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Final Acts of the International Peace Conferences. - A. Pearce Higgins, The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War 
The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War. Texts of Conventions with Commentaries, by A. Pearce Higgins, LL.D. (Cambridge University Press, 1909).
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Final Acts of the International Peace Conferences.
Actes Finals des Conférences Internationales de da Paix.
Acte Final de la Conférence Internationale de la Paix, 1899.
La Conférence Internationale de la Paix, convoquée dans un haut sentiment d’humanité par Sa Majesté l’Empereur de Toutes les Russies, s’est réunie sur l’invitation du Gouvernement de Sa Majesté la Reine des Pays-Bas, à la Maison Royale du Bois à La Haye, le 18 Mai, 1899.
Les Puissances, dont l’énumération suit, ont pris part à la Conférence, pour laquelle elles avaient désigné les Délégués nommés ci-après:—
[Dénomination des Délégués des Puissances, dont l’énumération suit.]
L’Allemagne, l’Autriche-Hongrie, la Belgique, la Chine, le Danemark, l’Espagne, les États-Unis d’Amérique, les États-Unis Mexicains, la France, la Grande-Bretagne et Irlande, la Grèce, l’Italie, le Japon, le Luxembourg, le Monténégro, les Pays-Bas, la Perse, le Portugal, la Roumanie, la Russie, le Serbie, le Siam, la Suède et la Norvège, la Suisse, la Turquie, la Bulgarie.
Acte Final de la Deuxième Conférence Internationale de la Paix, 1907.
La Deuxième Conférence Internationale de la Paix, proposée d’abord par M. le Président des États-Unis d’Amérique, ayant été, sur l’invitation de Sa Majesté l’Empereur de Toutes les Russies, convoquée par Sa Majesté la Reine des Pays-Bas, s’est réunie le 15 Juin, 1907, à La Haye, dans la Salle des Chevaliers, avec la mission de donner un développement nouveau aux principes humanitaires qui ont servi de base à l’œuvre de la Première Conférence de 1899.
Les Puissances, dont l’énumération suit, ont pris part à la Conférence, pour laquelle Elles avaient désigné les Délégués nommés ci-après:—
[Dénomination des Délégués des Puissances, dont l’énumération suit.]
L’Allemagne, les Etats-Unis d’Amérique, la République Argentine, l’Autriche-Hongrie, la Belgique, la Bolivie, le Brésil, la Bulgarie, le Chili, la Chine, la Colombie, la République de Cuba, le Danemark, la République Dominicaine, la République de l’Équateur, l’Espagne, la France, la Grande-Bretagne, la Grèce, le Guatémala, la République d’Haïti, l’Italie, le Japon, le Luxembourg, le Mexique, le Monténégro, la Nicaragua, la Norvège, le Panama, le Paraguay, les Pays-Bas, le Pérou, la Perse, le Portugal, la Roumanie, la Russie, le Salvador, la Serbie, le Siam, la Suède, la Suisse, la Turquie, l’Uruguay, les États-Unis du Vénézuéla.
Dans une série de réunions, tenues du 18 Mai au 29 Juillet, 1899, où les Délégués précités ont été constamment animés du désir de réaliser, dans la plus large mesure possible, les vues généreuses de l’Auguste Initiateur de la Conférence et les intentions de leurs Gouvernements, la Conférence a arrêté, pour être soumis à la signature des Plénipotentiaires, le texte des Conventions et Déclarations énumérées ciaprès et annexées au présent Acte:—
I. Convention pour le règlement pacifique des conflits internationaux.
II. Convention concernant les lois et coutumes de la guerre sur terre.
III. Convention pour l’adaptation à la guerre maritime des principes de la Convention de Genève du 22 Août, 1864.
IV. Trois Déclarations concernant:
1. L’interdiction de lancer des projectiles et des explosifs du haut de ballons ou par d’autres modes analogues nouveaux.
2. L’interdiction de l’emploi des projectiles qui ont pour but unique de répandre des gaz asphyxiants ou délétères.
3. L’interdiction de l’emploi de balles qui s’épanouissent ou s’aplatissent facilement dans le corps humain, telles que les balles à enveloppe dure dont l’enveloppe ne couvrirait pas entièrement le noyau ou serait pourvue d’incisions.
Ces Conventions et Déclarations formeront autant d’Actes séparés. Ces Actes porteront la date de ce jour et pourront être signés jusqu’au 31 Décembre, 1899, par les Plénipotentiaires des Puissances représentées à la Conférence Internationale de la Paix à La Haye.
Obéissant aux mêmes inspirations, la Conférence a adopté à l’unanimité la Résolution suivante:—
“La Conférence estime que la limitation des charges militaires qui pèsent actuellement sur le monde est grandement désirable pour l’accroissement du bien-être matériel et moral de l’humanité.”
Elle a, en outre, émis les vœux suivants:—
1. La Conférence, prenant en considération les démarches préliminaires faites par le Gouvernement Fédéral Suisse pour la revision de la Convention de Genève, émet le vœu qu’il soit procédé à bref délai à la réunion d’une Conférence spéciale ayant pour objet la révision de cette Convention.
Ce vœu a été voté à l’unanimité.
2. La Conférence émet le vœu que la question des droits et des devoirs des neutres soit inscrite au programme d’une prochaine Conférence.
3. La Conférence émet le vœu que les questions relatives aux fusils et aux canons de marine, telles qu’elles ont été examinées par elle, soient mises à l’étude par les Gouvernements, en vue d’arriver à une entente concernant la mise en usage de nouveaux types et calibres.
4. La Conférence émet le vœu que les Gouvernements, tenant compte des propositions faites dans la Conférence, mettent à l’étude la possibilité d’une entente concernant la limitation des forces armées de terre et de mer et des budgets de guerre.
5. La Conférence émet le vœu que la proposition tendant à déclarer l’inviolabilité de la propriété privée dans la guerre sur mer soit renvoyée à l’examen d’une Conférence ultérieure.
6. La Conférence émet le vœu que la proposition de régler la question du bombardement des ports, villes, et villages par une force navale soit renvoyée à l’examen d’une Conférence ultérieure.
Les cinq derniers vœux ont été votés à l’unanimité, sauf quelques abstentions.
En foi de quoi, les Plénipotentiaires ont signé le présent Acte, et y ont apposé leurs cachets.
Fait à La Haye, le 29 Juillet, 1899, en un seul exemplaire, qui sera déposé au Ministère des Affaires Étrangères, et dont des copies, certifiées conformes, seront délivrées à toutes les Puissances représentées à la Conférence.
Dans une série de réunions, tenues du 15 Juin au 18 Octobre, 1907, où les Délégués précités ont été constamment animés du désir de réaliser, dans la plus large measure possible, les vues généreuses de l’Auguste Initiateur de la Conférence et les intentions de leurs Gouvernements, la Conférence a arrêté, pour être soumis à la signature des Plénipotentiaires, le texte des Conventions et de la Déclaration énumérées ci-après et annexées au présent Acte:—
1. Convention pour le règlement pacifique des conflits internationaux.
2. Convention concernant la limitation de l’emploi de la force pour le recouvrement de dettes contractuelles.
3. Convention relative à l’ouverture des hostilités.
4. Convention concernant les lois et coutumes de la guerre sur terre.
5. Convention concernant les droits et les devoirs des puissances et des personnes neutres en cas de guerre sur terre.
6. Convention relative au régime des navires de commerce ennemis au début des hostilités.
7. Convention relative à la transformation des navires de commerce en bâtiments de guerre.
8. Convention relative à la pose de mines sous-marines automatiques de contact.
9. Convention concernant le bombardement par des forces navales en temps de guerre.
10. Convention pour l’adaptation à la guerre maritime des principes de la Convention de Genève.
11. Convention relative à certaines restrictions à l’exercice du droit de capture dans la guerre maritime.
12. Convention relative à l’établissement d’une Cour internationale des prises.
13. Convention concernant les droits et les devoirs des Puissances neutres en cas de guerre maritime.
14. Déclaration relative à l’interdiction de lancer des projectiles et des explosifs du haut de ballons.
Ces Conventions et cette Déclaration formeront autant d’Actes séparés. Ces Actes porteront la date de ce jour et pourront être signés jusqu’au 30 Juin, 1908, à la Haye, par les Plénipotentiaires des Puissances représentées à la Deuxième Conférence de la Paix.
La Conférence, se conformant à l’esprit d’entente et de concessions réciproques qui est l’esprit même de ses délibérations, a arrêté la déclaration suivante qui, tout en réservant à chacune des Puissances représentées le bénéfice de ses votes, leur permet à toutes d’affirmer les principes qu’elles considèrent comme unanimement reconnus:—
Elle est unanime—
1. A reconnaître le principe de l’arbitrage obligatoire.
2. A déclarer que certains différends, et notamment ceux relatifs à l’interprétation et à l’application des stipulations conventionnelles internationales, sont susceptibles d’être soumis à l’arbitrage obligatoire sans aucune restriction.
