meeting a cruiser of the blockading State. This, according to the events which resulted in the Declaration of Paris of 1856, is in contradiction with the very conception of an effective blockade.

The President states that the committee will take into account the observations presented by Lieutenant Colonel VAN OORDT.

In the name of the Argentine delegation, his Excellency Mr. Carlos Rodríguez Larreta accepts the proposals on blockade presented by his Excellency Count TORNIELLI and supported by Mr. GUIDO FUSINATO at the last meeting in a remarkable address.

He permits himself on this occasion to offer his congratulations to the delegates of Italy.

[895] His Excellency Mr. Hagerup observes that in taking up the question of submarine mines, the first subcommission of the Third Commission considered it from the point of view of blockade and asked itself whether submarine mines by themselves could be considered as rendering a blockade effective. It concluded that this question was rather within the province of the Fourth Commission and charged its President to make this communication to this Commission.

His Excellency Lieutenant General Jonkheer den Beer Poortugael says that the Italian proposal makes use of the words "naval forces." The question therefore is whether submarine mines may be considered “naval forces."

His Excellency Brigadier General de Robilant replies that these submarine mines must be brought by national ships and that these ships constitute naval forces.

His Excellency Count Tornielli says that in paragraph 3 of the British proposal concerning the employment of mines there is the following provision: The use of submarine automatic contact mines to establish or maintain a commercial blockade is forbidden.1

In the course of the debates which took place in the Third Commission, of which I have the honor to be President, the question was examined under its two aspects, that is to say, the Commission considered whether this provision should be ranged with those governing the employment of means of inflicting injury in war operations or whether it belonged to questions pertaining to the means whereby the effectiveness of a blockade could be maintained. Under the former of these two aspects the British proposal was certainly within the province of the Third Commission, but under its other aspect it belonged to the program of the Fourth Commission.

His Excellency Mr. HAGERUP, in his capacity as President of the subcommission of the committee which had the matter in charge, has therefore asked that you combine the examination of this question with the part of your work concerning blockade. I join him in this request.

The President remarks that there is but a single Conference, and it is a matter of indifference whether a question is decided by this Commission or that. His Excellency Sir Ernest Satow believes that the two Commissions might be combined.

The President proposes that the two committees of examination meet in joint session and draw up a project.

Mr. Guido Fusinato thanks the delegations of Brazil and of the Argentine Republic for their appreciative remarks with regard to the Italian proposal.

2

As for Brazil's amendments, which do not affect the principle of the said proposal, they will be examined in the committee of examination with all the attention that they deserve.

After stating that these divers declarations will be laid before the committee of examination, which is to meet to-morrow morning, the President thinks that, if time permits, the Commission might pass to an examination of the next numbers of the questionnaire. Nevertheless before proceeding farther, the Commission might take up a question concerning which the British delegation has filed a proposal, to which the delegation of Belgium has proposed an [896] amendment. It is whether the crew of a captured enemy merchant ship shall be treated as prisoners of war.

His Excellency Sir Ernest Satow says that the British delegation accepts his Excellency Mr. VAN DEN HEUVEL'S amendment.

The President declares that, no one having raised any objection, the British proposal as amended by the Belgian delegation is referred to the committee of examination.

The Commission, following the order of the questionnaire, must now take up the destruction of neutral prizes as the result of force majeure.

The British delegation not being prepared to discuss this question, since it does not appear upon the day's program, his Excellency Sir Ernest Satow requests that its examination be postponed to the next meeting.

The President then proposes that the Commission take up the question of inviolability of postal correspondence.

Mr. Kriege states that he has nothing to add to the observations which he has already presented on the subject of contraband of war. The committee of examination will express its opinion and will consider by what formula this inviolability of postal correspondence may be sanctioned.

His Excellency Sir Ernest Satow states that he reserves the right to present amendments before the committee of examination.

The President proposes, under the circumstances, that the Commission pass to question XIII of the questionnaire: Are coastal fishing boats, even though they belong to subjects of the belligerent State, lawful prize?

His Excellency Count Tornielli presumes that everybody agrees that coastal fishing boats should be freed from the risks of war. It would seem that this general rule ought not to give rise to any very lengthy discussion.

As regards question XIV of the questionnaire, it would appear to be difficult for the Commission to study the application of the rules of land warfare to naval warfare. This is rather within the scope of the committee of examination.

His Excellency Lieutenant General Jonkheer den Beer Poortugael asks permission to make a few remarks on question XIII. He is indeed of the opinion that coastal fishing boats are not lawful prize, but he would like to go still farther. The fishing industry has undergone great changes within the past twenty years. The boats must nowadays go further to sea and are much larger, but they are none the less incapable of being converted into war-ships. Why, therefore, seize them? why impoverish the populations living along the coast, innocent populations who are not concerned in questions of war, populations who have

Annex 36.

Annex 45.
Annex 46.

• Annex 1.

no other means of livelihood than the products of the sea? In our century we must broaden the field of justice and not bring ruin to the essentially innocent fishing industry.

Captain Castiglia remarks that, while respecting the right of fishermen to carry on their calling freely, we must, however, prevent them from coming [897] too close to naval forces. They may have on board dangerous engines, such as torpedoes or mines, which render their presence in the neighborhood suspect.

His Excellency Lieutenant General Jonkheer den Beer Poortugael concurs in Captain CASTIGLIA'S observations and adds that the keeping of fishing ves sels at a distance is the opposite of seizing them.

