[878] TENTH MEETING JULY 31, 1907 His Excellency Mr. Martens presiding. The meeting opens at 10: 50 o'clock. The minutes of the eighth and ninth meetings are adopted. The President recalls that the program calls first of all for a vote on the proposals of the delegation of Great Britain relative to the abolition of contraband of war.1 The Commission has expressed the desire to vote on the proposal as worded in the synoptic table. The PRESIDENT reads this proposal and announces that certain delegates have asked permission to speak before the vote is taken. His Excellency Baron von Macchio then takes the floor and speaks as follows: The British delegation's proposal relating to the abolition of contraband of war was the subject at the last few meetings of this Commission of a highly interesting analysis, in which a large number of our honorable colleagues developed all the arguments that could be advanced for or against this proposal. The delegation of Austria-Hungary also duly appreciates how advantageous the system upheld by the British delegation in this liberal proposal would be to the commerce of neutrals in time of war. It believes that one of the main objects of the present Conference is not only to mitigate the evils of war, but to limit as far as possible its deleterious effect outside the jurisdiction of the belligerent parties, that is to say on the lives, the property, and the general wellbeing of neutrals. Moved first of all by the important interests of the latter, the Austro-Hungarian delegation does not hesitate to declare itself to be in sympathy with the principle of the complete abolition of the conception of contraband of war. That is to say, it will vote for the British proposal, if it is put to vote; but be it understood that it desires to exclude therefrom the question of the definition of auxiliary vessels, which, as a matter of fact, as the British delegation has itself declared, is not the counterpart of the proposal which is now before us. [879] The Austro-Hungarian delegation, however, has no illusions as to the practical consequences of this vote, in view of the divergent opinions which have been expressed in the course of this illustrious assembly's discussion. It must therefore contemplate now the possibility of the British proposal's not receiving the required unanimous vote. Now we have also before us the proposals of the German, French, and Brazilian delegations, which, though maintaining the principle of contraband, 1 Annex 27. 2 Annex 32. are on the whole an obvious amelioration of the present situation and are all inspired by a desire to remedy in some degree the uncertainty, the instability, and the lack of precise and generally recognized rules, all of which are at the present time sources of the greatest inconvenience and of the greatest risk to the commerce of neutrals. The Austro-Hungarian delegation therefore reserves the right to support that one of these projects which would give the most restrictive interpretation to contraband. It believes that all these proposals contain valuable ideas and admit of the hope that an agreement can be reached on the basis of a compromise between the above-mentioned projects. The President announces that the Commission takes official note of the remarks of his Excellency Baron VON MACCHIO. Count de la Mortera declares that in the absence of instructions the Spanish delegation will abstain. His Excellency Mr. Keiroku Tsudzuki makes a similar declaration. The delegation of Japan nevertheless reserves the right to declare itself later on if there should be occasion. His Excellency Mr. van den Heuvel desires to explain in a few words the attitude of the Belgian delegation. It has given its adhesion to proposals whose object is to proclaim respect for the private property of belligerents at sea and to ensure it the same protection as enemy property on land. It will give its adhesion to proposals whose purpose is to proclaim respect for freedom of neutral commerce at sea and to remove the restrictions which have been placed upon it to the detriment of the general interest. Too often has it been said that the interests of neutrals must bow before the rights of belligerents. This point of view seems to us incorrect. Neutrals and belligerents have their respective rights. The essential thing is to reconcile them without sacrificing those of the one to those of the other. The system of contraband, as it has been framed in recent years, is no longer a system derived from the belligerent's legitimate right of self-defense. It is a system that goes far beyond the requirements for the carrying on of hostilities. It is absolutely arbitrary in its provisions concerning relative contraband and in its presumptions in the matter of continuous voyage. It greatly disturbs and interrupts not only the peaceful relations between neutrals and belligerents, but also the relations between neutrals themselves. The great ocean highways must remain open to the goings and comings of nations and no barriers must be erected thereon: Mare Liberum. On sea as on land neutral individuals must be in a position to claim