Elle est unanime enfin à proclamer que, s’il n’a pas été donné de conclure dès maintenant une Convention en ce sens, les divergences d’opinion qui se sont manifestées n’ont pas dépassé les limites d’une controverse juridique, et qu’en travaillant ici ensemble pendant quatre mois toutes les Puissances du monde, non seulement ont appris à se comprendre et à se rapprocher davantage, mais ont su dégager, au cours de cette longue collaboration, un sentiment très élevé du bien commun de l’humanité.
En outre, la Conférence a adopté à l’unanimité la Résolution suivante:—
La Deuxième Conférence de la Paix confirme la Résolution adoptée par la Conférence de 1899 à l’égard de la limitation des charges militaires; et, vu que les charges militaires se sont considérablement accrues dans presque tous les pays depuis la dite année, la Conférence déclare qu’il est hautement désirable de voir les Gouvernements reprendre l’étude sérieuse de cette question.
Elle a de plus émis les Vœux suivants:—
1. La Conférence recommande aux Puissances Signataires l’adoption du projet ci-annexé de Convention pour l’établissement d’une Cour de Justice arbitrale, et sa mise en vigueur dès qu’un accord sera intervenu sur le choix des juges et la constitution de la Cour1 .
2. La Conférence émet le vœu qu’en cas de guerre, les autorités compétentes, civiles et militaires, se fassent un devoir tout spécial d’assurer et de protéger le maintien des rapports pacifiques et notamment des relations commerciales et industrielles entre les populations des Etats belligérants et les pays neutres.
3. La Conférence émet le vœu que les Puissances règlent, par des Conventions particulières, la situation, au point de vue des charges militaires, des étrangers établis sur leurs territoires.
4. La Conférence émet le vœu que l’élaboration d’un règlement relatif aux lois et coutumes de la guerre maritime figure au programme de la prochaine Conférence et que, dans tous les cas, les Puissances appliquent, autant que possible, à la guerre sur mer, les principes de la Convention relative aux lois et coutumes de la guerre sur terre.
Enfin, la Conférence recommande aux Puissances la réunion d’une troisième Conférence de la Paix, qui pourrait avoir lieu dans une période analogue à celle qui s’est écoulée depuis la précédente Conférence à une date à fixer d’un commun accord entre les Puissances, et elle appelle leur attention sur la nécessité de préparer les travaux de cette troisième Conférence assez longtemps à l’avance pour que ses délibérations se poursuivent avec l’autorité et la rapidité indispensables.
Pour atteindre à ce but, la Conférence estime qu’il serait très désirable que, environ deux ans avant l’époque probable de la réunion, un Comité préparatoire fût chargé par les Gouvernements de recueillir les diverses propositions à soumettre à la Conférence, de rechercher les matières susceptibles d’un prochain règlement international et de préparer un programme que les Gouvernements arrêteraient assez tôt pour qu’il pût être sérieusement étudié dans chaque pays. Ce Comité serait, en outre, chargé de proposer un mode d’organisation et de procédure pour la Conférence ellemême.
En foi de quoi les Plénipotentiaires ont signé le présent Acte et y ont apposé leurs cachets.
Fait à La Haye, le 18 Octobre, 1907, en un seul exemplaire, qui sera déposé dans les archives du Gouvernement des Pays-Bas et dont les copies, certifiées conformes, seront délivrées à toutes les Puissances représentées à la Conférence.
Final Acts of the International Peace Conferences.
Final Act of the International Peace Conference, 1899.
The International Peace Conference, convoked in the best interests of humanity by His Majesty the Emperor of All the Russias, assembled on the invitation of the Government of Her Majesty the Queen of the Netherlands in the Royal House in the Wood at the Hague, on the 18th May, 1899.
The Powers enumerated in the following list took part in the Conference, to which they appointed the Delegates named below.
[Names of Delegates of the following Powers.]
Germany, Austria-Hungary, Belgium, China, Denmark, Spain, the United States of America1 , the United States of Mexico, France, Great Britain1 and Ireland, Greece, Italy, Japan, Luxemburg, Montenegro, the Netherlands, Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden and Norway, Switzerland, Turkey, Bulgaria.
Final Act of the Second International Peace Conference, 1907.
The Second International Peace Conference, proposed in the first instance by the President of the United States of America, having been convoked, on the invitation of His Majesty the Emperor of All the Russias, by Her Majesty the Queen of the Netherlands, assembled on the 15th June, 1907, at the Hague, in the Hall of the Knights, for the purpose of giving a fresh development to the humanitarian principles which served as a basis for the work of the First Conference of 1899.
The Powers enumerated in the following list took part in the Conference, to which they appointed the Delegates named below:—
[Names of Delegates of the following Powers.]
Germany, The United States of America2 , The Argentine Republic, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chile, China, Colombia, The Republic of Cuba, Denmark, The Dominican Republic, The Republic of the Ecuador, Spain, France, Great Britain2 , Greece, Guatemala, The Republic of Haïti, Italy, Japan, Luxemburg, Mexico, Montenegro, Nicaragua, Norway, Panama, Paraguay, The Netherlands, Peru, Persia, Portugal, Roumania, Russia, Salvador, Servia, Siam, Sweden, Switzerland, Turkey, Uruguay, The United States of Venezuela.
At a series of meetings, between the 18th May and the 29th July, 1899, in which the above Delegates were throughout animated by the desire to realize, in the fullest possible measure, the generous views of the august initiator of the Conference and the intentions of their Governments, the Conference drew up for submission for signature by the Plenipotentiaries the text of the Conventions and Declarations enumerated below and annexed to the present Act:—
I. Convention for the pacific settlement of international disputes.
II. Convention respecting the laws and customs of war on land.
III. Convention for the adaptation to maritime war of the principles of the Geneva Convention of the 22nd August, 1864.
IV. Three Declarations:—
1. Prohibiting the discharge of projectiles and explosives from balloons or by other similar new methods.
2. Prohibiting the use of projectiles, the only object of which is the diffusion of asphyxiating or deleterious gases.
3. Prohibiting the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope, of which the envelope does not entirely cover the core, or is pierced with incisions.
These Conventions and Declarations shall form so many separate Acts. These Acts shall be dated this day, and may be signed up to the 31st December, 1899, by the Plenipotentiaries of the Powers represented at the International Peace Conference at the Hague.
Guided by the same sentiments, the Conference has unanimously adopted the following Resolution:—
“The Conference is of opinion that the restriction of military charges, which are at present a heavy burden on the world, is extremely desirable for the increase of the material and moral welfare of mankind.”
It has, besides, formulated the following wishes:—
1. The Conference, taking into consideration the preliminary steps taken by the Swiss Federal Government for the revision of the Geneva Convention, expresses the wish that steps may be shortly taken for the assembly of a Special Conference having for its object the revision of that Convention.
This wish was voted unanimously.
2. The Conference expresses the wish that the question of the rights and duties of neutrals may be inserted in the programme of a Conference in the near future.
3. The Conference expresses the wish that the questions with regard to rifles and naval guns, as considered by it, may be studied by the Governments with the object of coming to an agreement respecting the employment of new types and calibres.
4. The Conference expresses the wish that the Governments, taking into consideration the proposals made at the Conference, may examine the possibility of an agreement as to the limitation of armed forces by land and sea, and of war budgets.
5. The Conference expresses the wish that the proposal, which contemplates the declaration of the inviolability of private property in naval warfare, may be referred to a subsequent Conference for consideration.
6. The Conference expresses the wish that the proposal to settle the question of the bombardment of ports, towns, and villages by a naval force may be referred to a subsequent Conference for consideration.
The last five wishes were voted unanimously, saving some abstentions.
In faith whereof the Plenipotentiaries have signed the present Act, and have affixed their seals thereto.
Done at the Hague, 29th July, 1899, in a single copy, which shall be deposited in the Ministry for Foreign Affairs, and of which duly certified copies shall be delivered to all the Powers represented at the Conference.
At a series of meetings, held from the 15th June to the 18th October, 1907, in which the above Delegates were throughout animated by the desire to realize, in the fullest possible measure, the generous views of the august initiator of the Conference and the intentions of their Governments, the Conference drew up for submission for signature by the Plenipotentiaries, the text of the Conventions and of the Declaration enumerated below and annexed to the present Act:—
1. Convention for the pacific settlement of international disputes.
2. Convention respecting the limitation of the employment of force for the recovery of contract debts
3. Convention relative to the opening of hostilities.
4. Convention respecting the laws and customs of war on land.
5. Convention respecting the rights and duties of neutral powers and persons in case of war on land.
6. Convention relative to the status of enemy merchant-ships at the outbreak of hostilities.
7. Convention relative to the conversion of merchant-ships into warships.
8. Convention relative to the laying of automatic submarine contact mines.
9. Convention respecting bombardment by naval forces in time of war.
10. Convention for the adaptation to maritime war of the principles of the Geneva Convention.
11. Convention relative to certain restrictions with regard to the exercise of the right of capture in naval war.
12. Convention relative to the creation of an International Prize Court.
13. Convention concerning the rights and duties of neutral Powers in naval war.
14. Declaration prohibiting the discharge of projectiles and explosives from balloons.
These Conventions and this Declaration shall form so many separate Acts. These Acts shall be dated this day, and may be signed up to the 30th June, 1908, at The Hague, by the Plenipotentiaries of the Powers represented at the Second Peace Conference.
