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and although, except for the observance of the general principles of neutrality, we are not yet bound by diplomatic conventions to respect any particular rules, we nevertheless consider reasonable the rule that is fairly widespread and accepted by various Powers of the limitation of this stay to a fixed period of twenty-four hours, except when, as proposed by Japan, the condition of the sea should prevent the said vessels from sailing, the legal length of stay being extended until the condition of the sea ceases to be dangerous.

The repairs and supplies necessary to enable the vessel to put to sea are indispensable, since without permission to make repairs and to procure all that is necessary to continue its voyage, it would be of no use whatever to grant the vessel such a concession.

(7) When a belligerent war-ship takes refuge in a neutral port or territorial waters, to escape pursuit by its enemy, if it is unable to complete the necessary repairs or to take on sufficient supplies to enable it to put to sea within the period allowed it, that is to say twenty-four hours, it is preferable, as a guaranty, for the neutral State to intern it until the end of the war.

That is the surest way of conforming to the true spirit of neutrality. This would not be too rigorous a proceeding, for the necessity of closing the ports to these vessels would thus be avoided, which closing might entail heavy damages, and moreover the complications which the difficulty of this delicate question might lead to would be avoided.

We can here proceed in the same manner only in the case of vessels in distress as the result of damage caused by the condition of the sea.

In this last case the solution accepted by all is to allow the vessel admitted under these conditions to depart freely; but if this is done and if in a particular case the vessel is given refuge, this would be a first infringement of the principle of the inviolability of neutral ports and waters, which infringement would naturally be regarded as complete, if the belligerent vessel is not subsequently required to depart upon the expiration of the customary period of twenty-four hours in these ports or waters.

Humanitarian considerations should undoubtedly decide neutrals to receive a pursued belligerent vessel, this aid being indispensable to enable it to escape a danger which might seriously jeopardize the situation of those on board or expose the vessel to certain loss unless it takes refuge in the first port it comes to.

But when this duty is once performed and the established rules covering the matter have been set aside to give way only to Christian sentiments, which demand not only that the vessel be admitted, but even that the neutral go to its aid to save it maintenance of his neutrality by the neutral requires that these vessels be held in the neutral's ports and waters and disarmed there, and that they shall not take any further part in hostilities for the duration of the war.

(8-9) We think it advisable to make a distinction according as it is a question of single ships or groups of ships, and for this purpose we might accept the proposal submitted by the delegation of Japan, which does not permit more than three belligerent vessels belonging to the same State or its ally to be moored simultaneously in the same ports or waters of a neutral State.

This would be following the example of the Netherlands, which country in its decree of February 2, 1893,1 fixed the number of belligerent ships [583] which would be admitted to its ports and waters at three.

It is a time-honored measure, the first instance of which is to be found 'Donker Curtius, Des navires de guerre belligérants (Bordeaux, 1907), p. 199.

in the treaty of 1604 between England and Spain, the number of vessels to be admitted being 6 and 8. This measure might undoubtedly be useful, especially to Powers whose armament is weak and which might in this way refuse to allow an armed force of such size as might give rise to difficulties to enter its ports.

If vessels of both belligerents should be simultaneously in a neutral port, the custom usually followed by neutral States is to require the lapse of twentyfour hours between the departure of the two enemies. This system was accepted to prevent neutral ports and waters from becoming the theater of acts of hostility between belligerent vessels.

The most important point concerning this question is that of priority, raised by the delegations of Japan and of Russia.

Up to the present time it has been permissible for that one of the enemies who weighs anchor first to lie in wait for his adversary along the boundary line of neutral territorial waters and to enter into combat with him, which only their simultaneous presence in the same port has rendered possible.1

In order the better to conform to the true spirit of neutrality, some have wanted to permit the weaker vessels to leave first, but such a system does not appear to have been adopted in practice; so that no fixed rule seems yet to have been recognized upon this point. Nevertheless the vessel first making the request may, without any violation of neutrality, be allowed to leave first. This would be more in accord with international rules than to leave it to the neutral State to decide which of the hostile vessels shall leave first, as proposed by the delegation of Japan.

(10) A special rule should be formulated for vessels accompanied by prizes. The solution of so controversial a question as this most in conformity with the natural interpretation of neutrality would be to refuse these vessels admittance under any circumstances, as proposed by the delegation of Spain, drawing its inspiration perhaps from the learned opinion of PHILLIMORE, who demands that admission of this class of vessels to neutral waters and ports and their stay therein be prohibited except as the result of force majeure.

