His Excellency Mr. Ruy Barbosa asks to be allowed to explain his vote. ships without distinction, while the Netherland proposal applies only to circumstances the Netherland proposal is a restriction of the French proposal. In other words, the first delegate of Brazil asks whether it is possible to vote first for the French text and then for the Netherland proposal. The President is of the opinion that, in view of the declarations which have been made, it would be difficult to proceed to a vote immediately. He therefore proposes to postpone the vote to next Wednesday's meeting. The proposal read by Mr. LOUIS RENAULT will be printed and distributed, and it is to be hoped that all the members of the Commission will be in possession of instructions on this subject. The PRESIDENT proposes that the Commission pass to a discussion of question VI and those following. Question VI is thus worded: What is the foundation of the right of belligerent Powers to prohibit commerce in articles constituting contraband? 4 The synoptic table which has been drawn up sets forth the different proposals that have been submitted to the Commission. Before the discussion of matters of detail is taken up, which is 'besides within the jurisdiction of the committee of examination, he proposes that the Commission declare itself upon the principal point, namely, whether the system of contraband of war is to be maintained. war. His Excellency Lord Reay takes the floor and says: The custom established by international law as to contraband of war is based upon the principle that a belligerent has the right to prevent his adversary from receiving from a neutral those things which are indispensable for the waging of In the beginning, when the regulations in this regard took more or less definite shape, it was possible for a belligerent to deprive the enemy of such aid without doing unreasonable harm to neutral commerce. But the conditions of the world have changed since that time, and belligerents have thus been led little by little, in order to attain their ends, to pervert the meaning of the regulations and to extend their scope to the detriment of the interests of neutrals. However, in spite of such action, the regulations are powerless to accomplish their purpose and succeed only in doing great harm to neutral commerce. Thus it is indisputable that in recent wars it has never been possible for a belligerent to deprive his adversary of the munitions which the latter needs. That being so, it is clear that the only way to prevent commerce in contraband is to adopt such severe measures that the Declaration of Paris, which was made in the interest of neutrals, would not be merely an empty word. It is not difficult to understand why we could be content in the beginning with uncomplicated regulations. It suffices to recall the conditions of world commerce at that time. Vessels were then of small tonnage: the entire cargo was consigned to the same place and was unloaded at the same port. Thus, vessels did not touch at several ports in the course of a voyage to unload a portion of 1 Annex 20. * Annex 19. Annex 1. their cargo, and their cargo was not destined to be reshipped to the interior, after being unloaded at the port of the consignee. Furthermore the articles which an army or a fleet needed were not numerous. It follows that it was rather easy to exercise the right of search, since on the one hand the destination of the vessel sufficed to indicate the presence of articles of conditional contraband, and on the other hand a vessel never carried articles of absolute contraband unless destined for a belligerent. [855] Present conditions are entirely different. The enormous extension of transportation by land, thanks to the railroads, the progress of the sciences which by multiplying the instruments of land and naval warfare have increased in the same measure the number of articles that are indispensable for the operations of a fleet or an army, the great increase in the size of modern merchant ships, are so many reasons why the old regulations do not in any degree accomplish the object intended, which is to prevent neutrals from carrying on trade in contraband. That is how the belligerent has been led to attempt to adapt the rules of long ago to modern conditions and has in reality succeeded only in creating a state of affairs which hampers neutral commerce out of all proportion without giving the belligerent any advantage commensurate with the harm done. Nowadays the railroads permit any Power to import by land such articles of contraband as it may need. Insular Powers have not quite the same advantages in this respect. Nevertheless the railroads play a similar part in their affairs also, since it is possible to unload in a purely commercial port the supplies needed by an arsenal hundreds of miles away. Consequently the pure and simple destination of a cargo has long ceased to be an absolute proof of the character of articles of conditional contraband. Therefore the doctrine of the "eventual use" for which the cargo is destined has been substituted. But to show that a cargo consigned to a certain port is destined' for an ulterior use evidence is necessary of a kind that is very difficult to secure, especially for the captor of the vessel. We have therefore been led to lay down the rule that the burden of proof as to the innocent destination of the cargo rests upon the owner of the vessel, and when he is unable to prove this innocent use, the prize court decides against him. As it becomes more and more difficult, thanks to the increasing complications of modern commerce, for the shipper or consignee of a cargo to know exactly, and especially to prove, the original intention which actuated the shipment, it is clear that the modern regulations do not tend to facilitate neutral commerce. Again, it is to the means of transportation