The belligerent party who shall violate the requirements of those regulations shall be held to indemnity in a proper case. He will be responsible for all acts committed by persons forming a part of his armed forces.

It is one of the most essential rules of international good neighborhood that the states composing the family of nations shall be guided by the highest good faith in the execution of their treaty obligations. The rules of war of 1899 form no exception to this wholesome and necessary rule. It should be observed, however, that the several requirements of the undertaking are carried into effect, not under the immediate control and direction of the foreign offices of the signatory powers, but by military officers in the theater of hostile activity, each acting within the sphere of his command and duty in the military establishment of the belligerent under whose flag he serves. It is not surprising that differences of interpretation and of execution should have arisen in the application of the convention of 1899, or that undue severity should have been shown, from time to time, in the exercise of authority by subordinate commanders. To correct this dangerous tendency and give due emphasis to the well-established administrative principle that the state itself is responsible for the acts of its military commanders and subordinate agents, it was determined to add a concluding paragraph having some of the aspects of a penal clause. Its operation will be to require those charged by their governments with the exercise of high military command to maintain such a constant supervision over the acts of their subordinates as will be calculated to secure the exact and rigorous enforcement of the several requirements of the convention.

If the circumstances of a particular war are such as to suggest the application of a rule of limitation to cases arising under the article, such mutual stipulations in that regard as are warranted by the facts may properly find a place in the treaty of peace.

THE DECLARATIONS OF 1899

The convention of 1899 contained three declarations. In the first the signatory powers agreed to forbid, for the period of five years, the throwing of projectiles and explosives from balloons.

This

declaration expired by its own limitation on July 29, 1904. The second declaration forbade the employment of projectiles having for their sole purpose to diffuse asphyxiating or deleterious gases. The third and last of the declarations forbade the use of small-arm projectiles "which expand or flatten easily in the human body such as those having jackets which do not entirely cover the core or are provided with incisions." The last-named prohibition the United States declined to accept and that Government has never, by accession or adherence, become a party to its operation.

It will be observed that the declaration of 1899 on the subject of small-arm projectiles makes the prohibition to depend upon a particular injury to the tissues caused by a bullet having the mechanical construction described in the declaration. Other forms of bullet, of which there are a great number, some of which inflict wounds that exceed in cruelty those described in the convention, do not fall within the scope of the prohibition and, as the declaration contains no general terms of restriction, may be employed with impunity.

For that reason an amendment was submitted to the First Peace Conference, by General Crozier of the American delegation, which forbade the use of bullets "which inflicted wounds of needless or unnecessary severity; such, for example, as explosive bullets and, in general, every kind of small-arm projectile which exceeds the limit necessary for placing a man immediately hors de combat." General Crozier's amendment, though lucidly explained and supported by the most convincing arguments, failed of adoption, and the declaration, in the form proposed by the subcommittee, was approved by the conference and inserted in the convention.

General Crozier's sound and well-considered views have been fully vindicated by the test of subsequent practical experience, and his reasoning has lost none of its cogency or force in the years which have elapsed since his amendment was rejected. Small-arm projectiles having the mechanical construction, or causing the wounds which are particularly described in the declaration, have ceased to be manufactured; and the forms now in use, some of which inflict wounds of great and unnecessary severity, are no longer within the narrow and illogical terms of the prohibition. Had the Crozier amendment

been adopted, it is highly probable that a type of small-arm projectile would have been developed which would have met all reasonable requirements in respect to velocity, range, and flatness of trajectory, without the needless and inhuman laceration of tissues which attend those now in use, or which are proposed for adoption in the armies of some civilized powers.

Although the United States was not able to accept the declaration of 1899 in the form in which it appears in the convention, it has always regarded the restriction as an appropriate subject for conventional regulation, supplementing, as it does, the humane requirements of the St. Petersburg declaration of 1868.

