The right of the neutral State to fix the length of stay was affirmed, but in a case where this right is not exercised by it, this period would be twentyfour hours. The delegations of Great Britain, Japan and Portugal accepted this plan, but the delegations of Germany and Russia opposed it.

. The latter delegations proposed to make a distinction between different neutral ports according as they are more or less distant from the theater of war, by allowing a definite period to be fixed for ports situated in its immediate proximity, but no definite limit for ports not so situated.

At the time of the second reading the German delegation presented an amendment by the terms of which "belligerent war-ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said State situated in the immediate proximity of the theater of war for more than twenty-four hours, except in the cases covered by the present Convention." A statement of the reasons therefor accompanied the amendment.1

The reasons for and against were carefully set forth in the committee of examination, especially at the time of the second reading (minutes of the meetings of September 11 and 12). It will suffice to make a faithful analysis of them.

The German delegation states the plan presented by it as follows:

In proximity to the "theater of war" international regulations would fix the stay of belligerent war-ships in neutral ports and roadsteads.

For waters beyond the theater of hostilities the German delegation accepts the French rule which prescribes no limit of time determined in advance, provided the belligerent war-ships respect the given rules.

In other regions the neutral State would therefore itself regulate the stay of the ships. The expression "theater of war" is here employed in a special sense, and any other expression, as field of action of the belligerents, would suffice, provided there is accepted the dominant idea which considers as the theater of war the sea area where war operations are taking place or are about to take place or where such an operation can take place by reason of the presence or the approach of the armed forces of both belligerents. Thus the approach of both adversaries who are relatively near is necessary to create a theater of war." The case where an isolated cruiser would exercise the right of capture or search, or in the case where a naval force of only one of the belligerents is passing, is not here contemplated. The majority of States are not able to control what goes on along all their coasts, which are sometimes of great extent; and international regulations will remain a dead letter unless there is some surveillance. Such a surveillance can be effective only in restricted regions. A neutral State can control its waters near that part of the sea where a naval battle takes place, as that area is always comparatively small. It is here that the fate of the fleets will be decided and special vigilance will be here exerted.

To the objection that it is impossible to define exactly the limits of the theater of war and that this definition cannot be left to neutrals as two [498] neighboring neutral Powers might have a different understanding on the subject, which would be a source of complications, it is answered that it does not seem to be very difficult to determine where the theater of war is. If, for example, we take the Spanish-American War of 1898, it is clear that

'Post, Third Commission, annex 64.

the theaters of war were in the Philippines and the West Indies, and not at all in the Mediterranean nor in the Eastern Atlantic. So there is no reason to fear that difficulties would arise in practice. In our day, with its multiplied means of communication, neutrals will always know the places where the naval forces are stationed. They will be in a position to determine whether these naval forces are preparing to approach their coasts, and they will declare such regions "the theater of war," and take steps to learn whether either of the belligerents is visiting their ports. The neutral State can then take the necessary measures to cause the visitor to leave the port within twenty-four hours. As the neutral is the sole judge of this question, because it is he and not the belligerent who determines what is to be considered the theater of war, there is no danger of dispute. Such is the rule that Germany followed in the war in the Far East, and experience has shown that it answered the necessities of the situation.

Accordingly, a strict international rule is proposed for the theater of war; such a rule is not necessary for areas outside that theater. By accepting this proposal, neutrals are not embarrassed by the responsibility which is incumbent upon them if the strict twenty-four hour rule is accepted, for they would not be obliged to watch their whole seacoast, something which is impossible for most of them to do. When a naval action is about to take place in the Indian Ocean, it is not necessary for the Powers of the north of Europe to watch over their ports and roadsteads; if the theater of war is in the Mediterranean, the coasts of the two Americas need not be kept under strict control.

The delegation of Russia supported this compromise measure presented by the delegation of Germany. It could not agree that the so-called twenty-four hour rule established in the domestic legislation of Great Britain and some other States should be considered as a universal rule. It believes that the French rule, which does not provide any limit of time determined upon in advance, and which is accepted by Germany and Russia, has a better claim to be generally adopted. Nevertheless, in a spirit of compromise, the Russian delegation accepts the distinction that has just been suggested.