complete freedom for their commerce. All that belligerent States may ask is that neutral States or individuals shall keep within the bounds required by their neutrality. Consequently, on the one hand, neutral States recognize their right to carry on hostilities and the fact [880] that the conditions of war cannot be changed either by restrictions or by assistance; and, on the other hand, they are themselves armed against intervention on the part of neutral individuals by the right of arresting vessels which are manifestly directly aiding the enemy forces and by the right of taking action against those who attempt to violate a declared and effective blockade. That is why the Belgian delegation will vote in the affirmative on the progressive proposal of the British delegation.1 The abolition of contraband would in time of war place insular States and those having a long coastline in the same situation as continental States, which because of the facilities of internal transportation can continue to supply freely the necessities which their people require. It would benefit all alike, great and small, the belligerents of to-day who will be the neutrals of to-morrow. It would wipe out a thousand sources of difficulty and dispute. His Excellency Baron Marschall von Bieberstein observes that the English proposal contemplates the abolition of contraband. This would apparently be a great advance in favor of neutral commerce. But the English proposal with respect to the definition of war-ships in reality maintains the system of contraband by bringing about a situation as regards neutral merchant ships which, in our opinion, would be much more precarious than under the present system. For example, a neutral merchant ship carrying contraband, under the system now in force, may be seized, but the validity of the seizure must be confirmed by legal process. But this same vessel, if suspected of carrying supplies for the enemy fleet might, according to the English proposal, be considered a warship of the enemy; and the vessel, its cargo and crew would be treated as forming part of the enemy fleet. Then "causa finita." No legal recourse would be open. It would appear, therefore, that the two English proposals form an inseparable whole. His Excellency Baron MARSCHALL VON BIEBERSTEIN does not object to the PRESIDENT's proposal that a vote be taken on the proposal contemplating the abolition of contraband of war; but since such a vote might give rise to false impressions outside the Conference, he desires to state that the German delegation in voting against the abolition of contraband has no intention of refusing an advantage to neutral merchants, but quite the contrary desires to preserve the system of contraband because that system appears to be much better and much more advantageous to neutral commerce than the new system proposed by the English delegation. His Excellency Mr. Choate recalls that at the last meeting the delegation of the United States stated that it preferred the attitude of President ROOSEVELT on the question of contraband to that of Secretary of State MARCY. The delegation of the United States having communicated with him is to-day in a position to state, in his name, that the United States, desiring to favor neutral commerce as much as possible, considers it better to place certain restrictions on contraband of war rather than to adopt the abolition of the system which would very likely give rise to questions of such gravity as to render their solution difficult. His Excellency Lord Reay desires once more to state that there is no connection between the question of the abolition of contraband of war and the definition of an auxiliary vessel. The delegations which vote in favor of the abolition of contraband of war remain free therefore to declare them[881] selves against the theory of an auxiliary vessel, and vice versa those which will not admit this abolition may adopt the definition of auxiliary vessels. 1 Annex 27. 1 The President recalls that the Commission decided to vote at to-day's meeting on the question of contraband. All the declarations concerning contraband of war will be inserted in the minutes and in casting their votes the delegations I will bear these different declarations in mind. In the course of the debates two opinions have been expressed. The first, supported by the British delegation,' is in favor of the abolition of contraband of war; the second, upheld by the French delegation,2 is based on the necessity of maintaining the system of contraband. However, an agreement has manifested itself on two points: no one disputes the belligerent's right of legitimate self-defense; nor does anyone dispute the fact that it is the duty of neutrals not to intervene in hostilities. The Commission is agreed to leave belligerents the right to take measures against the hostile commerce of neutrals. Finally, there is a fourth point upon which all opinions are at one, and that is that all have discovered that there are abuses and that reforms are necessary, especially in the matter of defining precisely articles of contraband, thereby giving neutral