(c) Under our law the same principle of indemnification is applicable in cases where according to the judgment of the court the vessel itself was unlawfully destroyed; that is to say, when the vessel was not at the time of seizure liable to confiscation.

I have the honor to call the Commission's attention to Articles 29 and 30 of the Russian regulations, which I have quoted, as furnishing material for the committee of examination to work on.

(4) There is still another question which may raise certain doubts-the question of the fate of the crew and passengers on board a destroyed vessel.

In our proposal it is clearly stated that "the commanding officer of the capturing vessel may not exercise the right of destruction except with the greatest caution and must be careful first to transfer the men."

It may perhaps be objected on this score that the crew and passengers transferred to the capturing ship, that is to say, a ship of war, will be less safe from the dangers of war than if they were on board their own vessel.

To this objection I make answer that this misfortune to the crew is occasioned, not through the fault of the captor, but through that of the owner or captain, who violated the neutrality of a merchant ship of neutral nationality.

In any event, it may be stated that in recent wars in cases of the destruction of prizes of neutral nationality, the question of the fate of the crew and passengers has never caused any difficulties.

Such are the considerations of a legal nature which prove that destruction, if occasion demands, is not only admissible but lawful.

(5) Moreover, purely practical and military considerations may be invoked in this matter.

As I have just stated, it is always preferable to preserve the seized vessel and to bring it into a port of the captor's country.

But in naval warfare, it is often impossible to preserve the vessel and to bring it to a safe place or, for still stronger reasons, to release it.

Let us suppose, for example, that in the vicinity of the place of capture there happens to be an enemy vessel which is much stronger than the captor, and that the seized vessel is sailing under a neutral flag and is loaded entirely with contraband of war, such as cartridges, projectiles, powder and explosives of all kinds. It would certainly be much more profitable to the captor to preserve this vessel and these articles of contraband of war for his own needs. But the preservation and bringing in of this prize are impossible because of the nearness of a powerful

enemy.

Can we insist in this case upon the release of the seized vessel? I think it is evident that such a release would be an outright act of treason against his country on the part of the captor. Nothing remains for him to do but to destroy the prize.

Again, the prize may sometimes be accidental. A war-ship having a special object encounters at sea a vessel that is loaded entirely with contraband of war and makes the capture, so to speak, in passing.

By reason of the fact that the ports of the captor are too far distant or else blockaded, the preservation and bringing in of this prize might jeopardize the safety of the capturing vessel or the success of its operations. We must ask ourselves how the captor should act in this case.

[901] It is true that such a question assumes an aspect of gravity only in the 1 1 Annex 40.

case of Powers that have not a certain number of ports in distant seas. The absolute prohibition of the destruction of prizes would give rise to a situation of marked inferiority in the case of Powers that have no colonies as compared with those that have.

The tendencies which have been expressed in certain proposals that have been laid before the Conference concerning the admission of prizes to neutral ports would seem calculated to aggravate this inferiority.

Thus, in the example which I have just given, it is often easy for the captor to change his course and bring the prize into a nearby port of his country. If the captain makes haste, he can send his prize to this nearby port under the command of one of his officers.

The same course could be followed and the prize could be taken or sent to a neutral port, if conventional law allowed prizes access to and a sufficiently long time to remain in neutral ports.

But in the absence of such an international agreement and in view of the rules prohibiting prizes to enter and to remain a sufficiently long time in neutral ports, there is only one thing for the captor who finds himself in the circumstances I have indicated to do and that is to destroy the seized vessel.

Such are the arguments of a legal, practical, and military character which I have the honor to present in support of the proposal1 of the delegation of Russia concerning the destruction of prizes seized while sailing under a neutral flag, but violating their neutrality.

I believe that it is evident that the absolute prohibition of their destruction is inadmissible; that is to say, that their destruction is lawful under the circumstances indicated in the above-mentioned proposal.

His Excellency Sir Ernest Satow presents, in turn, the following observations: 2

The question raised by the declaration made in our name is the following: Do the principles of international law at the present time permit a belligerent to sink a neutral vessel which he has seized?

We have considered it advisable to bring this problem to your attention and to ask you to pass upon the question whether it is desirable to modify the present provisions of the law of nations in this respect. But in order that the question may be examined in the fullness of knowledge, it would seem to be desirable to sum up in a few words the present situation. That is what I shall try to do.