The Conference, actuated by the spirit of mutual agreement and concession characterizing its deliberations, has agreed upon the following Declaration, which, while reserving to each of the Powers represented full liberty of action as regards voting, enables them to affirm the principles which they regard as unanimously admitted:—
It is unanimous—
1. In admitting the principle of compulsory arbitration.
2. In declaring that certain disputes, in particular those relating to the interpretation and application of the provisions of international agreements, may be submitted to compulsory arbitration without any restriction.
Finally, it is unanimous in proclaiming that, although it has not yet been found feasible to conclude a Convention in this sense, nevertheless the divergences of opinion which have come to light have not exceeded the bounds of judicial controversy, and that, by working together here during the past four months, the collected Powers not only have learnt to understand one another and to draw closer together, but have succeeded in the course of this long collaboration in evolving a very lofty conception of the common welfare of humanity.
The Conference has further unanimously adopted the following Resolution:—
The Second Peace Conference confirms the Resolution adopted by the Conference of 1899 in regard to the limitation of military expenditure; and inasmuch as military expenditure has considerably increased in almost every country since that time, the Conference declares that it is eminently desirable that the Governments should resume the serious examination of this question.
It has besides expressed the following wishes:—
1. The Conference calls the attention of the Signatory Powers to the advisability of adopting the annexed draft Convention for the creation of a Judicial Arbitration Court, and of bringing it into force as soon as an agreement has been reached respecting the selection of the Judges and the constitution of the Court1 .
2. The Conference expresses the wish that, in case of war, the responsible authorities, civil as well as military, should make it their special duty to ensure and safeguard the maintenance of pacific relations, more especially of the commercial and industrial relations between the inhabitants of the belligerent States and neutral countries.
3. The Conference expresses the wish that the Powers should regulate, by special Treaties, the position, as regards military charges, of foreigners residing within their territories.
4. The Conference expresses the wish that the preparation of regulations relative to the laws and customs of naval war should figure in the programme of the next Conference, and that in any case, the Powers may apply, as far as possible, to war by sea the principles of the Convention relative to the laws and customs of war on land.
Finally, the Conference recommends to the Powers the assembly of a third Peace Conference, which might be held within a period corresponding to that which has elapsed since the preceding Conference, at a date to be fixed by common agreement between the Powers, and it calls their attention to the necessity of preparing the programme of this third Conference a sufficient time in advance to ensure its deliberations being conducted with the necessary authority and expedition.
In order to attain this object the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory Committee should be charged by the Governments with the task of collecting the various proposals to be submitted to the Conference, of ascertaining what subjects are ripe for embodiment in an International Regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by the countries interested. This Committee should further be intrusted with the task of proposing a system of organization and procedure for the Conference itself.
In faith whereof the Plenipotentiaries have signed the present Act and have affixed their seals thereto.
Done at The Hague, the 18th October, 1907, in a single copy, which shall remain deposited in the archives of the Netherland Government, and of which duly certified copies shall be sent to all the Powers represented at the Conference.
The Final Acts of the International Peace Conferences 1899 and 1907.
The Final Acts.The Final Acts of the Conferences are authoritative statements of the results arrived at, but the signature thereof by the delegates in no way committed the Powers to a signature of the Conventions. Both in 1899 and 1907 the work of preparing the Final Acts was entrusted to a Drafting Committee (Comité de Rédaction), of which Professor Louis Renault was “Reporter” on both occasions.
The Final Act of the Second Peace Conference was entrusted to a Sub-Committee of 8, and finally revised by the Drafting Committee of 29. At the Ninth Plenary Meeting of the Conference, M. Renault gave an account of the work of these bodies and explained the form in which the Final Act was laid before the Conference for signature1 . The form of the two Acts is similar, but in that of the Second Conference reference is made to the fact that the Conference was first proposed by President Roosevelt2 . Then follow the names of the Powers and the delegates, and a list of the Conventions and Declarations to be submitted to the Plenipotentiaries for signature3 .
The name “Convention” was chosen for all the agreements of the Conference, other designations, such as “Règlement” being not deemed suitable for international Acts. The term “Règlement” is however retained in Convention No. 4, on the Laws and Customs of War on Land, which replaces No. 2 of 1899 on the same subject, but there was a doubt whether the “Règlement” annexed to this Convention was as binding on the contracting Powers as the Convention itself (Art. 1)4 . The Final Acts were left open for signature for some months. In the case of the Final Act of 1907 the period allowed for signature was about 3 months longer than was the case in 1899; this was in consequence of the larger number of Powers represented at the Conference. In the case of Convention No. 12 of 1907, for the establishment of an International Prize Court, the protocol was left open until the 30th June, 1909. Apart from the Final Acts come the various Conventions, and the Declaration, which form so many separate Acts1 .
Accession of non-signatory Powers.The question of accession of non-signatory Powers raised considerable discussion both in 1899 and 1907. In the case of the First Conference the system of the “open door” was adhered to except in the case of the Convention for the pacific settlement of international disputes2 . In this case the special permission of the signatory Powers was required for the accession of non-signatory Powers. The door was closed, but might be opened, though not to everyone who cared to knock. The Powers represented at the First Conference were not willing to contract generally to submit to arbitration disputes which they might have with others than those then present. The accession of the Latin-American States was accepted on the opening of the Second Conference3 .
All the Powers present in 1907 were, by the Final Act, enabled to sign until the 30th June, 1908, but as regards those not represented, the question as to their accession was raised, though in a different manner from that in which it presented itself in 1899, by reason of the large increase in the number of the Powers represented, and the very small number which remained outside the deliberations of the Conference. There was no question of modifying the rule laid down by the Conference of 1899 with regard to the Convention for the pacific settlement of international disputes. Article 53 of Convention No. 12, for the establishment of an International Prize Court, reserves to certain Powers, determined beforehand in Article 15 and the annexed table, the right of acceding to the Convention. This provision was necessary so as not to destroy the harmony of the whole project which establishes an agreement between the composition of the Court and the number of the contracting Powers.
But in regard to the other Conventions three alternatives were proposed: (1) To adopt the principle of 1899 and leave the Conventions open. (2) To limit subsequent accession only to the Powers summoned to the Second Conference, which was equivalent to closing the Conventions. (3) To adopt the principle of the Geneva Convention of 1906 under which the Convention is closed, but non-contracting Powers are allowed to accede, and their accession is final unless a formal protest is lodged by one of the contracting Powers within a certain period4 . The basis of the two latter views was that the signatory states formed a society into which a stranger could not enter without first knocking at the door. The system of the “open door” offered certain inconveniences to the Dutch Government, who it was thought might find themselves embarrassed if application for accession were made by a Power whose status was doubtful. The Drafting Committee, however, adopted this principle on the grounds that any restrictive system would constitute a retrogressive movement, that the Conventions to which the principle was to apply (and it will be noticed it does not apply to Conventions 1 and 12) do not present the character of mutual concessions as is the case with Conventions made with some states only, for they are general in character, and are declarations of principles, and it is desirable that they should be established by as large a number of states as possible so as to constitute a code of universal law: lastly it was necessary to anticipate the possible case of one state obstinately refusing to allow a new state to become a party to the Conventions. The Conference adopted the recommendation of the Committee for the Conventions other than those mentioned, and each of the Conventions is concluded with a common formula of four Articles, commencing with “Non-signatory Powers may accede to the present Convention,” except in the case of Convention No. 10, in which a slight restriction is made by Article 24 which states “Non-signatory Powers which have accepted the Geneva Convention of the 6th July, 1906, may accede to the present Convention1 .”
As regards the extent of the application of the Conventions, the general principle adopted is that they are only binding on the contracting Powers, and in case of the Conventions relating to war which contain provisions relative to neutrals, the Conventions only apply when all the belligerents are parties to the Convention except in the case of Convention No. 3 (see Art. 3).
Signatory Powers of the Final Acts.The twenty-six Powers who took part in the First Conference in 1899 are enumerated in the preamble to the Final Act: forty-four Powers are enumerated in the Final Act in 1907. All the Powers who had not participated in the First Conference, and who were present at the Second, signed their accession to the Conventions of the First at the commencement of the Second. The following Powers, who were not parties to the Final Act of 1899, are parties to the Final Act of 1907: the Argentine Republic, Bolivia, Brazil, Chili, Colombia, Cuba, San Domingo, Ecuador, Guatemala, Haïti, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay, Venezuela. Norway and Sweden, having dissolved their union in 1905, appear as two separate states. It will also be noticed that Bulgaria, which in 1899 signed after Turkey, is in 1907 placed in alphabetical order with the other Powers. The only state represented at the Second Conference which has not, up to the present, signed the Final Act is Paraguay, though it has signed all the Conventions. Switzerland signed the Final Act under reservation of “Wish” No. 1 (for the creation of a Judicial Arbitration Court) which the Swiss Federal Council does not accept.
A slight change was made in the mode of execution of the Conventions of 1907. The long formality of sealing was suppressed for all the Conventions, and only retained for the Final Act. Before dealing with the Conventions and Declaration agreed to at the two Conferences, the Resolutions and Wishes must be referred to.
The Wishes (Vœux).
