or serving to transport troops in any way, thus plainly rendering hostile assistance to the fleet.

In order to define the scope of the proposition the members of the committee explained in turn the consequences which it seemed to carry in its train.

Hostile character recognized with respect to vessels carrying munitions, fuel, provisions, etc., it was remarked, is nothing else than the sanction of the idea of contraband in apparent contradiction to the proposal, made by Great Britain, to abolish this idea. Contraband destined for a naval force would thus be left seizable—and, as we are about to see, under more rigorous conditions than beforewhile the same kind of transportation to an enemy port would be lawful.

On the other hand, in the present state of law, a merchant ship accompanying a fleet is simply exposed to the common law treatment, that is to say, capture and the requirement of a confirming decision by a prize court. [864] Subjection of the said vessel to the same treatment as the military vessels of this fleet would authorize not only capture without any judicial prize decision, but also the employment of all means of destruction in use between military forces.

From this exchange of observations and the explanations given by his Excellency Lord REAY, it follows that the meaning and scope of the British proposition may be stated as follows:

Properly speaking, this is not a question of contraband nor of merchant ships converted into war-ships, that is to say, mobilized. It is not commerce with a belligerent that is referred to, but the fact of a vessel's being in the service of this belligerent in any capacity whatever, as a magazine ship, repair ship, provision, fuel, or munition ship. Perhaps the ship may be in ballast, accompanying the fleet for such and such a contingency.

These vessels, in the course of their service in behalf of the belligerent, would, according to the British proposition, be subjected to the same treatment as the military vessels of this belligerent, with all the consequences of fact and of law which result therefrom.

As soon as their service has terminated, they would again be under the jurisdiction of common law.

The expression "auxiliary vessel," often used to designate mobilizable or mobilized vessels, which are destined to exercise the rights of belligerents, may here cause confusion. Such confusion, as may be seen, must be avoided.

Is it proper, as our president, Mr. MARTENS, has pointed out, to recognize this new class of vessels, standing, in a way, between belligerent military ships and private vessels?

Is there occasion to impose the proposed treatment upon them?

Should a distinction be made between a vessel sailing in company with a fleet, a vessel sailing alone under the orders of the said fleet, and a vessel transporting troops?

The committee of examination was not asked to pass upon this question. It has endeavored, as it was charged, to define the question, which is for you to decide.

[865]

NINTH MEETING

JULY 26, 1907

His Excellency Mr. Martens presiding.

On the President's inquiry whether the Commission has any remarks to make on the minutes of the last meeting, his Excellency Lord Reay asks that certain corrections be made therein. The minutes will, therefore, not be adopted until the next meeting.

The President recalls that the program includes the discussion of the question of contraband of war. It will not be necessary for the Commission to enter into the details of the various proposals. It will discuss the two points of view set forth and the committee of examination will take into account all the opinions which have been expressed in drawing up a text that will endeavor to reconcile these divergent views and that will be laid before the Commission for ratification.

On question VI of the questionnaire, which reads: What is the foundation of the right of belligerent Powers to prohibit commerce in articles constituting contraband of war? his Excellency Mr. Carlos Rodriguez Larreta considers it necessary to say a few words on the attitude of the Argentine delegation as regards the question now under discussion.

It will vote in favor of the proposal which makes it optional to grant days of grace to merchant ships that happen to be in an enemy port on the outbreak of hostilities. There is absolute consistency between this vote and the Argentine delegation's vote on the right of capture and confiscation of merchant ships under an enemy flag. It is likewise in keeping with a principle which that delegation will endeavor to apply to all questions which arise in naval warfare.

The Argentine delegation has declared itself in favor of arbitration and of international justice; but "war is war" without other limitations than those that must be placed upon cruelty and barbarity; for if it is not given the Conference to ensure peace, the Argentine delegation cannot for that reason deprive war of its necessary energies.

Nevertheless his Excellency Mr. LARRETA expresses his unreserved adhesion to the British proposal with regard to the definition of the term auxiliary vessel and with regard to the abolition of contraband of war.

