FIRST MEETING

JUNE 22, 1907

His Excellency Mr. A. Beernaert presiding.

The meeting was opened at 2:45 o'clock.

The President delivered the following address:

GENTLEMEN: I duly feel the honor conferred on me in selecting me to preside over this very important Commission, and as I did not have an opportunity in the plenary meeting to thank the assembly for it, you will permit me to do it to-day, both for myself and for the little country of which I am delegate.

His Excellency Mr. NELIDOW, in opening the Conference, reminded us of the origin of our Conferences, and set out the grandeur of their aim in eloquent

terms.

Allow me to add that in taking this noble and humanitary initiative, Russia remained faithful to traditions that were very ancient and constantly maintained. As far back as the eighteenth century CATHERINE II, and in 1800 PAUL I, determined the rules of armed neutrality and obtained their recognition.

In 1816, at the Congress of Vienna, ALEXANDER I proposed a conventional limitation of armament for times of peace. This was the object of his celebrated letter to Lord CASTLEREAGH, so often cited.

At the Congress of Paris, in 1856, when on the subject of the relations of Europe with the Porte, Lord CLARENDON proposed obligatory mediation, it was again Russia who supported it most strongly.

In 1868 Emperor ALEXANDER II brought about the meeting of the international military conference at Saint Petersburg. It was there, I think, that for the first time was proclaimed that fundamental rule that belligerents should do only what damage is strictly necessary. From that time dates the prohibition of the employment of explosive bullets weighing less than 400 grams.

At almost the same time took place the Geneva Convention for the amelioration of the condition of the sick and wounded in time of war.

It was again Russia who proposed in 1874 the meeting of the Brussels Conference which, for the first time, had the object of the regulating of [4] laws and customs of war; our colleague MARTENS took a large part in it, and I too was present. Finally, in 1899, it was on the initiative of Emperor NICHOLAS II that the first Hague assembly met. A very vast plan was laid out for it on the one hand the reduction of armaments on land and on sea through a pacific understanding; on the other, the organization and extension of arbitration, and, in the case that war could not be avoided, a lessening of its horrors, by the adoption of rules intended to reduce them to a minimum.

2

Assuredly, gentlemen, our efforts remained fruitless along many lines, and the Minister of Foreign Affairs of the Netherlands, in welcoming us, was quite right in saying that the work of 1899 had been the object of more than one criticism. But who could expect that so complex an end should be obtained at the outset? And would it not really be unjust to ignore the results that were obtained? The institution of a permanent international bureau, always ready to receive communications concerning any disagreement, the regulation of a procedure settled in all details, and the establishment of lists of arbitrators and the right to choose them even outside these lists, are all these nothing? That ingenious institution of international commissions of inquiry, due to our eminent colleague Mr. MARTENS, which so soon demonstrated its great usefulness, is this nothing? And is it nothing to have brought to a successful use that regulation of the laws and customs of war which had been unsuccessfully attempted at the Conference of Brussels? Have we not in a general sense realized in almost all of its application the program sketched at Saint Petersburg in 1868, limiting the evils of war to what is indispensable?

To judge the merit of a work even though incomplete, is it not sufficient to observe its results? Is it not to the Hague Conventions that is due the progress that has been made in these later years by the ideals of peace, conciliation and arbitration?

From 1900 to 1905 very numerous difficulties of various importance have been settled by arbitration; treaties not less numerous have been concluded, and there is a large number of them which advancing beyond our conventions make arbitration obligatory in those cases where it is practicable to do so. Here is our younger sister, the young American Union, which embraces the two continents of that hemisphere, mingling with us on the blessed ground of peace, so that for the first time in history all the universe is found entwined with the ties of the same convention of peace.

I think, therefore, gentlemen, that it is with confidence we may resume the work of 1899 in order to better it. We shall strive to realize the new progress that public opinion demands, and to that end it will suffice us to be inspired more than ever with those grand principles of humanity and fraternity, which even in times of war should regulate the relations between men. (Applause.)

