It may assuredly be pointed out that its realization involves the inconvenience of a lengthy convoying of prizes for States which do not possess ports scattered over every quarter of the world. But such a consideration would not seem to be more decisive as regards this possibility than it has been in other matters in which it has frequently been urged.

It is not decisive in the eyes of those who believe that the destruction of neutral prizes can no longer be permitted and who propose that captor States be compelled to detain and guard them.

Nor is it decisive in the eyes of those who believe that the right of provisioning fleets and the right of shelter in neutral ports should be reduced by absolutely uniform rules and without the slightest distinction as to the number and location of the ports and coaling stations which the States may possess.

Again, it may undoubtedly be remarked that the Belgian proposal would entail deductions and settlements at the end of the war. But the fear of unsurmountable embarrassment would be manifestly excessive. If it had been thought right to stop before similar difficulties in the matter of land warfare, the system of indemnities and receipts would not have been favored; that is to say, the financial settlement which respect for private property requires at the end of hostilities.

The two principal objects which the Belgian proposal strives to accomplish appear to be the wish of modern public opinion, which resolutely desires to diminish the useless severities of war. It is necessary to eliminate in naval warfare confiscations, which so clearly despoil individuals. It is also necessary to leave at liberty the crews of merchant ships who have never had a thought of hostility and who toil and struggle only to support their homes.

The President observes that the Commission's vote is to be on the Belgian proposal1 with the amendments of the delegation of the Netherlands.2

The Commission proceeds to vote; twenty-eight delegations take part therein. Voting for, 23: Germany, United States of America, Austria-Hungary, Belgium, Brazil, Bulgaria, Cuba, Denmark, France, Greece, Italy, Mexico, Norway, Paraguay, Netherlands, Peru, Persia, Portugal, Roumania, Siam, Sweden, Switzerland, Turkey.

Voting against, 3: Great Britain, Japan, and Russia.

Abstaining, 2: Montenegro, Serbia.

It is decided to consider the proposal.

[840] The President asks whether under these conditions the Belgian delegation maintains its proposal.

His Excellency Mr. A. Beernaert states that in view of the result of the vote his reply must be in the affirmative.

The PRESIDENT asks Mr. Fromageot to read the first article of the Belgian proposal: 1

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.

'Annex 14.

2 Annex 15.

His Excellency Mr. van den Heuvel points out with regard to this subject that Article 1 of the proposal formulates the general principle, that is to say, it recognizes the right to seize, the right to detain until the conclusion of hostilities, but, on the other hand, it imposes the obligation to return.

The Netherland proposal1 makes two changes in the Belgian text: (1) it makes a distinction between the cargo and the vessel: it retains the principle contained in Article 1 with respect to the vessel, but it transfers to a subsequent article the determination of the rights of the captor with respect to the cargo. The Belgian delegation makes no objection to the adoption of the distinction proposed in the Netherland amendment. It will declare itself later on the right to sell the cargo. (2) The Netherland amendment modifies in another respect the text of Article 1. It confines itself to stating that belligerents have the right to seize and detain the vessel until the conclusion of hostilities; it does not mention expressly the obligation of restoring it.

But it would seem that the obligation of restoring it is implied in the words "detained by him until the end of the war." His Excellency Mr. VAN DEN HEUVEL asks, however, in order that there may be no possible doubt, whether such is the interpretation that should be given to the amendment of the Netherland delegation.

His Excellency Vice Admiral Jonkheer Röell states that such is likewise the interpretation given the amendment in question by the delegation of the Netherlands.

His Excellency Mr. Léon Bourgeois asks for an explanation of the meaning of the word "detained" ("retenus") used in Article 1.

In reply to this question, his Excellency Mr. van den Heuvel states that in the opinion of the Belgian delegation the same rules with regard to the determination of the ports to which prizes may be taken must be applied to enemy prizes as to neutral prizes.

Lieutenant Colonel van Oordt adheres as follows to the declaration of his Excellency Mr. VAN DEN HEUVEL:

In the Belgian proposal the right of capture and of sequestration is formulated negatively. Although the Netherland delegation fully adheres to this restriction, it does not consider it as absolutely necessary in Article 1, since from Articles 9, 9a, and 10 it clearly follows in a way that admits of no doubt that the vessels stopped and detained must be restored at the end of the

war.

