NINTH MEETING AUGUST 28, 1907 His Excellency Mr. Martens presiding. The minutes of the sixth meeting are adopted. On the proposal of the President, the adoption of the minutes of the seventh meeting is postponed to the next meeting. The PRESIDENT returns to the discussion of the destruction of neutral prizes, which was begun at the last meeting. He recalls that, on the proposal of his Excellency Count TORNIELLI, the committee had decided that its decision would depend upon that reached by the second subcommission on the right allowed neutral Governments to admit neutral prizes to their ports, to be kept there under sequestration. The PRESIDENT reads a letter in which his Excellency Count TORNIELLI informs him of the result of the deliberations which have taken place on this point in the subcommission. Nine delegations voted in the affirmative and five delegations, which are awaiting instructions from their Governments, made reservations. Under these circumstances the PRESIDENT proposes that the committee exchange views on the subject of the destruction of neutral prizes, in order to clear the way and to endeavor to reach a reconciliation of divergent views. Its vote would be reserved until the second subcommission of the Third Commission. had reached a final decision. Mr. Guido Fusinato points out that the decision may modify the situation considerably. It is beyond doubt that the right allowed neutral Governments to admit to their ports neutral prizes will have the effect of reestablishing [abolishing?] the inequality existing between the different States which have more or less numerous colonial possessions and consequently would remove most of the objections which the English proposal has encountered. The President agrees with these observations. Mr. Guido Fusinato adds that the subcommission of the Third Commis[996] sion, on its side, is awaiting the action of the Fourth Commission on the British proposal concerning the destruction of neutral prizes1 before coming to a decision. Mr. Kriege asks whether the proposal submitted to the Third Commission. imposes upon neutral Governments the obligation to admit neutral prizes to their ports or whether it merely creates a privilege. For his part, he thinks that the proposal should merely allow a privilege and not create a duty. His Excellency Count Tornielli explains that there has never been question of imposing a duty upon neutral States, but that the proposal allows them a 1 Annex 39. privilege. The question presents itself thus: The prohibition against bringing prizes into the ports of a neutral State is absolute but for three exceptions: the condition of the sea, damage to the vessel, and, finally, the consent of the neutral State to admit the neutral prize to one of its ports, to be kept there under sequestration. His Excellency Mr. van den Heuvel considers the question from two points of view. In the first place, from the point of view of the principle he cannot recognize that the right to capture a neutral vessel can give the right to destroy it. If it is the case of an enemy vessel, the majority of States claim only in exceptional cases the right to destroy it before confirmation of the capture by the competent prize court. To justify this serious right, it is said that the disputes to be settled are infrequent and simple, and that the interests of the captor always take precedence over the interests of the enemy citizen. Similar exceptions cannot be admitted, if it is a question of neutral prizes. Disputes are then of a delicate nature and of frequent occurrence, and we are confronted with the property of the subject of a State with which we are on good terms; we cannot take such severe measures against him as destruction, so long as the circumstances of the capture have not been adjudicated by the competent court. Therefore, independently of the solution reached by the Third Commission, his Excellency Mr. VAN DEN HEUVEL supports the proposal of Great Britain. But we must also consider another point of view, that of the propriety of continuing the discussion now. There are States which hesitate to follow the course mapped out by Great Britain and point out objections based upon practical difficulties. For this reason he believes it preferable to postpone the discussion, which may take a different turn, depending on the solutions reached by the other Commission. His Excellency Count Tornielli remarks that the Conference is, as a matter of fact, indivisible and that the solution of questions will be indefinitely deferred, if the Commissions wait for each other's decisions. Mr. Kriege remarks that from a legal point of view his Excellency Mr. VAN DEN HEUVEL'S theory on the right of destruction of neutral prizes does not seem to be well founded. The proposition that a neutral prize should be spared because it is the property of an individual is not correct; the same thing might be said with regard to an enemy prize, which, until it is condemned by a prize court, is not the property of the captor State, but of an individual. When the capture of neutral property is admitted under certain conditions, like that of enemy property, no distinction should be made between them. His Excellency Mr. van den Heuvel thinks that property belonging to an individual who is the subject of a neutral State may not be treated like that of an individual who is the subject of an