The PRESIDENT then takes up the various preliminary questions that the Commission should settle, and proposes that it be divided into two subcommissions, and that the topics on the program be assigned among them as follows: First subcommission: "Ameliorations in the laws and customs of war on land" and " Declarations of 1899."

66

Second subcommission: “ Rights and duties of neutrals on land” and “ Opening of hostilities."

His Excellency Mr. BEERNAERT reserves for himself the presidency of the first of these subcommissions and proposes the name of his Excellency Mr. ASSER, delegate of the Netherlands, for the presidency of the second.

These proposals are adopted unanimously.

[5] The PRESIDENT invites the members of the Commission to enrol themselves with the secretary general in one of these subcommissions or in both, as they wish. He calls their attention to the necessity of doing this as soon as possible.

He then begs the delegates who may have projects to file with the bureau to do so immediately, for the Commission is ignorant of the modifications which

may be intended to be introduced in the usages of war, and of the proposals that may be formulated regarding the declaration of war, and it is important that these serious questions be studied with precise texts.

General Amourel announces that he intends in the name of the French Government to file two projects, on "the rights and duties of neutrals "1 and on "the opening of hostilities." 2

The President asks him to file these very soon so that they may be printed. and distributed before the first meeting of the subcommissions.

With reference to the work of the second subcommission his Excellency Mr. TCHARYKOW asks the President to grant the floor to General YERMOLOW for a communication concerning the opening of hostilities.

Major General Yermolow delivers the following address:

The question that our greatly honored President has just submitted to our attention is part of the Russian program and I therefore permit myself to define its meaning in a few words.

Before having the honor to lay before the high assembly the precise terms in which it would seem possible to me to state this question, I beg your kind attention for some general considerations of this subject, and hope you will examine the question of the opening of hostilities in its most extended meaning, and clarify it by interchange of views.

Gentlemen, the present state of this question, from the view-point of international legislation, is absolutely undetermined. Neither the lessons of history nor the profound study of the most eminent authors, nor the attentive reading of treatises on international law can furnish precise indications capable of establishing any point of view that is uniform and fixed.

Between the opinions of different States, as between those of jurists and writers of authority, there exists on this matter a wide divergence. If we consult the pages of history we shall find instances most dissimilar. We shall find cases where the first gun-fire had been preceded by certain diplomatic steps, and others, on the other hand, when hostilities began without a declaration of rupture or war. In whatever way the facts of history present themselves it would seem, gentlemen, that since the question has never been settled by international act, each country has the right to assume that its own point of view is the true one, and that each nation has the right to act as seems good to it. In short, really no written law exists, every opinion has a legal right to exist. It is incontestable that at the present time there is no written law prohibiting a nation from opening hostilities at any time whatever, even in the midst of profound peace.

Aside from this consideration, gentlemen, which, naturally, weighs heavier upon war preparations in time of peace, there are others that render the study of this question desirable. Thus we see that in the present state of the question, the precise point of time in law, although very important, of the beginning of a state of war between belligerents, can be defined only with great difficulty. [6] Indeed, from what moment are the normal relations of peace displaced by the relations of war? It is often impossible to say. However, the almost mathematical fixing of that moment, the circumscribing of war in time, just as it is already more or less circumscribed in space, is of capital importance. War nowadays affects too many interests, changes and destroys too many relations and things for it to be otherwise. This being so, gentlemen, the question that

arises is as follows: do you wish the present state of the question, the "status quo" of affairs, the principle, so to speak, of "carte blanche" to be sanctioned and maintained? Or, would you rather that the Powers come to an agreement in this matter in some way or other? I recall the attention of this high assembly to the fact that if we do not arrive at any decision, or any new principle, this will already be a solution of the question, which I for my part as the representative of the Imperial General Staff would be quite ready to accept. It is true that in this case we shall have to say to the nations that have sent us here that nothing has been changed, that all that was not legally prohibited in the past will remain legally permitted in the future. Our countries must bear the consequences of this solution.

What consequences? Why simply, gentlemen, armaments and preparations in time of peace will have to increase.