The declaration of 1899, while conceived in a highly humane. spirit, made the prohibition in respect to the use of small-arm projectiles to depend, not upon their effects upon the human body, or upon their efficiency in placing a man hors de combat, but, to some extent, upon their mechanical construction, and upon certain specific effects upon the tissues which were expressly stated in the declaration. It will be apparent that any restriction which it may be determined to impose, by treaty or otherwise, upon the use of certain small-arm projectiles should be logically conceived, clearly stated, and should be made to depend upon the wound occasioned by their use. In other words, it should be based upon the character and extent of the injury inflicted-upon the destruction of tissues rather than upon the mechanical construction of the projectile which causes the destruction.

It was believed that the time had come for the adoption of a sound and wholesome prohibition upon the use of small-arm projectiles the effects of which upon the human body are in excess of the requirements of civilized warfare. A government has the right to use a projectile which, by its shock of impact, will place an individual combatant hors de combat. So much of injury is lawful, but all injury in excess of the limit so imposed is unlawful, because it is cruel, inhuman, accomplishes no military purpose, and exceeds the standards of reasonable military necessity.

A proposition couched in the following language, which is identical with that used by General Crozier in 1899, was prepared, and

printed and distributed in the manner prescribed by the rules governing the procedure of the conference and its committees:

The use of bullets which inflict unnecessarily cruel wounds such as explosive bullets and, in general, every kind of bullet which exceeds the limit necessary for placing a man immediately hors de combat should be forbidden.

On the day set apart for the discussion of the declaration it was called up, but was ruled out of order by the president of the Second Committee on the ground that the amendment of the two declarations which were still in force was not included in the program, and upon the further ground that a treaty stipulation, in the form of a declaration, could only be amended at the suggestion of a power which had formally denounced it.

It was suggested to the chair that, as the United States had never become a party to the declaration, it was in substantially the same position, in so far as its amendment and adoption were concerned, as if it had adhered to the stipulation and had subsequently denounced it; but this suggestion was not accepted.

Formal exception was then taken to these rulings, but, as they seemed to have received the tacit approval of the delegates who composed the membership of the committee, it was not deemed expedient to appeal from the decision of the chair in respect to an interpretation of a conventional stipulation which would not have been reached by an application of any of the rules for the interpretation of treaties and statutes which are known to the common law. Had the ques

tion been submitted to discussion it is only too apparent that a conclusion would have been reached couched in terms as vague, uncertain, and barren of practical results as is the obsolete declaration in that regard of the conference of 1899.

GEORGE B. DAVIS.

HAGUE CONVENTION RESTRICTING THE USE OF FORCE TO RECOVER ON CONTRACT CLAIMS

The convention of the Second Hague Conference respecting the subject of contract claims alleged to be due by one state to the subjects of another has a special interest to the citizens of the twentyone American republics, particularly the first article of the convention, which reads as follows:

Les Puissances contractantes sont convenues de ne pas avoir recours à la force armée pour le recouvrement de dettes contractuelles réclamées au Gouvernement d'un pays par le Gouvernement d'un autre pays comme dues à ses nationaux.

Toutefois, cette stipulation ne pourra être appliquée quand l'Etat débiteur refuse ou laisse sans réponse une offre d'arbitrage ou, en cas d'acceptation, rend impossible l'etablissement du compromis, ou, après l'arbitrage, manque de se conformer à la sentence rendue.

OBLIGATORY ARBITRATION

On its face the convention looks to invoke a definite advance toward obligatory arbitration, although it is not put forward in direct terms, as was the original Russian proposal at the First Hague Conference in 1899 regarding international arbitration, which provided:

"Arbitration shall be obligatory in the following cases, so far as they do not affect vital interests or the national honor of the contracting states: "I. In the case of differences or conflicts regarding pecuniary damages suffered by a state or its citizens, in consequence of illegal or negligent action on the part of any state or the citizens of the latter.

"II. In the case of disagreements or conflicts regarding the interpretation or application of treaties or conventions upon " certain specified subjects.

The First Hague Conference suppressed the proposals to make arbitration in any way obligatory. It set up an arbitration tribunal but gave to arbitration no definite jurisdiction. An arrangement