The limitation of armaments and military budgets1 .In the note which Count Mouravieff on the 12th August, 1898, handed to the members of the diplomatic corps at St Petersburg, a note which constituted the first cause of the Hague Conferences, “the maintenance of universal peace and a possible reduction of the excessive armaments which weigh upon all nations,” was represented as the ideal towards which the efforts of all Governments should be directed. The second circular of the 12th Jan., 1899, took note of the fact that the political horizon had in the interval undergone a change, but the Imperial Government put forward a programme for discussion in which the limitation of the progressive increase of military and naval armaments appeared as the first item. At the First Conference the Russian proposal was to maintain the status quo of the armed forces and military estimates for five years. Count Mouravieff’s circular had stated that financial burdens, constantly on the increase, were affecting public prosperity at its source; that the intellectual and physical forces of the peoples, labour and capital were to a large extent diverted from their natural application and were unproductively consumed; and that the armed peace of modern Europe had become a crushing burden which the peoples had more and more difficulty in bearing. This was not the opinion of the German delegate2 , nor of the French, but, said the latter (M. Bourgeois), if both in Germany and France the great resources which are now devoted to military organisation were, at least in part, put to the service of peaceful and productive activity, the grand total of the prosperity of each country would not cease to increase at an even more rapid rate.
The limitation of armaments and the reduction of military burdens as means of reducing the chances of war were remedies which appealed to the popular imagination; but the discussions showed that the difficulties in carrying them into effect, which had never been absent from the minds of statesmen, were unsurmountable. The military forces of a nation do not always correspond with the amounts of their military budgets or the numbers of men enrolled in time of peace. The position of no two states is identical: geographical, physical, and political conditions, the density, rapidity of growth, and state of education of the population, the position of a state in regard to colonies, coaling stations and means of communication, its dependence for food supplies on ocean-borne trade, its financial credit and natural resources, are all factors to be taken into account. It was not found possible to frame any formula which could apply to all states, and as M. Nélidow stated in 1907, keen differences of opinion soon broke out, and the debates assumed such a character, that, instead of the desired understanding, there was a danger of a disagreement which might have proved fatal to the rest of the labours of the Conference. Formal homage was paid to the Tsar’s ideal by the passing of the Resolution which declared that the restriction of military budgets was extremely (grandement) desirable, and by the emission of the Vœu that Governments would examine the possibility of an agreement as to the limitation of armed forces and war budgets.
The subject of the reduction of military budgets and disarmament was absent from the circular of Count Benckendorff. Much had happened since 1899. The position of Russia after the termination of the Russo-Japanese war did not permit her to consider that the limitation of armaments was an urgent question. In the interval of the two Conferences the question had however not been allowed to remain dormant. The subject was discussed in the House of Commons on 10th May, 1906, and in the House of Lords on the 25th May, and in the French and Italian Chambers of Deputies in June of the same year1 . Subsequently Sir H. Campbell-Bannerman, when Prime Minister, expressed himself strongly against the policy of huge armaments and in favour of the reconsideration of the subject by the Powers2 . Notwithstanding the fact that the British Government had reason to anticipate that the discussion of the question would lead to no fruitful results, the British delegates were instructed to bring it forward at the Conference of 19073 . At the Fourth Plenary Meeting of the Conference on the 18th August, Sir Edward Fry proposed that the Conference should confirm the Resolution adopted in 1899 in regard to the limitation of the military charges, and, in view of their great increase, should put it on record that it is eminently (hautement) desirable that Governments should resume their study of the question1 . The British Plenipotentiary in his speech drew attention to the fact that between 1898 and 1906 the military expenditure of Europe, the United States and Japan had increased from £251,000,000 to £320,000,000, and stated that with a view of assisting in a reduction of this non-productive expenditure the British Government would be willing to communicate annually their programme to other Powers who would pursue the same course. The late Lord Goschen in a speech in 1906 in the House of Lords made a somewhat similar proposal, but on this occasion Sir Edward Fry on behalf of the British Government made the offer formally to the whole world. So far no Power seems to have accepted it. Sir Edward Fry’s motion received the support of the French delegate, M. Bourgeois, and the President communicated to the Conference a note from the delegates of Argentine and Chili containing the terms of a treaty which had been entered into on the 28th May, 1902, for the mutual reduction of the armaments of their countries for five years2 . The discussion was felt however to be purely academic. “Contact with reality,” said M. Nélidow, “soon showed that the noble ideal of the Tsar concealed practical difficulties when it became a question of putting it into application.” The Resolution, which committed no one, was carried unanimously with applause.
The problem of disarmament or the limitation of armaments is one of the greatest difficulty. Armaments are not a cause of war in themselves; often they afford the best guarantee of peace. The sense of insecurity felt by nations, and the increase of their means of defence are due to moral causes; they spring from a lack of international confidence and the instinct of self-preservation. Disarmament, or even the reduction of armaments will not be effected so long as there is the fear that while some Powers adopt this course others will not. The lack of confidence in the protestations of pacific intentions which some of the greatest military Powers make from time to time prevents the reduction of the vast burdens which all the great Powers are increasingly putting on their citizens. Until the causes of international distrust are removed, progress towards the solution of the disarmament problem will be stayed. “La deuxième Conférence,” writes M. de Lapradelle, “n’accorde à la limitation des armamens, proclamée grandement désirable en 1899, hautement désirable en 1907, qu’une attention indifférente et lointaine, négligemment fixée dans un vœu sceptique, dont la molle formule cherche moins à flatter les amateurs de mirages qu’à leur adoucir la peine de l’illusion déçue1 .”
The immunity of enemy private property at sea2 .Of the other Vœux which were expressed by the Conference of 1899, No. 1 produced a practical result in the Geneva Convention of 1906, and Nos. 2 and 6 form the basis of Conventions Nos. 5, 9 and 13 of the Conference of 1907. No. 3 appears up to the present to have been fruitless. No. 4 has already been dealt with. There remains only No. 5 in which the Conference expressed the wish that the proposal which contemplates the declaration of the inviolability of private property in naval warfare may be referred to a subsequent Conference for consideration.
At the First Hague Conference the United States delegates presented the following proposition: “The private property of all citizens or subjects of the signatory Powers, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the armed vessels or the military forces of any of the said signatory Powers. But nothing herein contained shall extend exemption from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of any of the said Powers3 .” The Conference did not consider the discussion of this proposition to be within its competence, but adopted the Vœu set forth in the Final Act.
At the Second Conference the subject was assigned to the Fourth Committee, and M. Fromageot presented their Report at the Seventh Plenary Meeting4 . The proposition was again brought forward by the United States Delegation and was framed in similar terms to those in which it had been presented in 1899 by Mr A. D. White1 , and Mr Choate’s speech in moving it in the Committee followed similar lines of reasoning.The United States proposal in 1907. He traced the historical continuity of the doctrine onwards from 1783 when Benjamin Franklin proposed to Great Britain a treaty that in case of war between the two Powers all traders with their unarmed vessels employed in commerce should be allowed to pass freely unmolested. He cited treaties which had been entered into embodying the principle of abolition of capture of private property and the numerous expressions of opinion in its favour from statesmen, merchants and jurists. He urged the analogy of land warfare, the lack of military interest in the destruction of commerce, reasons of humanity, the losses occasioned to neutrals, the need for limiting war to the armed forces of the belligerents, and the risk of calling out a spirit of revenge and reprisals, and he concluded by intimating that President Roosevelt desired a vote of the Conference on the American proposal. The Russian delegates were of opinion that the question was not yet ready for solution, for the American proposition presupposed preparatory agreements and experience which were lacking up to the present time. The dread of great pecuniary losses both to belligerents and neutrals by the outbreak of war was, it was pointed out, one of the strongest guarantees of the peace of the world. The delegates of Brazil, Sweden and Norway supported the American proposal. The latter speaking for a Power largely interested in shipping, and for a country which he hoped would always be neutral, preferred that the self-interest of neutrals who would certainly gain by the maintenance of the status quo should give place to principles of humanity. The delegates of Holland, Greece and Austria also spoke on the same side, which received the qualified support of the German Plenipotentiary, Baron Marschall von Bieberstein, who, however, contended that the subject could not be considered by itself, as it was too closely allied to the questions of blockade and contraband to be able to be settled until these questions were first solved. The Portuguese delegate expressed a similar view. Strong opposition to the American proposal came from the Argentine and Colombian delegates, the latter (M. Triana) observing that the maintenance of the rule was essential for countries with great natural wealth which might excite the cupidity of stronger Powers. Sir Ernest Satow, speaking for Great Britain, opposed the American proposal2 . He pointed out that the adoption of it would produce an abolition of commercial blockade, that attempts to limit blockades would produce friction, but while unable to accept the American proposal Great Britain desired to have the interests of neutrals respected, hence the British proposal for the abolition of contraband.
The unanimous acceptance of the American proposal was obviously not possible, but before a vote was taken on it various proposals for modifying the existing rigour of the law of capture were taken into consideration.
Other proposals in 1907 for mitigating the rules of capture of private property at sea.Brazil proposed that pending the acceptance of the American proposition, the Powers should put in force the principles of Articles 23, 28, 46, 47 and 53 of the Convention of 1899 on the laws and customs of war on land. These as further explained by M. Ruy Barbosa would enable a belligerent to capture enemy merchantmen and cargo, even when neutral, if the necessities of war so demanded, receipts being given as if for requisitions: while the crew of a captured enemy were to be put ashore in a neutral port1 .
