of submarine mines, and many other questions, all contemplating a more extensive protection and immunity of peaceful commerce on the ocean? The second argument against the proposal before us is advanced by the representatives of Governments which for more than one hundred years have been active advocates of the immunity of private property at sea, but who now doubt whether this is an opportune time to put these principles into operation. The considerations upon which this point of view is grounded are of various kinds, but the most important reason advanced is the assertion that the immunity of private property will necessitate changes in the rules in force regarding contraband, blockade, and other practices, and that it would be necessary first to reach an agreement with respect to these questions. I do not understand from the exposition which Mr. CHOATE has made of his proposal that he expects to see it adopted in the form of treaty stipulations in ipsissimis verbis, regardless of the subjects which are complementary thereto and which are under discussion or soon will be discussed. I look upon the proposal as being an expression of the opinion of the nations on a long-debated maritime question of the utmost importance; and I believe that if, as I hope, it is adopted by the Conference, an effort should be made to harmonize it with the subjects which are complementary thereto in such a way as to secure an agreement on treaty stipulations. The commerce of the world has undergone a great change since the laws covering neutrality and contraband came into being a century or two ago. In those days over-sea trade was infinitesimal. At present statisticians inform us that it has attained such gigantic proportions that it is difficult to calculate its immense value. The seas have become the highways of the nations, and it would not be reasonable to expect this immense traffic of all the nations to consent much longer to allow itself to be interrupted and demoralized because two nations will not listen to reason but insist upon settling their differences by means of war, whose results are merely the triumph of brute strength. Fifty years ago the great Powers of Europe took an important step toward the improvement of the situation of maritime commerce. The four rules of Paris of 1856 were hailed as marking considerable progress in the advance of civilization and were accepted by all nations in their practice. It was for the purpose of rendering war less disastrous to maritime commerce and of giving greater freedom on the seas to international trade during the progress of hostilities that it was agreed that neutral goods on enemy vessels and enemy goods on neutral vessels would be exempt from capture; that the depredations of privateers on defenseless vessels would not be tolerated; and that foreign trade would not be excluded from the ports of belligerents except in the case of a real and effective blockade. It is likwise within the power of the present Conference-so superior in its representation of the enlightened sentiments of the whole world-to distinguish itself, as did the Congress of Paris, by adopting still more advanced measures for the improvement of conditions with respect to maritime commerce. The proposal under discussion for the immunity of private property at sea, the abandonment of the principle of contraband, the establishment of a court of appeal for prizes, the regulations concerning submarine mines, and other restrictions imposed upon belligerents on the high seas are entirely in accord with the spirit of reform in maritime matters inaugurated by the Congress of Paris half a century [805] ago; and their adoption would in itself justify the present assembly of the nations, even if no other measure for the promotion of peace should emanate from it. We can claim with assurance that at the present time peace is the normal state of the nations and that war is their abnormal condition. And if this be so, it is perfectly proper to insist that the nations which do not wish to observe the precepts of reason but obey a warlike impulse must molest as little as possible the commerce and industries of peaceful nations, and that so far as maritime trade is concerned, their operations must be confined to the territorial waters of the belligerents. The pending proposal to which I have alluded will have a tendency to bring on this improvement, so greatly to be desired in maritime matters. It will not be possible perhaps to secure the adoption of all these improvements in the present Conference; but I foresee the day when the right of search will be abolished, when the suppression of contraband will be permitted only in the territorial waters of belligerents, and when the high seas will be open to the peaceful commerce of the whole world and protected from the vexatious proceedings of warring Powers. His Excellency Mr. Hammarskjöld makes known the views of the delegation of Sweden as follows: At the time of the formation of the Leagues of Armed Neutrality, one hundred years ago, Sweden helped to establish measures tending to protect private property at sea and to diminish the obstacles in the way of maritime commerce. With the same end in