[866] We are not ignorant of the fact, says his Excellency Mr. LARRETA, that

the application of this system, a brand new one in the practice and science of international law, would tend to prolong wars in future until one of the belligerents had exhausted his financial resources. But, on the other hand, it would prevent disputes that could not be settled by process of law, and which in the matter of contraband of war produce divergences among publicists, in international treaties, and in the domestic legislation of the various countries.

1 Annex 1.

Annex 27.

Moreover, the benefit to neutral commerce, that is to say, to commerce in general, which would result from its adoption, would be, tremendous, and it is our conviction that the evils of war should fall exclusively, if it were possible, upon the belligerent countries alone.

Mr. Louis Renault states that the British proposal, which aims to eliminate contraband of war, has attracted considerable attention not only in the Conference itself, but also on the outside. This proposal has the merit of having outstripped theory. Although much has been written on contraband of war, although many systems have been set up, no writers have thus far advanced so radical a proposal on this subject as that of the British delegation.

It is not, however, without precedents. Mr. ERNEST NYS informs us that a German jurist of the eighteenth century proposed that the abolition of the conception of contraband of war, and consequently free trade between neutrals, be adopted.

The Commission has heard from his Excellency Lord REAY the most enlightening and the most striking exposition that could be given of the reasons in support of the British proposals. This exposition is interesting from several points of view, but above all because it manifests great consideration for the rights of neutrals. Mr. LOUIS RENAULT does not wish to undertake a complete refutation of the thesis upheld with so much authority by his Excellency Lord REAY, but he desires to answer him with a few observations.

His Excellency Lord REAY has very forcibly emphasized the difference between the maritime trade of to-day and that of the past; but it would seem that he has in his illuminating exposition somewhat exaggerated the difficulties in the way of the examination and seizure of contraband of war, in order to bring about the abolition of contraband. It is somewhat of an exaggeration to lay before us only the hypothesis of a cruiser that encounters a steamer carrying a cargo of various kinds, whose character is frequently unknown to the officers, and to point out the annoyances and injuries incurred by neutrals under such circumstances. Other hypotheses may be presented. Vessels may be loaded with a loose cargo of contraband of war, about whose destination there can be no uncertainty and as to the examination and seizure of which there would be no trouble or difficulty. Again, the right of seizure and of confiscation may have a preventive effect. It gives rise to risks which people will frequently hesitate to incur and which will cause a great increase in insurance premiums.

Moreover, it is perhaps a bad thing to give neutral commerce too great facilities. The Declaration of Paris of 1856 materially ameliorated the condition of that commerce. It allowed it to undergo immense development in time of war, which of course is legitimate; but there are some who would now like to go still further, and this cannot be done without certain drawbacks. If we guarantee to neutrals free trade without any restrictions, will they not have considerable interest in the prolongation of hostilities, since their commerce will be in a more favorable situation than in time of peace?

[807] Again, the right of control and of seizure can be made to harmonize with modern ideas concerning the law of war. We have at the present time a more exact conception of the neutrality of States. It was long admitted that neutrals might render belligerents more or less direct aid without absolutely losing their status as neutrals. Nowadays an absolute observance of the duties of neutrality and complete abstention from doing anything whatever in behalf of the belligerents are required. This conception once firmly established, it became

necessary to regulate the relations of neutral subjects with belligerents. For a long time the belligerent claimed the right to isolate his adversary. To prohibit his own subjects from having relations with the latter, and to consider such relations an act of treason-that was his right; but he also wished to extend the same prohibition to the subjects of a neutral country. It was for this purpose and to attain the same object that he proclaimed a fictitious blockade of the ports and coasts of his adversary, and it was from this conception that the principle of contraband of war sprang. It was afterwards admitted that neutral subjects might trade with belligerents, but they could not be allowed to take advantage of this privilege to give aid to belligerents.

In this connection it would be of interest to define the conception of the neutral State as regards its own subjects. Shall a neutral State be obliged to prohibit as unlawful the relations of its subjects with belligerents and exercise a supervision over the goods that they ship? Evidently not. A neutral State cannot be compelled to intervene and must not incur any responsibility for the commerce in which its subjects engage. Then there intervened a compromise between neutrals and belligerents. Neutrals have left it to belligerents to defend themselves and have given them permission to control and, if need be, to seize dangerous commerce. From the non-responsibility of the neutral State arose the right of control and seizure by the belligerent. That is why in their declarations of neutrality States remind their subjects of the duties imposed upon them by their status as neutrals. It is evident that neutral States cannot be indifferent to the fate of their subjects. They intervene to protect them from the risks which they run, but only if there have been irregularities and abuses committed with. regard to them.

