Brigadier General Davis, in the name of the delegation of the United States, supports the proposition of the German delegation in the following terms:

The delegation of the United States considers the rules relative to neutrality on land, submitted by the French delegation and adopted by this Commission, as in the nature of a general declaration of principle which conforms with the rules of international law. For this reason, and because of their excellence, it has warmly supported the rules proposed by the French delegation. [194] This delegation considers the proposition submitted by the French delegation as very meritorious in that it determines the neutral duty of a State touching its relations with belligerent Powers in time of war. The position thus described has been followed by the Government of the United States for more than a century. But the articles submitted by the German delegation. are a little more advanced and establish a status for neutral inhabitants of belligerent territory.

The status thus established seems to me to conform to the conditions of modern commerce. Commercial operations are no longer confined to a single State, but extend to several States. It is not necessary to explain to this Commission the extent and importance of these relations, nor the importance of preventing their useless interruption in time of war.

The rules which have been submitted by the German delegation embrace this point. Moreover, they define the rights, the duties, and the immunities of a neutral inhabitant of a belligerent State in time of war. They accord to him. immunity from burdens of a specifically military nature, and they exempt his property from military contributions. If there occur the military necessity of confiscating or utilizing his property, he must receive a specific and generous indemnity.

In all other respects his situation is not changed. His property is taxed to support the civil administration, and, if the military administration of civil affairs is more expensive than their ordinary administration, he must pay his share of the increased expense. The rules accord him exemption only from specifically military contributions.

The delegation of the United States believes that all this is distinct progress for humanity and for the exact definition of the rules and obligations of neutrals. And for reasons just stated, it is happy to support the proposition of the delegation of Germany.

His Excellency Count Tornielli asks if the German proposition will be discussed immediately by articles, in which case he will reserve the right to speak on Article 65.

It is only in case they were to limit themselves at present to a general discussion that he would request the floor at once.

The President replies to the first delegate of Italy with the statement that the discussion will bear on each article separately, and he declares the discussion opened. He reads Article 61, worded as follows:

1

See also ante, pp. 37-93 [40-98]; vol. i, pp. 124-129 [125-129], and pp. 150-164 [150-164].

ARTICLE 61

All the ressortissants of a State which is not taking part in a war are considered as neutral persons.

His Excellency Mr. Hagerup asks if the meaning of the words. . . "all the ressortissants of a State . . ." is sufficiently clear, and if it applies only to nationals or is also to be applied to persons who are domiciled in the territory of the State.

Mr. Louis Renault, while leaving to his Excellency Baron MARSCHALL VON BIEBERSTEIN the matter of defending the text proposed by the German delegation, believes it useful to explain the meaning of the word ressortissants which, according to the French terminology, applies only to nationals, the term nonressortissants designating by contrast all the persons who are not under the subjection of the State. There can be no doubt, therefore, as to the form of the article whether there is or is not agreement as to the substance.

His Excellency Mr. Hagerup thanks Mr. Louis RENAULT for his explanations; but he continues to believe that the text proposed by the German delega

tion needs to be revised, for it allows a doubt to exist as to the very prin[195] ciple of the question in so far as concerns persons who are domiciled in the territory of a belligerent State but who are not its nationals. This question is of special importance in connection with Article 64.

His Excellency Mr. A. Beernaert also believes that the wording proposed by the German delegation can give rise to ambiguity for the word ressortissants, which is rather insufficiently defined, has been used in some cases-three or four times at least,-in a more general sense than that which has just been given it.

Owing to the importance of the question, he proposes, therefore, to modify the text of Article 61 by replacing the word ressortissants by the word nationals. Colonel Borel having expressed the opinion that this question might be referred to the committee of examination, whose duty it will be to find a satisfactory wording, his Excellency Mr. A. Beernaert observes that there is no necessity for doing so if agreement can be reached immediately.

After some further remarks from Mr. Louis Renault, who maintains his point of view and appeals to the memory of his Excellency Mr. Asser who, if his position of President permitted him to do so, could state that in all the conventions of private international law in the wording of which they have collaborated, the word ressortissants has been used only in the sense of nationals, the President asks if anyone is opposed to referring the question to the committee.

