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erent states. Instead of saying, for example, that the neutral must prevent the passage across its territory of the belligerent army, it is now held that the combatants must refrain from crossing neutral territory with their armies. This is not simply a different form of expression, but a radical change in the juridical situation of both, and therefore in their international responsibility.

Another step which the circumstances of intense and pressing modern social life have brought with it, is the study of conditions of neutral and belligerent states during war on land, giving rise to-day to as many and as important questions as those which were brought up by the maritime commerce of the eighteenth and nineteenth centuries.

On both land and sea the influence of two modern theories has been felt — the one international, the other political. As war is declared between states and not between the individuals residing therein, this international distinction between a state and its nationals during the war has given rise to the theory that the foreigner resident in belligerent territory has a peculiar juridical status during hostilities. Thus has arisen the theory of individual or private neutrality in the public relations of the law of nations.

Likewise, the democratic character of the modern state tends to distinguish the conduct, right, duty, and responsibility of individuals from the general functions of the government. Therefore, neutral persons may carry on lawful acts in aid of one of the belligerents which the neutral state admits because such acts lie within the sphere of individual activity touching which the state does not concern itself, but which the state itself could not carry on without failing in the elemental duties of neutrality. Take, for example, the trade in arms and munitions of war.

3. These generalizations will serve at the same time as an explanation and as a touchstone for the work accomplished by the Second Peace Conference in the convention which we shall examine in this article. Three subjects are vigorously treated: (a) The rights and duties of belligerents with respect to neutral powers during land warfare; (b) the rights and duties of the neutral persons who are outside of the sovereign sphere of the belligerents; and (c) the juridical status, as affected by the war, of neutral persons and of their private property in belligerent territory or territory occupied by belligerents.

All of the above was embodied in a resolution which the First Conference of 1899 approved, with the view to having the questions relating to the rights and duties of neutrals included in the pro gram for the Second Conference.

4. The first two out of the five chapters of the convention upon the rights and duties of neutral powers and persons in land warfare, negotiated at The Hague, refer to states and not to persons. A proposition of the French delegation, added to and amended by the English, Swiss, Dutch, German, Belgian, and Danish delegations, formed the basis for the agreements.

The original French proposition provided :

ARTICLE 1. A neutral state can not be held responsible for the acts of its subjects, of which a belligerent may complain, except when such acts are effected within its own territory.

ART. 2. A neutral state shall not tolerate, within its territory, the organization of corps of combatants or the establishment of recuiting agencies in aid of a belligerent. But it shall have no responsibility if some of its subjects shall cross the frontier to enlist in the service of either of the belligerents.

ART. 3. A neutral state is not bound to prevent its subjects from exporting arms and munitions and in general from furnishing an army with all that may be useful for either of the belligerents.

Art. 4. Prisoners who may escape from belligerent territory and reach neutral territory shall remain at liberty.

5. The amendment of the British delegation accepted the first four articles of the French proposition, adding to the last prisoners escaping from territory occupied by belligerents, and also adding two other suggestions: First, that a neutral state is bound to prevent the installation within its territory of any wireless telegraphic or other apparatus serving as a means of communication with belligerent maritime or land forces; second, that passage be prohibited across neutral territory of troops, munitions, and provisions of war for the use of a belligerent.

The Dutch delegation proposed, on the one hand, that the liberty

of prisoners who entered neutral territory should be extended in cases of asylum or refuge to those who were conducted by an armed force. Moreover, they proposed that war supplies, taken from the enemy and carried by an army taking refuge in neutral territory, shall be returned to the state to which it belongs after the termination of the war. They proposed, further, that the declaration should expressly stipulate that the fact of a neutral state resisting, even by force, attempts to violate its neutrality can not be regarded as a hostile act.

Germany contributed to the problem by suggesting a new article providing that the neutral state is not bound to prohibit or restrict the use by belligerent states of cables and telegraphs which are within its territory, including government installations as well as those belonging to private individuals or companies; but that any prohibition or restriction should apply equally to all belligerents.

On the part of Switzerland, certain amendments as to form were proposed, emphasizing the idea that the neutral state is not bound to receive escaped prisoners, nor to tolerate their residence in their territory. The Belgian amendments referred, in great part, to the matters of form and expression, except that they proposed that neutral territory is inviolable and that the neutral state should be allowed to permit escaped prisoners to go at liberty or to assign them a place of residence.

