THE HAGUE CONVENTION RESPECTING THE RIGHTS The purpose of this convention, as indicated in the preamble, is to harmonize the existing divergent views of states concerning the relations between neutrals and belligerents in the event of naval war, and to anticipate the difficulties to which such divergence may give rise, by framing rules of general application to meet the case where hostilities may have unfortunately broken out.2 The advantages of an international agreement accomplishing such a purpose must be apparent. The benefit derived from the fact of codification may in itself, in the estimation of some foreign offices, afford ample reason for the approval of rules of conduct not heretofore believed to be sanctioned by general consent. The great problem confronting the committee which prepared the convention was to reconcile the right of the neutral to afford asylum with its duty to abstain from participation.3 The first four articles of the convention relate to the inviolability of neutral territory. Article 1 declares: 1 The text of this convention, with an appended English translation, is contained in the AMERICAN JOURNAL OF INTERNATIONAL LAW, Supplement, II, 202. 2 The report of the comité d'examen declares: La chose essentielle, c'est que tous sachent quoi s'en tenir et qu'il n'y ait pas de surprise." (Report to the Conference, 3.) 3 The convention was the work of a comité d'examen, by whom it was presented to the Third Commission and was, after amendment, reported by that commission to the conference. The comité d'examen was composed of the following members: President, Count Tornielli (Italy); reporter, Mr. Renault (France); RearAdmiral Siegel (Germany); Rear-Admiral Sperry (United States); Commander Burlamaqui (Brazil); Mr. Lou Tseng-Tsiang (China); Mr. Vedel (Denmark); Captain Chacon (Spain); Sir E. Satow (Great Britain); Captain Castiglia (Italy); Mr. Tsudsuki (Japan); Mr. Hagerup (Norway); Lieutenant-Commander Ferraz (Portugal); Mr. Tcharykow (Russia); Mr. de Hammerskjöld (Sweden); and Turkhan Pasha (Turkey). Belligerents are bound to respect the sovereign rights of neutral powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any power, constitute a violation of neutrality. Article 2 declares: Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war ships in the territorial waters of a neutral power, constitutes a violation of neutrality and is strictly forbidden. These provisions arouse inquiry, first, as to the nature and extent of the duty of the belligerent to respect neutral territory; secondly, concerning the duty of the neutral to prevent violations of neutrality. That neutral territory should not be the scene of naval hostilities is generally appreciated. The principle of the inviolability of the territory of a state is not, however, due to the existence of a condition of war between other powers, or to the neutral character of the state itself. Each nation, by reason of its political independence, has the right to insist that no act in derogation of its sovereignty be committed within its territory or territorial waters.* An act of war there perpetrated by the naval vessel of a friendly state is as offensive to the local sovereign as the commission of a common crime. It is to be observed also that the duty of the belligerent to respect neutral territory is not measured by the neutral's duty of prevention. There may be places within the territorial waters of the neutral where a naval engagement would be offensive to the local sovereign, and where the latter, by reason of its lack of knowledge or power, might be under no obligation to either belligerent to prevent the conflict.5 It is essential that within neutral waters every belligerent act be forbidden, the commission of which, if tolerated by the neutral, would constitute a breach of neutrality on its part. This is accomplished by article 1. The prohibition expressed in article 2 is comprehensive and emphatic. Inquiry is made whether the prohibition is intended to cover 4 Report to the Conference, 3 and 4. " Id., 3-4. every possible situation. Although a belligerent can not be said to possess the right to commit warlike acts in neutral waters, it is not true that all such acts are, on principle, unjustifiable. The commission of an act of hostility on grounds of self-defense is not a wrong to the neutral. It is unnecessary to elaborate circumstances warranting such conduct. It may be observed, however, that the belligerent war ship which fires the first shot at the enemy is not necessarily taking the initiative, or beginning hostilities." Article 3 declares: When a ship has been captured in the territorial waters of a neutral power, this power must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize, with its officers and crew, and to intern the prize crew. If the prize is not in the jurisdiction of the neutral power, the captor government, on the demand of that power, must liberate the prize, with its officers and crew. When the neutral has faithfully employed the means at its disposal either to prevent the commission of the hostile act or to undo the wrong which may have been done, its duty is fulfilled. The practice of nations indicates clearly that the neutral is not the guarantor of the safety of belligerent vessels within the territorial waters of the former." It is obviously just that provision should be made imposing on the captor government the duty to liberate a prize with its officers and crew wrongfully taken in neutral waters. Article 4 declares that A prize court can not be set up by a belligerent on neutral territory or on a vessel in neutral waters. The reporter points out the fact that this article simply embodies what has long been the law of nations. It was accepted without dispute.8 See Lawrence, Inter. Law, 541; Hershey, Inter. Law and Diplomacy of the Russo-Japanese War, 262, note. Compare award of the arbitrator in the case of the Brig General Armstrong, Moore, Inter. Arbitrations, II, 1092; see also Hall, Inter. Law, 5th ed., 624. 