In practice, other jurists affirm, the tendency of neutral States is to forbid capturing vessels, as a general rule, to come into port accompanied by their prizes, except in case of peril at sea.

In harmony with many writers, we hold that prizes may be admitted to neutral ports only in case it is morally impossible to take them to a belligerent port. Moreover, to prevent the serious difficulties, which the presence of capturing vessels may cause to the neutral who admits them to his ports, we consider FIORE'S opinion acceptable, who, in order to safeguard all rights, contends that a seized vessel should be detained, to be subsequently restored to its owner if the competent court declares the prize illegal, or to be kept at the disposal of the captor Government if, on the other hand, the competent court declares it valid.

In case the captor brings his prize into a neutral port to escape the pursuit of the enemy, we hold, as the English delegation has proposed, that the prize, together with its officers and crew, should be released by the neutral Power, and that the prize crew should be interned in the same port.

[584] (11) Outside of the cases already formulated by us, we are in agreement upon the point that a neutral State should not permit a belligerent war-ship to repair within its jurisdiction damage resulting from a fight, or in 'Pillet, Les lois actuelles de la guerre, p. 308.

any event to make repairs in excess of what would be necessary to enable it to navigate and within the period allowed it to make these repairs.

(12-13) The question of supplying provisions, and in particular coal, is still a controversial one from the point of view of practice. No general agreement has yet been reached as to the solution that should be given this question now. Events which have taken place in recent wars have led to an entirely new way of looking at this question, even to allowing the radical opinion of those who would refuse belligerents the right to take on coal in neutral waters and ports to show itself, the supplying of food being already permitted in a measure upon which the delegates are more or less in agreement.

In the War of Secession the necessity of regulating the matter became apparent for the first time. The English instructions issued, it is said, at the instance of the United States, date from that time. These instructions laid down the principles here defended by the delegations of Spain, of Japan, and of Great Britain, and in part by the delegation of Russia.

As for declarations of neutrality, we have already declared ourselves to be in favor of the rules laid down after the publication of these instructions; that is to say, we have declared ourselves in favor of the rule prescribing that a belligerent ship may be authorized to take only sufficient coal to enable it to reach the nearest port of its country, or the nearest neutral destination.

As for the quantity to be furnished the ship, we have always considered it necessary to fix a reasonable limit, given the preponderant part which coal plays in modern naval wars.

We also recognize as reasonable the period of three months, reckoned from the date on which the vessel completes its first loading, during which a belligerent vessel that receives supplies in a neutral port may not again take on supplies in any port or in any waters of that country.

In view of the uncertainty that prevails as to the rules to be applied to these serious and delicate questions regarding the quantity of coal and time within which supplies may not be replenished, which rules are still likely to give rise to rather serious objections, we consider it preferable to keep to a middle ground, as far removed from those who would have the furnishing of coal almost entirely prohibited, confusing it with war supplies, as from those who hold that every Government is free to furnish coal to a belligerent in any quantity whatever.

(14) As for restrictions in the matter of vessels which come within the theater of war operations or which are in proximity to the zone of hostilities, we favor the English proposal that neutrals be permitted to search all vessels within their jurisdiction.

(15) The measures governing the departure of belligerent war-ships which do not conform to the rules concerning the length and conditions of their stay in neutral ports and waters are those which are generally proposed and accepted by almost everybody.

(16) It is a difficult matter to know what is the situation of a State that [585] is a victim of a violation of neutrality, and especially to say what that State's duty is to insure observance of the rules adopted, particularly if it has not at its disposal the means necessary to guarantee that neutrality. It is generally said that the State is bound to do all in its power to prevent a belligerent from committing hostile acts in its territorial waters.

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Very serious violations of the duties of neutrality may be regarded as a casus belli." It would be easy to avoid them, thanks to the means which this

Conference is seeking to discover to insure to all peoples the tranquillity to which they have a right in the international community.

Violations that are of less importance are settled without difficulty between the neutral State and the belligerent, the courts deciding the amount of damages to be paid for these violations.

Such are the considerations which we desire to present with regard to the questionnaire that is to serve as a basis for our further deliberations.

We hope to hear in the regular course of the discussion explanations that will contribute to a better understanding of all the questions raised. We shall then examine them with care to judge of the great importance of the results accomplished.]

