could give the war-ships mentioned under paragraph B, which are really merchant ships and may even be neutral, all the rights possessed by war-ships, for instance, the right of search, or even the right to capture belligerent or neutral vessels, without requiring them to fulfill the conditions upon which we have held such lengthy discussions.

This question is evidently superfluous, for the answer must be in the negative; but then why call a vessel a "war-ship" which cannot have the right to perform acts of war? I believe that the object sought by the British [849] proposal would be much better attained by inserting a stipulation concerning auxiliary vessels in the regulations governing belligerent warships in neutral ports rather than by placing it in the proposal we are now discussing relative to the conversion of a merchant ship into a war-ship.

His Excellency Mr. Porter says that apparently the object of the classification of unarmed merchant ships engaged in unneutral service for the enemy fleet as enemy war-ships in paragraph B of the proposal of the British delegation is to give belligerents the same summary jurisdiction over them as that exercised over regularly commissioned armed vessels; that is to say, they may be seized or destroyed without recourse to a prize court before or after the act.

According to the rules of international law as they exist at the present day, a vessel engaged in unneutral service is liable to condemnation by the courts and its crew may be held as prisoners of war, but the delegation of the United States of America cannot look with favor upon so formidable an extension of the rights of belligerents with respect to neutral vessels under an artificial classification as enemy war-ships.

This proposal substitutes, in effect, the decision or whim of a subordinate officer of the belligerent fleet for the decisions of a prize court, and the neutral vessel may be sunk by his order.

Colonel Ovtchinnikow of the Admiralty believes that the objections which were presented at the meeting of July 12 by the honorable British delegate concerning the impossibility of recognizing as lawful the conversion of merchant ships into war-ships in neutral ports and on the high seas does not seem to be consistent with the definition of the term "war-ship" formulated by the British delegation.1

The aforesaid delegation includes under the term "war-ship" any, even a neutral, merchant ship which is used for the transportation of fuel, provisions, water, etc., for the belligerent fleet.

But then we must ask ourselves when the conversion of the merchant ship into a war-ship (auxiliary vessel) took place. The change in the said goods could have taken place only in belligerent or neutral ports, or perhaps on the high seas. It is evident, in his opinion, that this conversion must have occurred, according to the English definition even in neutral ports or at times on the high

seas.

That is why it seems to him that the definition of the term war-ship" formulated by the British delegation is not really in opposition to the conversion of merchant ships into war-ships on the high seas.

I call attention to this fact in further support of the Russian proposal in the matter of the place of conversion.2

'Annex 2.
Annex 3.

His Excellency Count Tornielli has followed most attentively and with the keenest interest the explanations which his Excellency Lord REAY has made on the scope of paragraph B of the British proposal. He does not, however, feel that he can recall their full import. To do so he must wait until he has before him the minutes of the meeting. He has, however, caught a few expressions here and there. The honorable British delegate spoke of vessels accompanying or escorting the belligerent fleet, ships sailing in company with the fleet or awaiting order at sea or in port. These expressions have a special meaning of the utmost importance in the language of international law, and if they were inserted in [850] the British proposal might have the effect of sensibly modifying its general meaning. We should therefore appoint a special committee, before the discussion is resumed, which shall endeavor to revamp paragraph B of the British proposal, which, in view of the explanations at the present meeting, will perhaps require revision.

The President thinks that the time has come to appoint a committee of examination whose duty it shall be to draw up a text which shall take into account the various proposals that have been submitted. He proposes to designate the following gentlemen as members of this committee:

Messrs. KRIEGE, LOUIS RENAULT, their Excellencies Mr. CARLOS RODRÍGUEZ LARRETA, Baron CHARLES VON MACCHIO, Mr. VAN DEN HEUVEL, Rear Admiral CHARLES S. SPERRY, his Excellency Sir ERNEST SATOW, Jonkheer VAN KARNEBEEK, his Excellency Mr. KEIROKU TSUDZUKI, and his Excellency Mr. HAMMARSKJÖLD.