commerce better guarantees than it has at present. The Commission proceeds to vote; thirty-five delegations take part therein. Yeas, 25: Argentine Republic, Austria-Hungary, Belgium, Brazil, Bulgaria, Chile, China, Cuba, Denmark, Dominican Republic, Great Britain, Greece, Italy, Mexico, Norway, Paraguay, Netherlands, Peru, Persia, Portugal, Salvador, Serbia, Siam, Sweden, Switzerland. Nays, 5: Germany, United States of America, France, Montenegro, Russia. On the proposal of the President the Commission decides to charge the committee of examination with the preparation of a text which will harmonize the proposals that have been made. 3 His Excellency Mr. Ruy Barbosa demands a vote on the Brazilian delegation's proposal; the Commission has been able to study the different systems which have been submitted and which follow more or less broad lines; it must pass upon them in the order of their scope. If the Commission adopts this view, it must vote first of all on the Brazilian proposal and then on the others. The work of the committee of examination will thus be simplified. 4 The President is of the opinion that under these circumstances there must first be a general discussion on the British proposal, then on those of Brazil, of Germany and of France in the order given. Not to prolong the discussions, it would perhaps be preferable to allow the committee of examination, as in the other Commissions, to endeavor to draw up a text that will harmonize the different proposals. His Excellency Mr. Ruy Barbosa agrees to this method of procedure. His Excellency Mr. Carlos Concha takes the floor and speaks as follows: From the projects which have been submitted to the Commission it appears that there is a marked tendency to restrict relative contraband by con[882] fining it to articles directly destined for the land or naval forces of belligerents, and, on the other hand, to leave free from all restraint trade 1 Annex 27. 2 Annex 29. " Annex 30. Annex 28. between individuals in these articles, as indicated in the proposals of Germany and of France.1 The delegation of Chile, on its side, would be glad to see the total abolition of relative contraband, not only in order to give commerce greater security, but also in order to avoid numerous disputes between nations, which arise in matters of contraband. Having it in mind to show the errors of judgment to which the classification of articles of contraband give rise, we shall venture to point out what has occurred in the case of a substance which is used in agriculture and in manufactures in Europe for esentially peaceful purposes and the sale of which reaches the figure of 300 to 400 millions of francs a year. We refer to nitrate of soda, which has always been classified among the articles constituting contraband of war, in spite of its employment in agriculture and manufactures. We venture therefore to call the attention of the committee of examination to this point, in order that this substance may be removed from the list of articles considered contraband of war. In support of our opinion, we quote what RIVIER says in his "Principes du Droit des Gens": At the instance of the merchants of Hamburg, the German Government declared itself in principle against the contraband nature (of nitrate of soda) and promised to endeavor to have its view adopted in favor of saltpeter and nitrate of soda. As a matter of fact, the proportion of nitrate which enters into the manufacture of powder is so insignificant that it does not deserve to be taken into consideration. Nitrate of soda is first of all-and this is its chief and most important quality—a fertilizer, the fertilizer par excellence, the fertilizer without which agriculture in general and the cultivation of cereals and beets in particular would be menaced in their productivity to such an extent that it might lead to complete ruin. Nitrate is, moreover, a very important factor in the industries, particularly in the mining industry, where it is used in the preparation of the explosives necessary to dislodge the wealth concealed in the bowels of the earth. The construction of ports, the boring of tunnels, in short, all the vast works of modern progress, require nitrate for their accomplishment. It may therefore be asserted that in the present state of agriculture, of the industries, and of modern progress, nitrate is an indispensable element, an element of peace, of civilization and of wealth, and not an element of destruction. It would be difficult, if not impossible, to demonstrate mathematically the exact quantity which is used in various ways; but we can estimate, without fear of error, that eighty per cent of the present supply of nitrate is used as a fertilizer in agriculture. Of the remaining twenty per cent only half, rather less than more, enters into the composition of explosives, and an insignificant quantity is used in the manufacture of powder. Europe alone consumed last year (1906) one million two hundred and forty-one thousand four hundred tons of nitrate. This enormous quantity was distributed among the principal European countries as follows: 1 Annexes 28 and 29. |