7 See Moore, Inter. Law Dig., VII, 1092, 1095, 1101. Report to the Conference, 6. Article 5 declares: Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea. Propositions formulated by Great Britain, Japan, and Russia all opposed the idea that neutral territory should serve as a base of belligerent operations." While that principle was generally appreciated, its application to certain situations was found difficult. The prohibition of the erection of wireless telegraphy stations for the purpose indicated was appropriate and necessary in view of the uses made of that method of communication during the war between Russia and Japan.1 10 Article 6 declares: The supply, in any manner, directly or indirectly, by a neutral power to a belligerent power, of war ships, ammunition, or war material of any kind whatever is forbidden. The principle here expressed meets with general acceptation. Supply by a neutral government of what is forbidden in article 6 would constitute participation in the conflict. Impartial participation is not to be tolerated.11 As Walker declares: Neutrality does not consist in the mere impartial treatment of opposing belligerents, but in the entire abstinence from any assistance of either party in his warfare.12 9 Id., 6. 10 See Hershey, Inter. Law of the Russo-Japanese War, 115-119, 121-125; report of M. Fauchille to the Institute of International Law, 1906, Annuaire, XXI, 76. 11 But see Report of Mr. Carpenter, Senate Committee on the Sale of Arms by the Ordnance Department, May 11, 1872, with reference to the right of the United States to sell to the French Government munitions of war during the Franco-Prussian war. S. Rep. 183, 42d Cong., 2d sess. Moore, Inter. Law. Dig., VII, 973-974. Compare Hall, Inter. Law, 5th ed., 598. See also Mr. Day, Secretary of State, to Mr. Hay, ambassador to Great Britain, telegram, June 25, 1898, MS. Inst. Great Britain, XXXII, 680; Mr. Moore, Acting Secretary of State, to Mr. Hay, telegram, June 26, 1898, id., 683; Moore, Inter. Law Dig., VII, 868. 12 Science of Inter. Law, 374. The question suggests itself whether the prohibitions of article 6 are intended to cover the case where a neutral government consents to the sale, by its own citizens, of a merchant vessel subsidized by such government for its own service in time of war, and where the real purchaser is a belligerent, which, upon receipt of the vessel, commissions it as a cruiser. If the merchant vessel, by reason of the provisions of a subsidy contract, may be said to belong to the auxiliary or reserve naval force of the neutral, the permission of, or consent to, the sale by such state may be reasonably regarded as an act by the neutral power itself.13 Article 7 declares: A neutral power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunitions, or, in general, of anything which could be of use to an army or fleet. These provisions aroused no discussion and received barest comment at The Hague. That fact illustrates well the general acquiescence in the existing practice of maritime nations which imposes no obligation on the neutral to prevent a traffic which can not, nevertheless, be regarded as lawful. The supply of what may be of use to a fleet or an army is wrongful because it is a direct aid to the belligerent, and thus constitutes participation in the conflict.14 13 See T. E. Holland, "Neutral Duties in Maritime War," Proceedings of the British Academy, II, 2, translated and published in Rev. D. Inter. P. Lég. Comp., 2d series, VII, 359. See also Oppenheim, II, 344; Hershey, Inter. Law and Diplomacy of the Russo-Japanese War, 91-93, 110. 14 On the wrongfulness of such traffic Professor Moore, in the course of an instructive commentary, says in part: "The acts which individuals are forbidden to commit and the acts which neutral governments are obliged to prevent are by no means the same; precisely as the acts which the neutral government is obliged to prevent and the acts which it is forbidden to commit are by no means the same. The supply of materials of war, such as arms and ammunition, to either party to an armed conflict, although neutral governments are not obliged to prevent it, constitutes on the part of the individuals who engage in it a participation in hostilities, and as such is confessedly an unneutral act. Should the government of the individual itself supply such articles it would clearly depart from its position of neutrality. The private citizen undertakes the business at his own risk, and against this |