The British delegation raised several objections to this plan, some of which have been mentioned above. The principal objection is based on the uncertainty inherent in a determination of the theater of war.

In contrast with the case in land warfare, the theater of naval war is unlimited; it includes all the oceans, because hostilities can break out anywhere. From the moment a war-ship leaves one of its own ports it is liable to encounter an adversary. With steam and the progress made in speed the theater of hostilities, properly so called, is constantly shifting.

It would be a very difficult task, and at the same time a great responsibility, for neutral Governments to have to modify, according to these changes, the régime applicable in their ports. Besides, is it not inconsistent to admit that the presence of a war-ship of one of the belligerents in certain places is not suffi

cient to make such places a theater of war, while at the same time this [499] ship can commit hostilities and capture and search merchant vessels?

The twenty-four hour rule adopted by England forty-five years ago, and accepted by a large number of Powers, has been tried out; it has the great advantage of being a precise rule, easy for the neutral to apply, whereas the plan proposed by Germany forces the neutral to make a study of and form

an opinion upon what is sometimes a very delicate case. Then complaints may arise on the subject of such opinions, which indeed may perhaps be at variance even in the case of two States in the same geographical situation.

The plan based on the distinction between nearness and remoteness from the theater of war was also opposed by the delegation of the Netherlands, through Mr. DE BEAUFORT, as being of a nature to beget difficult complications for neutrals.

The article proposed, with the addition of the words "situated in the immediate proximity of the theater of war," was rejected by 7 votes (United States, Spain, Great Britain, Italy, Japan, Netherlands, Turkey) to 4 (Germany, Brazil, France, Russia); there were 3 abstentions (Denmark, Norway, Sweden). The German and Russian delegations then asked for the omission of this provision with reference only to the case where a belligerent war-ship enters a neutral port with no special purpose; other clauses of the project provide for the cases where a ship enters to revictual, repair, etc. Is not that sufficient? The request for omission obtained only 2 favorable votes (Germany, Russia) and was negatived by 10 votes (United States, Brazil, Denmark, Spain, France, Great Britain, Italy, Japan, Sweden, Turkey). Norway and Netherlands abstained from voting.

The rule admitted by the majority of the committee is, then, that in the absence of special provisions in the legislation of a neutral State, belligerent vessels are forbidden to remain in the ports, roadsteads, or territorial waters of such State longer than twenty-four hours. The idea is that a precise rule is indispensable. Each State is left free to establish it; in default of its establishment, the Convention fixes the period at twenty-four hours.

It goes without saying that in every country the legislation thereof will determine the nature of the official act by which the fixing of the period referred to will be made: a law, properly so called, a decree or proclamation, an executive order, etc.

At the close of the deliberations of the committee of examination, his Excellency Mr. TCHARYKOW made the following remarks:

Thanks to the spirit of conciliation which has never failed to animate us we have been able to come to an agreement upon the greater number of the questions. One alone remains undecided and it is an important one: The question of the period of stay.

In the votes taken on this point, it is seen that two great Powers have maintained the same objections for two months against the proposed wording, and have made it known that they cannot and ought not accept the twenty-four hour rule. We have already said and we now repeat that in this Conference we must seek not for a mere majority as against a minority, but quite on the contrary unanimity on all questions on some common ground of compromise. It is in this spirit that the delegation of Russia would like to suggest for the case where the question of the theater of war would not find a satisfactory solution, a new wording which seems We have debated to it to be of such a nature as to satisfy all interests.

upon the quantity of coal; but, whatever this quantity is to be, it is necessary to leave to the interested parties the time necessary to load it, or this permission would be a useless one. Now we have all recognized that a ship has a right to exist on the sea and that it cannot be placed in the position of becoming a derelict.

[500] Article 12 therefore might be worded as follows:

In the absence of contrary provisions of a neutral Power, belligerent war-ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power beyond the time necessary to complete the supplies indicated in Article 19 of the present Convention.

It will be noticed that this formula accords with the general idea of the committee's draft, in that it is always for the neutral State to fix the length of stay; but, if the period is not thus fixed, it is proposed to give the time necessary for provisioning instead of an invariable period of twenty-four hours. In the meeting held September 28 his Excellency Mr. TCHARYKOW again spoke in support of his amendment to Article 12 and proposed to supplement it with the following paragraph:

However, the said vessels may always stay twenty-four hours without its being necessary that their stay be based on any special reason.

