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• Front Matter: Preface
• List of Cases Cited
• Introduction
• Declaration of Paris, 1856 1
• Déclaration De Paris, 1856.
• The Declaration of Paris, 1856.
• Declaration of St Petersburg, 1868 1
• Geneva Convention, 1864 1
• Convention Pour L’amélioration Du Sort Des Militaires Blessés Dans Les Armées En Campagne.
• Convention For the Amelioration of the Condition of Soldiers Wounded In Armies In the Field.
• Articles Concerning Naval Warfare ( La Marine ).
• Geneva Convention, 1906 1
• Convention Pour L’amélioration Du Sort Des Blessés Et Malades Dans Les Armées En Campagne.
• Convention For the Amelioration of the Condition of the Wounded and Sick In Armies In the Field.
• Chapitre Premier. —: Des Blessés Et Malades.
• Chapter I.—: The Wounded and Sick.
• Chapitre II.—: Des Formations Et Établissements Sanitaires.
• Chapter II.—: Medical Units and Establishments.
• Chapitre III.—: Du Personnel.
• Chapter III.—: Personnel.
• Chapitre IV.—: Du Matériel.
• Chapter IV.—: Material.
• Chapitre V.—: Des Convois D’Évacuation.
• Chapter V.—: Convoys of Evacuation.
• Chapter VI.—: Du Signe Distinctif.
• Chapter VI.—: The Distinctive Emblem.
• Chapitre VII.—: De L’application Et De L’exécution De La Convention.
• Chapter VII.—: Application and Carrying Out of the Convention.
• Chapitre VIII.—: De La Répression Des Abus Et Des Infractions.
• Chapter VIII.—: Prevention of Abuses and Infractions.
• Dispositions Générales.
• General Provisions.
• Protocole Final De La Conférence De Revision De La Convention De Genève.
• Final Protocol of the Conference For the Revision of the Geneva Convention.
• The Hague Peace Conferences 1899 and 1907
• The Peace Conference of 1899 1 .
• The Second Peace Conference of 1907 1 .
• Final Acts of the International Peace Conferences.
• The Conventions of the Hague Conferences of 1899 and 1907 1 .
• I.: Convention For the Pacific Settlement of International Disputes.
• 1.: Règlement Pacifique Des Conflits Internationaux.
• 1.: Pacific Settlement of International Disputes
• I.: Convention For the Pacific Settlement of International Disputes 1 .
• II.: The Recovery of Contract Debts.
• II.: Convention Concernant La Limitation De L’emploi De La Force Pour Le Recouvrement De Dettes Contractuelles.
• II.: Convention Respecting the Limitation of the Employment of Force For the Recovery of Contract Debts.
• Convention No. 2. the Limitation of the Employment of Force For the Recovery of Contract Debts 1 .
• III.: Convention Relative to the Commencement of Hostilities.
• III.: Convention Relative à L’ouverture Des Hostilités.
• III.: Convention Relative to the Opening of Hostilities.
• Convention No. 3. The Commencement of Hostilities 1 .
• IV.: Les Lois Et Coutumes De La Guerre Sur Terre.
• II.: Convention Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• IV.: Convention Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• Règlement Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• Section I.: Des Belligérants.
• Section II.: Des Hostilités.
• Section III.: De L’autorité Militaire Sur Le Territoire De L’État Ennemi.
• Section IV.: Des Belligérants Internés Et Des Blessés Soignés Chez Les Neutres.
• IV.: The Laws and Customs of War On Land.
• II.: Convention With Respect to the Laws and Customs of War On Land.
• IV.: Convention Concerning the Laws and Customs of War On Land.
• Regulations Respecting the Laws and Customs of War On Land.
• Section I.: Belligerents.
• Section II. Hostilities.
• Section III.: Military Authority Over the Territory of the Hostile State.
• Convention No. 4. Concerning the Laws and Customs of War On Land 1 .
• Appendix to Note On the Laws and Customs of War On Land. Translation of the Draft of an International Declaration Concerning the Laws and Customs of War Adopted By the Conference of Brussels, 27th August, 1874 1 .
• V.: Neutral Powers and Persons In Land Warfare.
• V.: Convention Concernant Les Droits Et Les Devoirs Des Puissances Et Des Personnes Neutres En Cas De Guerre Sur Terre.
• V.: Convention Respecting the Rights and Duties of Neutral Powers and Persons In War On Land.
• Convention No. 5. Respecting the Rights and Duties of Neutral Powers and Persons In War On Land 1 .
• VI.: Enemy Merchant-ships At the Outbreak of Hostilities.
• VI.: Convention Relative Au Régime Des Navires De Commerce Ennemis Au Début Des Hostilités.
• VI.: Convention Relative to the Status of Enemy Merchantships At the Outbreak of Hostilities.
• Convention No. 6. Relative to the Status of Enemy Merchant-ships At the Outbreak of Hostilities 1 .
• VII.: Conversion of Merchant-ships Into War-ships.
• VII.: Convention Relative à La Transformation Des Navires De Commerce En Bâtiments De Guerre.
• VII.: Convention Relative to the Conversion of Merchantships Into War-ships.
• Convention No. 7. Convention Relative to the Conversion of Merchant-ships Into War-ships 1 .
• VIII.: Automatic Submarine Contact Mines.
• VIII.: Convention Relative à La Pose De Mines Sous-marines Automatiques De Contact.
• VIII.: Convention Relative to the Laying of Automatic Submarine Contact Mines.
• Convention No. 8. Relative to the Laying of Automatic Submarine Contact Mines 1 .
• IX.: Bombardment By Naval Forces In Time of War.
• IX.: Convention Concernant Le Bombardement Par Des Forces Navales En Temps De Guerre.
• IX.: Convention Respecting Bombardment By Naval Forces In Time of War.
• Convention No. 9. Respecting Bombardment By Naval Forces In Time of War 1 .
• X.: Conventions For the Adaptation of the Principles of the Geneva Convention to Maritime War (1899 and 1907)
• X.: La Convention De Genève Et La Guerre Maritime 1 .
• III.: Convention Pour L’adaptation à La Guerre Maritime Des Principes De La Convention De Genève Du 22 Août, 1864.
• X.: Convention Pour L’adaptation à La Guerre Maritime Des Principes De La Convention De Genève.
• X.: The Geneva Convention and Maritime Warfare 1 .
• III.: Convention For the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864.
• X.: Convention For the Adaptation of the Principles of the Geneva Convention to Maritime War.
• Convention No. 10. The Adaptation of the Principles of the Geneva Convention to Maritime Warfare 1 .
• A Convention Relating to Hospital Ships, Signed At the Hague, the 21st December, 1904 2 .
• XI.: Restrictions On Capture In Maritime War
• XI.: Convention Relative à Certaines Restrictions à L’exercice Du Droit De Capture Dans La Guerre Maritime.
• XI.: Convention Relative to Certain Restrictions On the Exercise of the Right of Capture In Maritime War.
• Convention No. 11. Relative to Certain Restrictions On the Exercise of the Right of Capture In Maritime War.
• XII.: Establishment of an International Prize Court.
• XII.: Convention Relative à L’Établissement D’une Cour Internationale Des Prises.
• XII.: Convention Relative to the Establishment of an International Prize Court.
• Annex to Article 15. Distribution of Judges and Deputy Judges By Countries For Each Year of the Period of Six Years.
• Convention No. 12. Relative to the Establishment of an International Prize Court 1 .
• XIII.: Neutral Rights and Duties In Maritime War.
• XIII.: Convention Concernant Les Droits Et Les Devoirs Des Puissances Neutres En Cas De Guerre Maritime.
• XIII.: Convention Respecting the Rights and Duties of Neutral Powers In Maritime War.
• Convention No. 13. The Rights and Duties of Neutral Powers In Maritime War 1 .
• Declarations (1899 and 1907) Prohibiting Discharge of Projectiles, Etc. From Balloons
• Les Déclarations De 1899 Et 1907.
• Déclaration I.: Des Projectiles Et Des Explosifs Du Haut De Ballons.
• XIV.: Déclaration Relative à L’interdiction De Lancer Des Projectiles Et Des Explosifs Du Haut De Ballons.
• The Declarations of 1899 and 1907.
• Declaration I.: Projectiles and Explosives From Balloons.
• XIV.: Declaration Prohibiting the Discharge of Projectiles and Explosives From Balloons.
• Declaration Ii (1899).
• Des Gaz Asphyxiants Ou Délétères.
• Asphyxiating Or Deleterious Gases.
• II.: Declaration Prohibiting the Use of Asphyxiating Or Deleterious Gases 1 .
• Declaration Iii (1899).
• Des Balles à Enveloppe Dure Etc.
• Bullets With a Hard Envelope Etc.
• III.: Declaration Prohibiting the Use of Expanding Bullets 1 .
• Annexe Au Premier Vœu émis Par La Deuxième Conférence De La Paix 1 .
• Projet D’une Convention Relative à L’Établissement D’une Cour De Justice Arbitrale.
• Draft Convention Relative to the Creation of a Judicial Arbitration Court.
• The Draft Convention Relative to the Creation of a Judicial Arbitration Court 1 .
• The Results of the Second Peace Conference.
• Table of the Deposits of Acts of Ratification and Accessions to the Conventions and Declarations Signed the 29th July, 1899, At the First Peace Conference.
• Table of Signatures.
• Final Protocol of the London Naval Conference.
• Protocole De Clôture.
• Final Protocol.
• The Declaration of London, 1909
• Déclaration Relative Au Droit De La Guerre Maritime.
• Declaration Concerning the Laws of Naval War 1 .
• General Report On the Declaration Presented to the Naval Conference On Behalf of Its Drafting Committee 1 . ( Translation 2 .)
• Appendix. Instructions to British Delegation At the Second Peace Conference.
• Addenda and Errata.