enemy State. [997] Mr. Kriege replies that these considerations are of a political rather than a legal nature. His Excellency Mr. van den Heuvel thinks that neutral prizes and enemy prizes should be considered differently and, if it is regarded as permissible in certain cases to deprive enemy prizes of the guarantee of a legal decision before disposing of them, in no case shall we be justified in disposing of neutral prizes without first having them adjudicated by a prize court. Mr. Guido Fusinato points out that there is nevertheless a difference in their treatment. In the case of a neutral vessel there may be an indemnity, if the prize court so decides. If, on the contrary, an enemy ship is involved, it will have no right to an indemnity. It must not be forgotten that the right to sink does not exclude an indemnity. Mr. Kriege says that as a matter of fact the prize court will in all cases have the final word. It must even release an enemy prize if by virtue of treaties or of the laws of the captor State the seizure of the vessel was not legal, for example, in case the vessel shall have been captured in contravention of days of grace allowed it. The President points out that the impartiality of the prize court will be a guarantee to neutrals. The Permanent Court, which will sit at The Hague in time of war and which will perform the duties of a court of appeal, will be the best of guarantees. The President asks whether, even in case the neutral Government should accept sequestration, there will neverthless be cases in which the belligerent will have the right to destroy. Captain Behr replies that it is certain that the proposal presented to the Third Commission will have the effect of restricting cases in which destruction will be a necessary measure, but it will not remove them all; there will remain, to be specific, the case of proximity of the enemy and that of a cargo of absolute contraband. Mr. Kriege thinks that the proposal submitted to the Third Commission will not be sufficient to do away with the destruction of neutral prizes: (1) because it is not certain that neutral ports will be willing to be places of sequestration; (2) because there are cases in which it is impossible to bring a vessel into a neutral port-for example, if the ship is in such bad condition as to render it impossible to bring it in or if the approach of enemy forces or other reasons threaten its recapture, or if the crew of the war-ship is insufficient to man the vessel adequately. The President asks whether the exceptions could not be set forth in a provision. Captain Behr proposes the formula used in the first paragraph of the Russian proposal,1 which is as follows: "The destruction of a neutral prize is prohibited except in cases where its preservation might endanger the safety of the capturing vessel or the success of its operations." His Excellency Couni Tornielli states that according to the explanatory statement in the Russian proposal, the committee is decided as to the reasons against the adoption of the British proposal and to the difficulties with regard to an agreement on the exceptions. He asks whether a distinction might not be made according as the neutral vessel is or is not loaded with absolute [998] contraband. He is not making a proposal but merely a suggestion. As for the vote of the Italian delegation, it will depend upon the way in which the second subcommission of the Third Commission receives its proposal. Might we not reach a solution by uniting the two committees, that of the Fourth Commission and that of the subcommission of the Third Commission? The President proposes that a small committee be formed, composed of members appointed by the two committees. His Excellency Sir Ernest Satow states that he has no instructions which will allow him to come to a decision on the question. Such instructions cannot reach him inside of eight days. It must not be lost sight of that this is a matter 1 of changing rules which have been in existence for more than half a century and which aimed to put an end to abuses arising from the stay of prizes in neutral ports, where they were forgotten. His Excellency Count Tornielli replies that the reform proposed is not so much at variance with the regulations of Great Britain. It must indeed be admitted that many things have changed in the past century, that the conditions of maritime commerce are no longer the same, and that, above all, in spite of the hesitancy we may have, the new practice is not in absolute opposition to the regulations. His Excellency Sir Ernest Satow thinks that it will be difficult to eradicate ideas which have dwelt in the heads of statesmen and sailors for so long a time. The President proposes that the discussion be postponed until the British delegation has received instructions. He hopes soon to have good news of them. His Excellency Sir Ernest Satow also awaits good news in the matter of the opposition to the prize court and the abolition of the right of destruction. The President says that, if the present Conference should be unable to agree upon the essential principles of international maritime law, the international prize court would not be in a position to operate regularly and to establish a system of jurisprudence by its decisions. On what would its judgments be based in the absence of principles of law formally recognized by the States? Would