The President proposes that the program for the meeting of next WednesIt will consist of the vote on the French vaur1 day, August 7, be drawn up and the examination of questions XI, XII, XIII and XIV of the questionnaire? According to his Excellency Sir Ernest Satow, the Commission will not be able to discuss question XIV to any purpose until it is in possession of the report of the Second Commission on the laws and customs of war on land. It is to be feared that in these circumstances the discussion cannot take place on the 7th instant.

3

His Excellency Count Tornielli declares that his remarks referred only to coastal fishing boats, for question XIII of the questionnaire mentions nothing except such boats. If it is desired to consider the big steam vessels of the present day, which engage in fishing in distant waters, the wording of question XIII should be changed.

1

His Excellency Baron von Macchio desires to recall that the Austro-Hungarian delegation filed an amendment to the French vaur1 and reserves the right to develop it and to have it discussed at the next meeting before a vote is taken.

The President recalls that the committee of examination is to meet to-morrow morning at 10 o'clock. He proposes that there be added to the committee Messrs. GUIDO FUSINATO, Captain BEHR and his Excellency Mr. AUGUSTO MATTE, who have filed amendments and will thus be enabled to defend them. (Assent.) The meeting adjourns at 4:15 o'clock.

1

[898]

TWELFTH MEETING

AUGUST 7, 1907

His Excellency Mr. Martens presiding.

The meeting opens at 10: 50 o'clock.

The minutes of the eleventh meeting are adopted.

The President observes that if the Commission wished to hold fast to its program, it should proceed at once to vote on the vaur proposed by the French delegation, but he presumes that it will see no objection to postponing its vote until the French plenipotentiaries arrive and to beginning with the discussion of questions XI and XII of the questionnaire 1 relative to the destruction of neutral prizes as the result of force majeure. The Commission has received several proposals on this subject: the proposals of Great Britain and of the United States, and the amendments of the delegations of Japan and of Russia.5

4

2

Colonel Ovtchinnikow of the Admiralty takes the floor and speaks as follows:

The question of the destruction of merchant ships under a neutral flag as the result of force majeure raises at times a divergence of opinions which makes an international agreement desirable.

This divergence may be seen even in the proposals which have been submitted to our Commission. Two of these proposals demand absolute prohibition of the destruction of merchant ships under a neutral flag seized as prizes and recommend the release of any neutral vessel that cannot be brought before a prize court. On the other hand, the Russian and the Japanese proposals permit in certain exceptional cases the destruction of such vessels and give-as, for instance, our proposal-certain satisfactions and guarantees to the interests of neutrals.

I have taken the floor to present a few general considerations concerning the

matter.

(1) At the very outset. I desire to call the attention of this high assembly to the confused language which has been used in regard to the question and which may give rise to certain misunderstandings.

In all the proposals, and even in ours, such expressions are used as "the destruction of a neutral prize," "a captured neutral vessel," etc.

[899] As a matter of fact, it is not a question of neutral vessels " but of vessels of neutral nationality, which have committed violations of their

neutrality.

1 Annex 1.

• Annex 39. Annex 42.

• Annex 41.

B Annex 40.

There is no reason for seizing, still less for destroying, a vessel of neutral nationality which is really neutral. But a vessel under a neutral flag, which has violated its neutrality by a hostile act cannot be treated as a neutral vessel.

It is in the sense which I have indicated that the Russian proposal concerning the destruction of a neutral prize is to be understood.

(2) In discussing this question we must keep the following points in mind. From the legal point of view there is often a misconception with regard to the real rôle of the act of capture and of the judgment of the prize court.

What is the rôle of a decision of a prize court and when does the captor State secure a property right to the seized vessel and cargo?

I shall answer this question categorically. It is the seizure or capture itself which transfers ownership of the seized vessel and cargo to the captor State. A judicial decision never creates a new right, it merely recognizes a right which already exists. The prize court decides whether the prize is lawful or not; that is to say, having considered the circumstances of the seizure, the time and place where the seizure was effected, the character of the capturing vessel and of the captured vessel and cargo, the prize court pronounces judgment on the question whether the vessel and the cargo were liable to confiscation at the time when the seizure took place.

Therefore the decision of the prize court always has a retroactive effect and, if the prize is lawful, the captor State possessed the property right from the moment of capture.

This fact established, we can now see that in destroying a vessel, which is sailing under a neutral flag but which has clearly violated its neutrality, the captor is destroying his own property and not property belonging to others. He is thus acting against the interests of his own fortune, and that is why only absolutely exceptional cases will induce him to follow this procedure.

(3) In concluding the legal and pecuniary aspect of the matter, I desire to present certain supplementary observations:

(a) It is of course understood that every case of the destruction of a prize must be brought before a prize court, which will decide whether the capture was lawful or not.

(b) On board a destroyed vessel there may have been, in addition to the articles liable to confiscation as contraband of war, other articles which might have been released by the prize court, if they had been brought before it and thus restored to their original owner.

The question arises: How are the interests of these owners to be guaranteed in case of the destruction on board a destroyed vessel of their goods that are not of a contraband nature?

The answer to this question is to be found in Articles 29 and 30 of the Russian regulations of March 27, 1895, concerning prizes. These regulations read:

Article 29. If the cargo which should be restored has been destroyed by order of the authorities, the owner shall be reimbursed the value of the destroyed cargo as per an estimate based upon the information furnished.

Article 30. Apart from this value, a special indemnity as damages resulting from this capture may be granted the original owner, if it is decided [900] that the cargo was captured on insufficient grounds or in violation of the prescribed conditions.