Convention No. 13. The rights and duties of neutral Powers in maritime war¹ .

The second Vœu adopted by the First Peace Conference was that “the question of the rights and duties of neutrals may be inserted in the programme of a Conference in the near future² .” The Circular of Count Benckendorff of the 3rd April, 1906, suggested among topics for the consideration of the Conference the “Elaboration of a Convention relative to the laws and usages of naval warfare concerning...the rights and duties of neutrals at sea, among others...the regulations to be applied to belligerent vessels in neutral ports³ .”

The preamble to the Declaration of Paris bore witness to the fact that maritime law in time of war had long been the subject of deplorable disputes, and much of the time of the Second Conference was spent in endeavouring to clear up the uncertainty of the law and duties of states in such matters which give rise to differences of opinion between neutrals and belligerents, differences which may occasion and have occasioned serious difficulties and even conflicts⁴ .

Development of law of neutrality.The development of the law of neutrality during the 19th century reveals changes in the attitudes of the Powers towards neutral rights. During the Napoleonic wars belligerent rights were predominant, but the long peace which was broken by the Crimean War terminating with the Treaty and Declaration of Paris of 1856 marked a movement in the direction of greater recognition of the rights of neutrals. The relinquishment of privateering, and the protection accorded to neutral goods under an enemy flag and enemy goods under a neutral flag were acknowledgments of neutral rights. The Neutrality Regulations of Great Britain in 1862 limiting the amount of coal and the frequency of supplies to belligerent ships marked an important stage in the development of the position of neutrals. Important questions affecting neutrals were raised during the course of the Spanish-American and Boer wars, and more especially during the Russo-Japanese war. Meantime the political situation was undergoing a change; states which formerly viewed maritime questions chiefly from the standpoint of neutrals were themselves becoming naval Powers and beginning to take a different attitude. There was a noticeable reluctance on the part of some of these during the last-mentioned war to refrain from speaking distinctly as to certain acts which prima facie seemed to conflict with the duty of neutrals, or to do anything which might hinder their Governments in the event of war doing all that expediency might in unforeseen circumstances dictate¹ . This is also noticeable in the attitude of certain Powers in the discussions which resulted in the preparation of the Convention now under consideration.

Proposals at the Conference.The subject of the rights and duties of neutrals at sea, and the regulations to be applied to belligerent vessels in neutral ports was assigned to the Second Sub-Committee of the Third Committee under the presidency of Count Tornielli (Italy), M. Renault being the Reporter.

Four proposals were handed in to the Sub-Committee: (1) A Japanese draft defining the position of belligerent ships in neutral waters (seven Articles)² , (2) a Spanish draft on the same subject (five Articles)³ , (3) a British draft for a Convention concerning the rights and duties of neutral states in maritime warfare (thirty-two Articles)⁴ , (4) a Russian draft defining the position of belligerent war-ships in neutral ports (seven Articles)⁵ . The British draft was the most elaborate, and was a general statement of neutral rights and duties, and the Committee not feeling itself bound by the strict terms of its instructions took into consideration not only the position of belligerent war-ships in neutral ports but the wider question of neutral rights and duties.

The Questionnaire.A Questionnaire consisting of 17 questions was prepared on the basis of the four drafts⁶ , and was discussed on the 27th and 30th July and 1st August⁷ . Copies of the Three Rules of the Treaty of Washington, 1871, and of Chapter vii. of the Italian Code for the Merchant Navy, 1877, were circulated among the Committee.

The Questionnaire related to the following matters, each question being accompanied by the answers provided by the several drafts. (1) Is there a general principle underlying the whole question? (2) What are the rights of neutral states as regards the entry of belligerent ships of war into their ports? (3) To what extent should ships of war be prohibited from using neutral ports or territorial waters, in regard to places of observation, assembling, passage, base of warlike operations, establishment of Prize Courts, military objects of every kind? (4) If a prize is taken in neutral waters what are the rights and duties of the neutral state, (a) if the prize is still within its jurisdiction, (b) if it has left it? (5) Should the period of stay of belligerent ships of war in neutral waters be limited? (6) If the principle of a limitation is admitted, what exceptions should be made? In respect of stress of weather (l’état de la mer)? In respect of repairs? (7) What is the position of a belligerent war-ship which has taken refuge in a neutral port to escape the pursuit of the enemy? (8) What rule should be applied in case ships of both belligerents are in a neutral port simultaneously? How should the order of departure be fixed? (9) Is it necessary to distinguish between single ships and groups of ships? (10) Is any special rule required for ships accompanied by prizes? (11) Can belligerent war-ships effect repairs in a neutral port? (12) What amount of provisions and coal may they take on board? (13) Should a second supply be allowed in the same neutral country unless there is reason to fix some definite period? (14) Should special provision be made for war-ships proceeding to the seat of war or being in proximity to the zone of hostilities? (15) How should belligerent war-ships be dealt with for not conforming to the rules as to the duration and conditions of their stay in neutral ports and waters? (16) What is the duty of neutral states to ensure respect for the rules adopted? (17) Should the same rules be adopted for territorial waters as for neutral ports? (This last question was added at the request of the Norwegian delegate¹ .)

The discussions on these questions were lengthy and detailed, and it was recognised that the need for their solution had been emphasized by the occurrences during the Russo-Japanese war, but the methods of the solution proposed differed widely. On the one hand the British proposals, supported generally by the United States and Japan, put great restrictions on the use of neutral ports, whereas other Powers were for leaving the greatest latitude to neutrals. This difference of standpoint was not derived solely from theoretical conceptions, but from political interests and geographical conditions, which rendered the conciliation of the opposing views particularly difficult¹ .

It is the duty of a neutral to take no part in hostilities, to remain absolutely impartial and not to render aid to either belligerent. The admission of belligerent vessels of war into neutral ports and harbours and their passage through territorial waters have long been recognised as standing on a different footing from the admission or passage of troops. In the case of land warfare international practice has decided against it² , in the case of naval warfare it is permitted. International law however requires that what a neutral allows to one belligerent he must allow to the other. The entrance and length of stay of belligerent ships of war in neutral ports are favours which neutral states may withhold or grant conditionally, and during the Russo-Japanese war Norway, Sweden and Denmark closed certain of their ports to all belligerent war-ships (except in cases of distress)³ . The rules which neutrals intend to observe during a war in respect to the conditions of admission of belligerent war-ships are usually notified shortly after the commencement of a war by a Declaration of Neutrality, but it has been the practice of some states not to issue any special rules for the stay of belligerent war-ships in their ports. The Declarations of Neutrality lay down different rules, and the same neutral in the course of a war sometimes changes the conditions of admission. The problem in all cases is, as M. Renault states in his Report, to reconcile the neutral right to give asylum to foreign ships with the duty of abstaining from all participation in hostilities⁴ . States desire definite rules elaborated before the outbreak of war, the observance of which will be a good defence to recriminations made by either of the belligerents. It was the realisation of this principle, even though it led to an “all round agreement to fetter sovereign power to the extent of making application of some principle obligatory⁵ ,” that was desirable. It will be seen from an examination of the contents of this Convention how far this is carried out.

The Questionnaire reserved several points in the British draft which dealt more particularly with the rights and duties of neutrals, and, in the course of the discussion, the Sub-Committee added others bearing on the same subject. These were sent to an Examining Committee together with the other draft Articles dealing with the regulations for belligerent ships in neutral waters; the British draft was taken as the basis of the draft Convention which was prepared and submitted to the Examining Committee on the 11th, 12th and 28th September¹ . It was further discussed at a full meeting of the Third Committee on the 4th October² , and after various amendments had been made during the course of the discussion it was adopted at the Eighth Plenary Meeting of the Conference on the 9th October, 1907³ .

Governing principle.The fundamental principle enunciated in Article 1 is the obligation incumbent on belligerent states to respect the sovereign rights of neutral Powers. This right of sovereignty is one springing from the nature of states, but one which is liable to be infringed in time of war. The principle is therefore safeguarded at the commencement of this Convention as also in Article 1 of 5 H. C. 1907. Neutral territory and territorial waters are inviolable, and belligerents must abstain from committing acts therein in violation of neutrality. Article 1 is taken almost verbatim from Article 2 of the British draft and occasioned no discussion⁴ . If a violation of neutrality occurs it is a neutral’s duty to take steps to obtain redress, especially where the other belligerent is injuriously affected, but this is not definitely stated in the Convention.