view, the delegation of Sweden is of the opinion that there is not sufficient reason to continue in the matter of naval warfare any fundamental rules other than those which already govern war on land. We share the point of view which seems chiefly to have inspired the American proposal, but we do not overlook the difficulties in the way of an immediate complete establishment of this principle. His Excellency Mr. Ruy Barbosa makes the following remarks with regard to the order in which the questions should be discussed: At the preceding meeting, when all the great Powers and a number of the others were heard expressing their desires on the treatment of private property in naval warfare, we heard Germany, and with her Portugal, excuse themselves from expressing an opinion, stating that it was impossible for them to do so until the question of contraband should be settled. Now, the German attitude is not to be passed over lightly in this matter. The same might be said as regards any other international problem, but in the question now under consideration the acquiescence of the Government of Berlin is especially indispensable, in view of the size of its navy and of its maritime trade. It seems to me, therefore, that we cannot turn a deaf ear to this declaration and pass over its consequences in silence, the more so since we cannot say that it is unfounded. In this matter indeed, the principal proposal, that which was the pivotal point of the debate and which will probably be the principal question on which the vote will be taken, is the American proposal, which declares exempt from capture private property at sea, "with the exception of contraband of war." Contraband of war is therefore the exception which limits and defines the extent of the rule. Consequently the elaboration of the latter presupposes a knowledge of the former. If the rule is formulated before the exception is defined, we [806] cannot know what the scope of the rule is. It is therefore a veritable inversion of logic to study the extent of the right of capture when we have not yet determined the content of contraband of war. And if we consider that by insisting on going backwards we shall perhaps deprive ourselves, when a vote is taken, of the cooperation that is essential to the success of our efforts, I consider that there is every reason for us to abandon this unfortunate transposition and to return to the natural order. It is indeed too bad that it was not adopted when our program was being drawn up. It may be that it is now too late to undo the evil already done, because as a matter of fact everyone has taken his position and it is not easy to change. But at least it would save time and would introduce into this debate a spirit of order, sequence, and of light. I ask, therefore, Mr. President, whether the vote on the question of capture should not be postponed until the question of contraband of war has been settled. In reply to the suggestions of his Excellency Mr. RUY BARBOSA, the President remarks that the questionnaire, which was distributed to the members of the Commission at the first meeting was approved by them. No one made any objection to it or found any defects in the arrangement of the work. The Commission has already devoted three meetings to an examination of the proposal of the United States, and it would seem to be logically impossible to take up the discussion of contraband of war and of blockade until after the question of the inviolability of private property at sea has been settled. He therefore proposes that the discussion be continued in the order fixed by the questionnaire. His Excellency Mr. Ruy Barbosa replies that it was not his intention to criticize the questionnaire, but that in the course of the discussions an obstacle may arise rendering desirable a change in the order of the questions. The discussions that have already taken place will not be wasted, and there would be no disadvantage in postponing the discussion of the inviolability of private property until after the discussion of contraband of war and blockade. His Excellency Mr. Choate desires to know the text of the proposals to which his Excellency Mr. BEERNAERT alluded in his address, because he thinks that it is not impossible that they may be acceptable to his Government, and in any event it may serve as the basis of a compromise. His Excellency Count Tornielli states that the Italian delegation adheres in principle to the ideas and conclusions set forth by his Excellency Mr. BEERNAERT in his remarkable address and feels that he is interpreting the general desire of the Commission in asking the first delegate of Belgium if he does not think the time has come to make known the proposals which he says he has prepared. This request seconds that made by his Excellency the first delegate of the United States. His Excellency Mr. Choate having reiterated his request, his Excellency Mr. van den Heuvel reads the Belgian delegation's proposal and the statement of reasons therefor: Between the two systems, that which is at present recognized and followed, which is based upon the legitimacy of the capture of enemy private property, and that which has been so frequently demanded, which is