The Belgian proposition consisting of 12 Articles was to substitute sequestration for capture of enemy ships and their cargoes, the crews being liberated on condition of not serving against the captor during the war; and to forbid the destruction of prizes except under special circumstances. At the termination of the war, property so sequestered was to be returned, or if sold or destroyed its value to be handed to the former owners2 .
The Dutch delegate proposed that exemption should be accorded to every ship to which the enemy had delivered a passport certifying that it would not be used as a ship of war, and subject to certain modifications he supported the Belgian proposal.
Lastly, the French delegate, while willing to accept the United States proposition if a unanimous agreement could be reached, suggested certain modifications in the existing rule in the meantime. He argued that as war is a relation of state to state, interference with the commerce of the enemy is perfectly justifiable. It is a powerful means of coercion, but its legitimate exercise should be directed against the resources of the state and not against private individuals, and therefore it should not be used as a means of gain to individuals. With a view of carrying out these ideas, he expressed the desire (vœu) that the distribution of prize-money among the crews of the capturing ships should be suppressed, and that means should be taken to ensure that the loss occasioned by the capture of private property should fall on the state.
Result of the discussion at the Hague in 1907.The American proposition of absolute immunity from capture of enemy property at sea was put to the vote, when 21 states voted for, 11 against, and one abstained; 11 states were absent. The states voting for were: Germany (with the reservations before mentioned1 ), the United States, Austria-Hungary, Belgium, Brazil, Bulgaria, China, Cuba, Denmark, Ecuador, Greece, Hayti, Italy, Norway, Holland, Persia, Roumania, Siam, Sweden, Switzerland and Turkey. Against: Colombia, Spain, France, Great Britain, Japan, Mexico, Montenegro, Panama, Portugal, Russia and Salvador. Abstained, Chili.
On the Brazilian proposition for the assimilation of the laws of war on sea to those on land, 13 states voted for, 12 against. It was therefore withdrawn.
On the Belgian proposition for the substitution of sequestration for confiscation 14 states voted for the 1st Article, 9 against, 7 being absent. It was therefore withdrawn.
The President (M. de Martens) sought to bring about a compromise by proposing the “Wish” that at the commencement of hostilities Powers should declare if, and under what conditions, they would renounce the right of capture, but various objections were raised and it was withdrawn. A vote was then taken on the French proposal for the suppression of prize-money as modified by the Austro-Hungarian delegate, who had proposed the participation by the State in the losses by capture. The first part expressing the desire that Powers which maintained the right of capture should be invited to consider means of abolishing prize-money was adopted by 16 to 4, 14 states abstaining: on the second part in favour of State indemnity, only 7 states voted for (these included Great Britain), while 13 voted against, and 14 abstained. Here, so far as the Committee were concerned, the matter terminated, but the Brazilian proposition is largely reflected in the fourth “Wish” adopted in the Final Act which records that the Powers should apply, as far as possible, to war by sea the principles of the Convention relative to the laws and customs of war on land.
An examination of this question in all its bearings is impossible in this connection. The instructions of the British delegates clearly set forth the view which the Government of this country took on the matter before the Conference, and the results of the Conference showed that the questions of the immunity of enemy private property at sea as well as those of contraband and blockade must all be considered together in relation to the proposed creation of an International Prize Court, and the law which it is to administer.
The “Wishes” enumerated in the Final Act of the Second Conference are the summary of its failures to reach any definite conclusion.
Obligatory arbitration.The Final Act of 1907, after an enumeration of the 13 Conventions and the Declaration agreed upon states that the delegates unanimously admitted the principle of obligatory arbitration, and declares that certain disputes, in particular those relating to the interpretation and application of the provisions of international agreements, may be submitted to obligatory arbitration without any restriction, it ends with the rhetorical statement that though it had not been found feasible to conclude a Convention in this sense the Powers had learnt to understand one another and to draw closer together and had “succeeded in the course of this long collaboration in evolving a lofty conception of the common welfare of humanity.” This was adopted at the Ninth Plenary Meeting of the Conference by 41 votes; the United States, Japan and Roumania did not vote.
The problem of obligatory arbitration was considered by the First Committee, and its Sub-Committee, and various propositions were examined by a Special Committee (Committee “A”) which held 16 meetings. The Report of Baron Guillaume which was presented to the Ninth Plenary Meeting is a document of great length and contains a résumé of the propositions and arguments which the Committees had had under consideration1 .
Article 16 of the Convention of 1899 for the pacific settlement of international disputes recognised arbitration as the most effective, and at the same time the most equitable means of settling disputes which diplomacy has failed to settle in questions of a legal nature, and especially in the interpretation or application of international conventions. It was hoped by many states that the Conference of 1907 would go further and produce a Convention whereby the Powers represented would agree to accept compulsory arbitration in disputes regarding certain definite matters. Various proposals with this object were presented by the Dominican Republic, Brazil, Portugal, Servia, Sweden, Great Britain and the United States, but the discussion chiefly turned on the Portuguese proposal, based upon a draft prepared by the Inter-parliamentary Union which was subsequently amended by, and to a large degree embodied in, a proposal formulated by Great Britain and the United States and supported by France. Under the Portuguese proposal the contracting Powers agreed to submit to arbitration, without any reservations, disputes on some 18 subjects: the British proposal eliminated several and altered the definitions of others. The draft in this form was called the “Projet du Comité d’Examen” or “Projet anglo-portugais-américain.”
The chief opposition came from Germany. Baron Marschall von Bieberstein, while declaring himself favourable to the principle of obligatory arbitration under certain conditions and reservations, made it clear that he was not prepared to go beyond this general acceptance of principle. His main line of argument was as follows. If awards are given of a contradictory character regarding the interpretation of international treaties to which many states are parties, the existence of these treaties will be imperilled. Awards in contradiction with judicial verdicts of national tribunals in respect of the interpretation and application of international treaties will create an impossible situation. Awards to the effect that a state ought to alter its laws in accordance with an international treaty may produce serious conflicts with legislative bodies. And as regards the lists submitted, some matters were too unimportant to include, others were too serious without the reservation of “honour and vital interests1 .”
It was evident that Germany would not fall in line with the great majority of the Powers on these questions, though Baron Marschall’s arguments were equally cogent in regard to the proposal to establish an international prize court which he was supporting. Strenuous endeavours were made to frame lists of subjects which would receive the acceptance of the Powers. The British proposal contained a table with a list of 22 subjects against which states should write their acceptance or rejection. Germany, however, was not prepared to accept or formulate any list. The Austro-Hungarian delegate (M. Mérey de Kapos-Mère) proposed that the Conference should content itself with a declaration which accepted the general principle of obligatory arbitration, but should state that, as difficulties were experienced in arriving at an agreement, the Conference would invite the Governments represented to make a further study of the questions and submit them to an international Committee2 . This failed to receive the unanimous support of the Sub-Committee. Italy submitted another amendment by way of an addition to Article 16 of the Convention for the pacific settlement of disputes, whereby the Powers undertook to study the question and report by the 31st Dec. 1908 to the Dutch Government the matters which they were prepared to make the subject of a Convention on obligatory arbitration, but this also was rejected by Germany. Thus the attempts of the two members of the Triple Alliance to facilitate the adhesion of the third to some form of obligatory arbitration were unsuccessful. After weeks of fruitless endeavour to reach unanimity the Anglo-Portuguese-American proposals were submitted to the Committee and voted upon. The debate lasted two days, when this draft was carried by 32 votes against 9: 3 states abstained from voting. The majority agreed to accept obligatory arbitration in disputes concerning the interpretation and application of treaties with regard to the following matters: (1) mutual relief of indigent sick persons; (2) international protection of labour; (3) means of preventing collisions at sea; (4) weights and measures; (5) measurement of vessels; (6) wages and effects of deceased seamen; (7) protection of literary and artistic works; also for claims for pecuniary damages when the principle of indemnity was recognised by the parties. The states which voted against the project were: Germany, Austria-Hungary, Belgium, Bulgaria, Greece, Montenegro, Roumania, Switzerland and Turkey. Italy, Japan and Luxemburg abstained from voting—the Japanese delegate, though not voting, announced that his Government was not prepared to accept obligatory arbitration, as the Court might adopt legal principles in opposition to those which his Government had adopted. The subjects on which the majority agreed to accept compulsory arbitration were not matters of great importance, but even these would have been welcomed as affording evidence of a practical acceptance of the principle. The opposition of Germany and Austria-Hungary, and the abstention of Italy, were fatal to their acceptance.
Notwithstanding the largeness of the majority, the Committee, acting on the principle that unanimity was requisite for a Convention, limited its recommendation to the acceptance of the Vœu suggested by Count Tornielli, which the Conference adopted. Mr Choate, however, was unable to accept this, as he considered that it constituted a real and serious retreat, and its adoption would imperil the cause of arbitration; he therefore abstained from voting at the Ninth Plenary Meeting. Japan and Roumania also abstained. The principle of obligatory arbitration was therefore accepted nem. con.
