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is fundamental to the reign of law may come to exist. Gradually the attachment of the property of an alleged debtor, in advance of a judicial investigation into the merits of the debt — a procedure unknown to the English common law may cease as between the states. Gradually states may consider that it is unbecoming the high dignity and standards of justice which they should maintain to lend their great powers to the collection of the often falsely exaggerated claims of unprincipled speculators, supported by merely ex parte evidence.

GEORGE WINFIELD SCOTT.

THE HAGUE CONVENTION CONCERNING THE RIGHTS
AND DUTIES OF NEUTRAL POWERS AND

PERSONS IN LAND WARFARE.1

1. Hugo Grotius says, at the close of Chapter XVII, Book III, of his work De jure belli ac pacis, that it may be advantageous (for a neutral) to make a convention with each of the belligerents so that it may be allowed to abstain from the war with the consent of both sides. This opinion of the father of the law of nations. might be deemed to be well reasoned in 1625, but it reads very strangely in 1908.

To be neutral is to-day the right of all nations, not derived from the consent of the belligerents but rather imposed upon them absolutely. War is an abnormal condition, occurs at increasingly greater intervals, and is becoming of shorter and shorter duration. To make the briefest passing review of the history of the eighteenth century one would have to summarize the years of peace; but for the last half century one would gain time by summarizing the years of war. Since 1815 the territorial expansion of the civilized world and the great variety of political and economical interests on the Continent have done away with the spectacle of world wars. In the present time not only would an armed conflict of one hundred years be impossible, but even one of thirty, or ten or seven years' duration.

This tendency toward the limitation of warfare goes beyond juridical doctrines and has a direct and positive influence upon the progressive tendency and continuous development of the law of neutrality. Although the word "neutrality," which was unknown to Grotius, was used five years before the publication of his immortal work by the obscure author Neumayr de Ramsla, never

1 Translated by Miss Margaret M. Hanna, Department of State.

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theless the idea which it represents at the present day is the result of the pacific sentiment of our times.

It is necessary to limit, so far as possible, the effects of war, in order not to disturb in international society those who wish to continue to enjoy the benefits of peace, and it is necessary that the latter shall be able to declare, in the name of the law, that the peace continues for them unaltered, and that in their dominions and sphere of action they will proceed irrespective of the war and unmoved by the war.

When neutrality began to develop into theory and practice in the eighteenth century it was supported by the desire of each belligerent to prevent the enemy from gathering forces with the assistance of noncombatant states. By a reaction, due partly to jealousy and partly to resentment, the belligerent states consented to the inevitable necessity that there be neutral states, on the condition of imposing upon them strict duties, so that the enemy country of either could not be benefited by that situation. And, in fact, theory and practice set forth and demanded a series of duties for neutral states, as though such condition were a grave wrong or menace to international society.

At the same time, the comparative difficulty of land communication and the isolation of states caused the principal interest in these questions to be turned upon the sea and maritime enterprises. The two great armed neutralities were in the interest of commerce at sea, and the decisions of the Congress of Paris of 1856 dealt with the maritime practice of neutrals.

2. By the time of the meeting of the conference at The Hague there had taken place a new and important evolution in the theory and practice in regard to these questions. In brief, neutrality to-day does not depend upon the interest of the belligerents, nor upon their military exigencies, but upon the pacific interests of the universal community, constantly becoming more exacting, and upon the right of the noncombatant states to maintain their natural prerogatives in spite of the conflict.

A series of acts and abstentions, which were formerly called duties of neutral powers, are still called duties, but of the bellig

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 program 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

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