So far as concerns the first paragraph of Article 64, he believes that there can be only an apparent contradiction in its terms, providing for the interdiction. of asking neutral persons to render war services, even though voluntary. The word "asking" is used in the sense of exacting, and it means here that if a war breaks out, a belligerent cannot force the neutrals who are already engaged in its service to take part in hostilities.

As to Article 65, he does not consider its wording contrary to the principles set forth by Mr. Louis RENAULT and Lord REAY relative to the rights and independence of neutral States, for the question is simply whether the latter have or have not laws to sanction the interdictions which they must cause to be respected by their subjects.

Mr. Pierre Hudicourt reads the following declaration:

The Republic of Haiti has the honor to declare that it cannot assume the obligation of preventing its citizens from enrolling under the flag of a belligerent, because individual liberty is guaranteed by its domestic legislation, and that the Government reserves the right to take whatever measures the circumstances would require in regard to its citizens who might take service in a foreign country without its consent.

His Excellency Réchid Bey desires to call the attention of the subcommission to the purpose of the Conference which is to diminish as much as possible the chances of war. From this point of view it would seem very desirable that the neutral States should be obliged to forbid their ressortissants to take part in hostilities.

Major General Baron Giesl von Gieslingen declares that the AustroHungarian delegation supports the principle of the German proposition.

So far as concerns the wording of the last sentence of Article 64, he desires merely to call attention to the fact that the Austro-Hungarian amendment tended only to broaden its meaning by indicating that if, for example, belligerents should find in a town a civil officer such as a burgomaster invested with public duties, it would be well to retain him.

The President announces that the question will be examined by the committee of examination.

His Excellency Mr. Léon Bourgeois considers that according to the explanations which his Excellency Baron MARSCHALL VON BIEBERSTEIN has been so good as to give to the subcommission on the subject of the German proposition there can be only an apparent contradiction between the two questions before us.

What concerns the German delegation is the fact that the subjects of a neutral State might cross its frontier en masse to go into the service of [204] one or the other of the belligerents. But does it think that such a supposition can be realized without the neutral State's being a party to this levée en masse? Just as individual passages are difficult and even impossible of control, so are passages en masse impracticable without a preliminary organization which would engage the responsibility of the neutral State. This is what Article 2 of the French proposition relative to the rights and duties of neutrals on land provided for in establishing a distinction between the two cases. As Mr. Louis RENAULT said, we consider that the neutral State may be required not to accord any facilities to a belligerent by allowing, for the benefit of the latter, the establishment of enlistment bureaus on its own territory or the operation of recruiting

agencies. The French proposition is in accord with the Belgian proposition on this point.

But there is one principle that we must not lose sight of,-that is that the right of neutrals is primordial. War, indeed, is the exception. Peace is the common right. It is therefore our special duty to make the neutrals' right of sovereignty prevail and to safeguard as far as possible their tranquillity and liberties, which the interest of the belligerents must not infringe, however worthy of consideration it may be.

The germ of the discussion lies in the fact that one can impose upon neutrals only "obligations not to act" but not "obligations to act," from which might arise the possibility of an exercise of constraint over them on the part of the belligerents.

If accord is well established on this principle the consequences will follow quite naturally: according to French law, for example, it will not be permitted to accord authorization to render services to one only of the belligerents to the exclusion of his adversary, just as the interdictions of the English law, cited by Lord REAY, cannot be raised in favor of one of them.

We believe we should maintain with respect to the neutrals only this negative obligation not to favor any of the belligerents and not to depart from a strict impartiality with regard to them. If we should go further we would risk being accused of infringing the sovereignty of the neutral States and of going against the purpose of the Conference, of which his Excellency RÉCHID BEY just now spoke, for in introducing into the texts we are preparing at this moment clauses difficult of observance we might prepare the way for disputes of interpretation in the future. The first delegate of Germany will certainly agree with us in recognizing that we must do everything to ward off this danger.

The President states that the subcommission has a week in which to find a satisfactory formula. Therefore, the vote is postponed to the next meeting. The meeting adjourns at 12:30 o'clock.

[205]

SIXTH MEETING

AUGUST 2, 1907

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

The meeting opens at 10:45 o'clock.

The President asks if anyone has any observations to make on the subject of the minutes of the preceding meeting, the first proof of which has been printed and distributed.

Major General von Gündell points out that a mistake has crept into the second paragraph of his explanations relative to Article 63 of the German proposition. This makes him say the contrary of what he did say. He explained that in Article 63 the German delegation had had in view the case of ressortissants of a neutral State residing in the territory of belligerent A and furnishing supplies to the other belligerent B. They cannot be authorized to do so except in case the merchandise does not come from the territory of belligerent A. "Neither can they subscribe to a loan issued by belligerent B."

The President announces that note will be taken of this observation in the second proof of the minutes of July 26, and he declares them adopted under this reservation.

His Excellency Count Tornielli: Mr. President, I request the floor not for the purpose of entering into the debate which is on the order of the day for this meeting, but to inform your Excellency that on the occasion of the examination, concluded yesterday, of the draft convention proposed by the British delegation on the rights and duties of neutral States in case of naval war it was recognized that the provision of the first article of the said project ought preferably to have been submitted to the study and deliberations of the subcommission over which you preside. The article is thus worded:

A neutral State is bound to take measures to preserve its neutrality only after it has received from one of the belligerents a notification of the commencement of the war.