Article 2 follows from the first Article. Every act of hostility, every operation of naval warfare, and in, particular capture of ships and the exercise of the right of visit within neutral waters are forbidden, the more serious act being placed first. It is unnecessary to enter into details of the cases in British and American Prize Courts in which captures in neutral waters have been set aside. The principle has received general recognition for over a century⁵ .

Ship captured in territorial waters.Article 3 deals with the case where a violation of neutrality has been committed and a vessel has been captured by a belligerent in the territorial waters of a neutral state. Two cases are considered in this Article:—(a) where the prize is still within neutral jurisdiction, (b) where it is not. This Article gave rise to considerable discussion⁶ . Article 28 of the British draft was as follows: “Where a prize has been captured in territorial waters in violation of neutrality, the neutral Power shall, if the prize is still within its jurisdiction, release it, as well as the officers and crew, and intern the prize crew put on board by the captor: if the prize has left the neutral jurisdiction, the neutral Power shall address a protest to the belligerent Government, asking for the release of the prize with its officers and crew, and the belligerent shall take means for this purpose¹ .” Article 3 of the Convention is based on this Article with important omissions. The neutral Power is to employ the means at its disposal for the release of the prize if within its jurisdiction: this expression was substituted for the British as it was understood that the neutral Power may not always have the necessary means.

As regards the second case, the British draft proposed, as stated above, that the neutral should demand the release of the prize, but it was pointed out in Committee by Admiral Siegel (Germany) that Article 3 of Convention 12 allows such a case to be brought before the International Prize Court where the neutral has not made a diplomatic remonstrance and demand. Doubt was expressed as to the mode of procedure to be adopted where a neutral state was not a party to the Prize Court Convention. M. Renault stated that in such case the neutral state would proceed by way of diplomatic request: but if it was a party to the Convention there were two courses open, either the diplomatic request by the state, or an appeal to the International Prize Court. The neutral has a choice, “Even in cases where it does not wish to pursue a diplomatic request strictly speaking, it will notify the fact to the state of the captor who will possibly release the prize himself to avoid further difficulties, diplomatic or judicial² .” In view of the divergencies of opinion M. Tcharykow (Russia) moved the suppression of the 2nd paragraph but this was not carried³ ; the amendment proposed by Count Tornielli to render optional the claim of the neutral Power, which now appears in the text, was adopted by nine to four and finally adopted unanimously at the meeting of the Examining Committee on 28th September, when Sir Ernest Satow, who had maintained the view of the British draft, reserved his vote⁴ . The difficulty in arriving at a solution was due to the Article in the Prize Court Convention already mentioned; the duty of the neutral Power, not a party to the Convention, to demand reparation for the violation of its neutrality by diplomatic representations was not disputed but is not expressly stated in the Convention. Cases of this nature have not infrequently arisen. The capture of the General Armstrong, an American privateer, by a British squadron in the neutral Portuguese harbour of Fayal in 1814 led to a long dispute between the United States and Portugal and was finally submitted to the arbitration of Prince Louis Napoleon, then President of the French Republic, who in 1852 decided against the United States on the ground that the American ship did not apply “from the beginning for the intervention of the neutral sovereign¹ .” The case of the Florida, a Confederate ship, which was captured in 1864 in the territorial waters of Brazil by the Federal cruiser Wachusett, is another instance of a neutral state at once demanding reparation, which was given by the United States Government² . The most recent case on this subject is the Ryeshitelni which occurred during the Russo-Japanese war. This ship, a Russian destroyer, took refuge in Chefoo harbour and was captured there by the Japanese destroyers Asashiwo and Kasumi. The vacillating policy of China, the neutral Power, in enforcing her neutral rights and compelling disarmament, appears to have caused the Japanese to take the matter into their own hands, and Japan was guilty of a violation of Chinese neutrality (Chefoo being outside the region of the war). The circumstances do not however seem to warrant a severe condemnation of the action of the commanders of the Japanese torpedo-boats. Japan made no reparation to China, though that Power demanded the restoration of the Ryeshitelni, and lodged a protest against the violation of her neutrality³ .

Prize Courts on neutral territory.Article 4 forbids the establishment by belligerents of Prize Courts in neutral territory or waters. This rule has long been recognised as a rule of international law towards the establishment of which the action of the United States in 1793 contributed in a great degree⁴ . The words “by a belligerent” were inserted to exclude the case of the International Prize Court which will sit in a neutral territory⁵ .

The British, Japanese and Russian drafts all contained Articles embodying the principle enunciated in Article 5, the latter part of which is also similar to Article 3 (a) of 5 H. C. 1907.Neutral territory as base of belligerent operations. The second rule of the Treaty of Washington, 1871, stated this principle from the standpoint of a neutral’s duty: “A neutral government is bound...Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms or recruitment of men.”

Supply of instruments of warfare by neutrals.Article 6 enacts the principle of the second part of the second rule of the Treaty of Washington. Article 3 of the British draft referred only to “sale” by a neutral, the word supply (remise) has a wider import. Sir Ernest Satow proposed to add a second paragraph prohibiting belligerents from revictualling their auxiliary ships in neutral waters. The British delegate contended that while it was allowable for belligerents to purchase food for their crews, the revictualling of belligerent auxiliaries constituted an operation of war. This was opposed by the Russian delegate. This proposal was carried by small majorities but ultimately withdrawn, though its disappearance was understood not to be taken as an acceptance of the whole of the draft by the British or Russian delegates¹ . The supply either directly or indirectly by a neutral Power to a belligerent Power of war-ships, munitions or material of war which had in practice been long forbidden is now definitely prohibited as a rule of law. The sale by auction of Government stores, such as took place in the United States in 1870, during the Franco-German War, is not likely to occur in the future² . If a purchase of ships of war from a state has been concluded before the purchasing state becomes a belligerent, it will be the neutral’s duty to decline to deliver until the restoration of peace³ .

Export of arms etc. from neutral states.The supply directly or indirectly by a neutral Power of war-ships and weapons of war is prohibited by Article 6; Article 7, however, recognises that the furnishing of munitions of war etc. by private persons is to be treated differently. Such goods when shipped by a private person are susceptible of capture as contraband; such contraband trade is not internationally unlawful, though in some systems of national law it may involve punishment and, as is frequently pointed out in Neutrality Declarations, is always liable to belligerent capture. A neutral state may forbid its subjects to trade in articles of the class referred to in Article 7, but it is under no international duty to do so. “The supply of materials of war, such as arms and ammunition, to either party to an armed conflict, although neutral governments are not obliged to prevent it, constitutes, on the part of the individuals who engage in it, a participation in hostilities, and as such is confessedly an unneutral act. Should the government of the individual itself supply such articles it would clearly depart from its position of neutrality. The private citizen undertakes the business at his own risk, and against this risk his government cannot assure him protection without making itself a party to his unneutral act¹ .”

Fitting out or arming of ships in neutral jurisdiction.The first rule of the Treaty of Washington, 1871, is as follows: “A neutral Government is bound; first, to use due diligence² to prevent the fitting out, arming or equipping within its jurisdiction, of any vessel which it has reasonable grounds to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use the like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction to warlike use.” Articles 5, 7 and 8 of the British draft reproduced these rules with certain additions³ . Article 8 of the Convention also reproduces this rule with two small but important variations. “The expression ‘due diligence’ which has become celebrated by its obscurity since it was solemnly interpreted has been omitted⁴ ”; and the Article says in the first place the neutral is “bound to employ the means at its disposal...” and in the second “to employ the same vigilance” to prevent the acts enumerated in the latter part of the Article.

During the discussions on this subject on the 30th July the Brazilian delegate (Captain Burlamaqui de Moura) proposed to insert an Article providing that war-ships in the course of construction in the ship-building yards of a neutral country may be supplied with all their armament to the officers and crew appointed to receive them, when they have been ordered six months before the declaration of the war¹ . The discussion on this proposal took place on the 1st August, when the Brazilian delegate supported his motion by reference to the French Instructions of the 26th April, 1898, on the occasion of the Spanish-American war (Rev. Gén. de Droit Inter. Vol. v. docum. p. 29). It was opposed by the Argentine delegate (M. Drago)² and rejected by the Examining Committee on the 26th August³ . The subject was again introduced by M. Ruy Barbosa at the full meeting of the Third Committee on the 4th October, but no amendment was moved⁴ . The British practice is opposed to the Brazilian proposal, and on the outbreak of the Spanish-American war, the British Government prevented the Amazonas, renamed by the United States the Somers, and the Almirante Abreu, two ships building in English ship-building yards which the United States had purchased from Brazil before the commencement of the war, from leaving the country⁵ .

This Article now converts into a rule of international law the first rule of the Treaty of Washington, but there still remains the difficulty of interpreting the phrase “any vessel intended to cruise or carry on hostile operations” or “which has been adapted in whole or in part, within such jurisdiction, to warlike use⁶ .” Great Britain has by the Foreign Enlistment Act, 1870, made it a criminal offence to build, equip, dispatch or issue or deliver a commission to any ship with intent or knowledge, or with reasonable cause to believe that the same shall or will be employed in the naval or military service of any foreign state at war with any friendly state (Sec. 8). The United States Neutrality Acts of 1794 and 1818, on which the British Statute of 1819 was modelled, contain similar provisions⁷ .

