susceptible of use in war or of aiding the enemy State, and to prohibit neu- In Mr. Fromageot's opinion, item No. 12 of Article 1 of the project is sufficiently broad and will permit the taking account of new inventions pertaining to war which should figure in the list of articles of absolute contraband. By virtue of Article 2 of the project, articles of relative contraband may be declared such only on condition of special notification. On the other hand, it seems to him. that the articles referred to in item No. 12 do not require notification. This would obviate the necessity of the belligerent's giving two kinds of notice. Rear Admiral Sperry, in the name of the delegation of the United States, reads the following declaration: The delegation of the United States has the honor to announce that the reservation made with regard to item No. 11 of the list of contraband printed in the minutes of the second meeting, August 15, is withdrawn, and that the list is accepted in its entirety. Before continuing consideration of the question of contraband, the naval delegate deems it desirable to explain briefly the reasons for the proposed procedure on the part of the delegation of the United States. The rules governing commercial and property rights at sea in time of war are so inextricably interrelated that it is impossible to modify one without having to consider most complicated effects on the administration of others, and it is probably for this reason that, in spite of the fact that the Institute of International Law has been considering this question for a number of years, a maritime code has not yet been formulated. It is true that the Naval War Code of the United States was drawn up in 1900 for the government of the navy, but it was rescinded by order of the President in 1903 for the specific reason that it was found impossible to harmonize the various systems of law with which the officers of the fleet would have to deal, and it was impossible to tie their hands by a rule which had no force with the enemy. If this great body of learned and eminent jurists, publicists, and statesmen, members of the Institute of International Law, has been unable to prepare for naval warfare a series of rules such as the 1899 Conference had at its disposal in the matter of war on land, which emanated for the most part from the said Institute, it is undoubtedly because of the inherent difficulty of such a task. A list of contraband is a thing apart, and whatever the system of law and aside from the question whether the various systems are improved and harmonized by conventions, the reduction and simplification of the list [1116] of contraband will be a great and lasting boon to commerce, which cannot fail to be recognized. To this end the naval delegate asks, in the name of the delegation of the United States (1) That the list of contraband be studied and adopted entirely without regard to the study and establishment of the international rules which have been discussed for centuries. (2) That the only articles in which trade is prohibited as the result of a state of war shall be exclusively articles adapted to military use; and these latter are in effect by their nature and in the same degree included in the category of contraband whether in time of peace or in time of war, for a state of war does not change their purpose, but simply renders them liable to confiscation under certain circumstances. (3) That a paragraph be added to the list already approved, stipulating that no article is to be included in this list which is not intended exclusively for military use, and moreover that trade in any article whatever not legally included in the list shall never be prohibited as the result of a state of war. The list of contraband finally established, with the stipulations necessary to exclude once for all the difficult and uncertain question of conditional or accidental contraband, it is certain that the harmonizing of the various opinions on the laws of blockade and of prize will be comparatively easy; but until the question of contraband is settled, it will be well-nigh impossible to predict the effect of a proposed modification of the law. The President says that, in order to satisfy the opinions expressed in the committee, he has prepared the following draft of a general clause which will permit the taking account of new inventions and which should appear after the first article of the revised French proposal (list of absolute contraband): 12. Other articles used exclusively in war. The signatory Powers agree to declare by a list what articles belong to this category. This list and the changes which this list may undergo must be notified in time of peace and may not be augmented after the outbreak of hostilities. Major General Amourel remarks that there may be new inventions after the outbreak of hostilities and that it should be possible for the belligerent to prohibit the transportation of this or that article of absolute contraband which was unknown before the war. The final paragraph of the PRESIDENT's proposal would deprive the belligerent of this right, which it would seem to be advisable to preserve. The President replies that the object of his proposal was to forbid belligerents to amend arbitrarily the list of articles of absolute contraband during a war. Notification previous to the outbreak of hostilities seems to give sufficient guarantee against abuses of this kind. Major General Amourel observes that it was not his intention to