based upon absolute respect for belligerent private property, is there not room for an intermediate opinion and practice, which, thanks to mutual concessions, would reconcile the essential claims of the two systems? In justification of the system of capture, its adherents say that a state of war gives each of the belligerents the right to stop the commerce of his adversary for the purpose of weakening him and reducing him more promptly to terms. [807] In demanding the system of the inviolability of enemy private property, its supporters point out the propriety of harmonizing, as far as possible, the rules of war at sea with those of war on land, and they lay stress upon the justice of provisions which result in reducing to what is strictly necessary the injuries caused directly to individuals and in making the consequences fall upon nations as a whole. The Belgian delegation, setting aside its personal preferences, believes that it would be carrying out an idea which is in the minds of other delegations if it should endeavor to formulate a plan which would take into account the various objects sought and open the way for a compromise. On the one hand, each of the belligerents would have the right to seize and utilize for military purposes enemy ships and cargoes. On the other hand, at the end of hostilities individuals would receive back the goods that had been preserved, or would receive either from the captor State or, if so stipulated in the treaties of peace, from their own State the value of the goods used or destroyed. Special provisions would be formulated sanctioning with respect to belligerents the prohibitions affecting transportation of articles of contraband and violations of blockade. The belligerents would take enemy prizes to the same ports where they now take neutral prizes. Such a system might, in our opinion, be looked upon with favor by all-by those who desire first of all to preserve the right of intercepting the trade of the enemy and by those whose chief wish is to safeguard the rights of individuals in the enemy State to the greatest possible extent. It would not hinder the operations of naval warfare; it would not interfere with their essential results, but it would suppress useless severities and injuries. It would introduce more justice into hostilities. This would be a step forward toward the divine ideal of social justice and humanity, which we are striving for. The following is the proposal which we have the honor to present.1 PROPOSAL RELATIVE TO THE RIGHTS OF BELLIGERENTS WITH RESPECT TO ENEMY PRIVATE PROPERTY IN NAVAL WARFARE ARTICLE 1 Enemy merchant ships, as well as enemy goods under the enemy flag, may not be seized and detained by a belligerent except on condition that they be returned at the end of the war. ARTICLE 2 The following vessels may not be seized or detained: 1. Barks that are engaged exclusively in coastal fishing as well as their gear and their catch of fish. 2. Vessels used exclusively for scientific purposes or subject, by reason of their character as hospital ships, to the provisions of the Hague Convention of July 29, 1899. 1 ARTICLE 3 A procès-verbal, stating the seizure, as well as an inventory of the ship's papers, are drawn up by the commanding officer of the capturing vessel. Copies of these documents are given to the captain of the seized vessel or to his representative. The captain and the members of the crew of seized enemy ships are landed as soon as circumstances permit. They are set free upon their promise not to serve against the capturing belligerent as long as hostilities last. The Government of which they are citizens or subjects must not require or accept from them any service that is contrary to their pledged word. ARTICLE 5 The capturing belligerent takes charge of the enemy vessels and goods which he has seized. But he is permitted to destroy the seized vessel if circumstances do not admit of its being convoyed to a place of detention, or if the approach of an enemy force makes recapture seem imminent. ARTICLE 6 Vessels that are in such bad condition that they cannot be preserved, or whose real value is out of proportion to the cost of repairs and of their up-keep, as well as perishable goods, may be sold. ARTICLE 7 The capturing belligerent has the right to use and convert such seized vessels as he can make use of in war operations. He has likewise the right to use the seized goods for military purposes. ARTICLE 8 Ransoming of enemy ships is prohibited. ARTICLE 9 Upon the termination of hostilities, the capturing State must return to their owner the vessels and cargoes which it has detained. It may effect this restitution at the place where the ships and their cargoes happen to be. It is not obliged to pay any indemnity for the deprivation resulting from the seizures nor for the deterioration which may have occurred while in custody, unless caused by gross carelessness on its part. ARTICLE 10 The capturing State must reimburse the owner for the value of such vessels or cargoes as cannot, through its own act, or through the act of its agent, be returned, as well as the amounts realized from the sale of vessels and of goods which it was impossible to preserve. |