The Belgian proposal is entitled as follows: Proposal relative to the Rights of Belligerents with respect to Enemy Private Property in Naval Warfare; that is to say that when this proposal is converted into a convention, it [841] will be forbidden to take action with regard to private property, which is manifestly at variance with the stipulations of Articles 9, 9a and 10. It follows that the restriction in Article 1 of the Belgian proposal does not appear to be strictly necessary, as it is already contained in an absolute and more complete manner in the above-mentioned articles.

But there is still another observation that might be made as to the wording of the amendment. An agreement upon the question of inviolability of private property at sea could perhaps be secured, if there were inserted in the convention

1 Annex 15.

a stipulation giving the belligerent captor the right to collect a certain tax from the owners of seized vessels and of enemy cargoes.

The Netherland delegation has frequently expressed its adhesion to the proposal of the United States of America. But in order to advance as far as possible in the direction of inviolability of private property at sea, it would adhere to any proposal of this character. Perhaps a tax collected on enemy vessels and their enemy cargoes might form a compromise.

The wording of the amendment does not exclude, while the somewhat absolute wording of Article 1 unamended might be considered as excluding once for all, any tax to be collected from the owners at the time of restitution. In a werd, the amendment makes no change in substance, since this substance is contained in Articles 9, 9a and 10, but it will perhaps be more acceptable to those who wish to participate in the establishment of the principle of inviolability without excluding the right to collect a tax from the owners.

Mr. Louis Renault makes certain inquiries as to the scope of Article 1. Taking note of the declaration made by his Excellency Mr. VAN DEN HEUVEL, he remarks that in such a case it will be required to apply to enemy prizes the restrictions now in force in the matter of the stay of neutral prizes in foreign ports. But this situation is not favorable to Powers who have no ports in different quarters of the world and, so far as the latter are concerned, would be equivalent to an implied recognition in a disguised form of the inviolability of private property at sea, since the destruction of prizes would be prohibited.

His Excellency Mr. van den Heuvel does not quite understand the objections which Mr. LOUIS RENAULT has just made. The Belgian proposal does not constitute, either in form or substance, a disguising of the principle of inviolability of private property at sea. It gives such property less protection than the American proposal, but greater protection than the system now in force, which allows the seizure and confiscation of enemy vessels.

He recognizes the fact that certain States will have greater facilities than others those having ports scattered over the whole earth where they can take their prizes.

But he makes two answers to this practical objection. The first is that the rules of the law of war have a differential influence on the various States according to their power, their wealth, their geographical situation. The second answer is that the Belgian proposal confines itself to extending to enemy prizes the rules observed with regard to neutral prizes: both may be brought to the same ports.

If Mr. RENAULT thinks that it would be advisable to modify the system now followed with respect to neutral prizes before extending it to enemy prizes, will he kindly submit an amendment?

[842] Belgium will examine it with the most ardent desire to bring about any simplifications and facilities that may be proposed from the belligerent point of view, provided they do not jeopardize the interests and rights of neutrals.

His Excellency Mr. Nelidow desires to explain the reasons for the negative vote which the Russian delegation intends to cast on the article under discussion. From the beginning of the debates the delegation of Russia, while recognizing

1 Annex 10.

the liberal character of the American proposal, has not considered itself able to adopt it, for, in its opinion, it has not been sufficiently demonstrated to what extent this proposal is suspectible of practical application. Again, the argument which places private property at sea on the same footing as on land seems to it inexact.

It has long been admitted that in war on land property which was not of use to belligerents was inviolable. It is, however, none the less true that invasion is itself a violation of private property and that there would be a certain amount of injustice in applying to maritime commerce a privileged system which property on land could not enjoy. It is, moreover, indisputable that in warfare on land the lower classes suffer more than all others, while at sea war reaches above all big corporations, and individuals are affected only indirectly. Such are the arguments that have decided the Russian delegation to vote against the inviolability of private property at sea and against Article 1 of the Belgian proposal.1

At the request of the President seconded by his Excellency Sir Ernest Satow, the Commission proceeds to vote on Article 1 of the Belgian proposal. Thirty delegations take part therein:

Voting for, 14: Austria-Hungary, Belgium, Brazil, Bulgaria, Denmark, Greece, Italy, Norway, Paraguay, Netherlands, Persia, Roumania, Siam, Sweden. Voting against, 9: United States of America, Cuba, Spain, Great Britain, Japan, Montenegro, Nicaragua, Portugal, Russia.