they be based on the "principles of international law," which are so contradictorily set forth by different writers? I am firmly convinced, concludes the President, that the creators of the international prize court at The Hague are morally obliged to give it a legislative foundation upon which it can base its decisions. The lack of such a foundation will have as its inevitable consequence a formidable and fatal diversity of judgments, which will cause the most dangerous confusion in international relations. Rear Admiral Sperry considers it indispensable to come to an agreement on the question of contraband of war, which is the basis of the question of the destruction of neutral prizes. The President esteems this an additional reason why the special committee should reach an agreement on contraband. The PRESIDENT proposes that the committee now examine the application to naval warfare of the rules applicable to war on land. This application [999] exists in the matter of the Red Cross and the Declaration of 1856. We must see whether there are in the 1899 Convention rules that can be applied to war at sea. It would seem, however, to be useless to enter into a very detailed examination. Chapter I among others relates to belligerents. Its application leads us back to the question of conversion; but the committee has reached no agreement on this point. The State therefore remains free to effect mobilization as it has done up to the present time. His Excellency Count Tornielli remarks that this question has only been discussed in the committee. The Commission, in which a greater number of States is represented, has not passed upon it. The President replies that the committee will make its report to the Commission and that the filing of this report may be made the occasion of further discussion. Jonkheer van Karnebeek recalls that if it has been impossible to reach an agreement in the matter of the place of conversion, there are other points as to which an agreement seems to be possible. There is, in the first place, the question of reconversion. In the committee the general opinion was that it should be prohibited. In the second place, there are the conditions necessary for conversion. The PRESIDENT noted at its fifth meeting the general agreement of the Commission with regard to these conditions. They are very important, since they establish the necessary guarantees that the right of capture and of search shall not be exercised except by the agents of the belligerent State. That is the purport of the Declaration of Paris of 1856. His Excellency Mr. A. Beernaert thinks that it would be well to apply to war at sea certain of the rules adopted for war on land, for example that prohibiting the shooting of a belligerent prisoner. He proposes that the committee charge Jonkheer VAN KARNEBEEK to make a report on these various points. His Excellency Mr. Keiroku Tsudzuki does not believe that there is unanimity on the question of reconversion. His Excellency Sir Ernest Satow thinks that all the questions raised by conversion depend upon that concerning the place where it may be effected. Great Britain admits that conversion may be effected only in a national port, in the port of an ally if the latter consents thereto, or in an occupied port. She admits that reconversion may take place in these same places. A war-ship will always be recognized by its build, by the naval flag, by the commission of its commanding officer. The President likewise is of the opinion that, as regards conversion, the question of place is a vital one and that any discussion that does not take it into consideration would be fruitless. Jonkheer van Karnebeek admits that there may be a certain relationship between the question of place and that of reconversion. He will not insist upon that point. But he cannot see in what way the conditions required of the commanding officer and crew depend upon the question of place. It is a question of ensuring a just application of the Declaration of Paris and of protecting private property at sea from the possibility of the illegitimate exercise of certain exorbitant rights which the present Conference has not been able to abolish. He recalls that the committee has up to the present moment very little to present to the Commission. The only real progress made is the rule relating to the crews of captured enemy merchant ships. We might also cite [1000] the rule concerning merchant ships on the outbreak of hostilities. But this rule is in substance merely a vau, and we shall have to see whether detention, mentioned therein as a substitute for capture and confiscation, will not become the normal measure which will always be applied in future on the outbreak of hostilities. This would be a backward step. Mr. VAN KARNEBEEK thinks that under these circumstances the committee cannot allow itself to neglect the points indicated concerning conversion on which it would seem to be possible to reach an agreement. The President replies that nothing prevents the placing of the discussion again on the order of business. Several of the great Powers believe that the question of place is a vital one and would not wish to discuss the other questions to which conversion gives rise. The PRESIDENT is in favor of the proposal to charge Jonkheer VAN KARNEBEEK with the preparation of a report, under the direction of his Excellency Mr. |