The President, having inquired whether anyone desires to speak, declares the general discussion closed. The statements made by the various delegates show that there is entire agreement as to there being a general principle governing the question of the treatment of belligerent war-ships in neutral ports and waters. Before proceeding to a discussion of the articles of the British proposal, he asks his Excellency Sir ERNEST SATOW whether he consents to referring the first article of said project to the Second Commission, which is examining the question of the opening of hostilities.

His Excellency Sir Ernest Satow consents.

The President then proposes that the examination of Articles 3, 5, 7, and 31 of the British project1 be postponed until the end of the discussion.

His Excellency Mr. van den Heuvel joins in the PRESIDENT's proposal, which, however, should, in his opinion, be made broader. The British project. contains both provisions of a general nature and rules covering specific cases. There are two classes of questions which should be distinctly separated: questions of principle relating to the rights and duties of neutrals and the question of application, relating to the treatment of belligerent vessels in neutral ports and waters. The order proposed by his Excellency Count TORNIELLI has for its object the separation of two classes of ideas, but in order to reach this result the more completely, his Excellency Mr. VAN DEN HEUVEL considers it advisable to defer Articles 1-10 of the English proposal until the end of the discussion. All these articles refer to the rights and duties of neutrals in general, and it is not until Article 11 that the proposal refers specifically to the question of the treatment of belligerent ships in neutral waters.

Mr. Louis Renault (reporter) expresses the opinion that this procedure would have the drawback of depriving the subcommission of the benefit of the questionnaire which has been prepared with the view of following a definite order of work.

His Excellency Mr. van den Heuvel states that he does not insist upon the procedure which he has indicated and which, in his opinion, would facilitate the discussion. The PRESIDENT having proposed to postpone consideration of some of the articles, he had confined himself to suggesting that a certain number of the remaining articles might be added to those which it has been deemed advisable to postpone.

[586] The President thinks that the discussion should follow the order of the questionnaire. He requests Mr. VAN DEN HEUVEL to be good enough to indicate the place in the discussion which, in his opinion, should be assigned

1 Annex 44.

to the different articles. The committee of examination will take these observations into account.

Rear Admiral Sperry reserves the right to discuss later on the different proposals submitted to the subcommission. He confines himself to remarking that all the acts performed by a neutral State in fulfilment of its duties of neutrality are performed by its own authority and not for the purpose of fulfilling a duty or granting a favor to one or the other of the belligerents. While it is recognized that the treatment of belligerent vessels in neutral waters is a matter that should be settled, he states the imperative necessity of not loading neutrals, whether powerful or weak, with an intolerable burden for the purpose of limiting and defining their responsibility for their protection.

The President remarks that the declaration of the delegation of the United States is of a general nature. It will be inserted in the minutes. He then recalls that his Excellency Mr. TCHARYKOW has reserved the right to present a declaration in the course of the discussion. He therefore requests the delegate of Russia kindly to inform him when this declaration will take place. The PRESIDENT adds that the delegations of Denmark and of Norway have suggested that a distinction be established between the regulations applying to ports and those applying to territorial waters. He likewise requests them to be good enough to submit their proposals in due time.

Point 1 of the questionnaire not having called forth any comments, the PRESIDENT reads question 2 and Article 30 of the British project.

His Excellency Sir Ernest Satow requests that this article be corrected by substituting the words, "of the belligerent Powers" for the words, " of a belligerent Power."

His Excellency Mr. Hammarskjöld observes that the reply to the second question by the British proposal refers not only to ports, but also to territorial waters. He therefore ventures to call the subcommission's attention to the special situation of States located within the radius of territorial waters. The Institute of International Law adopted, at its 1894 session, the following provision: "Straits which serve as a passage from one open sea to another open sea can never be closed." If the right of neutrals to prohibit war-ships and prizes to enter these territorial waters is sanctioned, as set forth in the British proposal, Article 30, it would be necessary to add to this provision an exception to the same effect as the resolution of the Institute.

At the request of the President, who desires to know whether the delegation of Sweden has already formulated an amendment in this sense, his Excellency Mr. Hammarskjöld replies that his amendment consists in adding to Article 30 the words, "Straits which serve as a passage from one open sea to another open sea can never be closed."

The President observes to his Excellency Mr. HAMMARSKJÖLD that Article 32 of the British proposal provides specifically for the case in question. He therefore asks whether this provision seems to be sufficient or whether he maintains his special amendment.

His Excellency Mr. Hammarskjöld replies that he may reserve his amendment until the discussion of Article 32 of the British proposal; but that he [587] desired to mention it when No. 2 of the questionnaire was under dis

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