Abstaining, 7: Germany, France, Mexico, Peru, Serbia, Switzerland, Turkey. His Excellency Mr. A. Beernaert notes with regret that the Belgian proposal has not been so favorably received as he had hoped and to avoid a useless waste of time for the Commission, he deems it advisable to withdraw it.

In acknowledgment of his remarks, the President states that he is sure that he is interpreting the feelings of the Commission in thanking the first delegate of Belgium for having so kindly cleared by means of his proposal the ground upon which the discussion bears. He then asks whether the Commission has any objections to make to the vaux which the French delegation proposes that it accept.

His Excellency Mr. van den Heuvel regrets to state that the Belgian delegation cannot support the compromise proposal presented by the French delega

tion.

This proposal sanctions the right of confiscation of all enemy property, in naval warfare, to the benefit of belligerents. It confines itself to expressing a vau favoring regulation by the domestic legislation of each nation. [843] The Belgian delegation cannot adhere to a vau which might be regarded as proclaiming the necessity in modern warfare of so exorbitant a right as general confiscation, and which would appear to be postponing indefinitely the hope of its abolition.

Mr. Louis Renault replies that the right of capture not having been abolished, there could be no inconsistency in the Belgian delegation's endeavor to humanize it. The result of the vote has proved that Belgium's intermediate position had no chance of succeeding. There is no reason, therefore, why the Commission should not support a vau tending to improve the existing right. It

cannot be a matter of indifference that the right of capture be exercised like all war operations without seeking personal profit, which would make it odious. Also by seeking a means of indemnifying individuals for their losses by having these losses borne by the nation as a whole, we would subject the right of capture to more humane conditions. Mr. Louis RENAULT reads the concluding sentences of the French delegation's declaration. He thinks that the arguments therein set forth in support of the vaux which it contains make it difficult to refuse to accept these vœux. The French Government has endeavored to diminish abuses. While waiting until it can go further in the matter of the abolition of the right of capture, it has wished to eliminate from it all that it contains of a demoralizing character.

His Excellency Mr. A. Beernaert is not insensible of the considerations that Mr. LOUIS RENAULT has set forth, but he thinks that the Conference cannot, without exceeding its scope, adopt provisions aiming to modify the domestic legislation of States.

His Excellency Mr. Ruy Barbosa expresses the same opinion, adding that personally he would adopt the vaux proposed by the French delegation.1

His Excellency Sir Ernest Satow says that an English Royal Commission is now studying the question of compensation for captured national ships. Under these conditions it is not possible for the delegation of Great Britain to adopt a vœu which would prejudice the outcome of this study. So far as concerns the vau looking to the suppression of prize shares, his Excellency Sir ERNEST SATOW, while greatly in sympathy with the principle, is obliged to state that no instruction from his Government authorizes the British delegation to adopt it. If such an instruction is later received, he will be glad so to inform the Conference.

His Excellency Mr. Nelidow states that the Russian delegation is in the same situation as that of Great Britain. It is in sympathy with the vau of his Excellency Mr. LÉON BOURGEOIs, but the realization of this reform is in the jurisdiction of the Russian Government; the delegation has nothing to do with it.

His Excellency Mr. Keiroku Tsudzuki informs the Commission that Japan has never known the system of prize shares. Moreover, in the absence of instructions, he can only abstain from voting on the vau of the French delegation concerning the principle of an indemnity.

His Excellency Count Tornielli thinks that, after this discussion, the vote should be postponed for two weeks. The Commission would then be in a position to find out the number of supporters of the reform proposed by the French delegation.

On the motion of the President and the opinion of his Excellency Mr. Léon Bourgeois in conformity therewith, the Commission decides to postpone

for two weeks, without further discussion, the vote on the French pro[844] posal. The President regrets that the Commission has not reached a

unanimous opinion on this important question. It has not, however, wasted its time, since it has heard some very interesting debates and has gratefully made official record of the declaration of his Excellency the first delegate of Spain, who, in the name of his Government, has adhered to the Declaration of Paris of 1856. (Applause.)

The PRESIDENT regrets that the Commission has not been able to reach an 'Annex 16.