to you in support of its proposition, and it would be happy if this proposition could meet with your approval.

His Excellency Baron Marschall von Bieberstein states that he accepts unconditionally the French proposal which in his opinion is in conformity with the principles of modern warfare.

The President observes that the only difference between the proposals of the delegations from France and the Netherlands is in the matter of the delay. It is agreed that there should be a preliminary notification, but what is to be the meaning of that expression? Shall one hour be regarded as sufficient? May the enemy cross the frontier within an hour or even within a few minutes after the time when the invaded nation has received the warning of war at its capital? Does it not seem that a delay of twenty-four hours should be a minimum acceptable to all concerned?

Major General Amourel remarks that in the statement of the French delegation the meaning of the term "preliminary" is plainly defined. [170] We regret, he says, that we are not in agreement with the delegation of the Netherlands on this point, but we feel that we must adhere to the exact terms of our proposal and our explanation in regard to those things which concern belligerents.

He adds that on the other hand the French delegation would be willing to accept a delay between the declaration of war and its effects so far as concerns the situation of neutrals, because it thinks that the rights and interests of the belligerents would not be injured if it were admitted that the effects of the declaration of war with respect to the neutrals will commence only within a certain time after they shall have been notified of the state of war; it could undoubtedly accept any proposition made to that effect.

His Excellency Count Tornielli expresses the opinion that it is especially important to consider the situation of neutrals, whose duties can only begin at the moment when notification of the existence of war is officially and directly received by their Governments. He thinks that the determination of a period of delay founded solely on the interests of neutrals is rendered very difficult by inequality of distances, and he regards it as essential that there should be some regulation of the legal situation in which neutrals may find themselves after the declaration of war.

His Excellency Mr. Nelidow is of the opinion that this notification is extremely difficult to communicate in practice, and cannot be compared in this respect with an accession to a throne or a change in a government. He says: There are forty-seven States represented here. If any two of them should go to war they would be obliged to send notifications to the forty-five others. It would be necessary to find some method of notifying all of them as promptly as possible of the existence of hostilities.

After an exchange of views upon this subject between his Excellency Mr. Beernaert, who insists upon the necessity of an official notification as the time for the commencement of the delay after which responsibilities of neutrals shall begin, and his Excellency Mr. Nelidow, who advocates doing this through diplomatic channels, his Excellency Lieutenant General Jonkheer den Beer Poortugael presents the following amendment:

Each of the belligerent States shall announce to the neutral Powers without delay the existence of a state of war by means of an official publication, and also, if possible, through its diplomatic agents.

This amendment excites some remarks and his Excellency Mr. Beldiman asks if it would not be possible to reconcile these divergent views by specifying that this notification should be made by telegraph. He explains that in this age, when news of much less importance than a declaration of war, thanks to the use of electricity, makes the circuit of the earth in a few hours, the serious inconveniences so justly noted by his Excellency Mr. NELIDOW might by this means be easily avoided.

His Excellency Mr. Nelidow having favored this suggestion, the President submits for the approval of the subcommission the following draft of the second paragraph of the Netherland amendment:

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph.

This text meets with no objection.

The PRESIDENT then states that the first question remains unsettled, and since all are in accord as to the necessity of an ultimatum there is nothing more left to determine except in regard to the point of an understanding as to whether it is advisable to determine the length of the delay which is implied by a preliminary notification.

[171] Lord Reay requests permission to reserve, as regards this question, the opinion of the British delegation, which it will make known at the next

meeting.

Their Excellencies Mr. Choate and Mr. Keiroku Tsudzuki also request to be allowed to reserve expressions of opinion, stating that they desire to wait for instructions from their Governments.

The President states that under these conditions it is impossible to proceed at once to a vote and announces that the discussion of the subject will be continued next Friday. Before adjourning the meeting the PRESIDENT calls the attention of the subcommission to the necessity of having the propositions, which might yet arise relative to the rights and duties of neutrals, presented as soon as possible.

Colonel Borel announces the submission of some amendments which will be printed and distributed.

The meeting adjourns at 11:30 o'clock.

[172]

THIRD MEETING

JULY 12, 1907

His Excellency Mr. T. M. C. Asser presiding.

The meeting opens at 10: 45 o'clock.

The minutes of the second meeting are approved without remark.

The President announces that the delegation of the Grand Duchy of Luxemburg has presented an amendment 1 to the German proposition relative to the treatment of the property of neutral persons, with a view to adding to Article 70 a paragraph thus worded:

This authorization does not extend to means of public transportation leading from neutral States and belonging to said States or to their grantees, recognizable as such.

This amendment will be printed and distributed to-day.

In accordance with the order of the day, the PRESIDENT proposes to resume the general discussion on the opening of hostilities.

He recalls that at the last meeting, which he unfortunately was unable to attend, owing to illness, the representatives of Great Britain, the United States and Japan declared their intention of reserving their opinions on the French proposition until they had received instructions from their Governments. He asks if they are prepared to give them to-day.

3

His Excellency Lord Reay then announces that the British delegation adheres to the French proposition.

His Excellency General Porter also adheres to it and reads the following declaration in explanation of his adhesion:

The delegation of the United States of America, although cordially in sympathy with what has already been said on the subject of the opening of hostilities, is of the opinon that it is necessary to call the attention of the Commission to that provision of the federal Constitution which bestows upon Congress

the exclusive power to declare war, in the following terms: "The Congress [173] shall have power to declare war, grant letters of mark and reprisal, and make rules concerning captures on land and water."