Neutral’s impartiality of treatment.The principle of Article 9, which lays on neutrals the duty of impartial treatment to both belligerents, met with no difficulty in acceptance but the form in which it should be stated occasioned some discussion⁸ . The British delegate proposed that a neutral Power may, if it thinks necessary, forbid all access to its ports or certain of them or the passage of its territorial waters to war-ships or prizes of the belligerents. The first draft stated that “A neutral state may allow under definite conditions, and even forbid, if it deems it necessary, access to its ports or certain of its ports by war-ships and prizes of the belligerents, etc.” The Japanese delegate contended that this suggested that neutral ports would be freely open to belligerent war-ships, whereas the increasing tendency of writers was to recognise that it was a duty for neutrals to admit them only in cases of distress, etc. The wording of the draft was slightly changed and finally adopted in the present form¹ . The first paragraph, therefore, lays down the general rule that where a neutral admits belligerent war-ships to its ports, roadsteads, or territorial waters, impartial treatment must be given to both; but adds in the second paragraph that one of the belligerents, by failure to conform to the orders and regulations of the neutral or through violation of its neutrality, may forfeit this claim to equal treatment. “The right of a state to forbid in a general way access to its ports by the belligerents is not in question in Article 9, and follows from its right of issuing general regulations and prohibitions² .”

Passage of belligerent ships through territorial waters.Article 10 provides that a Power’s neutrality is not compromised by the mere passage through its territorial waters of belligerent war-ships or prizes. “Article 32 of the British draft said ‘no provisions contained in the preceding Articles shall be interpreted so as to prohibit the innocent passage (le passage simple) of neutral waters in time of war by a war-ship or auxiliary ship of a belligerent.’ This might have been understood to mean that a neutral had not the right to forbid war-ships from passing through its waters, and it has been previously explained that according to the meaning of the British proposal this innocent passage must be distinguished from access or stay in neutral waters.

“On the 27th July, the first delegate of Sweden, referring to Article 30 of the British draft recognising that a neutral state has the right to forbid in whole or in part access to its ports and territorial waters, had called attention to the special condition of straits which might be situated within the area of territorial waters and suggested the addition of the rule voted by the ‘Institut de Droit International’ in 1894: ‘Straits which form a channel from one open sea to another can never be closed³ .’ ”

The Danish delegate made a proposition in a similar sense to that of the Swedish delegate. He said that to accord to belligerents the right of innocent passage through territorial waters, but to authorise neutrals to prohibit their entry was to take away with one hand what was given with the other. The laying of mines by neutrals being under consideration by another Committee, he would therefore merely draw attention to the connection between the two subjects and the consequent interest which there was in not limiting by the Convention the exercise of the sovereign rights of the neutral over his territorial waters, in such a way as to deprive him of one of the most effective means for maintaining the provisions of the same Convention¹ .

The question was discussed by the Examining Committee but no resolutions were passed on these points. From the opinions expressed there it appeared to be the general feeling that a neutral state could forbid even the innocent passage through parts of its territorial waters so far as it was necessary to maintain its neutrality, but that this prohibition could not extend to straits uniting two open seas² .

Article 10 leaves these questions unsettled, they remain “sous l’empire du droit des gens général.” All that it provides is that a state’s neutrality is not compromised by the passage through its territorial waters of belligerent ships of war³ .

Admiral Sperry on behalf of the United States declared that he could not accept this Article by reason of the political considerations involved in the question of the passage through territorial waters.

At the meeting of the Sub-Committee on the 30th July Turkhan Pascha made the following declaration: “The Ottoman Delegation thinks it its duty to declare that under the exceptional condition created for the Straits of the Dardanelles and the Bosphorus by the treaties in force, these straits, which are an integral part of Turkish territory, can in no case be brought within Article 32 of the British proposals. The Imperial Government could undertake no engagement whatever tending to limit its undoubted rights over these straits.”

M. Tsudzuki also declared that the Japanese Government could undertake no engagement concerning the straits which separate the numerous islands or islets which compose the Japanese Empire and which are simply integral parts of the Empire¹ .

Employment of neutral pilots.The 11th Article provides that a neutral Power may allow belligerent war-ships to employ its licensed pilots. It is not bound to provide them, but there are many cases where if a neutral allows belligerents to enter its territorial waters, it requires the employment of its pilots; under this Article no breach of neutrality is committed by granting leave to employ them. “The term ‘brevetés’ is used not ‘autorisés’ to indicate that it is a case of official pilots, not of pilots who might be authorised in each particular case” (M. Renault’s Report). This permission does not appear to extend to piloting belligerents in the open sea. “Great Britain prohibited her pilots, during the Franco-German War in 1870, from conducting German and French men-of-war outside the maritime belt, the case of vessels in distress excepted² .”

Duration of stay of belligerents in neutral ports.The question of the length of stay allowed to belligerent ships in neutral ports occasioned the greatest difficulty. The account of the discussion is clearly summarised by M. Renault in his Report to the Conference³ . Two proposals were before the Committee: (a) the Russian which allowed the neutral state to fix the period of stay allowed to belligerent ships of war⁴ , and (b) the British, Spanish and Japanese which laid down the general rule that such vessels should remain in neutral ports for twenty-four hours only save in exceptional circumstances⁵ . By way of compromise Count Tornielli suggested the rule in the form of the present Article. The right of the neutral Power to fix the length of stay is affirmed, but in case it shall not have exercised the right, the period is fixed at 24 hours. This was accepted by the delegates of Great Britain and Japan but opposed by Germany and Russia. The German delegate proposed to distinguish according as the neutral ports were more or less distant from the theatre of war, allowing a definite period to be fixed for the former but not for the latter. This was opposed by Sir Ernest Satow and M. Tsudzuki, chiefly on the ground of the difficulty in defining the expression “theatre of war.” Different states, said Sir Ernest Satow, would interpret the expression in different ways; furthermore, under modern circumstances the theatre of war would be quickly changed, less than a week enabling a fleet to pass from European to American waters; it would be a great responsibility for neutral Powers to have to modify their regulations from time to time according to the varying changes of the war¹ . The Dutch delegate also opposed the German amendment which was ultimately rejected by 7 to 4, with 3 abstentions² . The German delegate then moved the suppression of the whole Article but only received the support of one Power, Russia.

The twenty-four hours rule of stay has therefore been accepted as the general rule in the absence of any special regulations to the contrary.

This Article cannot be said to settle the question, but it is something to have the twenty-four hours rule of stay recognised as the normal period allowed: it affords support to a weak neutral state desirous of asserting its neutrality. The twenty-four hours rule of stay though adopted by Great Britain, the United States and other naval Powers, has never been accepted by France, Germany and Russia. The alleged abuse of the hospitality of neutral waters by Russian ships during the Russo-Japanese war called forth protests from Japan, “but the Instructions of the French Minister of Marine expressly stated that ‘the duration of sojourn in French ports of belligerents unaccompanied by a prize has not been limited by any special provision³ .’ ” The twenty-four hours rule of stay will in future apply in the absence of “any special provision to the contrary,” and by Article 27 the contracting Powers undertake to notify to the Netherland Government for communication to the other contracting Powers any orders and enactments regulating the situation of belligerent war-ships in their ports and waters. The power of a neutral state to accommodate its friends is not taken away but the neutral will, in order to avoid the application of the twenty-four hours rule of stay, have to make another rule which may one day tell against it, unless it is conceived in extremely wide terms. The object of placing a limitation on the sojourn of belligerent ships in neutral waters is chiefly to prevent such places from being made the base of belligerent operations. Nothing is said in this Article of the reasons for the stay of belligerent war-ships; it makes no distinction between entry to escape the perils of the sea or the enemy, or to take on board stores; these matters are referred to subsequently.

Article 13 is closely connected with the preceding Article, the provisions of which are to apply to belligerent war-ships which happen to be in neutral ports on the outbreak of hostilities. It must be read in connection with Article 24. The proposal to differentiate as regards ports in proximity to the theatre of war was again made by the German delegate in connection with this Article but, after the failure of the attempt in regard to Article 12, it was withdrawn¹ . A case similar to that contemplated by this Article occurred at the commencement of the Russo-Japanese war. The Russian gun-boat Manjur was lying in the neutral harbour of Shanghai when war broke out. The Japanese Consul drew the attention of the Chinese Government to the position of the ship, and the Tao-tai of Shanghai ordered the commander of the Manjur to leave as soon as possible. He refused; a Japanese cruiser was lying off the mouth of the river. Further parleying ensued, and the Chinese Government again ordered him to leave within 24 hours. The weakness of the neutral Government caused a further delay, and Japan refrained from taking extreme measures, but continued to protest against the presence of the Russian gun-boat in port. Negotiations were carried on between Russia and China on the one hand, and China and Japan on the other, from the middle of February, 1904, until the end of March when the gun-boat was dismantled to the satisfaction of the commander of the Japanese cruiser Akitsushima² .