that we owe the modern development of the doctrine of continuous voyage or transportation. The belligerent has very naturally refused to permit a neutral to escape the penalties proclaimed for contraband by making use of the simple expedient of consigning to a neutral port a cargo destined to be conveyed eventually, by land or sea, into the territory of the enemy. The Institute of International Law has admitted that this attitude on the part of the belligerent was just and reasonable. Nevertheless we must point out that we are again confronted with a principle which results in undue restriction of the freedom of action of the neutral, in the hope of putting an end to prohibited trade. The existence of the doctrine of continuous voyage, gentlemen, depends solely upon the status of contraband. Thus, by abolishing one you necessarily abolish the other, but if you do not touch the principle of contraband, you must likewise leave in existence the theory which is its logical corollary and upon which we cannot therefore impose limitations. In the first place, we merely insisted on knowing whether the cargo was to make a further sea voyage: witness the case of the Springbok. Then the theory was applied to transportation on land: witness the decision in the case of the Doelwijk. The Italian court declared that "it is to the destination of the cargo rather than of the vessel that we must turn our attention to determine whether or not the articles transported are to be considered contraband of war, and just as arms destined for one of the belligerents would not cease to be [856] directed to the enemy merely because, on account of special circumstances, they had to be transshipped on the way to another neutral vessel, so they would not cease to be directed to the enemy merely because part of the journey to the belligerent cannot be made by sea but must be made on land in land vehicles." The logic of this preamble seems to be indisputable. If the carrying of contraband is an offense which a belligerent can punish, there is no way of denying him the right to seize and to confiscate articles of contraband, when the material fact and the intention have been ascertained. But admitting the justice of the conception not only of absolute contraband but also of continuous voyage, we are necessarily forced to recognize a state of affairs which can lead to constant disruption of commercial relations between neutral nations situated in the neighborhood of the territory of one of the belligerents, since articles included in the two aforesaid categories may always be destined to the use of the belligerent, and a prize court can always base its judgments on the decisions which I have cited. As has been said above, gentlemen, the discoveries of modern science have greatly increased the number of articles which are indispensable to the movements and operations of naval and military forces. These articles, such as railroad ties or telegraph wire, can for the most part be used for peaceful as well as for military purposes, and that is why belligerents have been led to add to the list of articles of contraband a great number of articles which are equally necessary in peaceful industries, and thus to prevent the neutral from engaging in a perfectly innocent commerce. There is still another phase of the question of contraband, to which I desire to call your attention. The established custom permits a belligerent to declare at the beginning of a war what article he intends to treat as contraband and to add others to the list during the course of hostilities. It is evidently to the interest of the belligerent to make as long a list as possible, and he has often done so in terms so vague that the interests of the neutral merchant have been injured to an unreasonable extent. It is true that the belligerent may be called upon to explain the exact meaning of a term used in this list, but it is proper to remark that unless there be a formal amendment, a prize court is not bound to accept the explanation and to give the text of the proclamation an interpretation in conformity therewith. I foresee that we shall be told that no difficulty will be experienced except as regards articles that can be used for both military and peaceful purposes, and that the true solution of the problem consists in abolishing conditional contraband, as has already been proposed by the Institute of International Law. This would leave only absolute contraband and the right of the belligerent to seize, on condition of reimbursement, articles which might be harmful to him. Such a solution would evidently constitute sensible progress in the direction desired, but my Government cannot admit that it would put an end to the difficulties which we now experience, and that for the reasons which I shall have the honor of laying before you. Indeed, when we approach the question of absolute contraband, we see that because of its enormous size, arms and munitions on board a modern merchant ship generally form only a portion of the cargo. Moreover, articles of contraband may have been loaded on board with a false designation and consequently may not appear on the vessel's bill of lading. The captain himself may be ignorant of their presence on board. Under such conditions and in view of the size of [857] the vessel, it is impossible for the officers of a belligerent war-ship to exercise the right of search at sea carefully and effectively. The belligerent is thus often led to seize a merchant ship carrying a mixed cargo on information which he has received from his secret agents in the port of departure, and even though this information be correct-and I need not tell you that it very often is not-the quantity of contraband is often insignificant in proportion to the rest of the cargo. The seizure and detention of a vessel, as well as of innocent cargo, inflict