A power granted by the Constitution is not subject to any regulation or modification by law or by treaty; in other words, this power is independent of the legislative power and of the power to make treaties.

But it is with great satisfaction that this delegation can say to you that

the proposition presented by the French delegation does not conflict with the

above-cited constitutional provision, and for this reason the delegation of the United States of America takes pleasure in supporting it. However, it seems desirable to add here that although these facts are correct in regard to offensive military operations, the invariable policy of the United States Government has been to recognize in the President as commander in chief of the land and naval forces, the full power to defend the territory and property of the United States of America in case of invasion, and to exercise the right of national defense at any time and at any place.

His Excellency Mr. Keiroku Tsudzuki states in his turn that he has just received instructions from his Government to the effect that being attached, as it has always been, to the principle contained in the proposition of the French delegation concerning the opening of hostilities, it finds no difficulty in accepting the said proposition.

In conformity with the above-mentioned instructions the Japanese delegation accordingly gives its entire support to the French proposition.

Colonel Sapountzakis requests the floor in order to read the following

statement:

The Greek delegation has the honor to announce that in adopting the views set forth by the first delegate of Germany it accepts the first article of the French proposition in the form in which it was presented by the delegation of that country.

In regard to the second article, the Greek delegation, after the exchange of views upon the subject which has taken place, has decided to accept it together with the amendment presented by the Netherland delegation in the form in in which it was last submitted by the PRESIDENT for the approval of the subcommission.

His Excellency Lieutenant General Jonkheer den Beer Poortugael submits to the subcommission some remarks of an academic nature upon the subject of the twenty-four hour delay in regard to which he had offered an amendment to Article 1, and he explains briefly the reasons which caused him to formulate it. He cites in support of his argument certain precedents which have been furnished by military history on several occasions of agreements of armistice.

Do I need, gentlemen, he says, to submit to your attention that if it has been found necessary to stipulate a delay after the termination of an armistice, it goes without saying that such a delay is even more necessary when the people are to pass from the tranquil condition of peace to the distressing condition of war. When an armistice is in effect the armies are on a war footing and are quite ready to return to the conflict, while in time of peace in order to be in a position to make a defense against the enemy almost everything has still to be done.

I will mention as one instance the armistice concluded May 23/June 4, 1813, at Plesswitz, between the allied German and Russian armies commanded by General BARCLAY DE TOLLY, and the army of the Emperor NAPOLEON. [174] The first three articles in this agreement were:

Article 1. Hostilities shall cease at all points upon notification of this

armistice.

Article 2. This armistice shall last until July 3/July 20, inclusive, with six additional days for its denunciation at the expiration of this period.

Article 3. Consequently, hostilities shall not be resumed before the expiration of six days after the termination of the armistice shall have been announced at the respective headquarters.

As you see, gentlemen, six days were allowed for the denunciation of an armistice while I am asking only twenty-four hours at the least in which to bring about a change that is a hundred times more serious and difficult.

He then refers to the project for a codification of the laws and customs of war which was drawn up at Madrid in November, 1892, by the Spanish, Portuguese and American military Congress. That Congress "being impressed with the necessity of bringing the purposes of the state of war into harmony with the sentiments of humanity and with the scientific and moral progress of our times," proposed that "when there is no fixed delay for the resumption of hostilities after an armistice, the belligerent Government commander that proposes to continue the conflict shall be obliged to notify the enemy a sufficient time in advance as to the exact date when hostilities will recommence."

The President thanks Lieutenant General Jonkheer den Beer Poortugael for his statement.

His Excellency Mr. A. Beernaert observes that the question of a delay, as it is now submitted to the subcommission, presents a double aspect. The first concerns the belligerents, and it is to this that the discussion of Lieutenant General Jonkheer DEN BEER POORTUGAEL applies. The other one concerns neutrals and was considered by General AMOUREL at the last meeting when he stated that the French delegation would be in favor of having a delay between the declaration of war and the beginning of its effects upon neutrals (Minutes of July 5). In the opinion of his Excellency Mr. BEERNAERT a delay is obviously necessary from this second point of view.

It is true, he says, that the principle of a simple telegraphic notification has been accepted; but this will not be sufficient to place neutral States in a position to fulfill their duties. Instructions must be transmitted from the capital to the frontiers and for this reason there should be a suitable delay, to begin from the moment at which the notification of war is received at the seat of govern

ment.

The President having invited the subcommission to express its opinion upon this subject, Lieutenant General Amourel remarks that discussion would thus be open on the second article when no vote has yet sanctioned the agreement which appears to have been reached as to the first article.

An exchange of opinions then takes place between the President, Major General Amourel, and Mr. Louis Renault, in order to determine whether it is best to refer this question to a committee of examination or whether it should be immediately put to vote in accordance with the request of the French delegates who maintain that the adoption of Article 1 should be sanctioned by a ballot. The President thinks such a ballot not necessary in view of the support which has just been given to the French proposition by the representatives of the three Powers that had at first reserved their decisions.

[175] His Excellency Mr. A. Beernaert on the other hand thinks that a vote is indispensable. The French plan, which requires a preliminary notification but which does not fix upon any delay, is in his opinion unacceptable. It is upon this delay of twenty-four hours, he says, that the subcommission should register its decision.