The second subcommission of the Third Commission has decided to refer this article to the second subcommission of the Second Commission, which has on its program "The Opening of Hostilities."

[206] In mentioning this decision to your Excellency I ask you to be so good as to place on record the communication I have just had the honor to make. The President records the communication of Count TORNIELLI and announces that Article 1 of the draft convention proposed by the British delegation on the rights and duties of neutral States in naval war,2 shall be put at the end of the

order of the day for the next meeting. He declares then that the discussion is opened on Chapter II of the German draft concerning "services rendered by neutral per" and the amendments relative thereto. He recalls that in the preceding meeting the discussion had borne simultaneously on the two Articles 64 and 65. His Excellency Lieutenant General Jonkheer den Beer Poortugael asks permission to make some observations on Article 64.

At first I believed, he says, like the delegation of Belgium, that in general this proposition was just in forbidding belligerents to require neutral persons, or rather the subjects of a neutral State, to render them war services.

I thought that the only purpose in view was to prohibit the belligerent parties from forcing these persons, if any might chance to be in the theater of war, to fight in their ranks or render them other services. Laying aside the practical difficulty for the belligerent of knowing whether he will have really to deal with a neutral person, the juridical reason for creating a privilege for neutrals who are for their own profit voluntarily established in an occupied country, and the contrast which seems to exist between the constraint and the consent expressed by the last two words of this paragraph, it seemed that the paragraph might be accepted without too much disadvantage.

But after the observation that I had made in the meeting of July 26 to the effect that in the course of the discussion the question has always been of neutral persons who take service in the ranks of one of the belligerent parties, but not of those who are already there, the honorable President of the Conference, Mr. NELIDOW, gave to this paragraph the explicit interpretation that the word asking " is used in the sense of exacting and that it means here that if a war breaks out a belligerent cannot force the neutrals who are already engaged in its service to take part in hostilities.

If that is truly the meaning of the German proposition it would be impossible for the delegation of the Netherlands to accept it.

First, it has not been able to find the "juridical ratio" for such a rule. How can it be or become right for an individual, free to do what he will, who voluntarily enlists in military service, to be able to get out of this service and even be forced not to perform it, just at the time this service becomes necessary to the State which engaged him. One takes soldiers in order that they may be available in time of war but not that in time of war they may leave the ranks and turn their backs on one. That would be illogical.

But there are, besides, practical reasons which prevent our accepting the proposition. Our army is one composed of militia and a nucleus of noncommissioned officers who are all nationals, but we have in addition a small corps, a reserve of our colonial army. This reserve, like our whole colonial army, is composed of volunteer enlisted soldiers, of which some are natives, an important part our compatriots, and some foreigners, as one finds in nearly all the

armies of States which have colonies. These are intrepid men loving [207] dangers like the mountain climbers, and as we often have expeditions to make they find them; furthermore they seek to make a career, as many have done. Well! Why force the State to do without services for which it has such need and restrain these persons from accomplishing a service which they love and have contracted for?

1

We cannot admit that the soldiers whom we feed, instruct and pay in order 1 Annex 36.

to have them at the moment of danger may go away on the day we might need them and before their contract has expired.

The delegation of the Netherlands therefore has the honor to propose the addition after the first paragraph of another, thus worded:

Not to be included under this rule are: ressortissants of a neutral State who, at the time of the outbreak of war, are found in the ranks of the army of a belligerent under the terms of a voluntary enlistment.1

And the delegation declares that if this method or another should not sufficiently remedy the objections pointed out, it could not, to its regret, adhere to the said proposition.

His Excellency Baron Marschall von Bieberstein recognizes that the expression "war services even though voluntary," has given rise to some objections. The fact that these words could raise them indicates that they are not sufficiently clear or precise. Under these conditions the German delegation believes it should withdraw them, and asks the subcommission to consider as the German proposition the text of Article 64 without the words "even though voluntary." The first paragraph will then have to read as follows: "Belligerent parties shall not ask neutral persons to render them war services."

His Excellency Mr. Hagerup agrees with General DEN BEER POORTUGAEL but hesitates to adhere to the amendment proposed by him. Norway, indeed, like many other States where military service is compulsory, calls to the colors not only the nationals properly so-called, that is to say those who are ressortissants by birth or by act of naturalization, but also all those who are domiciled in the territory; in such case the latter do not profit by any exemption nor is the State obliged to take account of their nationality by investigating whether they are also ressortissants of another country. When war breaks out a country in which the army is thus organized cannot deprive itself of the services of all those who are not its nationals.

His Excellency Réchid Bey declares that the delegation of Turkey supports the amendment proposed by General DEN BEER POORTUGAEL but believes it would be better to specify that it is a question of “previous voluntary enlistments," by adding the word “previous."

The President remarks that it is difficult to decide on the wording of this amendment, which has only just now been brought to the attention of the subcommission, before it has been printed and distributed. He consequently proposes to refer it to the committee and to continue the general discussion.

His Excellency Mr. Hagerup adds a few words to his preceding observations in order to state very precisely the question to which they refer. He asks if the German delegation in its Article 64 intended to refer to the case in which the legislation of a State permits it to exact military service of foreign ressortissants domiciled in its territory, and if it considers that this State should disband this class of soldiers the moment their services should become war services.

Major General von Gündell replies that if he has fully understood the explanations of his Excellency Mr. HAGERUP there exists a Norwegian law which imposes the obligation of military service upon neutral subjects domiciled in Norway.

1 Annex 42.