The theory that the belligerent has the right to sink a neutral prize was advanced for the first time, if I am not mistaken, in the course of the recent war in the Far East. Regarded from a general point of view, this would seem to be a very strange principle, and the belligerent State and the neutral State being at peace with one another, the destruction of a vessel belonging to a friendly Power would seem to constitute on the part of the belligerent an act of aggression, which it is incumbent upon him to justify. It may be objected that this reasoning is equally applicable to the case of a neutral vessel that is seized and brought before a prize court. I would be the first to admit the force of this reasoning, but it must not be forgotten that belligerent Powers have long exercised the right of seizure and the judicial rights flowing there from without any opposition on the part of neutrals, and that this practice, which may at first sight seem unlawful, has acquired through this fact a legal character which cannot be contested. Can

1 Annex 40.

2 Annex 39.

we say that this is the case when it is a question of the alleged right to [902] sink a neutral prize? I do not think so. So far as I am aware, no in

stance can be cited where a neutral State has recognized as lawful practice in war the destruction of one of its vessels before a prize court has condemned it. It would seem therefore that unless it can be proved that there is a series of precedents in support of this alleged right, or at least consent in the past on the part of neutrals to the exercise of this right equivalent to an express recognition of the legitimacy of the act, it cannot be maintained that international law permits at the present time the destruction of a neutral prize. There are perhaps reasons why there should be added in future to the rights which a belligerent possesses that of sinking neutral prizes, on condition that it is not exercised unreasonably: thus, we might invoke considerations of a military character, the necessities of the moment, the lack of ports and coaling stations, the great area of the theater of war, the vast field of commercial activities, to prove that a change is necessary; but it is not possible to hold that the existence of the right we are seeking to establish has been recognized in the past. One of our most eminent professors of international law in England has even maintained that the texts of the jurisprudence of certain countries implied the existence of this right; but a study of these texts has enabled us to discover that he had made an error and that, although only mentioning prizes in general terms and not expressly excluding neutral prizes, these texts refer especially to enemy prizes with regard to which there could be no uncertainty, since the right of belligerents to sink them in certain cases has long been recognized. But even if it had been the intention of the legislators in these countries to grant this right in the matter of neutral prizes, that fact would have had no force from an international point of view without the concurrence of the other States, and it is precisely this concurrence that is lacking in this case. For the same reasons questions XI and XII of the questionnaire are not to be taken into account in so far as they pertain to laws in force in certain States.

I believe that it is not improper to recall to you that the question was carefully studied by the Institute of International Law some twenty years ago. In 1881 at the Wiesbaden session of the Commission which had been charged with the examination of the law of prize, Mr. BULMERINCO presented draft regulations, the 55th article of which contemplated five cases in which a captor would be permitted to burn or to sink a prize. I shall take the liberty of quoting the text of this proposal:

The captor will be permitted to burn or to sink the seized vessel. in the following cases:

1. When it is not possible to keep the vessel afloat because of its unseaworthy condition, the sea being rough.

2. When the vessel's sailing ability is so poor that it cannot keep up with the war-ship and might easily be retaken by the enemy.

3. When the approach of a superior enemy force threatens the recapture of the seized vessel.

4. When the war-ship is unable to place a sufficiently large crew on board the seized vessel without too greatly diminishing the crew that is necessary for its own safety.

5. When the port to which the vessel might be taken is too far.

The Commission of Wiesbaden amended this text by inserting the word "enemy" between the word "seized" and the word "vessel," and by adding the following paragraph:

[903]

In exceptional cases the captor is recognized as possessing this same right (the right of sinking) in the case of a condemnable vessel.

At its plenary meeting of September 15, 1882, at Turin, the Institute declared itself still more categorically with regard to the protection of neutrals. The addition of the word "enemy" was maintained, but on the proposal of Mr. DE MONTLUC the Assembly decided to omit the final paragraph of Article 55, as the majority considered the doctrine that a neutral vessel might be sunk without being condemned exorbitant. The word "enemy" was omitted from the final project, but Mr. DE MONTLUC pointed out the error to the Assembly at Heidelberg, and the word was again inserted in the text of Article 55, which was definitively drawn up as follows:

The captor will be permitted to burn or to sink the seized enemy vessel after having . . . etc. . . . in the following cases: (here follows the enumeration of the cases where sinking is permitted).

It clearly follows from what precedes that the Institute of International Law considered it unreasonable to sink a neutral prize, whatever might be the grounds for such an act.