In one important point, however, the Conference was able to register a success, namely, Convention No. 2, respecting the limitation of force for the recovery of contract debts, which in effect makes arbitration compulsory in such cases1 .
Judicial Arbitration Court.The first Vœu of the Second Conference relates to an annexed draft for the creation of a Judicial Arbitration Court, and will be discussed in connection with the text of the draft Convention1 .
Neutrals in belligerent territory2 .The second and third Vœux emanated from the Second Committee to which was referred the subject of the rights and duties of neutrals on land. The second Vœu expresses the desire that in case of war the responsible authorities, civil and military, should make it their special duty to ensure and safeguard the maintenance of pacific relations, more especially the commercial and industrial relations, between the inhabitants of the belligerent states and neutral countries. By the third the Conference expresses the opinion that the Powers should regulate, by special treaties, the position, as regards military charges of foreigners residing within their territories.
The Second Committee, for which Colonel Borel (Swiss delegate) acted as “Reporter,” presented a report to the Fifth Plenary Meeting of the Conference, in which they recommended the addition of two chapters to the Regulations for war on land containing 11 Articles which were based on a draft introduced by the German delegate. Chapter 1, containing draft Articles 61-63, dealt with the definition of a neutral; Chapter 2, containing draft Articles 64-68, dealt with services rendered by neutrals, and the treatment of neutral property. The discussion at the Fifth Plenary Meeting on the 7th Sept. showed so much divergence of opinion with regard to the draft Articles 64 and 65, and so many reservations were made, that the draft was remitted to the Committee for further consideration. The Articles in question proposed to confer special benefits on neutral aliens resident in belligerent territory, both as regards the treatment of their persons and property. It was proposed to enact that belligerents should not requisition neutrals for services having direct bearing on the war except for sanitary services or sanitary police absolutely demanded by the circumstances (64). That such exemption from service should not apply to persons who had voluntarily enlisted in a belligerent army, nor to persons belonging to the army of a belligerent state in virtue of the legislation of that state (65). As regards neutral property it was proposed that no contribution of war should be levied on neutrals (66); that the destruction, injury or seizure of neutral property should be prohibited except in case of absolute necessity, and then compensation should be paid (67); that belligerents should undertake to grant compensation for use of neutral immoveable property (68); and also for expropriation or use of neutral moveable property (69). The difficulty in regard to the draft Articles 64 and 65 turned partly on the difference of treatment as regards military service by various states of domiciled aliens and their children born within their territory, in which there is a striking lack of uniformity. Several of the Spanish-American states have been engaged in controversies with European Powers who have considered that the principle of nationality by parentage ought to exempt the children of their nationals, born within the territory of such states, from military service1 . Several states have, by treaties, expressly guarded against the compulsory enrolment of their subjects for other than police purposes2 . Some states, such as Switzerland, have replaced military service by a tax, and France and Spain have, by treaty of 1862, agreed that Spaniards born in France, and Frenchmen born in Spain are liable for military service in France and Spain respectively, unless they can prove that they have performed the service in their own countries3 . As regards the special benefits it was proposed to confer on neutral property, Great Britain, France, Russia and Holland contended that aliens by taking up their residence in a state must submit to the treatment accorded to its nationals by the invader, and that contributions were levied ratione loci not ratione personae. The opposing principles were those of nationality and enemy domicile. Special difficulties in applying the suggested Articles were also pointed out by the British and Japanese delegates. Notwithstanding the hearty support accorded to the draft Articles by the United States and Swiss delegates, they failed of acceptance; Articles 61-63 of the German draft alone were adopted and form Articles 16-19 of Convention No. 54 . The Committee recommended the adoption of the two Vœux which were unanimously accepted. We have dealt so far with the second; the fulfilment of the first does not appear to be very probable. The purpose of military operations is to bring the enemy to terms as speedily as possible, and a belligerent can best do this by cutting off the supplies of his adversary from neutral sources. His business is to hamper his opponent by all possible legitimate means, he will not be likely to assist and protect the maintenance of commercial and industrial relations between the inhabitants of his enemy’s state and neutrals, when by so doing he will naturally tend to increase the duration of the struggle1 . War is more than a relation of state to state.
The laws and customs of naval warfare2 .The fourth Vœu covers a wider field than the second and third. Questions relating to naval warfare entered into the work of all the four Committees of the Second Conference. The first Committee elaborated a draft Convention for an International Prize Court, the second dealt with declarations of war, a matter common to warfare by land and sea; the third and fourth formed a combined Committee on maritime questions under the presidencies of Count Tornielli and M. de Martens.
Of all departments of international law, that which relates to naval warfare, and the duties of neutrals therein, is in the most unsatisfactory condition. Jurists cannot be entirely acquitted of the charge of having assisted in producing this result. Sometimes the rules adopted by the state of which a publicist is a citizen, have been enunciated by him as if they were universally accepted as international law, and no small number of “incidents” and “strained relations” between states have been produced by the ignorance of the people of one state of the rules of naval warfare observed by another. In the case of land warfare there have been no changes in the weapons in use or the mode of conduct of hostilities during the past century comparable to the change from wooden sailing vessels to great floating metal fortresses propelled by steam power. The rules of maritime warfare, elaborated when wooden walls were the defence of a sea-girt state, are seen to be antiquated, and in some cases useless, when applied to modern conditions. Not only are the problems, by which belligerents themselves are faced, of increasing complexity, but in a still higher degree difficulties are experienced by neutrals in fulfilling their rôle of abstaining from all interference in a pending conflict. The dislocation of neutral trade, springing from an extension of the idea of contraband, the doctrine of “continuous voyage,” the divergent views of great naval Powers on the subject of blockade, and the danger to innocent neutral merchantmen from floating mines, produces increasing friction between belligerents and neutrals. The two great wars which had taken place since 1899 had brought these questions into dangerous prominence, and afford sufficient explanation why problems relating to naval warfare occupied so much of the attention of the Second Hague Conference. Unlike the laws of war on land, which, previously to the First Conference, had been considered in detail at the Brussels Conference and by the Institute of International Law, both of which bodies had prepared draft regulations, admirably adapted to form a basis for the work of the Conference, the laws of naval warfare as a whole (and apart from the treatment of the sick and wounded) had never received the careful study of an international gathering of the Powers. In many important points it has long been recognised that there are two divergent views, the Anglo-American and the Continental, and the failure of the Conference to produce a code of laws for naval warfare analogous to that which the First Conference elaborated for land warfare is not a matter for surprise. The “questionnaire,” prepared by M. de Martens for the basis of the discussions of the Fourth Committee, was framed in the following terms: “Within what limits are the provisions of the Convention of 1899 relating to the laws of war on land applicable to the operations of war on sea?” Considerable labour and much time were devoted to an examination of the general question of a code of naval warfare, as well as to a consideration of specific subjects which were entrusted to the Committee.
The “questionnaire” of M. de Martens was examined by a Comité d’Examen and a report prepared by M. de Karnebeck, but time did not admit of its being taken into consideration by the whole Committee. The difficulties in the way of arriving at a solution of the numerous questions connected with maritime warfare were explained by M. de Martens at the meeting of the Committee on the 18th Sept. He pointed out that historically there was a sharp line of demarcation between land and sea warfare. That, whereas in the case of the former, soldiers from Epaminondas to Gustavus Adolphus had themselves endeavoured to frame the rules, and the First Conference had before it the work of the Brussels Conference, in the matter of naval warfare the case was quite different. The instructions of a few great naval commanders, the decisions of Prize Courts and especially those of Lord Stowell, and naval manuals prepared by various Governments, were the sources for the law of naval warfare, and all were more or less tainted with national aspirations and the requirements of political expediency. M. Fromageot also pointed out in his report1 that the attempt to adapt the Rules of Land Warfare of 1899 to naval warfare would necessitate a change not only in drafting and form, but that they would even require fundamental modifications. The principles, however, underlying these regulations were recommended to the Conference as being applicable to maritime warfare, and the fourth Vœu was proposed, and unanimously adopted by the Conference, that the preparation of regulations relative to the laws and customs of naval warfare should be considered at the next Conference, and that meantime the Powers should apply the principles of the Convention of 1899 to war by sea. The Committee prepared a draft in parallel columns showing suggested changes in the application of these rules1 . The problem relating to blockade and contraband, and the question as to the legality of sinking neutral prizes were however found to be insoluble2 .
Destruction of neutral prizes3 .On this latter subject the “questionnaire” of M. de Martens was as follows: “Is the destruction of merchant ships under a neutral flag engaged in war time in carrying troops or contraband forbidden by the laws of different countries or by international practice?” “Is the destruction of all neutral prizes illegitimate according to existing national laws and according to the practice in naval wars?”
In examining these questions the Committee refrained from endeavouring to formulate a statement as to what was the existing law, devoting its labours to discussions de lege ferenda rather than de lege lata, but it considered that there was a close connection between this subject and the question of the free access of prizes to neutral ports which was under consideration by the Third Committee.
In the course of the study of the matter by the Fourth Committee four proposals presented by the delegates of Great Britain, Russia, the United States and Japan came under consideration. These four were subsequently reduced to two, the United States and Japan supporting the British proposals.