As no one objects to this proposal the PRESIDENT announces that it is thus decided and states that there seems to be agreement as to the terms of the article and the ideas contained therein.

He then reads Article 62 as well as the Swiss amendment thereto.1

ARTICLE 62 (GERMAN TEXT)

A violation of neutrality involves loss of character as a neutral person with respect to both belligerents. There is a violation of neutrality:

a) If the neutral person commits hostile acts against one of the belligerent parties;

b) If he commits acts in favor of one of the belligerent parties, particularly if he voluntarily enlists in the ranks of the armed force of one of the parties (Article 64, paragraph 2).

ARTICLE 62 (Swiss TEXT)

A neutral person can no longer avail himself of his neutrality and of the special privileges resulting therefrom according to the terms of Articles 64-72:

a) If he commits hostile acts against a belligerent party;

b) If he commits acts in favor of a belligerent party, particularly if he voluntarily enlists in the ranks of the armed force of one of the parties (Article 64, paragraph 2).

In such a case, the neutral person shall not be more severely treated by the belligerent State as against whom he has abandoned his neutrality, than a "ressortissant" of the other belligerent State could be for the same act.

[196] Colonel Borel declares that, although he has not taken part in the general discussion, he desires in the name of the Swiss delegation to do homage to the just and generous idea which inspired the project presented by the German delegation:

This proposition responds directly to the generous and humanitarian tendency which is seeking to reduce the field of action of hostilities and, consequently, the evils of war. From this viewpoint one cannot fail to recognize the essential difference which exists between the ressortissants of a belligerent State and the neutral persons who inhabit the territory of that State but who are not, like the former, attached to it by the juridical bond of nationality. And if the ressortissants of the belligerent States can not escape suffering from the effects of the war within the limits stipulated in their favor in the tutelary provisions of the 1899 Regulations, is it not just, in dealing with neutrals, to take into consideration the difference which has just been pointed out and exempt them from the rigors of war which with respect to them are wholly unjustified?

In this respect the German project is absolutely just and, moreover, it has the practical advantage of thus encouraging neutrals themselves to observe neutrality.

The amendment to Article 62 presented by the Swiss delegation avoids the term "violation of neutrality," which appears out of place here as it applies rather to acts by which a belligerent would injure the neutrality of a third party. The neutral person who does not observe neutrality ceases, by that fact, to be neutral without rendering himself thereby guilty of a special infraction. The acts which he might happen to commit against a belligerent State can never be measured and judged except on their own merits, independently of the fact that their author was neutral, and the latter can never, on this account, be more severely treated than a ressortissant of the other belligerent State could be for the same act. In other words, the failure to observe neutrality implies in itself alone no other consequence for the neutral than the loss of his neutral character and the advantages attaching thereto. This is what his Excellency the

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first delegate of Germany himself stated in the very clear and concise explanation we have just heard, and it would not be amiss to state it in Article 62, as the Swiss delegation proposes.

The President proposes that the Swiss amendment be referred to the committee which will examine the question of wording, as has been done in the case of the Belgian amendment to the French proposition on the rights and duties of neutrals on land. The new paragraph remains to be discussed.

Mr. Louis Renault requests the floor, not to discuss the wording of the Swiss amendment, for he agrees with Colonel BOREL on this point, but to examine the principle of the question.

He desires to declare first of all that he cannot approve of there being created, as has been said, a premium on neutrality. As Lord REAY said, the neutral who resides in an invaded territory has no right to privileged treatment, and any special position which may be granted him will be due only to the grace of the invader. We shall have to examine the question anew in the course of the discussion of the articles.

It is the provisions of Article 62 which it is important now to state precisely. Here is a neutral subject who enters the service of a belligerent. What shall be the consequence of this act? It seems to be indicated by what Colonel BOREL has said: he shall be treated merely as an enemy, neither better nor worse. But there is another point to be considered in the German proposition. If we designate the belligerents by the letters A and B and the neutral by the letter C, let us suppose that one of the ressortissants of the [197] neutral has entered the service of belligerent A. His position with respect to belligerent B is clear, he shall be treated as an enemy; but how shall he be considered with regard to belligerent A? It is said that he shall likewise be considered with respect to the latter as being no longer neutral.