His Excellency Mr. TSUDZUKI said that he could not support the proposal. Coal is given only with a humanitarian purpose, and the wording offered by his Excellency Mr. TCHARYKOW would imply the right to make use of a neutral port as a base for coal, that is to say, as a strategic base, properly so called. He added that Article 12 in the form given it by the project before them had been accepted as a compromise and marked the extreme limit of the concessions that the delegation of Japan could make.

His Excellency Sir ERNEST SATOW, too, thinks that he cannot accept that wording because it appears to do away with the twenty-four hour rule which Great Britain holds to. Moreover, in most ports supplies of coal and food can be taken on in six hours; and it is therefore useless to stipulate for a period in any way unlimited. This statement of fact was questioned by his Excellency Mr. HAGERUP, who said that in most of the ports of Norway it would require twenty-four hours for a large war-ship to be provided with the necessary coal. To this Sir ERNEST SATOW replied that he had meant ports where it was customary to coal.

His Excellency Mr. HAMMARSKJÖLD declared that he would gladly support the Russian proposal if it would facilitate an agreement, and he suggested an amendment as follows:

In the absence of special provisions to the contrary in the legislation of a neutral Power, belligerent vessels are not permitted to remain, except in the cases covered by the present Convention, in the ports, roadsteads, or territorial waters of the said Power more than twenty-four hours or more than such further time as may be necessary to complete the supplies indicated in Article 19 below.

It has been clearly understood that the legislation of the neutral State, if any, must be perfectly obeyed. If it lays down a fixed period, it is necessary to conform to that and no supplementary period applies. It is only in the case where, in the absence of a local rule, the conventional period of twenty-four hours would apply, that the additional period in the sense indicated could take effect.

The committee did not vote on this proposal, reserving for the Commis

sion the business of deciding whether the article as drafted should be kept or whether the amendment should replace it.

ARTICLE 12

In the absence of special provisions to the contrary in the legislation of a neutral Power, belligerent war-ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases covered by the present Convention.

[501] The provision on the length of stay naturally applies to belligerent war vessels found in a neutral port at the time of the opening of hostilities, as well as to those that enter during the course of the war.

ARTICLE 13

If a Power which has been informed of the outbreak of hostilities learns that a belligerent war-ship is in one of its ports or roadsteads, or in its territorial waters, it must notify the said ship that it will have to depart within twenty-four hours or within the time prescribed by local regulations.

Even those who think that the length of stay in neutral waters should be fixed for belligerent war-ships admit that this period may be extended in certain exceptional cases. There is not, however, complete agreement as to the number of these exceptions. Article 2 a of the Japanese proposition1 mentions only stress of weather; Article 3 of the Spanish proposal 2 mentions damage, stress of weather, or other force majeure; and Article 5 of the Russian proposal says that the stay may be prolonged if stress of weather, lack of provisions, or damage prevents the vessels from putting to sea.

3

Stress of weather and damage were accepted with no difficulty. The senior delegate of Japan, however, observed that the matter of damage may give rise to abuses and cause evasion of the rule as to length of stay. Would it not be possible to set a maximum period within which repairs must be made? It was answered that this was very difficult, because it would depend on the port where the vessel was and on the facilities there found, and that, besides, the neutral authorities could settle what time was necessary and exercise control. It was decided not to fix such a period.

As we are dealing with a prohibition addressed to the belligerent, this prohibition can include the waters as well as the ports and roadsteads. But the neutral State cannot be responsible except so far as it knows or can know of the presence of war-ships; this knowledge can more easily be had with regard to ports and roadsteads than with regard to other waters.

The Brazilian delegation had, in the meeting of July 27, proposed that the article should state that the rules on the length of stay do not apply to vessels. in a port solely for the protection of its nationals, as these vessels have a very different function from that of war-ships received under the right of asylum. They are charged with a mission of protection, and consequently might stay in neutral ports in time of war as in times of peace. Although it was asked whether the case could be supposed where in one of the countries represented at the Conference the presence of a war-ship could be deemed necessary for