Lengthened stay of belligerent war-ships in special cases.Whether the duration of stay is fixed at 24 hours or longer, it is recognised that exceptional circumstances permit a prolongation of the specified time. Article 14 deals with these cases. The proposals for exemption from the general rule were as follows: “stress of weather” (Japanese draft, Article 2), “damage, stress of weather or other force majeure” (Spanish draft, Article 3), “stress of weather, the absence of provisions or damage preventing ships from taking the sea” (Russian draft, Article 5). All three agreed in the exemption due to stress of weather; the question as to the extent of the damage for which a belligerent war-ship should be entitled to exceed the regular period of stay was raised by the Japanese delegate who desired a definite time to be fixed; this was rejected and the question remains open. The length of time will vary with the condition of the ship and the facilities for repair afforded by the port.

The second paragraph of this Article is in accordance with the spirit of 10 H. C. 1907, Article 1, and 11 H. C. 1907, Article 4, and occasioned no discussion.

Number of belligerent war-ships in a neutral port.The Japanese draft (Article 3) proposed that not more than three belligerent ships belonging to the same state or its allies should anchor at the same time in the same port or waters of the same neutral state¹ . This was supported by the British delegate. The number was taken as being that usually allowed in time of peace. The German delegate remarked that some states had probably not fixed any number for visits in time of peace and suggested that the number should be left to the determination of the neutral. The question was re-opened at the meeting of the Committee on the 28th September² , when the Russian delegate pointed out that a first-class battle-ship was nearly always accompanied by other smaller ships, and suggested that, while the principle was maintained, the neutral should be allowed to give special permission to more than three. This was objected to as increasing a neutral’s difficulties; ultimately the compromise suggested by the Swedish delegate was adopted which now forms Article 15, and fixes the maximum number of one belligerent’s war-ships in a neutral port or roadsteads at one time at three in default of special provisions to the contrary³ .

Order of departure from neutral ports.Article 16 settles the order of departure from a neutral port when ships of the two belligerents are both there simultaneously. This Article unlike the foregoing takes into account the presence of belligerent merchant-ships in a neutral port. The twenty-four hours rule of departure which was recognised as established by custom is adopted in the first paragraph. The order of departure occasioned some discussion. Four proposals were made: (a) that the order should be settled by the neutral, (b) that priority of demand should be taken into consideration, (c) that the weakest ship should leave first, (d) that the order of arrival should determine the order of departure. The last was finally adopted, except where the ship which arrives first is entitled to an extension of its stay⁴ . The twenty-four hours interval was also adopted in the third paragraph of this Article where a belligerent war-ship and a merchant-ship of its enemy are in the same neutral port simultaneously; the former may not leave until twenty-four hours after the latter, but the converse does not hold good. The merchant-ship may, if it desires, leave within less than twenty-four hours after a war-ship of the other belligerent.

The rule of the twenty-four hours interval is probably a hundred years older than the rule of the twenty-four hours stay¹ . It was adopted to prevent a belligerent ship from using neutral waters as a “trap for an enemy of inferior strength² .” The possibility of evasion of the rule was shown in December, 1861, when the United States corvette Tuscarora for several weeks prevented the Confederate cruiser Nashville from leaving Southampton³ . The British Government thereupon in January, 1862, laid down the twenty-four hours rule of stay. The “Institut de Droit International” in 1898 proposed to extend the twenty-four hours interval to the case of a belligerent merchant-ship and an enemy man-of-war, and also “in accordance,” as Dr Westlake states, “as may be believed with general practice” proposed that the order of arrival of the vessels should determine the order of departure, unless the first to arrive did not wish to exercise the right of departing first⁴ . Article 16 now lays down a general rule of twenty-four hours interval, and settles the order of departure without any saving clause “in default of special provisions to the contrary.”

Repairs in neutral ports and roadsteads.Article 17 is closely connected with Article 15 and provides that only such repairs as are absolutely necessary to render belligerent ships seaworthy may be executed in neutral ports, and that no increase may be made to their fighting force. These provisions were contained in both the British and Japanese drafts and are statements of the generally recognised law on this matter. The neutral decides what repairs are necessary and these must be executed as quickly as possible. The British draft (Art. 19) proposed that a neutral should not knowingly permit a war-ship to repair damage caused in battle⁵ , and a Portuguese amendment was to the same effect. This was, however, abandoned as there was a feeling that it would sometimes be difficult to decide on the cause of damage⁶ . It is not difficult for the neutral to fix the amount of repairs necessary to enable a ship to keep the seas, but no addition may be made to her armament. To put a ship in a condition to undertake offensive operations is clearly to aid her country in its war. “The principle,” says Hall, “is obvious, its application is susceptible of much variation; and in the treatment of ships, as in all other matters in which the neutral holds the delicate scales between two belligerents, a tendency towards the enforcement of a harsher rule becomes more defined with each successive war¹ .” Cases which occurred during the Russo-Japanese war afford striking evidence of this. Several Russian ships took refuge in the German harbour of Tsing-tau near Kiao-chau Bay after the battle of the 10th August, 1904. The Czarewitch and some destroyers being in an unseaworthy condition were not allowed to repair, but, together with their crews, were kept until the termination of the war. Similar treatment was accorded to the Diana in the French harbour of Saigon. The Russian cruisers Askold and Grosovoi which put into Shanghai in a damaged condition were ultimately dismantled and their crews interned by the Chinese authorities. The Lena put into San Francisco on the 11th September, 1904, in need of repairs; the United States authorities estimated they would take six weeks to execute in order to make her seaworthy, and on the request of the commander the United States authorities disarmed her and interned her crew. After the great naval engagement in the Straits of Korea on the 27th May, 1905, three Russian cruisers the Aurora, Oleg and Zamtchug (Jemtchug) put into Manilla in a damaged condition with wounded men on board. The Russian admiral asked for permission to repair, but this was ultimately refused and the ships were ordered to leave within 24 hours or to be interned, on the ground that time cannot be given for the repair of injuries received in battle² .

These cases are of unequal value as precedents. In the case of the ships taking refuge within “the theatre of war,” their internment was probably no disadvantage to Russia, as had repairs been allowed, all or most of the ships must have been captured or sunk by the Japanese who had secured complete command of the sea. The Russian Government does not appear to have made representations to any of the interning Powers, and in the case of the Lena, the commander asked for internment, while in the case of the ships in Manilla and Batavia the Russian Government chose internment as an alternative to quitting. The distinction said to have been drawn by the American Secretary of War between the disablement of a vessel caused by a storm or by an explosion or other accident on board, on the one hand, and the damage suffered in battle, on the other¹ , was the distinction proposed to be made by the British draft. There is nothing in Article 17 to prevent a neutral state from making such a distinction if it allows a belligerent to execute repairs in its ports or roadsteads.

It will also be noticed that this Article does not refer to repairs in territorial waters, only in ports and roadsteads; the reason given by Count Tornielli being that it is probably difficult for ships to effect repairs in the former, and further that the control of neutrals over repairs executed under such conditions would not be possible² .

Increase of armament in neutral waters.Article 18 enacts the substance of the second half of the second Rule of the Treaty of Washington of 1871, the first half having been already embodied in Article 5. The addition of the words “territorial waters” to the Rule was moved by Sir Ernest Satow and is justified by the reason that the Rule of the Treaty of Washington spoke of neutral duties, whereas this Article is a prohibition to belligerents³ .

Supply of provisions and fuel to belligerent war-ships in neutral ports.Article 19 deals with a question, which together with that of the period of stay of belligerent war-ships occasioned the chief difficulties. What amount of provisions and fuel may be taken on board by belligerent war-ships in neutral ports? The first paragraph allows belligerent war-ships to re-victual in neutral ports or roadsteads only to complete their supplies up to the amount usual in time of peace. This occasioned no difficulty. The British rule as laid down in the Instructions of 1904 is that a belligerent war-ship may take in “provisions and such other things as may be necessary for the subsistence of her crew.” The amount will be in the discretion of the neutral.

The second paragraph deals with the supply of fuel and gave rise to lengthy discussions. The British proposal (Article 17) said that the quantity of provisions or fuel (munitions, vivres ou combustibles) taken on board in neutral jurisdiction should in no case exceed that which was necessary to enable it to reach the nearest port of its own country; the Japanese proposal added “or some nearer neutral destination¹ ”; the Spanish proposal was to the same effect. On the other hand it was contended by Germany, France and Russia that belligerents should be allowed to take in enough fuel to complete their normal supply in time of peace. These two alternatives were considered by the Examining Committee on the 11th and 12th September, 1907² , and again at the full meeting of the Third Committee on the 4th October, 1907³ . Admiral Siegel (Germany) contended that there was a great difficulty in arriving at the quantity of fuel necessary to take a ship to its nearest home port. It was necessary to ascertain what was the nearest port, what was its distance, the most economical speed, which would necessarily vary with the quality of the coal supplied, the state of the boilers, etc., the condition of the weather and a consequent lengthening of the voyage. These were burdens which should not be placed on neutrals⁴ . In support of the British proposal, Sir Ernest Satow argued that a neutral had no right to give assistance to a belligerent to reach his adversary; that the only reason why coal should be given to a belligerent ship was to prevent it from becoming a helpless derelict on the ocean; sufficient should therefore be given to enable it to preserve its existence, and this was the origin of the rule of the nearest home port, a rule which had been accepted by nearly all states which had issued rules on the subject⁵ . The Japanese delegate preferred the suppression of the provisions relating to coal in the Article to the acceptance of the German proposal but this was rejected by 10 to 4. The Russian proposal combined both tests as alternatives as stated in the second paragraph and this was carried in the Examining Committee by 11 votes, with 3 abstentions⁶ .