The brief analysis of the question that is submitted to your examination shows us that the question may have several solutions:

First: We might maintain and sanction the present indeterminate state, or Secondly: We might perhaps succeed in reaching a certain international regulation. We might, perhaps, distinguish between the moment of rupture of peaceful relations and that of the commencement of military operations.

The two moments might coincide or admit of a certain interval of time between them, however short it might be.

Gentlemen, existing international legislation has already succeeded in limiting or rather in circumscribing war as to space: this restriction is attained by defining the territories over which war may legally extend without overstepping certain inviolable and neutral limits. International legislation has also distinguished between combatants and non-combatants. Why should we not also attempt to circumscribe war as to time by defining as exactly as possible the moment from which all must be quiet except the voice of arms? At the present time, this moment is of interest not only to the adversaries but to the entire world. It is from this moment that all other countries become neutrals, a situation which gives them certain rights and imposes on them certain duties. By this fact alone you will see, gentlemen, that the precise moment of the opening of hostilities has great international importance. I have therefore the honor, gentlemen, to propose for your discussion the following terms: "Does the Conference wish to maintain the question in its present indeterminate state, or does it wish to regulate it to some extent?"

In examining the question that I have just had the honor to state, you will easily see, gentlemen, that if we succeed in introducing some international regulation, we shall thereby succeed perhaps in making some decisions that might contribute to the well-being of the nations. From this point of view the statement that I have had the honor to make to you will therefore be also in accord with the large, humanitarian and generous thoughts that have inspired the First and continue to inspire the Second Peace Conference.

[7] The President observes that the remarks of Major General YERMOLOW cannot be usefully examined by the Commission until presented in the form of a written proposal. He asks him to file one.

Mr. Kriege files in the name of the German delegation a proposal on the "treatment of neutral persons in the territory of belligerent parties." 1

In the name of his Government, His Excellency Mr. Carlin makes the following declaration :

At the beginning of the work of our Commission the delegation of Switzerland is happy to apprise it that the Confederation, in a spirit of conciliation and international understanding, has just adhered to the Convention of July 29, 1899, concerning the laws and customs of war on land. In making use of the powers stipulated by Article 4 of the said Convention, I have had the honor, by order of the Swiss Federal Council to make to the Government of her Majesty the Queen of the Netherlands the notice of this fact which will be communicated by it to all the other contracting Powers.

The President thanks the delegate of Switzerland for this communication and takes pleasure in expressing the satisfaction on this new progress in the way of union.

His Excellency Mr. Lou Tseng-tsiang likewise declares that the Government of Peking has authorized him to sign the same Convention.

The President also observes that he is greatly pleased with this adhesion. The PRESIDENT proposes to settle the question of the reporters and the minutes. He proposes to the Commission to follow the proceeding of 1899 which consisted in giving the press every day a brief account, while at the same time the designated secretary kept more complete notes, but without official character, for the members of the Commission, this procedure having the advantage of leaving to them all their freedom and of keeping for the discussion a freer and more intimate character, by permitting even "a change of opinion without having an indiscreet minute state it."

The PRESIDENT having added that these notes should be read at the beginning of each meeting in order to undergo the necessary corrections, his Excellency Mr. Martens observes that Article 11 of the Regulations of the Conference 1 provides for the printing of these minutes and their delivery in proof-sheets to the members of the Conference in due time, without their being read at the beginning of the meetings.

The President supports that manner of proceeding, which is accepted under the reservation that the proofs may be corrected before printing.

He finally makes it known that the Commission should decide whether it shall designate its reporter before or after the discussion. He recalls that the question was raised in 1899 in plenary commission, and that, on the motion of Mr. DESCAMPS, it was decided that he should be named at once so as better to report the general features of the discussion, without introducing his own personal opinion.

It is decided that it will be so done and the two reporters will be nominated in the first meeting of the two subcommissions.

His Excellency Mr. Asser asks that the rolls of these subcommissions be given to the secretary general before Tuesday.

The meeting adjourned at 3:15 o'clock.

'See vol. i, p. 52 [55].