injuries upon the neutral out of all comparison with the advantage accruing to the belligerent and give rise to demands for tremendous indemnities. To these demands the captor has only one answer, which is that in all cases where a prize court has declared that the seizure was justified, the owners of the vessel and of the innocent cargo must bear the loss occasioned by this act. The captor State is therefore quite naturally led to try to obtain by every possible means a decision to this effect by the prize court, which will enable him to meet the demands for an indemnity presented by the Government of the neutral with a refusal. There can be no doubt that a belligerent who should strictly apply the regulations and who, relying on the rights which he possesses, should seize every ship carrying a mixed cargo, into which may have slipped a few articles of contraband, would do such damage to neutral commerce that one of the injured States might be induced to take up arms in defense of the commercial interests of its subjects. But no State could run such a risk with respect to a powerful State. Hence one of two things will happen: either the belligerent will cease to suppress commerce in contraband vigorously and will take only intermittent action against it, or his attitude will be more or less severe according to the Power with which he has to deal. If he adopts the former expedient, he will only succeed in throwing things into confusion; if, on the other hand, he follows the other course, he will be acting with manifest injustice. It must not be forgotten that when public opinion has been aroused by the captures made by a belligerent, either by reason of the number of vessels captured or of their importance-as would happen if mail steamers or great transAtlantic liners were involved-the press would not fail to fan the fire and to stir up popular feeling. In the face of public over-excitement and of popular clamor, it would be difficult, indeed impossible, for the two States to discuss with the necessary calmness the complicated questions of international law which had been called forth by the exercise of the right of capture on the part of the belligerent States. ! A way out of the difficulties which I have mentioned would, in the opinion of some people, be to permit a neutral merchant ship to give up at once to the belligerent war-ship that portion of its cargo which was suspected and, that done, to continue its voyage. From the point of view of the neutral vessel this system might perhaps have its advantages, but it is unlikely that belligerents could conform thereto, even if they so desired. In any event, the owners of the seized goods would suffer if such a system were adopted, since the prize court would have to decide later on as to the validity of the capture and since, without having knowledge of the ship's manifest and without having heard the depositions of its officers, the court could not render a decision of any value. A still more remarkable proposal has been recently put forward. Certain belligerents have claimed the right to destroy forthwith on the neutral vessel all articles which the officers of the capturing ship consider contraband. There [858] is no need to dwell upon the injustice of such a proceeding which is, moreover, without precedent. It suffices to remark, in passing, that all the objections enumerated in the foregoing paragraph can with even greater reason be urged against the adoption of this principle, which besides would prevent the belligerent from restoring the articles seized to their owner, in case the prize court should declare that they were not contraband. I have already alluded to the uncertainty which exists as to the rules that may be applied for the suppression of contraband. I am permitting myself to return to this subject and to explain my ideas thereon. The practice of nations has indeed assumed different forms, to which I think it would be well to call attention. Thus, we make use of the expressions" absolute contraband," " relative or conventional contraband," "conditional contraband," "accidental contraband," and everyone takes from these definitions whatever he needs for his purpose. There is here a state of uncertainty upon which it would be well to throw light. The same may be said of the penalties incurred in the matter of contraband. Should articles seized be confiscated or should the right of sequestration and preemption be substituted for confiscation? In what cases can we allow not only confiscation of articles of contraband but also of the rest of the cargo and of the vessel? Must we limit the exercise of the right of search to a certain distance from the theater of war? Shall a prize court or council have complete freedom of action in deciding whether captured articles are articles of contraband, or must it always conform to the stipulations proclaimed by its Government upon this point? To put an end to these uncertainties, gentlemen, it would be necessary to codify the law of contraband and to include in this code not only a list of prohibited articles, but also the penalties incurred by neutrals who engage in such commerce. This is, in my opinion, a herculean task that no jurist would dare to undertake, and the only way, to our mind, of solving the problem is to abolish the system of contraband. Our Government feels that the benefits to be derived from universal regulations would be much less than the harm that such regulations would do to neutral commerce. For the maintenance of the principle of contraband necessarily implies the maintenance of the "right of search," of the right of seizure, and examination by a prize court, and however limited the list of articles of contraband may be, such a state of affairs would not fail to injure neutral commerce. It is not in an assembly like ours that we can discuss events which have |