His Excellency Count Tornielli accepts the committee of examination as selected by the President, but he thinks that it would be better to entrust a special committee composed of delegates of the Powers whose proposals appear in the synoptic table with the task of finding a more exact interpretation and wording for paragraph B of the proposal of Great Britain.

Consequently there would be on this committee, together with the Bureau of the Commission, a delegate of Austria-Hungary, of Great Britain, of Italy, of Japan, of the Netherlands, and of Russia.

At the request of the President his Excellency Count TORNIELLI's proposal is adopted.

His Excellency Sir Ernest Satow accepts appointment as a member of the committee of examination, but in case he should be unable to attend he asks that he be replaced by his Excellency Lord REAY.

At the request of his Excellency Mr. Hagerup, the President states that the members of the Bureau of the Commission are of right members of the committee of examination.

After announcing that question III of the questionnaire1 will be discussed at the next meeting, the PRESIDENT closes the meeting at 4 o'clock.

[851]

EIGHTH MEETING

JULY 24, 1907

His Excellency Mr. Martens presiding.

The meeting opens at 10: 50 o'clock.

The minutes of the sixth and seventh meetings [are adopted].

The President announces that the Austro-Hungarian delegation has filed an amendment to the proposed vaux concerning private property at sea submitted by the delegation of France. This amendment will be printed and distributed.

Its discussion is postponed to the meeting at which the vau presented by the French delegation is to be discussed.

The President states that the small committee appointed by the Commission to study the British proposal3 concerning the classification of vessels as fighting ships and auxiliary ships, as well as the definition of these various vessels, has charged Mr. FROMAGEOT to make a report on its deliberations. He recalls that this report is not to be made the subject of discussion. It has been drawn up for the purpose of throwing light upon the question propounded by the British delegation.

Upon the invitation of the PRESIDENT, Mr. Fromageot (reporter) reads this statement, which appears as annex A to these minutes.

His Excellency Lord Reay thanks Mr. FROMAGEOT in the name of the committee for his report, which he characterizes as accurate and illuminating.

His Excellency Mr. van den Heuvel asks for an explanation on a particular point in the English proposal. He would like to know whether this proposal is to be considered as independent of the question of contraband of war or as forming with it an indivisible whole; in other words, whether the English proposal can exist alongside of and be grouped with the proposals which maintain contraband of war, or whether it constitutes the counterpart of the suppression of contraband.

In reply to this question, his Excellency Lord Reay states that the British proposal covers a special class of vessels which give direct aid to belligerents and is not the counterpart of the suppression of contraband of war. [852] After stating that the Commission makes official record of the reply of

his Excellency Lord REAY, the President announces that the program calls for discussion of the question of days of grace. The Commission is to declare itself on the question whether days of grace are of an obligatory character

1 Annex 17.

Annex 16.

8 Annex 2.

or whether they are merely a privilege which the belligerent is free to grant or to refuse.

Mr. Louis Renault finds it somewhat difficult, in view of the form in which the question is put, to explain to the Commission the attitude of his Government. on the subject. The Commission finds itself confronted by two courses of action: either to maintain the present system, which is a favor; or to give it an obligatory character, with various reservations. He proposes to the Commission an intermediate system. He believes that it would be very difficult to regulate the period itself and to fix it by convention. It would hardly be possible to oblige belligerents always to allow enemy merchant ships of whatever character to leave their ports. There may be in these ports merchant ships which are capable of being converted into war-ships and which receive subsidies on that account. By detaining such vessels in his ports, the belligerent deprives his adversary of means of attack or defense. For many years English jurists have been preoccupied with this question; one of them recently declared that the Government which should allow such a vessel to escape on the outbreak of hostilities would be committing an act of criminal folly. At the same time he called upon British ship-owners not to lose sight of the course of events and to be careful not to leave in possible enemy ports any of their vessels that could be used in military operations. It would seem therefore to be difficult to make a positive agreement in the matter of days of grace. That is why Mr. LOUIS RENAULT thinks an improvement can be made in the system which has been in vogue for half a century, and that imperative military requirements can be reconciled with. respect for private property. A belligerent who has enemy merchant ships in his ports should not be permitted to take possession of them or to confiscate them as enemy prizes, but he has the right to detain them. It is probable that in the majority of cases it will not be to his interest to take such action, but he will have freedom of choice in this respect.