dispute this, but, in his opinion, the formula in question would prevent prohibiting the transportation of new engines of war, whose existence was not dreamed of before the war. Mr. Kriege concurs in this observation. Captain Behr thinks that the expression, "used exclusively in war," is a sufficient check upon arbitrary action by belligerents. [1117] The President recognizes the justice of these observations and declares himself ready to withdraw the last paragraph of his proposal on condition that the second paragraph is modified as follows: The signatory Powers agree to declare, by means of a list, what articles belong to this category and to notify this list. Mr. Kriege proposes that the following words be added, "to the neutral Governments or their diplomatic agents." The President remarks that, in his opinion, it would be very useful if the list of articles referred to in item No. 12 were drawn up and notified in time of peace. This would admit of its being discussed and would prevent possible disputes in time of war. While admitting that it is impossible to create such an obligation, he thinks that the door should not be closed to such notifications in time of peace. 1101 This would exclude the wording proposed by the honorable delegate of Germany. Rear Admiral Sperry says that this is his opinion also. Mr. Kriege prefers for practical reasons notification after the outbreak of hostilities. In the opinion of Captain Ottley, previous notification might, on the contrary, be very useful, since it would permit a Government to apply for its part the list of more or less length notified by its enemy. Mr. Louis Renault remarks that the present discussion is of secondary importance. It is unlikely that inventions will be made that will not be included in the list of articles of absolute contraband adopted by the committee, and it would not be necessary to notify such a list, especially in time of peace. The main question is whether there is absolute contraband only, or conditional contraband as well. Rear Admiral SPERRY'S declaration excludes the conception of relative contraband, and this opinion seems to be shared by the British delegation. For his part, he is not prepared to accept such a proposition and thinks that the committee should pass upon the subject, each one retaining his freedom of action. Rear Admiral Sperry says that the delegation of the United States is not in a position to accept Article 3 of the original French project. In his opinion, trade in articles that do not belong to the list of absolute contraband should not be prohibited. All that would be necessary would be to admit the existence of a special category of services rendered to the belligerent, which, by virtue of the law of nations, would be liable to punishment as "unneutral services "; the act of transporting dispatches of the belligerent, for instance, might involve confiscation of the vessel and imprisonment of the crew. Mr. Kriege states that the German delegation does not wish to give up the system of relative contraband as formulated in Article 1 of its proposal. It would be dangerous to permit the transportation of articles destined for the service of enemy forces, even though they might be used for peaceful purposes. Captain Behr is of Mr. KRIEGE'S opinion and thinks that it is impossible to do without the conception of relative contraband. His Excellency Mr. Augusto Matte says that, in his opinion, it would certainly be very desirable to bring about the abolition of relative contraband, [1118] but that in the face of the declarations of the German, French, and Rus sian delegations rejecting this proposal, it seems to him useless to continue to discuss it. He prefers therefore to seek in the projects relative to conditional contraband submitted to the Commission a common ground of agreement which will admit of making considerable progress as compared with the present situation. He therefore renounces his personal sympathy with the project. for the abolition of the conception of relative contraband. Mr. Kriege remarks that the abolition of relative contraband would have the effect of making legal transportation of coal and provisions directly to the enemy forces, even on the sea, unless the British project on auxiliary vessels is adopted. The President says that the Fourth Commission not having met for a number of weeks, the British delegation has been unable to state that it had decided to withdraw its proposal concerning auxiliary vessels.2 This proposal is not Annex 28. . Annex 2. within the scope of the committee and it will not be submitted to examination by the Conference. Mr. Louis Renault observes that allusion has been made in the course of the debate to 66 unneutral services." Even with the PRESIDENT'S declaration, the consequences of the abolition of relative contraband do not appear to him to have been made sufficiently clear. Mr. Kriege concurs in this view. The President states that opinions on this subject in the committee seem to be equally divided: the delegation of Brazil, as appears from its proposal,1 the delegations of Chile, of the United States of America, and of Great Britain are in favor of the abolition of relative contraband. On the other hand, the delegations of Germany, of France, and of Russia prefer to preserve the law in force. Nevertheless the British delegation is ready to discuss the projects relating to conditional contraband that have been submitted to the Commission. Rear Admiral Sperry recalls the