornielli thinks that the conclusion of the report is regular. The report is submitted to the Commission; perhaps the Commission will find a solution.

The President thinks that there is no hope of reaching an agreement, but it is none the less true that the Commission's right remains intact and that it may take such action as it sees fit.

His Excellency Sir Ernest Satow is indeed of the opinion that the Commission retains the right to do as it pleases.

His Excellency Count Tornielli asks why under these circumstances the conclusion of the report is not left as it is.

His Excellency Mr. van den Heuvel is of his Excellency Count TORNIELLI'S opinion. The committee has received instructions from the Commission and must give the Commission an account of its proceedings. It must therefore make a report, which must have a conclusion. The situation will not be changed thereby and the Commission's right to take such action as it sees fit is not modified.

His Excellency Mr. Keiroku Tsudzuki asks whether the report might not mention the failure to reach an agreement and the necessity of leaving the question in statu quo.

His Excellency Sir Ernest Satow thinks that his Excellency Mr. VAN DEN HEUVEL'S reason is logical, but the vote on the destruction of neutral prizes will change nothing in the final result; for it is a question in which the majority cannot impose its will upon the minority.

[1099] The President is of this opinion, but the committee is agreed upon the Commission's right to take such action as it sees fit. The committee's. report might mention this.

His Excellency Count Tornielli remarks that out of forty-five States only. fourteen are represented in the committee. It would appear to be difficult for the committee to wish to prejudge the opinion of all these States.

The Reporter proposes the following conclusion for his report: "Under these circumstances it seemed to the Committee to be difficult to reach an agreement at the present time, but it is in the power of the Commission alone to take definitive action on the question."

The committee adopts this conclusion.

[1100]

Annex

DESTRUCTION OF NEUTRAL PRIZES

REPORT TO THE COMMITTEE OF EXAMINATION 1

The question of the destruction of neutral prizes in case of force majeure, which figures in the Russian program of April 3, 1906,2 was intrusted by the Conference to the Fourth Commission for examination.

With a view to giving direction to the arguments and to facilitating the work, our president inserted the following questions in his questionnaire:

Is the destruction of merchant ships, sailing under a neutral flag and engaged in the transportation of troops or contraband of war in time. of war, prohibited by law or by international practice?

Is the destruction of all neutral prizes by reason of force majeure illicit according to laws at present in force and the practice of naval warfare?

Four propositions were presented-by the delegations of Great Britain, Russia, the United States of America, and Japan.5 The Commission discussed the principle involved in them and referred them to the committee of examination under the following conditions:

6

The Russian delegation proposed to lay down as a principle that the destruction of a prize should be prohibited, except in case its preservation might prejudice the safety of the capturing vessel or the success of its operations. The right of destruction should be exercised by the captor only with the greatest reserve; he should look out for the safety of the persons on board, preserve the ship's papers, and might possibly be required to pay damages.

7

In the Commission, the Imperial delegation laid stress especially on the fact that, in its opinion, a vessel which violates neutrality would not longer have a right to the benefits of neutral status; that the very fact of the capture, under conditions recognized as justifying its validity, would cause title to the property

to pass to the captor, who would thus become free to destroy it as his [1101] own property; that in any case the capture should be submitted to a prize

court and might give rise to an indemnity. For military or practical reasons, it was added, it might be impossible for the captor to preserve the prize and convoy it to a place of safety. Under such conditions it would be treason indeed to set the prize free, and an absolute prohibition to destroy it would place countries which have ports only on their home coast under an unjustifiable handicap.

1 Reporter: Mr. FROMAGEOT. See also the Report to the Conference, vol. i, p. 257 [262]. Russian program of April 3, 1906 (vol. i, in initio).

2

Remarks of his Excellency Mr. MARTENS, president, twelfth session of Commission, August 7, 1907.