On the other hand, it may be to the interest of the belligerent to utilize those vessels which are adaptable to the needs of war. The French delegation admits that in such cases he may requisition them, but he must pay them an indemnity. This proposal,' which reads as follows, aims to bring about an improvement in the old practice:

Merchant ships belonging to belligerent Powers which on the outbreak of hostilities happen to be in enemy ports, and to which no days of grace shall be granted to put to sea may not be confiscated.

Nevertheless they may be refused permission to leave the port, and they are then subject to requisition, in consideration of an indemnity, in conformity with the territorial laws in force.

Mr. Beaufort remarks that it appears from the debates which took place in the Commission last week that days of grace for the merchant ships of a belligerent which happen to be in a port of another belligerent when war breaks out are recognized unanimously as a just and equitable measure, and that they have been generally allowed by all belligerents in recent wars, and that it is desirable that they be allowed in future.

Under these circumstances the delegation of the Netherlands believes that 1 Annex 20.

the time has come to introduce this principle into the rules of conventional

law.

[853] Therefore when the question: Should days of grace be obligatory? is put, the delegation of the Netherlands intends to reply in the affirmative. However, he admits that the principle cannot be accepted without any restriction. In the first place, it will be necessary to except the vessels which Mr. LAMMASCH has so wittily denominated hermaphrodites-vessels that can be converted into war-ships. Then, since according to what we have been told the time necessary for loading and unloading vessels in port varies considerably, it will be difficult to fix the length of the period of grace. It will suffice therefore to fix a minimum which must always be granted. It is to be hoped that belligerent Governments will extend this period as regards all its ports, or as regards certain of them, if circumstances so require.

If on the basis of these restrictions an agreement could be concluded between the partisans of the obligatory system and those of the optional system, the delegation of the Netherlands would be disposed to present an amendment 1 to the Russian proposal 2 in the aforesaid sense.

The President recalls that the Commission was to vote on the obligatory or optional character of days of grace, but the French proposal being an amendment, the procedure requires that it 'be voted on first, and that the principal question then be voted on without mention of the details which will be examined by the committee of examination.

His Excellency Lord Reay states that the British delegation has received no instructions regarding the French amendment. It will therefore reserve its vote, but it proposes that the Commission declare itself following the formula proposed by his Excellency Count TORNIELLI.

Mr. Georgios Streit likewise states that he reserves his vote on the French proposal; but it contains two points which might be voted on separately: the first concerning the right of detention but not of confiscation, and the second establishing the right of requisitioning with the payment of an indemnity.

Mr. Louis Renault replies that his proposal is made with the idea that belligerents are free to allow enemy merchant ships to leave or to detain them. in their ports. He thinks that it would be difficult to establish by convention the distinction proposed by the Netherland delegation and considers that belligerents must have absolute power to decide for themselves in this matter. The most important point in the French proposal is the option to detain but not to confiscate, and consequently the elimination of any pecuniary benefit. Mr. STREIT is therefore within his rights in asking for a division of the vote.

Mr. Kriege states that the German delegation believes that it would be desirable to make days of grace obligatory. It reserves the right to examine the scope of the distinctions made by the Netherland proposal and to what extent they mitigate the present situation. So far as the French proposal is concerned, which necessitates an exhaustive study, the German delegation must for the time being likewise reserve its vote.

His Excellency Mr. Keiroku Tsudzuki, who also desires to study the French proposal, reserves his vote.

1 Annex 19.

3 Annex 18.

8 Annex 20.