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that a neutral shall not be more severely treated by the belligerent, as against whom he has abandoned his neutrality, than a national of the other belligerent state could be for the same act.

A motion of Mr. Houdicourt, delegate of Haiti, expressly stipulated that expressions of sympathy through the medium of the press are not deemed hostile acts against the belligerents. International law ordinarily affirms this, and it should fairly be understood from article 62, above cited. Spoken or written expressions of opinion can not be included in the legal category of “acts.”

To article 63, above cited, was added the prohibition against furnishing supplies or loans when the person who furnishes the supplies or makes the loans lives in enemy territory or territory occupied by the enemy. Therefore, the following acts shall not be considered as committed in favor of one belligerent by reason of which the neutral can not avail himself of his neutrality:

Supplies furnished or loans made to one of the belligerents, provided that the person who furnishes the supplies or who makes the loans lives neither in the territory of the other party nor in the territory occupied by him, and that the supplies do not come from these territories. In the new form the restriction concerning sums loaned proceeding from enemy territory or territory occupied by the enemy disappeared in the alteration.

With these comparatively simple alterations, the first chapter of the German proposition was accepted without difficulty.

19. It was not, however, so with the second chapter. The fundamental thought was the prohibiting of neutral persons from lending their services to belligerents, and therefore belligerents were prohibited from accepting such services even though the interested parties might consent, and neutral powers were directed to restrain their subjects or citizens.

The French delegation, through Messrs. Bourgeois and Renault, immediately objected to this proposition. It was justly argued that it was not clear that the belligerent ought to abstain from availing of the services of neutral persons — so beneficial in certain famous instances — or that the neutral state ought to bind itself to restrain them, thus exceeding the duties which impartiality imposes upon it in war and converting the passive condition of nonintervention, which is its mission, into that of an active obligation. And, this point of view being warmly seconded by the English and Swiss delegations, among others, the German delegation finally abandoned the innovation, accepting, in this regard, the usual practice.

But what is the usual practice [in regard to services] ? The distinguished redacteur of the project, Colonel Borel, who made every effort to obtain a satisfactory result, proposed to the comité de redaction, with the assent of its members, the following formula:

Belligerents shall not demand of neutral persons services which relate directly to the war. Service of sanitation or of public health are excepted. Such services shall be compensated for in cash whenever possible. In default thereof, the proper receipt shall be given and payment made as soon as possible.

By this formula, the distinction drawn between war and other service disappears, being unnecessary after the withdrawal by the German delegates of the main prohibition in the first clause. Religious or ecclesiastic services, mentioned in the German proposition, and services relating to civil administration, to which the AustroHungarian amendment referred, were excepted, it being recognized that their general character did not permit their being included among the services having direct relation to war.

And it was claimed that circumstances urgently demanded the exception of sanitary services and services for public health. The above quoted formula was so reasonable, and in such complete harmony with the general practice of nations, that of itself it could not cause any difficulty or complication.

Nevertheless, it was thought necessary to establish definite limitations restricting its application. Among other things, the desirability of making special provision for the case of a voluntary engagement on the part of a neutral was suggested. This immediately brought up the case of resident foreigners who enter military service by reason of special provisions of the Norwegian legislature, or on account of peculiar conditions in the Dutch and British colonies. The Belgian delegates also thought that the formula should not be applicable to strangers without a country (apelites), without any tie of nationality, or to those who can not show that they have complied with the recruiting regulations of their own country.


If the first of these restrictions seems proper, the others assuredly do not. To say that foreigners may be liable to military service by reason of special legislation of the country is equivalent to nations leaving their subjects or citizens to the arbitrary regulations of the place in which they may reside, and to renunciation of the defense and protection of nationals outside of their own territory, which is one of the important and legitimate functions of modern states. This expression has also the serious objection of appearing to include cases of dual allegiance, and of settling them in favor of the country in whose territory the persons may be. The solution involves a number of exceedingly grave problems, which only in part concern the law of nations and in part relate to national sovereignty.

