ARTICLE 11

The execution of the obligations provided by the foregoing article may be entrusted by the belligerent and by virtue of the treaty of peace, to the State to which the seized vessels and cargoes belong.

The foregoing provisions do not modify in any respect the rights which may belong to belligerents by virtue of the rules concerning blockade or contraband of war.

They shall not be applicable to enemy ships that form a part of auxiliary fleets or to those that have taken part in the hostilities.

His Excellency Mr. Léon Bourgeois remarks that the trend of the debate seems to have changed and that he personally congratulates himself, since he was one of those who asked that the discussion be continued. While the Commission had before it in the beginning two absolutely irreconcilable systems, we have today intermediate, compromise, and conciliatory proposals. The delegates have come to the Conference, not to be counted, but to unite, and whenever they find that they are not unanimous upon a question of an absolute character, they must try to discover a basis of agreement. It is in this spirit that his Excellency Mr. BEERNAERT spoke and that the proposal which his Excellency Mr. VAN DEN HEUVEL has just read is offered. His Excellency Mr. J. CHOATE has stated that this proposal is of interest to him and this would seem to indicate a willingness on his part to come to an agreement. His Excellency Mr. LÉON BOURGEOIS then asks permission to submit to the Commission, in the name of the French delegation, a very brief proposal, which likewise is of a compromise nature. As Mr. LOUIS RENAULT remarked at the last meeting, the aim of the French delegation is to make the capture of enemy vessels more conformable to principles; it desires to humanize and to moralize the system. The following proposal, which his Excellency Mr. LÉON BOURGEOIS reads, is inspired by the idea that war should be waged between States and should not be a source of personal profit:

Considering that, although positive international law still admits the legality of the right of capture as applied to enemy private property at sea, it is eminently desirable that the exercise of this right be conditioned on certain formalities, until an understanding may be reached between the States with respect to its abolition;

Considering that it is of the utmost importance that, in conformity with the modern conception of war, which must be waged against States and not against individuals, the right of capture appears to be solely a means of coercion practised by one State against another State:

That, in this connection, all individual profit to the agents of the State, who exercise the right of capture, should be excluded, and that the losses suffered by individuals from captures should ultimately be borne by the State to which they belong:

The French delegation has the honor to propose to the Fourth Commission that the vau be expressed that such States as shall exercise the right of capture abolish the right of the crew of the capturing ships to share in the prizes and take such measures as are necessary to prevent the losses caused

1 Annex 16.

by the exercise of the right of capture from falling entirely on the individuals whose goods shall have been seized.

His Excellency Baron Marschall von Bieberstein asks permission to make a comment upon his Excellency Mr. BEERNAERT's address. The first delegate of Belgium said that the delegation of Germany had declared itself as opposed to the abolition of the right of capture of merchant ships sailing under a neutral flag. His Excellency Baron MARSCHALL VON BIEBERSTEIN remarks that this is an error. He recalls that in his speech he declared himself in favor of such [810] abolition, with the reservation that the delegation of Germany could not assume a final position until certain questions had been settled which are connected with that of private property at sea.

His Excellency Mr. A. Beernaert replies that he will confine himself to stating that despite the reservations he had made, his Excellency BARON MARSCHALL VON BIEBERSTEIN had expressed himself in favor of the abolition of the right of capture, and that this fact increases his own confidence in the future.

His Excellency Mr. BEERNAERT is happy to learn that his colleague from Germany goes further than he had understood.

His Excellency Mr. Carlos Rodriguez Larreta takes the floor and speaks as follows:

The Argentine delegation, in spite of the remarkable addresses of their Excellencies Messrs. CHOATE and RUY BARBOSA, declared itself in favor of the right of capture and confiscation of merchant ships under an enemy flag.

We believe that the present system helps to avert war and shortens its duration when it breaks out.

It has not yet been disputed that merchant ships become primary or secondary factors in war. No one will deny either that the immediate and at times exclusive object of naval warfare has been to ruin the commerce of the enemy-the only method of finding a substitute on the sea, where possession and sovereignty are impossible, for the occupation of territory in land warfare. The latter helps, as much as the right of capture and confiscation of merchant ships, to bring about the desideratum of war: to compel the enemy to sue for peace.

Besides, the wish to render war less frequent and the wish to avoid the material losses which it entails-we do not say the cruelties-seem to be contradictory sentiments.

The Argentine delegation has declared itself categorically in favor of the right of capture and confiscation, because it does not find any intermediate proposal acceptable.

The delegation of Brazil desires that requisitioned merchant ships be paid for at the end of the war. The only probable result of this principle would be the introduction into future treaties of peace of a clause prohibiting any claim of this kind against the conqueror by the vanquished.

1

This proposal of the Netherlands 1 would perhaps be more effective, but patriotism being a desperate sentiment in misfortune, we do not deem it prudent to put this restraint upon its freedom of action.

Both these proposals, and probably all those that can be formulated, would, in our opinion, be inconsistent with the primary object of naval warfare.

His Excellency Vice Admiral Jonkheer Röell then reads the following declaration:

1
1 Annex 12.

In its declaration, the Italian delegation expresses the desire that intermediate proposals be presented and discussed before closing the discussion on No. III of the questionnaire.