The third paragraph of the original draft stated that “re-victualling and coaling do not give a right to prolong the legal length of stay (la durée légale du séjour).” The German delegate objected to the last words as impliedly recognising the twenty-four hours rule and at the full meeting of the Third Committee on the 4th October the Russian delegate proposed its suppression, but was opposed by the Japanese delegate⁷ on the ground that its suppression would introduce an element of uncertainty into Article 12 so as to completely change its nature: that Article was a compromise. Neutrals would have to resort to severe measures of surveillance to see that belligerents did not make use of the re-victualling permission unduly to prolong their stay. Sir Ernest Satow supported M. Tsudzuki’s arguments. The Russian amendment was however carried by 27 to 5 (Great Britain, Japan, China, Spain and Portugal); 9 states (including the United States) abstained from voting¹ .

A legitimate extension of stay is recognised in the third paragraph in countries where ships of war are not supplied with coal within 24 hours of their arrival, as is the case in Italy.

This Article completely fails to satisfy the requirements of Powers which set a high standard of neutrality, and desire strictly to maintain the rule that neutrals must abstain from rendering assistance to the belligerents. National interests were in this case the determining factor. Great Britain, with coaling stations all over the world, and therefore in war-time independent to a large extent of neutrals, was unable to get other Powers not so situated to take the same view of neutral obligations. International law is not an abstraction irrespective of politico-geographical considerations; it is the reflection of the life of the society of states. The British and Japanese proposals are logical deductions from admitted principles and have been tested by experience, but the majority of states have not up to the present found it expedient to admit them. In the first serious attempt to reach an agreement on such highly controversial matters as those under consideration, it is not astonishing that unanimity was not reached. The standard set by this Article falls far short of that of Great Britain, the United States and Japan, and this Article has not been accepted by Great Britain and Japan: the United States have not signed the Convention. To permit more fuel and supplies “to be obtained than can, in a reasonably liberal sense of the word, be called necessary for reaching a place of safety is to provide the belligerent with means of aggressive action: and consequently to violate the essential principles of neutrality² .”

Three months rule.Article 20 is closely connected with the preceding Article. Whichever of the standards laid down therein is adopted, within what length of time may a ship return for another supply of provisions or fuel? The British and Spanish drafts both fixed the time at three months, the one viewing it from the neutral, the other from the belligerent standpoint. This period was fixed by Great Britain during the American Civil War; but as the conditions of navigation have totally changed since then it was urged that time and distance should both be taken into consideration, 1000 miles being suggested by a technical Committee to which this and other questions were referred. No agreement was however reached on this point and the proposal as it stands in Article 20 was adopted. The Russian delegate returned to this subject at the meeting on the 28th September and quoting from the British Foreign Office Instructions of February, 1904, desired the addition of the words “without special permission” to the rule prohibiting belligerent war-ships from receiving supplies from the same neutral Power within the succeeding three months, but this was rejected and the Article was finally adopted as worded in the Convention¹ .

Sir Ernest Satow proposed to insert after Article 20 a provision forbidding a neutral from knowingly allowing a belligerent war-ship to take on board provisions or fuel in order to go forth to encounter the enemy or to undertake operations of war (Art. 16 of British draft). The Japanese draft (Art. 5) contained a similar proposal. Spain was the only other Power which supported this proposal which was defeated by 8 to 3² .

Belligerent prizes in neutral ports.Articles 21-23 deal with the position of prizes in neutral ports³ . Some countries entirely exclude them, in others they are placed on the same footing as belligerent war-ships (cp. Article 6 of the Convention of Constantinople, 1888, with regard to the Suez Canal). The rule adopted by Article 21 allows them to be brought in only on account of unseaworthiness, stress of weather or want of fuel or provisions. They must leave as soon as the reason for entry is removed, and failure to comply with the neutral’s orders to leave authorises that Power to employ the means at its disposal to release the prize with its officers and crew and to intern the prize crew. Article 21 deals with the case of a prize brought within neutral jurisdiction in a regular manner. Article 22 provides for the case where one has come in under circumstances other than those contemplated in the preceding Article. The neutral Power is to release it with its officers and crew and intern the prize crew.

The object of Article 23 is “to render rarer, or to prevent the destruction of prizes” (M. Renault), and provides that a neutral Power may allow prizes to enter its ports and roadsteads when they are brought in to be sequestrated pending the decision of a Prize Court. The connection of this subject with the destruction of neutral prizes, which was under the consideration of the Fourth Committee, caused the Third and Fourth Committees to hold a joint meeting on the 10th September under the presidency of M. de Martens⁴ , when Sir Ernest Satow formulated objections against this Article. He pointed out that it made no distinction between enemy and neutral prizes. International law allowed a belligerent to sink enemy prizes, the capture of which made them the property of the captor, and therefore enabled him to deal with them at his pleasure; to allow a belligerent to take a prize into a neutral port was to accord him the power of making use of the port to his peculiar advantage. The adoption of the Article would imply the abandonment of the British position which was that neutral prizes must either be taken into the captor’s ports or released. There was nothing in the Article to ensure the prevention of the destruction of neutral prizes for it was by no means certain that neutrals would allow them to be brought into their ports, and there were often cases where, even if the permission were granted, belligerents could not avail themselves of it. There would, furthermore, be a danger to the neutral in admitting prizes into its ports, a belligerent would not view it with indifference and complications would ensue; the neutral, it was true, had the option of closing his ports, but it might be difficult to exercise it¹ . Sir Ernest Satow’s speech failed to convince the Committee and the Article was carried by 9 votes to 2 (Great Britain and Japan) with 5 abstentions. At the meeting of the Examining Committee on the 28th September several Powers which previously voted for this Article spoke against its retention, and at the full meeting of the Third Committee on the 4th October its suppression was moved by the Swedish delegate (M. de Hammarskjöld) on the ground that certain states had only consented to assume the onerous responsibility it imposed on them for the purpose of enabling an agreement to be reached regarding the destruction of neutral prizes; that agreement not having been obtained the raison d’être of the Article failed. The Article was however maintained by 29 to 7 (Denmark, Spain, Great Britain, Japan, Norway, Portugal and Sweden) with 6 abstentions (the United States, China, Cuba, Luxemburg, Persia and Switzerland)² .

The Report points out that neutral states are left free to admit prizes or not. Article 23 only says that their neutrality is not compromised if they do admit them and keep them; they can make such arrangements as regards their conservation as they think fit, and remove them to the port most convenient to themselves. The Prize Court referred to in this Article is the National Prize Court of the captor, not the International Prize Court³ .

Great Britain and Japan who throughout opposed this Article have reserved it on signing the Convention.

Refusal of belligerent war-ships to quit neutral ports.Article 24 enacts a generally recognised rule of international law by providing that if a belligerent war-ship does not leave a neutral port after notification by the neutral Power, such Power is entitled to take such measures as it considers necessary to render it incapable of putting to sea during the continuation of the war, and the commander of the ship is to facilitate the execution of such measures. The Article however is not mandatory in form. The only divergence of opinion was with reference to the treatment of the officers and crew: they are to be detained, not interned; but a sufficient number must be left on board to look after the vessel. This provision was inserted on the proposition of Count Tornielli, but objected to by Great Britain and Japan who preferred to leave the matter to the neutral¹ . The last paragraph relating to the position of officers is similar to 5 H. C. 1907, Art. 11, par. 3² .

Neutral vigilance.The third Rule of the Treaty of Washington was as follows: “A neutral government is bound:...Thirdly, To exercise due diligence in its own ports and waters and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.” Article 25 embodies this principle, which met with no opposition. The words “due diligence,” the meaning of which occasioned such divergent interpretations, are replaced by “such vigilance as the means at its disposal permit.” This formula was suggested by the delegates of Holland and Belgium in the place of “all needful diligence” which the Committee had originally proposed³ . The change of phrase is happy and will, it is hoped, occasion no difficulty in its interpretation. By this Article the incorporation of the principles of the Three Rules of the Treaty of Washington into a great International Act is completed.

Japanese proposal regarding more stringent neutrality regulations.The Japanese delegate proposed the following: “A neutral state, if it deems it necessary for the better safeguarding of its neutrality, is free to maintain or establish stricter rules than those provided by the present Convention⁴ .” The Report states that the need for this Article was doubted as the basis of the Convention is the sovereignty of the neutral state. Various Articles reserve the right to the neutral Power to issue more stringent rules, e.g. Articles 9, 12, 15 and 23. The only thing required is that a neutral should accord the same treatment to both belligerents. The proposal was rejected by 10 votes to 3, with 2 abstentions. At the second reading of the Draft Convention the Japanese delegate accepted the withdrawal of his Article, with the reserve that Japan will always deem itself entitled to maintain the interpretation which he had given.