It is to be noted that in the preamble to one of the proposals made on this subject, it is stated that it would be merely an act of justice to grant belligerents the right to sink neutral vessels, inasmuch as certain Powers are in a peculiar situation, since they lack ports and therefore would not know what to do with their prizes. That seems to me to be a very weak argument, which would not justify the tremendous injury which would undoubtedly be done to neutrals, if the proposal were adopted. The belligerent is considered as being at peace the neutral State and, if he should find it impossible, either on account of his geographical situation or the insufficiency of his maritime resources, to exercise effectively the right of seizing neutral vessels carrying contraband of war or seeking to violate a blockade, he must leave them at liberty. That is the principle of the American, Japanese, and British proposals.

with

The adoption of a new principle giving belligerents the right to sink neutral prizes would inevitably lead to abuses and would expose every neutral vessel to the danger of being sunk whenever it met a belligerent war-ship, whose captain would not fail to exercise his right as he might see fit, in spite of the orders which he might have received to act with circumspection. A neutral vessel would therefore find itself in the same position as an enemy vessel; indeed, its position might be worse, since its Government would have no means of redress for the injury committed except by declaring war on the belligerent captor.

The British Government is therefore of the opinion that established practice does not permit the destruction of a neutral prize and consequently thinks that it is not at all desirable to modify in any way whatever this state of affairs.1

His Excellency Sir ERNEST SATOW desires to add that in the opinion of the British delegation the exception mentioned in the amendment of the delegation of Japan 2 cannot be applied to the capture of a neutral vessel. The British proposal presupposes visit and capture, and it is to be applied only in cases where capture has taken place. Hence it is still of the opinion that the destruction of a neutral prize should continue to be prohibited.

His Excellency Count Tornielli thinks that the considerations set forth by the delegation of Russia might be satisfied, if it were laid down that neutral

1 Annex 39.

'Annex 41.

prizes may be brought into neutral ports and left there in sequestration, pending the decision of the prize court. He proposes that this suggestion be recommended to the committee of examination.

[904] There would be a certain urgency in examining this suggestion, for in the committee of the Third Commission, second subcommission, the question of the entrance of prizes into neutral ports is being studied at this very

moment.

His Excellency Sir Ernest Satow asks that the Commission vote on the following proposal: Does international law at present recognize the right to sink neutral vessels in case of force majeure?

The President believes that the Commission should first pass upon the amendment filed by the delegation of Japan.

His Excellency Lieutenant General Jonkheer den Beer Poortugael observes that if the Commission votes on the British and the Japanese proposals, it discards by so doing the suggestion of his Excellency Count TORNIELLI. Personally, he prefers to join in this suggestion.

The President replies that it is for the Commission to take a stand in this respect; it must decide whether it wishes to vote or to refer the question to the committee of examination.

His Excellency Sir Ernest Satow insists upon a vote on the proposal as he has stated it. There is, as a matter of fact, no relationship between this proposal and his Excellency Count TORNIELLI's suggestion. The former relates merely to the present state of the law, while the latter has in view the rule to be laid down for the future.

Mr. Louis Renault asks to be allowed to say a word as to the manner in which the question has been put. Given the form proposed by his Excellency Sir ERNEST SATOW, it is difficult to make a reply. It is not the Commission's rôle to pass upon the existing law, to settle its controversies, or to give consultations. It must discover rules to be laid down for the future. It must pass, not upon lege lata, but upon lege ferenda. If, however, such should not be the sentiment of the Commission, if it should wish to pass upon the existing law, the French delegation would abstain from voting.

His Excellency Sir Ernest Satow has no intention of opposing his authority in the matter of jurisprudence to that of Mr. RENAULT. If he put the question in this form, it was merely because he had in mind the wording of questions XI and XII of the questionnaire, which seem to refer to the present state of law and practice. His Excellency Sir ERNEST SATOW does not wish to return to the reasons which prevented him from entering into details, because it does not appear to him possible to establish a rule which would not meet with unanimous acceptance on the part of the States. He has merely wished to do one thing: to establish the fact that the law does not at present permit the destruction of neutral prizes.

The President replies that in thus drawing up the articles of the questionnaire he had no intention of having them voted upon; he merely wished to give a certain direction to the debates. The object of the questionnaire is to have the Commission investigate what are the law and the practice at the present time, in order to make deductions for the future.

His Excellency Mr. Tcharykow thinks that the rôle of the Commission is 1 Annex 39.

• Annex 1.