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Convention No. 5. Respecting the rights and duties of neutral powers and persons in war on land 1 . - 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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Convention No. 5. Respecting the rights and duties of neutral powers and persons in war on land1 .
The regulations on the laws and customs of war on land annexed to the Convention of 1899 contained four Articles dealing with neutrals. The subject was not further dealt with, but the Conference expressed a “Wish” that the question of the rights and duties of neutrals might be inserted in the programme of a future Conference and it appears under the second heading of suggested topics in Count Benckendorff’s circular. The subject was entrusted to the Second Sub-Committee of the Second Committee which was concerned with the laws of war on land. The object which the Committee kept in view was to effect a reasonable compromise between the interests of belligerents and the rights of neutrals, and it was also felt that it would be well not to endeavour to settle disputed points in the laws of neutrality, but to make a beginning in codification by converting into a written law such of the existing usages as regarded neutral Powers and persons as were of general acceptance.
The subject fell naturally into two divisions, (1) the position of neutral Powers, their rights and duties in regard to the belligerent Powers, and (2) the position of neutral persons and their relations with the belligerents.
The rights and duties of Neutral Powers.Chapter i., consisting of 10 Articles, is based on a draft presented by the French Delegation and explained by General Amourel on the 19th July, 1907. He stated that it contained only provisions generally admitted by publicists and established by usage. There were, undoubtedly, many cases not provided for, but if the draft was accepted it would form a starting-point for their discussions, and for future developments. One very important matter had to be settled before the examination of the subject could be undertaken. Should the provisions be addressed to neutral states marking out the conduct they should pursue, or should they be of a more general character addressed to all parties? It was thought preferable not only to provide that neutrals must prevent certain acts from being done on their territory, but to declare that belligerents are under a corresponding duty not to do such acts. The 10 Articles of Chapter i. commence with the fundamental principle inserted on the suggestion of the Belgian delegate of the inviolability of the neutral territory (Article 1). The second Article which is a direct consequence of the first was proposed by the British delegate and forbids belligerents to send troops and war material through neutral territory. The experiences of the Russo-Japanese War suggested the prohibition in Article 3. The Russians, having erected a wireless telegraphy apparatus on one of the hills of Port Arthur, had established a receiving station at Chefoo on the Chinese side of the Gulf of Pechili, and the besieged garrison at Port Arthur was thus enabled to communicate with their home Government and the outside world generally1 . This Article forbids the establishment by a belligerent on neutral territory of a radio-telegraphic station, or the use by a belligerent of any such installation made by him “for purely military purposes” before the war on territory of a neutral and not previously opened for the service of public messages. The limitation in paragraph (b) “and not previously opened” is taken from the Radio-telegraphic Convention of 1906 and was for the purpose of enabling the British and Japanese delegates to abandon the reservations they had made on Articles 3 and 9. Article 4 forbids the formation of bodies of combatants for one of the belligerents on neutral territory and the establishment of offices there for the purpose of enlistment. A neutral Power by Article 6 does not incur any responsibility if persons cross the frontier singly from the neutral state and enlist with one of the belligerents. Article 5 lays a duty on neutral Powers corresponding to those imposed on belligerents by Articles 2-4 to prevent such acts as are enumerated in those Articles from being done on its territory. The Japanese delegate desired to extend the neutral obligation to territory over which a neutral had jurisdiction. This question of the rights of jurisdiction exercised by a state over territory not its own raised difficult points for solution which the Committee thought it unwise to attempt to solve. What, for instance, is the position of Cyprus or Wei-hai-wei? The complex problems relating to acts done on leased or “occupied” or “administered” territory had to be passed over in order to arrive at an agreement on generally accepted principles.
Articles 6-8 relate to acts for which a neutral state is not responsible. Articles 7 and 8 expressly provide that a neutral is not under any obligation to prevent the export of contraband of war by its subjects, nor to prevent belligerents using telegraphs or telephone cables or wireless telegraphy apparatus belonging to the neutral state or private individuals. It will be noticed that the installations prohibited by Article 3 are those which belong to belligerents. A neutral cannot in practice distinguish among the various persons who make use of telegraphic and other similar means of communication within its territory. Strict impartiality in regard to the matters referred to in Articles 7 and 8 is enjoined, and the duty is laid on the neutral Power to see that the use of privately owned telegraphic and other similar means of communication is regulated in the same impartial manner (Article 9). Neutrals are however under no obligation to allow belligerents to use such means of communication, but impartiality of prohibition is necessary. Lord Reay desired that it should be stated in the Report that the liberty of a neutral state to transmit despatches by land telegraphs or submarine cables or wireless-telegraphic apparatus does not imply the right of making use of them or of allowing them to be used in order to lend any assistance to one of the belligerents1 . Article 10 recognises that the fact of a neutral Power repelling by force attempts to violate its neutrality cannot be regarded as a hostile act. The Belgian delegate deemed this superfluous, but his objection was over-ruled and the foregoing 10 Articles received unanimous acceptance. The Danish delegate desired to add an Article providing that the mere fact of a neutral state mobilising its forces with a view to prevent infractions of its neutrality should not be considered a hostile act, but the Committee deemed it unnecessary, as each sovereign state has the indisputable right to take such steps within its own territory for its defence as it may deem fit.
Chapter ii. Belligerents interned, and wounded tended in neutral territory.Articles 11-15 are based upon Section iv. of the Regulations annexed to the Hague Convention on the laws and usages of war on land of 1899. Articles 11, 12, 14 and 15 are re-enactments of Articles 57, 58, 59 and 60 of these Regulations. Article 13 is new. An attempt was made by Japan to make a change in Article 11 (57 of the Regulations of 1899) by providing that officers and other members of the armed forces of a belligerent interned in a neutral state should not be given their liberty or authorised to return to their country except with the consent and under conditions laid down by the other belligerent, and that the parole given to a neutral state by such individuals should be deemed equivalent to a pledge given to the enemy. This was rejected, the Committee preferring to leave the Articles in their original form, and for special cases to be settled according to circumstances.