It is for the purpose of meeting this desire that the delegation of the Netherlands has endeavored to submit to the kind attention of the Commission a proposal1 having for its object the maintenance of the inviolability of private property at sea, without prejudicing so-called purely military interests. [811] Indeed, objection might be made to the principle of the inviolability of private property at sea on the ground that when merchant ships may be converted into war-ships or used as such (for example, as auxiliary vessels for military transportation) the belligerent should at least receive the guarantee that the enemy merchant ships which he releases after seizure will not be reconverted thereafter or used as war-ships. We have here a certain analogy to war on land, in which non-belligerent inhabitants of the theater of war are protected and respected by the belligerent, but have not the right of becoming belligerents after having taken advantage of the protection of the invader. A merchant ship, which desires to take advantage of its non-belligerent character, must once for all abstain during the entire war from any warlike acts whatever.

The proposal of the Netherlands appears to us to harmonize the interests of the belligerents and those of individuals.

The belligerent State itself decides what merchant ships it desires to use as war-ships. It will keep these at its disposal; but it will furnish the merchant ships which it desires to take advantage of the immunity of private property at sea with a passport, in which the competent authority shall formally declare that the vessel holding the passport will not be used for war purposes.

This is an intermediate proposal, for, on the one hand, the inviolability of private property at sea will be safeguarded so far as possible, but, on the other hand-and in the opinion of the Netherland delegation this is quite logical-the State must abstain absolutely from using for any war purpose whatever merchant ships which take advantage of this inviolability. For such inviolability cannot be granted to vessels which the belligerent State has not once for all declared that it will not make use of in the war.

His Excellency Mr. Choate considers that the Commission has devoted enough time to the examination of the question of the inviolability of private property, and he thinks that it would be difficult to take up the Belgian,2 the French and the Netherland1 proposals without a careful examination of them. He proposes that the discussion be declared closed and that the vote which he will ask the Commission to take on this question, without continuing the discussion, be postponed to the next meeting.

The President supports this suggestion. The proposals which have been read to the Commission to-day will be printed and distributed, so that they may be voted upon at the next meeting.

His Excellency Mr. Beernaert states that he reserves the right to defend the Belgian proposal, if it is made the subject of criticism.

His Excellency Sir Ernest Satow likewise reserves the right to discuss the proposals read at the meeting.

1 Annex 12.

Annex 14.
Annex 16.

His Excellency Count Tornielli, in supporting the proposals of the first delegates of Germany and of Brazil, asks that, while considering the general discussion as closed, the Commission postpone the vote until there have been debates on the intermediate proposals and the questions relating to blockade and contraband of war.

Mr. Louis Renault remarks that it will be difficult to take up at the next meeting-that is to say, the day after to-morrow-the Belgian and the Netherland proposals, which require careful examination. Consequently he proposes that the discussion of them be postponed for a week and that on Friday next the examination of the questionnaire be continued.

[812] After an exchange of views, in the course of which the President states that he reserves to the Commission the right to determine the order in which the votes shall be taken, if it seems to it that there has been sufficient discussion, his Excellency Mr. Nelidow calls the Commission's attention to the disadvantage of an indefinite postponement of the votes.

His Excellency Mr. Beldiman thinks that the Commission might begin next Friday the discussion of contraband of war and blockade. The Commission decides on motion of the President to postpone for a week the discussion of the Belgian, French, and Netherland proposals, and to begin on Friday, July 12, the question of the conversion of merchant ships into war-ships.

The meeting adjourns at 12:15 o'clock.

[813]

FIFTH MEETING

JULY 12, 1907

His Excellency Mr. Martens presiding.

The meeting opens at 3:30 o'clock.

The minutes of the fourth meeting were adopted.

The President recalls that the Commission decided at its last meeting to take up the question of the conversion of merchant ships into war-ships. After reading question I of the questionnaire:1

Is it recognized in practice and in law that belligerent States may convert merchant ships into war-ships?

the PRESIDENT observes that the Commission has answered this question in the affirmative. The right to effect such conversion is a natural right; it is the right which every State possesses to defend itself and its independence by every means at its disposal.

The PRESIDENT reads question II of the questionnaire: When merchant ships are converted into war-ships, what legal conditions should the belligerent States observe?

This question expresses the idea that law and humanity impose certain conditions on the State that intends to take advantage of this right. On this subject the Commission has received proposals from Austria-Hungary, from Italy," from Japan, and from Russia."

The PRESIDENT proposes to the Commission the appointment of a committee. of examination to study a project in which all the proposals that may be presented shall be taken into account. The Commission will discuss the main points and will leave it to the committee to work out the details.

The PRESIDENT states that the Commission is agreed upon the first two points of the synoptic table."

[814] States must include in their navies merchant ships which have been converted. The conditions to be observed are not within the jurisdiction of the Commission, but of the domestic legislation of each State.

The PRESIDENT invites the Commission to take up the discussion of the question of how long the conversion is to be effective. He recalls that according to the Austro-Hungarian proposal this conversion must be permanent and that reconversion is prohibited.

Rear Admiral Sperry reads the following proposal: "

1

2

1 Annex 1.

See declaration of Mr. HEINRICH LAMMASCH at the second meeting, ante, p. 747 [745].
Annex 4.

• Annex 6.

Annex 3.

6 Annex 8.

་ Annex 7.