The Russian proposal which was the first to be examined by the Examining Committee forbade the destruction of neutral prizes except in cases where the non-destruction would endanger the safety of the captor or the success of his operations. The arguments advanced by Colonel Ovtchinnokow in support of this proposal were that by the fact of capture the property in the prize passed to the captor, and that the subsequent decision of a Prize Court confirmed and did not create the right of ownership. The right of destruction should and would naturally be exercised with great reserve, for a captor would not lightly destroy his own property, and when it was exercised, persons and, as far as possible, cargo and papers on board should be preserved for use of Prize Courts, and to assist in fixing indemnities, if any, to neutrals. If the Prize Court subsequently decided against the validity of the capture, that would entail a liability to make compensation. For military or other reasons it might be impossible to take a captured ship into a port for condemnation, and absolutely to forbid its destruction would place states not possessing ports (hors de leurs côtes métropolitaines), into which prizes could be conducted, in a position of unjustifiable inferiority, and this would be increased if additional restrictions were adopted, as was proposed, on access of belligerents and their prizes to neutral ports.
The British proposal was framed to carry out the instructions given by Sir Edward Grey “that Great Britain has always maintained that the right to destroy is confined to enemy vessels only1 ,” and was that the destruction of neutral prizes is forbidden, and the captor must release a neutral ship which it cannot bring in for adjudication before a Prize Court. Sir Ernest Satow in supporting this proposal contended that destruction of neutral prizes was forbidden by existing practice, and pointed out that the Regulations of the Institute of International Law on maritime prizes, which in 1882 were drafted so as to make no distinction between captured enemy and neutral vessels, were in 1887 altered so that the right to destroy was limited to enemy vessels2 . The rule of the British Admiralty, based on decisions of Lord Stowell, was clear, and Commanders are directed, when unable to send their prizes in for adjudication, “to release the vessel and cargo without ransom3 .” In answer to the Russian argument based on the difference of the geographical situation of states, the British delegate urged that if this prevented the exercise of the right of capture of neutral ships carrying contraband or guilty of breach of blockade, they ought nevertheless to be set free. He concluded by stating that if the destruction of neutral prizes were allowed, there would be but little difference between neutral and enemy ships, and neutral governments would be almost powerless to protect their merchantmen.
The German delegate “shared entirely” the Russian point of view, while the United States and Japanese delegates supported the British; the Italian delegate pointed out the intimate connection between the subject and the right of using neutral ports, and a combined meeting of the two Examining Committees was held with the following result: free access to neutral ports for belligerent prizes was carried by a small majority (9 for, 3 against, 6 abstentions), prohibition of destruction, made by most conditional to free access, was carried by a slightly larger majority (11 for, 4 against, 2 abstentions), the Russian proposal for right to destroy had a small majority (6 for, 4 against, 7 abstentions)1 .
The subject of the destruction of neutral prizes was brought into striking prominence during the Russo-Japanese war by the sinking by the Russians of various neutral merchantmen, the Knight Commander, the Hip-sang, the St Kilda, the Ikhoma, the Oldhamia, the Thea and others. The British Government entered a strong protest against this procedure, which it characterised as “a serious breach of international law”; and a distinguished English publicist terms it an “outrage” and a “gross breach of international law2 .”
It will be noticed that the “questionnaire” of M. de Martens referred to the “laws of different countries” and “international practice.” Sir Ernest Satow asked for the view of the Committee on the existing state of international law, but M. de Martens objected to put this question to the vote3 . The “laws of different countries” as evidenced by their naval instructions undoubtedly show a lack of uniformity, but such instructions have no international force, as will be seen from Lord Salisbury’s correspondence with Germany in 1901 in the cases of the Herzog and Bundesrath4 . According to the Naval Codes and Prize Regulations of Russia, the United States and Japan, the sinking of neutral prizes is allowed under certain circumstances5 ; the British proposal was however supported by the delegates of the two latter states. The British Manual of Naval Prize Law prohibits this procedure. From Naval Codes and the opinions of certain writers on international law (chiefly continental), the language of the British Government cannot be wholly supported, but it is certainly supported by modern international practice. In no modern naval war has any Government put forward such a doctrine as that enunciated by the Russian, and no belligerent since the Declaration of Paris has acted as the Russians. The doctrine of the Russian Government would, as Lord Lansdowne stated, justify the destruction of any neutral ship taken by a belligerent vessel which started on her voyage with a crew sufficient only for her requirements, and therefore unable to furnish prize crews for her captures; it is in effect a negation of the Declaration of Paris.
There is a clear distinction between the right of seizure of enemy and neutral ships. The former is the legitimate exercise of a right of appropriation of all enemy property found on the high seas, the latter is exercised only for the purpose of punishing certain special acts which do not necessarily involve condemnation of the ship1 . If the destruction of enemy ships is now generally recognised as lawful only in special cases, the list of exceptions should either vanish altogether, or be reduced to the minutest dimensions in the case of neutral prizes. The “Institut de Droit International” in 1887 pronounced in favour of the first alternative which is undoubtedly supported by modern practice. An agreement on this subject would materially aid in maintaining the peace of the world by removing a not improbable cause of war on the part of a neutral Power whose commerce was being ruined by the adoption by a belligerent of the practice advocated by the Russian Government2 .
Beginnings of a Code of naval warfare.The Conference was, however, able to make some progress towards a Code of naval warfare by the adoption of the Conventions relating to the status of enemy merchant ships at the outbreak of hostilities (No. 6), the Convention relative to the conversion of merchant ships into war ships (No. 7), the Convention relative to the laying of automatic submarine contact mines (No. 8), the Convention respecting bombardment by naval forces in time of war (No. 9), the Convention placing certain restrictions on the exercise of the right of capture in naval warfare (No. 11), the Convention for the creation of an international prize court (No. 12), and the Convention concerning the rights and duties of neutral Powers in naval war (No. 13). These Conventions are of unequal value, and some bear evident traces of a desire that some agreement on the subject to which they relate might be registered after so many weeks of labour; they will, doubtless, on many points need revision by the next Conference.
The next Hague Conference1 .The First Conference had closed without making any provision for the summoning of another. The Second Conference was dragging on, hampered by its want of preparation and of adherence to parliamentary precedents, and many of those who looked for solid results were “in genuine anxiety about the consequence of a real collapse,” and possessed by a “genuine desire that the Hague institution should not perish of what were not, perhaps, essential defects2 .” A Meeting of the First Delegates was held on the 14th September to consider the situation, and it was resolved to bring before the next Plenary Meeting a Vœu with reference to a future Conference. The United States Delegation was instructed to “favour the adoption of a resolution by the Conference providing for the holding of further Conferences within fixed periods and arranging the machinery by which such Conferences may be called and the terms of the programme may be arranged, without awaiting any new and specific initiative on the part of the powers or any one of them.” This had been recommended by the Inter-parliamentary Congress in 1904. The Conferences would then become real international assemblies presided over by a President chosen without any regard to the requirements of diplomatic etiquette, and discussing a programme which had not been prepared for it, but which it had previously settled for itself. The actual form in which the Vœu found acceptance is as it appears in the Final Act, and M. Nélidow, the President of the Conference, proposed it at the Sixth Plenary Meeting on the 21st Sept., but the initiative must be assigned to the United States Delegation. “The somewhat slow and at times uncertain progress of our labours,” said the President, “as well as the impossibility which the Conference finds of solving some of the problems submitted to it, or which have been brought forward in the course of our labours, have suggested to some of our colleagues the idea of taking into consideration the advantage of another meeting of the Conference, and of the necessity of preparing for it in advance a detailed programme and the method of its working and organisation3 .” In these words the President concisely specified some of the causes of the want of success which had attended the wearisome and laborious discussions on many of the topics which had been under consideration. The Roumanian delegate, M. Beldiman, in supporting the Vœu paid a tribute of homage to the August Initiator of the First and Second Conferences, adding that the Vœu in his opinion did not prejudge the taking of the same august initiative in the future, while the Austro-Hungarian delegate in rendering grateful homage to the Tsar added that they considered the initiative of Russia was definitely accepted in this matter. A general desire was expressed that the Queen of Holland would extend her hospitality to the next Conference. It will be seen that the speeches of the Roumanian and Austro-Hungarian delegates go beyond the actual words of the Vœu. To whomsoever the initiative of the next Conference may belong, if in 1915 the Third Conference should meet in accordance with this Vœu, two years before that date a preparatory Committee is to collect the various proposals to be submitted, to ascertain the subjects which are ripe for embodiment in an international regulation and to prepare a programme which the Governments shall decide upon in sufficient time to enable it to be carefully examined by the countries interested. The Committee is also to be entrusted with the work of proposing a system of organisation and procedure for the Conference itself. The Second Hague Conference has thus taken an important step, and, taught by its own tedious and cumbersome procedure, it has endeavoured to spare its successor from suffering from the like causes. If Hague Conferences, meeting in the future at specified intervals, are to develope into a world legislature, a veritable “Parliament of man,” they can only be certain of producing beneficial and lasting results if the states taking part have thoroughly made up their minds both in regard to the matters to be discussed, and the views which their representatives are to support. The delegates of future Conferences will also be spared the chagrin and annoyance from which on several important occasions Plenipotentiaries suffered in 1907, when, owing to lack of instructions, they were unable to speak with any authority for the states they represented; while the latter will not hurriedly, and without due warning, have to formulate a policy on any topic which may be introduced without previous notice and consideration.