Article 26 embodies a proposal of the Russian delegate stating that the exercise by a neutral Power of the rights laid down in the Convention [including presumedly the right of issuing more stringent regulations than those expressed therein] can under no circumstances be considered as an unfriendly act by either belligerent who has accepted the Articles referring thereto. It is well that this principle should clearly be laid down as it affords assistance to neutrals availing themselves of the provisions of the Convention.

Communication of neutral regulations.Article 27 which has already been referred to was proposed by the Russian delegate at the termination of the discussion of the Draft Convention. Various Articles refer to regulations, laws, ordinances etc., to be issued by the contracting parties, the advisability of these being brought to the notice of the latter was recognised and this Article was adopted without any opposition.

The preamble.The Convention is, like the other Conventions, preceded by a preamble, the acceptance of which was not effected till several explanations had been made by the Reporter, which are for the most part embodied in the Report¹ . The third paragraph refers to the impossibility of concerting measures applicable to all circumstances which may arise; this it is pointed out does not leave such cases to the arbitrary will of the parties; account must be taken of the general principles of the law of nations, e.g. the expression “territorial waters” is nowhere defined. In paragraph 5, the desirability of Powers issuing “prescriptions précises” is referred to, and in Article 27 the duty of mutual communication of these “prescriptions” is enjoined. The word is a general one allowing each Government to make use of the form best suited to its constitutional institutions. The seventh paragraph states that the rules which neutrals have issued should not, in principle, be changed during the war except in cases where experience has shown the necessity of such change for the protection of the Power making it. The presence of belligerent war-ships in certain of its ports may be found to cause inconvenience to the neutral Power, they may be forbidden to enter, or their length of stay shortened. The first draft only provided for the issue by neutrals of more rigorous measures; the existing form resulted from an adverse vote. Sir Ernest Satow stated that he could not conceive cases where it would be necessary to take less rigorous measures, but the Russian delegate (M. Tcharykow) thought the eventuality possible. Sir Ernest Satow and M. Tsudzuki, after the vote, asked that it should be mentioned that in their opinion cases could not be conceived where a neutral state would be obliged to take less rigorous measures in the course of the war for the preservation of its rights, whilst the English doctrine had always recognised that neutrals had the right, for this purpose, to lay down more rigorous measures¹ . This accords with the Japanese reservation already mentioned.

At the Eighth Plenary Meeting of the Conference on the 9th October, 1907, various reservations were made. Sir Edward Fry for Great Britain made a reservation on the whole Convention, the Greek, Japanese, Spanish and United States delegates did the same. The Persian, Siamese, Turkish, German, Russian and Dominican delegates made reservations on several Articles. Great Britain, the United States, Cuba, Spain, Greece, Japan and Portugal abstained from voting; the states previously mentioned voted with reservations.

Signatory Powers and reservations.The following states have not signed this Convention: the United States of America, China, Cuba, Spain and Nicaragua. The following states made reservations on signing:

The value of the Convention.The foregoing Convention was formulated after a long and laborious examination of various drafts, and of the rules of neutrality adopted in different countries, rules which were found to be often contradictory. The subject of neutrality was “a welter of Interessenfragen,” and the attempt to harmonise the conflicting elements was as Count Tornielli stated a “work of an order almost exclusively diplomatic.” Compromise is the leading feature of the whole Convention. “The conciliation of interests can only be the result of mutual renunciations obtained by the conviction of acquiring equivalent advantages.” The Convention is clearly only the beginning of a Code of neutrality. “We do not flatter ourselves,” said Count Tornielli, “that our work is complete or perfect. We leave to our successors the task of revising it¹ .” It is, however, of importance that so much was accomplished. The absolute duty of respect for neutral territory has been almost unanimously accepted. The twenty-four hours rule of stay, and the twenty-four hours interval have been generally accepted, but neutrals may increase these periods by special enactment. The adoption of these rules will afford considerable assistance in the future to a weak neutral. The three months interval of taking in supplies and fuel in the same neutral country has also been adopted, and there is no proviso for special regulations to the contrary. A neutral is also strengthened in his duty to dismantle belligerent ships failing to leave his ports after due notice. The Three Rules of the Treaty of Washington with wise modifications have now received almost universal acceptance.

The defects are however striking, viewing the Convention from a scientific standpoint. The rules laid down are nearly all accompanied by provisoes enabling them to be excluded by a neutral strong enough and sufficiently interested to do so. The rights of neutrals are asserted, but their duties are not sufficiently emphasised. A neutral Power may allow belligerents to remain in his ports for an unlimited period, and he may allow prizes to be brought within his ports for the purpose of awaiting the decision of a Prize Court—a provision which in effect may nullify the prohibition to bring them in except on account of unseaworthiness, stress of weather or want of fuel or provisions. A friendly neutral Power in the neighbourhood of a great trade route may thus afford most valuable assistance to a belligerent, by enabling him quickly to disembarrass himself of his captures, leave them in safe keeping, and again sally forth to prey on the commerce of his adversary. A neutral may also allow belligerent ships to take in enough coal to fill their ordinary bunkers, irrespective of the distance they may be from ports of their own country or the objects for which the supply is taken on board² . Clearly there will be work for the next Conference to revise the labours of its predecessor in these and other respects.

Declarations (1899 and 1907) prohibiting discharge of projectiles, etc. from balloons

Les Déclarations de 1899 et 1907.

1899

[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 51, 223; La Deux. Confér. T. i. pp. 282, 295; T. iii. pp. 460-518, 569-652, 695-735; Livre Jaune, p. 91; Sir T. Barclay, Problems of international law and diplomacy, etc. pp. 83, 89, 160; E. J. Benton, International law and diplomacy of the Spanish-American War, Chap. vii.; Bonfils-Fauchille, Droit international (5th ed.), Book v. Chap. i.; C. Dupuis, Le droit de la guerre maritime, Chap. xii.;Edinburgh Review, Jan. 1908, pp. 239-242; W. E. Hall, International Law, Part iv. Chap. iii.; A. S. Hershey, International law and diplomacy of the Russo-Japanese War, Chap. vii.; T. E. Holland, Neutral duties in a maritime war, as illustrated by recent events; C. C. Hyde, The Hague Convention respecting the rights of neutral Powers in naval war, Am. Journ. of Int. Law, Vol. ii. p. 507; T. J. Lawrence, War and neutrality in the far East, Chap. vi.; Idem, International Law, Part iv. Chaps. ii. and iii.; Idem, International problems and Hague Conferences, p. 127; E. Lémonon, La seconde Conférence de la Paix, pp. 555-603; J. B. Moore, Digest of International Law, Vol. vii. pp. 859-1109; L. Oppenheim, International Law, Vol. ii. §§ 313-319, 329-335, 342-8, 357-363; J. B. Scott, The Hague Peace Conferences of 1899 and 1907, Vol. i. pp. 620-648; S. Takahashi, International Law applied to the Russo-Japanese War, Part iv. Chaps. i., ii. and iii.; J. Westlake, War, Chap. viii. and pp. 327-331; Idem, Quarterly Review, Jan. 1908, pp. 247-9.

[2 ]See ante, p. 69.

[3 ]See ante, p. 55.

[4 ]See preamble to Declaration of Paris, ante, p. 1.

[1 ]On this subject see Sir J. Macdonell in The Nineteenth Century and after, July, 1904, p. 148.

[2 ]La Deux. Confér. T. iii. p. 700.

[3 ]Ibid. p. 701.

[4 ]Ibid. p. 695.

[5 ]Ibid. p. 702.

[6 ]Ibid. p. 703.

[7 ]Ibid. pp. 569-618.

[1 ]La Deux. Confér. T. iii. p. 713.

[1 ]Livre Jaune, p. 91.

[2 ]See 5 H. C. 1907, Articles 2 and 5 (ante, p. 282).

[3 ]T. J. Lawrence, War and Neutrality, p. 133; A. S. Hershey, International Law, etc. p. 89 n.

[4 ]La Deux. Confér. T. i. p. 297.

[5 ]Edinburgh Review, Jan. 1908, p. 241.

[1 ]La Deux. Confér. T. iii. pp. 619-652.

[2 ]Ibid. T. iii. pp. 460-485.

[3 ]Ibid. T. i. p. 285.

[4 ]Ibid. T. i. pp. 297-8; T. iii. p. 622. M. Renault’s Report is contained in Parl. Papers, Misc. No. 4 (1908), pp. 233-256; La Deux. Confér. T. i. pp. 295-326; T. iii. pp. 486-514.

[5 ]See The Anna (5 C. Rob. 373), The Anne (3 Wheaton, 435), The Eliza Ann (1 Dod. 244), The Florida (101 U.S. 37).

[6 ]La Deux. Confér. T. iii. pp. 622-4.

[1 ]La Deux. Confér. T. iii. p. 698.

[2 ]Ibid. T. i. p. 299.

[3 ]Ibid. T. iii. p. 623.

[4 ]Ibid. p. 644.

[1 ]T. J. Lawrence, International Law, p. 540; W. E. Hall, International Law, p. 624. This decision is however adversely criticised by several writers of authority; see Dana’s note to § 208 of Wheaton’s International Law; J. B. Scott, op. cit. Vol. i. p. 236.

[2 ]T. J. Lawrence, op. cit. p. 515; W. E. Hall, op. cit. p. 620. See also the case of the Chesapeake captured by a United States cruiser in the territorial waters of Nova Scotia, W. E. Hall, op. cit. p. 620.