We must therefore endeavor to regulate in advance the questions of contraband between belligerents and neutrals. If there have been abuses, the abolition, of contraband of war is rather an energetic way of putting an end to them. Will the conception of this contraband disappear entirely upon the acceptance of the formula which the British delegation proposes concerning auxiliary vessels? It is permissible to have certain doubts on this subject. Shall we not be returning to the control of neutral vessels by this theory of auxiliary vessels? Shall we not decree rigorous measures with regard to them when it is proved that they have intimate relations with the belligerent fleet? The conception of contraband of war will disappear, but neutral vessels that engage in unneutral service will be treated with much greater rigor. It is to be feared that there will be disappointments on this score.

These general considerations have convinced the French delegation of the necessity of continuing contraband of war; but though that is its idea, it nevertheless thinks that there are ameliorations which might be introduced into the system. This is a question upon which public opinion has been heard. President ROOSEVELT has expressed himself on the necessity of progress in this regard, and we might mention an interesting article by Mr. LAWRENCE on contraband of

war, which points out the danger incurred with regard to the maintenance [868] of peace as a result of the difficulties in connection with the application

of the rules of contraband. The main fault that is found with the present system is its uncertainty, the absence of precise rules. It was with this idea in mind that the French delegation made known the chief features of its proposal.

The system which it proposes has for its starting-point a limitative list of articles constituting contraband of war. The enumeration of these articles belongs to the province of the army and naval officers. It has no place therefore in the present exposition, but it can be prepared by the Commission. Trade in articles of absolute contraband-that is to say, articles that are destined exclusively for use in war-is illicit in itself. At the present time, as soon as hostilities break out neutrals must, without there being need of a special declaration, abstain from trade in such articles. When such articles are captured, the rules that are applied are not the same in all navies. The French proposal 1 requires a single sanction, in the belief that an imperfect rule which is unanimously applied is better than uncertainty which sometimes lays stress on the proportion of contraband in the cargo of the vessel, and sometimes on the good faith of the captain. Now it is probable that if we confined ourselves to including in contraband of war only articles of absolute contraband, the interests of belligerents would not be satisfied. There are circumstances where a belligerent must, depending on the social, economic or military situation of his adversary, prohibit trade in such and such articles, which may be specified by the Commission. These articles are essentially different from other articles. In the first place, they must be made the subject of a formal declaration on the part of the belligerent. That is considerable progress, for by making known at the very beginning of hostilities the articles which will be considered contraband of war, we put an end to the uncertainty which nowadays causes confusion to neutral

commerce.

With regard to articles of this second category, the French delegation proposes to apply different rules. It may be that in some cases it can be proved that they are destined for a belligerent fleet or a besieged city. In a word, if the belligerent can clearly prove the hostile purpose of the cargo, he will apply to it the rules of absolute contraband; that is to say, confiscation pure and simple. If, on the contrary, the belligerent cannot prove this, he will merely have a simple right of preemption as regards the suspected cargo. The effect of this provision will be to place a barrier in the way of the temptation to the belligerent to make his list of articles of contraband too long. The exercise of his right of preemption will be a heavy responsibility which he will not be willing to assume lightly. The French delegation believes that this reform will be a noteworthy improvement of the present situation and as such recommends it to the attention of the Commission. (Applause.)

His Excellency Mr. Hammarskjöld says that it would be interesting to compare the rules on the question of contraband which were practically universally recognized at the beginning of the nineteenth century with the practices in vogue toward the end of the said century and at the beginning of the present one. This comparison would not be in favor of our time. On the contrary, it must be acknowledged that we have returned to the ancient, regrettable practice which seemed to have been definitely abandoned.

At the beginning of the nineteenth century a catalogue of articles of contraband had been compiled by means of a series of international treaties.

In this catalogue, whose contents were adopted by the majority of the Powers of Europe, the application of the principle of contraband was mutually