Article 13 deals with cases not covered by the Articles in the Convention of 1899. Prisoners of war escape and take refuge on neutral territory; belligerent troops that have taken refuge on neutral territory have with them prisoners of war; what is the duty of the neutral state? In the first case, it has long been a rule of international law that a prisoner of war escaping and taking refuge in a neutral state is free, but it was not settled whether the neutral state could restrain him from rejoining his army if he subsequently wished to do so1 . The first paragraph of Article 13 leaves the neutral state liberty of action. It may receive escaped prisoners, and allow them to remain in its territory, and may assign them a place of residence. If the prisoner will not conform to neutral regulations is he at liberty to leave? The second paragraph was objected to by the Russian military delegate as being contrary to Article 59 of the Regulations for land warfare of 1899 and Article 15 of the Convention adapting to maritime warfare the principles of the Geneva Convention of 1906, which require that sick and wounded belonging to belligerent armies and navies committed to the care of neutrals must be guarded by the latter and not allowed to take part again in the war. The case dealt with by this paragraph is quite different. A body of belligerent troops with prisoners of war enter a neutral territory with the object of avoiding surrender to the enemy2 ; if such troops surrender to the enemy their prisoners are freed; the same rule now applies where they enter neutral territory and are interned. Their prisoners are dealt with in the same way as escaped prisoners of war.
Chapter iii. Neutral persons.Articles 16, 17 and 18 are all that remain of a German draft of 12 Articles originally intended to form Chapter v. of the Regulations for the laws of war on land. The failure of the German delegate to obtain acceptance for his proposals has already been referred to in discussing the Second and Third Vœux3 . The draft Articles proposed to establish a régime highly favourable both to the persons and property of neutrals in belligerent states. Great Britain, having large colonies with populations drawn from many states, would have been considerably handicapped if she had never been able to avail herself of the services of immigrants freely offered, who, not having resided long enough to acquire British nationality, still remained technically subjects of a neutral Power. The British delegate strongly objected to the German proposals and he was supported by the delegates of France, Russia and Japan, who also declined to accept the favoured position created for subjects of neutral Powers in belligerent states. The three Articles which found acceptance and which constituted the 1st Chapter of the German draft have not been accepted by Great Britain.
Chapter iv. Railway Material.Article 19 replaces Article 54 of the Regulations of 1899 and is a compromise between contradictory views. Luxemburg and Belgium denied the right of belligerents to requisition and make use of neutral railway material within their territory. Germany and Austria desired to have the right to use it admitted, on the understanding that an indemnity was paid for its use after the close of the war. France and Luxemburg as an alternative claimed both an indemnity and the right, in case of need, to retain and make use of a corresponding quantity of railway material coming from the territory of a belligerent state. The Conference took the middle course, allowing belligerents to requisition and use neutral railway material only when absolutely necessary, on condition that it be returned as soon as possible, the neutral being given a corresponding right over belligerent material within its territory, compensation to be paid by one party to the other in proportion to the material used and the period of use. The terms used in this Article leave the neutral very much at the mercy of the belligerent as regards the requisition and use of railway material. Who is to be the judge of the necessity, and what is the meaning of “as soon as possible”? M. Eyschen (Luxemburg) proposed that within a certain time after the outbreak of war all neutral railway material should be returned to the country of its origin. General von Gündell (Germany) objected that this would entirely disorganise the transport and mobilisation of troops in the belligerent country on the outbreak of war; the latter view prevailed.
This Convention affords within modest limits a starting-point for future Conferences, and a basis on which may be built further rules safe-guarding neutral interests. It contains on the whole well accepted principles which were ready for codification.
Signatory Powers.All the Powers except China and Nicaragua have signed this Convention, but Great Britain has made reservations in regard to Articles 16, 17 and 18 , and the Argentine Republic in regard to Article 18.
Enemy Merchant-ships at the outbreak of hostilities.
[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 32-9, 134-145, and No. 5 (1908); La Deux. Confér. T. i. pp. 125-9, 136-161; Livre Jaune, pp. 79-82; Weissbuch, pp. 7-9; A. S. de Bustamente, Am. Journ. of Int. Law, Vol. ii. pp. 95-120; A. Ernst, L’œuvre de la deuxième Conférence, pp. 42-9; E. Lémonon, La seconde Conférence, pp. 409-470; Sir T. Barclay, Problems, etc. p. 83; J. Westlake, War, p. 284; T. E. Holland, The laws of war on land, pp. 62-8.[ ]
[1 ]See T. J. Lawrence, War and Neutrality, etc. p. 218; A. S. Hershey, International law and diplomacy, etc. pp. 122, 124, 259, 266.
[1 ]Parl. Papers, Misc. No. 4 (1908), p. 128; La Deux. Confér. T. i. p. 142.
[1 ]See L. Oppenheim, Int. Law, Vol. ii. § 337.
[2 ]The most striking example of internment occurred in 1871 during the Franco-Prussian war when over 80,000 French troops under General Clinchant entered Swiss territory and were interned for the remainder of the war; France at the conclusion of the war paid to Switzerland some 11 million francs for their maintenance.
[3 ]See supra, p. 85.
[P. 290, note 1,]add La Deux. Confér. T. iii. pp. 34-45, 51-98, 179-232, 256-288.
[P. 294, last line,]for “18” read “19.”