[3 ]T. J. Lawrence, War and Neutrality, pp. 291-4; A. S. Hershey, op. cit. pp. 258-263; L. Oppenheim, International Law, Vol. ii. p. 343; S. Takahashi, op. cit. pp. 437-444; Professor Westlake (War, p. 210) says of the action of the Japanese, “it seems to us impossible to assert that the Japanese exceeded their rights in this, although it was an extreme exercise of them.”

[4 ]T. J. Lawrence, International Law, pp. 399, 481.

[5 ]La Deux. Confér. T. i. p. 300.

[1 ]Parl. Papers, Misc. No. 4 (1908), p. 238; La Deux. Confér. T. i. p. 301.

[2 ]See T. E. Holland, Neutral duties in a maritime war, Proceedings of the British Academy, Vol. ii. p. 2.

[3 ]For alleged attempt of Russia to purchase war vessels from the Argentine Republic during the Russo-Japanese war, see S. Takahashi, op. cit. p. 486.

[1 ]J. B. Moore, Digest of International Law, Vol. vii. p. 748-9. As to the question raised by the purchase by Russia of ships during the Russo-Japanese war from the North German Lloyd and Hamburg-American Companies which are subsidised by the German Government see L. Oppenheim, op. cit. Vol. ii. p. 344, and S. Takahashi, op. cit. pp. 485-9. T. E. Holland, op. cit. p. 2.

[2 ]See on this T. J. Lawrence, Int. Law, §§ 259, 263.

[3 ]La Deux. Confér. T. iii. p. 695.

[4 ]Report by M. Renault, La Deux. Confér. T. i. p. 302.

[1 ]La Deux. Confér. T. i. p. 302; T. iii. p. 597.

[2 ]Ibid. T. iii. p. 614.

[3 ]Ibid. T. i. p. 302.

[4 ]Ibid. T. iii. pp. 468-474.

[5 ]J. B. Moore, op. cit. Vol. vii. p. 861; E. J. Benton. op. cit. p. 182.

[6 ]For the three different constructions put upon these words by the British and United States Governments, and the award of the Arbitrators in the Geneva Arbitration, see T. J. Lawrence, Inter. Law, § 263; also W. E. Hall, op. cit. pp. 613-4.

[7 ]Revised Statutes, § 5289. For interpretation of this section by the U.S. Courts during the Spanish-American war see E. J. Benton, op. cit. pp. 46-58. See also J. B. Moore, op. cit. Vol. vii. § 1320.

[8 ]La Deux. Confér. T. i. p. 303.

[1 ]La Deux. Confér. T. i. p. 303; T. iii. p. 626.

[2 ]Reply of M. Renault to Sir Ernest Satow, Ibid. T. iii. p. 626. For the general prohibition of the Scandinavian States in the Russo-Japanese war see ante, p. 460.

[3 ]Report of M. Renault, Parl. Papers, Misc. No. 4 (1908), p. 240; La Deux. Confér. T. i. p. 304.

[1 ]See ante, p. 340.

[2 ]Parl. Papers, Misc. No. 4 (1908), p. 240; La Deux. Confér. T. i. p. 305.

[3 ]As will be gathered from the account given by the Report of the discussion on the “right of innocent passage” there is no unanimity among states on this important subject; le droit des gens général is not clear, as will be seen from the following statement of Professor Oppenheim: “The right of foreign States for their men-of-war to pass unhindered through the maritime belt is not generally recognised. Although many writers assert the existence of such a right, many others emphatically deny it...it may safely be stated, that...it is now a customary rule of International Law that the right of passage through such parts of the maritime belt as form part of the highway for international traffic cannot be denied to foreign men-of-war” (International Law, Vol. i. pp. 243-4). See also on this subject W. E. Hall, op. cit. p. 159; T. J. Lawrence, Intern. Law, p. 178; J. Westlake, Peace, p. 192; Wheaton’s International Law (Atlay’s edition), § 190; F. Despagnet, Droit international, § 417; Bonfils-Fauchille, Droit international, § 507; H. Taylor, International Law, § 232.

[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 240-1; La Deux. Confér. T. i. p. 305.

[2 ]L. Oppenheim, op. cit. Vol. ii. § 353.

[3 ]Parl. Papers, Misc. No. 4 (1908), pp. 241-3; La Deux. Confér. T. i. pp. 306-9.

[4 ]Ibid. T. iii. p. 702.

[5 ]Ibid. p. 696 (British Articles 11 and 12), p. 701 (Spanish Article 3), p. 700 (Japanese Article 2).

[1 ]La Deux. Confér. T. iii. pp. 627-8.

[2 ]The following states voted against, Great Britain, the United States of America, Spain, Italy, Japan, Holland and Turkey; for, Germany, Brazil, France and Russia; abstained, Denmark, Norway and Sweden (Ibid. T. i. p. 308; T. iii. p. 629).

[3 ]A. S. Hershey, op. cit. p. 189. In the Spanish-American war, 1898, France made no specific limit to the length of stay of a belligerent war-ship, unless accompanied by prizes, when the twenty-four hours rule was applied. E. J. Benton, op. cit. p. 187.

[1 ]La Deux. Confér. T. i. p. 311.

[2 ]S. Takahashi, op. cit. pp. 418-429; T. J. Lawrence, War and Neutrality, pp. 137-9; A. S. Hershey, op. cit. p. 188.

[1 ]La Deux. Confér. T. iii. p. 700.

[2 ]Ibid. p. 648.

[3 ]La Deux. Confér. T. i. p. 312; T. iii. pp. 648-9.

[4 ]Ibid. T. i. p. 313.

[1 ]It is referred to as a rule of the law of nations in a letter from a French Captain to the Governor of Cadiz in 1759 (J. Westlake, War, p. 207). The rule of the 24 hours stay was first introduced by Great Britain in the Neutrality Regulations of 1862.

[2 ]W. E. Hall, op. cit. p. 627.

[3 ]W. E. Hall, op. cit. p. 628; T. J. Lawrence, Inter. Law, p. 510.

[4 ]J. Westlake, War, p. 207; Annuaire, Vol. xvii. p. 286.

[5 ]La Deux. Confér. T. iii. p. 697.

[6 ]Parl. Papers, Misc. No. 4 (1908), p. 248; La Deux. Confér. T. i. p. 315.

[1 ]Inter. Law, p. 627.

[2 ]See on this subject A. S. Hershey, op. cit. pp. 204-210; S. Takahashi, op. cit. p. 447 (war-ships at Kiao-chau), p. 453 (Diana), p. 429 (Askold and Grosovoi), p. 452 (war-ships at Manilla), p. 455 (Lena), p. 457 (Terek). The latter ship was interned at Batavia, as under the Dutch neutrality regulations the amount of coal she was able to take on board within the 24 hours was insufficient for her requirements. See also J. B. Moore, op. cit. Vol. vii. § 1316.

[1 ]J. B. Moore, op. cit. Vol. vii. p. 995.

[2 ]La Deux. Confér. T. iii. p. 631.

[3 ]Parl. Papers, Misc. No. 4 (1908), p. 248; La Deux. Confér. T. i. p. 315; T. iii. p. 632.

[1 ]This proposal was in accordance with the British regulation of 1904.

[2 ]La Deux. Confér. T. iii. pp. 632-6.

[3 ]Ibid. pp. 478-481.

[4 ]Ibid. p. 633.

[5 ]Ibid. p. 633.

[6 ]Ibid. p. 635.

[7 ]Ibid. p. 479.

[1 ]La Deux. Confér. T. iii. p. 480.

[2 ]W. E. Hall, op. cit. p. 607.

[1 ]La Deux. Confér. T. i. p. 319; T. iii. p. 650.

[2 ]Ibid. p. 636. During the Russo-Japanese war the Governor of Malta issued a proclamation refusing hospitality to belligerent ships “proceeding to the seat of war” or proceeding to search for contraband.

[3 ]See on this subject W. E. Hall, op. cit. pp. 609-610.

[4 ]La Deux. Confér. T. iii. pp. 1068-70.

[1 ]La Deux. Confér. T. iii. p. 1069.

[2 ]Ibid. pp. 481-2.

[3 ]Ibid. T. i. p. 321.

[1 ]La Deux. Confér. T. i. pp. 322-3.

[2 ]For instances of ships and crews so detained see ante, p. 474.

[3 ]La Deux. Confér. T. iii. p. 639.

[4 ]Ibid. T. i. p. 323; T. iii. pp. 639, 728.

[1 ]Parl. Papers, Misc. No. 4 (1908), p. 256; La Deux. Confér. T. i. p. 325.

[1 ]Parl. Papers, Misc. No. 4 (1908), p. 256; La Deux. Confér. T. i. p. 326.

[1 ]See speech of Count Tornielli at the Meeting of the Third Committee on the 4th Oct. 1907. (La Deux. Confér. T. iii. pp. 484-5.)

[2 ]The permission to belligerent vessels compléter le plein de leurs soutes proprement dites, is in effect a permission to allow an increase in the defensive power of the ship, as the main belt of the armour of warships is often backed up by the coal bunkers.