I admit this. But then what shall be his status as far as concerns his property situated on the territory of belligerent A? If this property has been the object of more favorable treatment, why should the fact of his enlistment in the ranks of belligerent A involve a change of treatment, as if the latter were punishing him for it? This would not be logical.

It seems, therefore, that it is sufficient to change the position of neutral C with respect to belligerent B against whom he has taken up arms.

His Excellency Baron Marschall von Bieberstein presents a few observations regarding the explanation of Mr. LOUIS RENAULT.

He is of opinion that the legal conception of neutrality is absolute: one is neutral or one is not. Consequently, in a war between States A and B the subject of State C, who enters the military service of State A, loses his neutral character not only with respect to State B but also with respect to State A, which enrolls him in its service and pays him. He loses the privileges of neutrality. He should take this into consideration before having himself enrolled.

His Excellency Mr. A. Beernaert shares the opinion expressed by Mr. LOUIS RENAULT; but the Swiss wording appears to him to remove all difficulties as to form and substance. The German wording did not regulate the situation of the neutrals in case of violation of neutrality. The Swiss wording conveys exactly the idea by which this Article is inspired, and in perfectly correct

terms.

His Excellency Baron Marshall von Bieberstein declares that he accepts the Swiss amendment.1

The President having indicated that the discussion remained open on the new part of this amendment, Mr. Pierre Hudicourt asks for explanations of paragraph a regarding hostile acts.

Article 62, he says, states two series of causes which make neutrals lose the privileges of neutrality. Paragraph b is defined, although in a negative form, in Article 63; while paragraph a, with the words "hostile acts," remains rather vague and might, in my opinion, open the door to arbitrary interpretation, for it is difficult to distinguish "an act in favor of one belligerent party" which is not at the same time "hostile" to the other belligerent party.

I should like, therefore, to know whether in the vagueness of the expression "hostile act" would not be embraced, for example, the act of a journalist in publishing unfavorable comments on the war which one belligerent party might consider as a hostile act. I am opposed to such an interpretation.

His Excellency Mr. Carlin believes that he can reassure the delegate of Haiti. According to Mr. CARLIN there can be no doubt as to the case which is troubling Mr. HUDICOURT. Such a case can clearly not be interpreted as a hostile act.

An exchange of views takes place on this subject between the President and his Excellency Mr. Beernaert. They recognize that the expression "hostile acts" presents, indeed, a certain vagueness, although it is defined by Article 64 to which the German and Swiss texts refer, but that in the case foreseen by Mr. HUDICOURT it can give no cause for doubt.

His Excellency Mr. Léon Bourgeois desires to satisfy the fears manifested on the part of Mr. HUDICOURT concerning newspaper publications. [198] It is evident that the publiction of comments, even unfavorable, cannot be considered by one of the belligerent parties as a hostile act. The only act which could be referred to would be the publication of military information of a nature to enlighten one of the belligerent parties as to the operations of the adversary. But it does not seem necessary to establish a distinction on this subject in the text at present under discussion. The point was to state the question clearly, as has just been done in the course of this exchange of views, which has dispelled the apprehensions of the delegate of Haiti by showing that there could be nothing to fear for newspaper comments.

Colonel Borel thinks that the objections made to the ambiguity of the words. "hostile acts" might be taken into account by replacing them with a more precise expression. In short, it can scarcely be a question of any acts but those punishable by the laws of the belligerent State, and use might perhaps be made of the words "acts punishable by the penal law of the belligerent State against which they are directed." That is a point which might recommend itself to the examination of the committee.

The President having asked if it was considered necessary to take a special vote on the new paragraph contained in the Swiss amendment, no one objects to its being referred immediately to the committee without a preliminary vote. The PRESIDENT passes to Article 63, which he reads:

'Annex 38.