And, finally, the Danish proposition declared that if a neutral state mobilizes its military forces with a view to preparing in good time for the defense of its neutrality, even although it may not have received notice of the opening of hostilities from the belligerents, such act shall not be deemed unfriendly with respect to either contending party.

6. With this material, the second subcommission of the second commission and its comité de redaction and d'examen 2 proceeded to their respective labors. It was unanimously admitted that it

2 This committee, presided over by Mr. Asser, was made up of General de Gündell, from Germany; General Davis, from the United States of America; Baron Giesl de Gieslingen, from Austria; Beernaert and van den Heuvel, from Belgium; Bustamante, from Cuba ; Brun, from Denmark; Renault, from France;

was not proper to formulate the projected convention as applicable only to the duties of neutrals, but that it was necessary to draft it in a form to include duties of belligerents, and that in certain cases concrete duties should be imposed upon them.

The responsibility of the neutral state was defined to be that it was not possible to demand neutrality for everything that takes place in its territory, nor for anything that takes place outside of it. Japan wished to extend the responsibility of the neutral state to territory over which it exercises jurisdiction, or a protectorate, or, as Colonel Borel said, in broader terms [to territory] to which its public authority is extended. Difficulties of drafting, aside from the individuality of such cases, made it advisable that the definitive project should include only the territory of the neutral state.

The first agreement, accepted without debate, was the fundamental declaration, opportunely proposed by the Belgian delegation, that the territory of neutrals is inviolable to belligerents.

7. Aside from the general lines mentioned in the preceding paragraphs, rules were established to govern the legal and illegal acts which may be performed by belligerents in neutral countries. Recruiting offices and the organizing of corps of combatants were prohibited without discussion, but, on the other hand, it was positively settled that neutral states have no responsibility for the acts of persons who may individually leave the country to enter the service of either of the belligerents.

Although Germany held, with regard to this proposition and with respect to neutral individuals residing in belligerent territory or in territory occupied by belligerents, that the belligerent states should engage not to accept the service of foreigners and that neutral states should prohibit such service by their subjects, this innovation, which departed from established usage up to the present time and seriously threatened individual liberty, did not meet with success in the commission.

Lord Reay and General Elles, from Great Britain; Tsudzuki, from Japan; Eyschen, from Luxemburg; General den Beer Poortugael, from the Netherlands; Samad Khan, from Persia; Beldiman, from Roumania; Borel (Redacteur) and Carlin, from Switzerland.

The theory of respecting neutral territory in the direct uses of war was carried to the extent of prohibiting belligerents from sending their troops, convoys, munitions, or provisions across the territory of a neutral state. But the neutral state, in the protection of commerce and to avoid becoming an indirect ally of either of the belligerents, remained exempt by express provision from prohibiting, for the use of either of the belligerents, the exportation or the transit of arms, munitions, and anything that might be useful to a fleet or an army.

With regard to the medium of communication, a distinction as sensible as it was necessary was made. The neutral state is not bound to prohibit or restrain the belligerents from the use of telegraphic or telephonic cables or of wireless telegraphic apparatus which may belong to it or to companies or private individuals; but any restrictive or prohibitive measures which it may adopt shall apply impartially to all belligerents, seeing to it that private persons and companies owning apparatus shall follow the same course. This latter point gave rise, on the part of the British delegation, in the subcommission, to a reservation, which was not repeated in the conference, and the principle of the freedom of communications was accepted by Great Britain on condition that in the report it should appear that the liberty of a neutral state to transmit dispatches by means of land lines, submarine cables, or wireless apparatus does not comprehend the right to use them or to permit their use to lend obvious assistance to either of the belligerents. seemed to the committee that this last reservation leaves the broad wording of the convention a little indecisive and exposed to practical difficulties.

At the same time, and as another of the distinctions already mentioned, it was specifically prohibited to the belligerents

(a) To install within the territory of the neutral state wireless stations or any other apparatus destined to serve as a means of communication with the belligerent sea or land forces; and,

(b) To use installations of this kind established by them before the war, for exclusively military purposes, and which may not have been open to the service of public messages.


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