resolution of the delegation of the United States of America to withdraw for the time being the second paragraph of its proposal.2 His Excellency Mr. Augusto Matte thinks that it would be desirable to close the discussion on absolute contraband. The committee has drawn up the list of articles of absolute contraband; it remains for it to pass upon the places where such articles will be liable to seizure. The German proposal permits the seizure of contraband only if the vessel is headed directly for an enemy port or a port occupied by the enemy, or for the armed forces of the enemy. Mr. Kriege prefers that the definition of relative contraband be determined first of all, reserving the question of continuous voyage. This question eliminated, the differences between the German and the French projects are very slight. Such a difference exists, for example, in the definition of relative contraband. While the German proposal considers as relative contraband only articles destined for the armed forces of the enemy, the French project includes also in this category other articles that are destined for various departments of the enemy State. Mr. Louis Renault observes that Article 2 of the revised French project was, in effect, recast, in order to take into account the views and leanings of the committee. The system proposed seems to be a considerable improvement over the situation of neutrals during recent wars. He therefore recommends this system to the committee, as its adoption will constitute real progress. [1119] Captain Behr states that the formula proposed relative to the destina tion of conditional contraband does not seem to him to be satisfactory, since it will always be easy for the owner to free his cargo of the danger of seizure by addressing it to an individual. Mr. Louis Renault thinks that this is a question of proof. The President concurs in Captain BEHR's observation, stating that it is precisely because of the practical difficulties pointed out by the delegate of Russia that Great Britain proposes that the conception of relative contraband be sacri ficed. In the course of an exchange of views instigated by Captain BEHR's observation, in which Messrs. Louis Renault, Kriege, Rear Admiral Sperry, Captain 1 Annex 30. * Annex 31. Behr, and Mr. Fromageot take part, it is ascertained that the burden of proof as to the enemy destination of conditional contraband is upon the captor, by virtue of the general rule that he who makes a claim must prove his right, but that the officer who effects the seizure will always be permitted to investigate whether the destination of the cargo appearing in the ship's papers is not fraudulent. The captor's freedom of judgment is intact, on condition only that he prove before a prize court that the cargo was destined for the forces of the enemy. Cases may arise in which such destination is to be presumed; absolute presumption, praesumptio juris et de jure, is established, for instance, by Article 2 of the German proposal, which reads as follows: There is absolute presumption that the materials and articles designated in Article 16 are destined for the armed force of the enemy when the shipment in question is addressed to the authorities or a military contractor of the enemy Power, or when it is consigned to a fortified place in the enemy country or to some other place serving as a support to the forces of the enemy. The President having inquired whether the delegate of Germany is disposed to admit a list of articles which cannot in any case be considered articles of contraband, Mr. Kriege replies that it would be very difficult to do so, as nearly all articles can be used in war and be destined for the armed forces of the enemy. Rear Admiral Sperry states that in the opinion of the delegation of the United States of America it would be very difficult to settle the question of continuous voyage, as well as the consequences of the transportation of contraband, and that is why he proposes that the committee confine itself to deciding the question regarding the nature of articles of conditional contraband. Messrs. Louis Renault, Kriege, and Captain Behr, on the contrary, think that the two questions mentioned by Rear Admiral SPERRY are of vital interest and should be decided by the Conference. 1 The President asks Mr. KRIEGE whether Article 4 of the German project 1 regarding the seizure of a vessel carrying contraband refers to conditional contraband as well as absolute contraband. Mr. Kriege replies in the affirmative. The President remarks that this is not the system established by the original [1120] Mr. Louis Renault replies that the system of preemption established by Article 4 of that proposal is omitted in the new project filed at the beginning of the meeting. The question of the seizure of a vessel carrying contraband does not present very serious difficulties. The committee is in agreement in considering that the contraband cargo is always liable to seizure. The systems vary as to the quantity of contraband which may entail the capture of the vessel. The French rule, established in the eighteenth century, fixes this amount at three-fourths of the entire cargo; this rule is reproduced in the proposal of his delegation. However, he is disposed to reduce the figure in order to prevent speculation. Mr. Kriege says that, so far as he is concerned, he is ready to accept the minimum of one-third or one-fourth, although the German proposal places the figure at one-half. 1 Annex 28. * Annex 29. |