On the other hand, to convert the loss of citizenship or national status into a title or right to augment the military forces of a government, giving it, by the action of the Peace Conference, legal sanction in war, may possibly be a necessity for certain nations of Europe which other states in the world are not called upon to share or admit. Otherwise there would come about a sort of a barrier against emigration for military reasons, since it would follow that any country could subject to military service any alien who could not prove that he had given such service in his own country. It is not strange, therefore, that these propositions excited much discussion in the subcommission and also when submitted finally as a formulated draft.

The exception regarding services required by the legislation of a state suffered a fate as curious as it was unlooked for. When submitted to the committee by the redacteur it was rejected by a vote of the majority. Being presented later by the English delegates in the commission, in submitting the report of the committee, it was approved by twelve votes to nine and three abstentions. The article therefore was drafted as follows:

The provisions of the first paragraph of article 64 are not applicable to persons who may belong to the army of a belligerent state by reason of their voluntary engagement. Neither are they applicable to persons who may belong to the army of a belligerent state by reason of the legislation of such state.

When this article was read in the plenary session of the conference on September 7, 1907, it called forth formal reservations of the second paragraph by the Italian, Greek, French, Russian, Swedish, Swiss, Cuban, Servian, Austro-Hungarian, Brazilian, Montenegrin, and Persian delegations.

The result of these numerous reservations was that the project was referred back to the commission which had formulated it. At a meeting two days later the commission agreed, by thirty-two votes against seven abstentions, to omit these articles, with others to which we shall refer later. The problem, therefore, relative to the personal services which may be demanded of neutral persons remained without solution; but it should not be lost sight of that the difficulty concerned an exception to a fundamental principle upon which all the powers were in accord. There may be a part of terra firma voluntarily abandoned because of the indetermination of its boundaries. Thus some later conference, with more time and more skill, may perhaps fill the void which is left.

20. Much more difficult, because relating to almost irreconcilable differences in practice, were the questions with regard to the property of neutral persons in belligerent territory and in territory occupied by the belligerent. Leaving the questions of railroads for another paragraph, the German proposition and the report of the committee referred to war taxes; the use, destruction and damage of real and personal property; the expropriation of the latter; the employment of vessels; the requisition of their cargoes; and the indemnity to be paid upon all of these accounts.

The fundamental principle of the German project, which we have recited above, consisted in a claim that neutral persons were entitled to special regulation; while the British and French delegations thought they should be treated the same, with regard to their property, as the national in the territory of the belligerent, or as the enemy in enemy territory occupied by the belligerent. The former claimed that, inasmuch as war in our days is between state and state, and clearly distinguishes between neutrals and belligerents, neutrals should be protected, as far possible, from having to support the burdens of a military struggle which did not concern them as a duty. The latter maintained that war taxes must be imposed ratione loci and not ratione persone, and that the remaining property of neutral persons should share the consequences of the war in return for the advantages which the aliens would have come in search of in seeking a residence in the foreign territory, and for the protection which they had received during times of peace.

The plenary conference did not decide this matter, since, except with regard to the use of vessels, the propositions, which were adopted by the committee, were voted down in the commission on the 4th of September, 1907, by thirteen votes to eleven, and ten abstentions. As to neutral marine trade, an article was drafted in committee in the following sense:

Neutral vessels and their cargoes may be expropriated or used by a belligerent when they are engaged in river navigation in the belligerent territory or in enemy territory. Vessels habitually engaged in maritime service are excepted. In the event of expropriation, the indemnity shall be equal to the actual value of the vessel or of the cargo, and ten per cent more. In the event of the employment of the vessel, the ordinary compensation shall be made, together with an addition of ten per cent. These payments must be made immediately and in cash.

It is needless to discuss at length the reasons given in the subcommission and in the committee for this article although the discussions in the committee, particularly, which are not recorded, were very interesting. The proposition passed through the commission at first without any vote, but with explicit reservations on the part of England, Japan, Russia, France, Austria-Hungary, and China. In the conference of the 7th of September, 1907, the draft was returned to the commission and was suppressed two days later by the same agreement to which we have above alluded with regard to war services which may be demanded of neutral persons.

21. It will be recalled that article 70 of the German project authorized the belligerent to expropriate or use for military purposes, pending payment in cash, any neutral goods which may be found in its country. The questions which arose during the Franco Prussian war, on account of railway material, moved the delegation of Luxemburg to propose another article to the following effect :

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