See post, Fourth Commission, annex 1, questionnaire, questions XI and XII. This last proposition, presented by the Imperial Government as an amendment to the British proposition, was withdrawn in the committee of examination (see ante, declaration of his Excellency Mr. KEIROKU TSUDZUKI, eighth meeting of the committee, August 24, 1907).

7

W Speech of Colonel OVTCHINNIKOW, twelfth meeting of the Commission, August 7,

2

The British proposition and the proposition of the United States of America on the contrary, aimed at an absolute prohibition against destroying the prize and the obligation to set it free, if it were found impossible to convoy it before a prize court.

3

The delegation of Great Britain, in support of its proposition, took the standpoint of the present law, which it submitted as not authorizing destruction. Replying to the argument above mentioned, based on the difference in the geographical situation of States, it added that if such geographical situation did indeed prevent a State from exercising effectively the right of seizure with respect to neutral vessels carrying contraband or running a blockade, it must nevertheless leave them free.

The Commission was unanimously of the opinion that it was in no way incumbent upon it to investigate what the present law was, but only what law it should promulgate; that it was not called upon to discuss here de lege lata, but de lege ferenda; and it recognized the fact that there was a connection between the question of the destruction of prizes and the question of the free access of prizes to neutral ports, which had been submitted to the Third Commission for study; and that, in consequence, there should be a joint study of the questions by the two committees of examination.5

In your committee of examination the Russian system of the right of destruction and the Anglo-American system of the prohibition of destruction were taken up and developed. The delegation of Germany declared that it was entirely of the point of view of the delegation of Russia.

8

7

The Italian delegation stated the connection which existed, in its opinion, between this question and that of the right of prizes to enter neutral ports, contemplated by Article 23 of the draft regulations upon the access of belligerent vessels to neutral ports and their stay therein, which was elaborated by the committee of examination of the Third Commission.

Pursuant to this last point of view, a meeting of the two committees of examination took place. In the first place a ballot was taken on the principle of the free access of prizes to neutral ports, established by the said Article 23. This ballot resulted in 9 votes for and 2 votes against the principle, with 6 [1102] abstentions. A ballot was then taken on the Anglo-American proposition (prohibition of the destruction of prizes), resulting in a vote of 11 for and 4 against the proposition, with 2 abstentions; and, finally, a ballot was taken on

Post, Fourth Commission, annex 39.

'Ibid., annex 42.

Speech of his Excellency Sir ERNEST SATOW, twelfth meeting of the Commission, August 7, 1907.

6

Remarks of his Excellency Count TORNIELLI, ibid.

Remarks of his Excellency Mr. MARTENS, president, ibid.

See, in support of the Russian proposition, the speech of Commander BEHR, eighth meeting of the committee, August 24, 1907 (see ante);—in support of the Anglo-American propositions, the remarks of his Excellency Sir ERNEST SATOW, ibid.; and the eleventh meeting of the committee, September 4, 1907, as well as remarks of General G. B. Davis, in the name of the delegation of the United States of America, thirteenth meeting of the committee, September 9, 1907.

'Declarations of Mr. KRIEGE, eighth meeting of committee, August 24, 1907; ninth meeting, August 28; eleventh meeting, September 4; thirteenth meeting, September 9; and the documents printed in annex 43.

8

Remarks of his Excellency Count TORNIELLI and his Excellency Mr. FUSINATO, eighth meeting of the committee, August 24, 1907; ninth meeting, August 28.

See fourteenth meeting of the committee, September 10, 1907.

the Russian proposition (right to destroy) resulting in 6 votes for and 4 votes against the proposition, with 7 abstentions.

Such was the result of these deliberations, which may be summed up, it would seem, as follows: The free access of belligerent prizes to neutral ports received a slight majority; the prohibition of the right to destroy, more or less dependent for the most part on such free access, received a slightly greater majority; and, finally, the right to destroy, under any condition, also received a slight majority and a number of abstentions. Under these circumstances, it seemed to the Committee to be difficult to reach an agreement at the present time, but it is in the power of the Commission alone to take definitive action on the question.