THE CONVENTIONS OF THE HAGUE CONFERENCES OF 1899 AND 19071 .
[1 ]See note 1, page 69.
[1 ]For names of British and United States delegates in 1899 see supra, p. 42.
[1 ]For names of British and United States delegates in 1899 see supra, p. 42.
[2 ]For names of British and United States delegates in 1907 see supra, p. 57.
[2 ]For names of British and United States delegates in 1907 see supra, p. 57.
[1 ]For the draft Convention referred to, see post, p. 498.
[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 66-9; La Deuxième Conférence Internationale de la Paix, T. i. (Actes et Documents), pp. 342-6.
[2 ]See ante, p. 51.
[3 ]The “Acte Final” is printed after the 13 Conventions and the Declaration in Vol. i. of the Official Report of the Second Hague Conference, La Deuxième Conférence Internationale de la Paix, T. i.; in the British Blue Book it is printed first, the Conventions and Declaration following it.
[4 ]T. E. Holland, The Laws of War on Land, p. 5; L. Oppenheim, Int. Law, Vol. ii. p. 77 (note); see post, p. 260.
[1 ]La Deux. Confér. T. i. p. 343.
[2 ]Parl. Papers, Misc. No. 1 (1899), p. 260; Sir T. Barclay, Problems, etc. p. 43.
[3 ]See ante, p. 56.
[4 ]See ante, p. 32.
[1 ]La Deux. Confér. T. i. pp. 343-4; Parl. Papers, Misc. No. 4 (1908), pp. 67-8.
[2 ]Parl. Papers, Misc. No. 1 (1899), p. 113.
[1 ]Sir T. Barclay, Problems, etc. p. 125.
[2 ]See Article in The Nation of 2 March, 1907.
[3 ]For Instructions on this subject see Appendix.
[1 ]Parl. Papers, Misc. No. 1 (1908), p. 27; La Deux. Confér. T. i. p. 90.
[2 ]A translation of this treaty is given by Sir T. Barclay, Problems, etc. pp. 128-9.
[1 ]La guerre maritime, etc. in La Revue des deux Mondes, 1 Aug. 1908, p. 676.
[3 ]Parl. Papers, Misc. No. 1 (1899), pp. 108-111, 165-8. The United States Government in 1856 refused to accede to the Declaration of Paris in consequence of the non-acceptance of this principle. See supra, p. 3.
[4 ]See Parl. Papers, Misc. No. 1 (1908), p. 187; La Deux. Confér. T. i. p. 245 for M. Fromageot’s Report on which the following summary is based. See also Livre Jaune, p. 101.
[1 ]Mr White’s speech is printed in extenso in Parl. Papers, Misc. No. 1 (1899), p. 166.
[2 ]For British Instructions on this head see Appendix.
[1 ]E. Lémonon, op. cit. p. 634.
[2 ]See E. Lémonon, op. cit. p. 635.
[1 ]See ante, p. 79.
[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 351-423; La Deux. Confér. T. i. pp. 455-552; Livre Jaune, pp. 42-54; E. Lémonon, La seconde Conférence, pp. 121-187; A. B. Fried, Die zweite Haager Konferenz, pp. 39-119; W. J. Hull, Obligatory arbitration and the Hague Conferences, Am. Journ. of Int. Law, Vol. ii. p. 731.
[1 ]Parl. Papers, Misc. No. 4 (1908), p. 368; La Deux. Confér. T. i. p. 476.
[2 ]Parl. Papers, Misc. No. 4 (1908), p. 370; La Deux. Confér. T. i. p. 479.
[1 ]See post, pp. 180-197.
[1 ]See post, p. 498.
[1 ]J. Westlake, Peace, p. 218.
[2 ]See W. E. Hall, Int. Law, pp. 207-8 for a discussion of the position of aliens in regard to military service.
[3 ]Despagnet, Droit int. § 342.
[4 ]For further discussion of this subject see post, p. 293.
[1 ]J. Westlake, War, p. 285.
[1 ]Parl. Papers, Misc. No. 4 (1908), p. 201; La Deux. Confér. T. i. p. 265.
[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 202-216; La Deux. Confér. T. i. p. 264.
[2 ]See ante, p. 4.
[1 ]See Appendix.
[2 ]See Sir T. Barclay, Problems, etc. p. 101; Annuaire, Vol. ix. (1888), p. 204. The Règlement international des prises maritimes allows the destruction of a captured enemy ship in five cases, (1) where she is unseaworthy and the sea is rough, (2) where she sails so badly that she cannot keep up with the captor, (3) on the approach of a stronger enemy fleet endangering her recapture, (4) where the captor cannot spare a prize crew without endangering her own safety, (5) when the port to which it is possible to take the captured ship is too distant.
[3 ]See The Actaeon, 2 Dodson, 48; Felicity, 2 Dodson, 381; Leucade, Spinks, 217; T. E. Holland, Manual of Naval Prize Law, § 303.
[1 ]See post, p. 478.
[2 ]T. J. Lawrence, War and Neutrality, p. 257.
[3 ]See The Times, 8th Aug. 1908.
[4 ]Parl. Papers, Cd. (1900); J. Dundas White, The seizure of the Bundesrath, 17 L. Q. R. 14.
[5 ]L. Oppenheim, Vol. ii. pp. 470-1.
[1 ]L. Oppenheim, Vol. ii. p. 469.
[2 ]See post, pp. 557, 597.
[2 ]See Article in Edin. Review, Jan. 1908, p. 224.
[3 ]Parl. Papers, Misc. No. 4 (1908), p. 42; La Deux. Confér. T. i. p. 169.
[1 ]Changes made in the three Conventions of 1899 by the Conference of 1907 are indicated by italics.
[P. 79, line 16,]for “American” read “United States” and so elsewhere on pages 79 and 80.
Sir T. Barclay, Problems, etc. pp. 123-130; A. Ernst, L’œuvre de la Deuxième Conférence de la Paix, p. 55; E. Lémonon, La seconde Conférence de la Paix, pp. 719-735; “The limitation of Armaments,” The Times, 20 July, 1906; R. P. Hobson, Disarmament, Am. Journ. of Inter. Law, Vol. ii. p. 743; B. F. Trueblood, The case for limitation of Armaments, Idem, p. 758. The subject is treated fully in the various works dealing with the Hague Conferences mentioned in the note on p. 51.
The literature on this subject is great, and the question is discussed by all writers on Public International Law. L. Oppenheim, Int. Law, Vol. ii. pp. 179 and 186, gives a list of authors who discuss the question of confiscation of enemy property at sea, and in addition reference may be made to the following: F. W. Holls, The Peace Conference, pp. 306-321; J. Westlake, War, pp. 129-132, 311-314; Sir T. Barclay, Problems, etc. pp. 63-70; C. H. Stockton, Am. Journ. of Int. Law, Oct. 1907, p. 930; E. Lémonon, La seconde Conférence, etc. p. 623; N. Bentinck, War and private property, pp. 85-96; Lord Loreburn’s (then Sir R. Reid) letter to The Times, 14 Oct. 1905, since edited with notes by F. W. Hirst; A. de Lapradelle, La guerre maritime, La Revue des deux Mondes, 1 Aug. 1908, p. 676; Livre Jaune, p. 101; Captain Mahan, National Review, June, 1907; Julian S. Corbett, Nineteenth Century and after, June, 1907.
Parl. Papers, Misc. No. 4 (1908), pp. 33-36, 134-145; La Deux. Confér. T. i. pp. 125-9, 150-161, 163, 176-8; J. Westlake, War, p. 285; Livre Jaune, pp. 79-82; A. S. de Bustamente, Am. Journ. of Int. Law, Vol. ii. p. 115.
Parl. Papers, Misc. No. 4 (1908), p. 201; La Deux. Confér. T. i. p. 264; Livre Jaune, p. 101.
Parl. Papers, Misc. No. 1 (1908), p. 17; Idem, Misc. No. 4 (1908), p. 199; La Deux. Confér. T. i. p. 262; Sir T. Barclay, Problems, etc. pp. 99-102; J. Westlake, War, p. 318; L. Oppenheim, Vol. ii. § 431; T. J. Lawrence, Int. Law, § 215; Idem, War and Neutrality, etc. p. 255; W. E. Hall, Int. Law, p. 735; T. E. Holland, Prize Law, § 303; Idem, Neutral duties in a Maritime War, pp. 12-13; H. Taylor, Int. Law, § 691; A. Hershey, International Law and Diplomacy of the Russo-Japanese War, pp. 156-9; F. E. Smith and N. W. Sibley, International Law as interpreted during the Russo-Japanese War, Chap. xii.; L. A. Atherley-Jones, Commerce in War, pp. 531-8; T. Baty, La destruction des prises neutres, Rev. de Dr. int. (2nd series), Vol. viii. p. 434; E. Lémonon, La seconde Conférence, etc. pp. 684-694.
J. B. Scott, Recommendations for a third Peace Conference at the Hague, Am. Journ. of Int. Law, Vol. ii. p. 815.