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citizenship, a neutral established abroad is subject to all other charges that are levied from the citizens of the country where he has his domicile. The State whose hospitality has been extended to him is the less called upon to make a distinction in his favor since the charges from which it is desired to relieve him have most often the character of general taxes affecting the entire population and whose collection does not lend itself to distinction of persons. As to the position of neutrals with regard to an invader who occupies the territory where they live, that is already regulated by the provisions of the Convention of 1899 on the laws and customs of war on land-a Convention that makes no distinction between neutrals and the nationals of the invaded State and, as a consequence, places them all on the same footing. Besides, how could the neutral complain? Does he not by coming to establish himself in a country consent in advance to submit to its laws and taxes and to share in this respect the lot of the citizens in whose midst he lives?

Finally, the German proposition would encounter in practice very great difficulties of execution. Thus, to repeat the expression of his Excellency Mr. LÉON BOURGEOIS, the war taxes referred to in Article 66 can hardly be imposed and collected except ratione loci and not ratione personae, whether the invader collects them himself or whether he has the local authority do so.

Besides these general objections an additional point was made of the peculiar difficulties that the application of the provisions of the German project could not fail to encounter in certain countries as to the points under discussion. "Every English colony," said the British delegation, "has a very considerable population of foreigners who have dwelt there for a long time, most of them having been born there. They consider it as their own country, although they have not formally renounced their old nationality, and they have no desire whatever to benefit by the exemptions that are here proposed to be granted them." Likewise, the Japanese delegation made the point that in the Far East a number of countries have not legislated on the subject of nationality and that entire populations may be found there whose citizenship is quite uncertain or might be changed at any moment by decisions too interested to be acceptable.

On the other hand, arguments in support of the German proposition were presented, particularly by the delegations of the United States and Switzerland. These we shall now briefly summarize.

The sole and immediate object of the project is not to favor foreigners as against the native population of the country where they live. It is inspired by that more general and even loftier influence that guides the work of the Conference and aims to minimize, so far as possible, the evil effects of war and to diminish, so far as circumstances permit, the number of persons called upon to suffer its hardships and burdens. It is impossible to deal here with the citizens of the belligerent States. It is to them that their own country makes its appeal to sustain its efforts in the war; it is to them that the invading enemy addresses his

requisitions as authorized by the Regulations of 1899. But side by side with [68] these populations, necessarily involved in the struggle, are foreigners, found

in the territory of a belligerent State only because of the fact of their domicile, who have no bond with this State and who are neutrals because their own country is a neutral to the conflict. If it is truly desired to continue faithful to the humanitarian movement which has already inspired a number of the provisions of the Articles of 1899 and which aims to lessen the evils of war and the number

of its victims, must we not act accordingly in behalf of these neutrals for whom the struggle is a thing apart and who have neither share nor responsibility in it? Can we ignore, in this matter, the difference that the very tie of nationality creates between them and the citizens of the country in which they live, a tie which does. not exist for them, or, to be more exact, which binds them to a foreign and neutral State? And if it be urged that it is scarcely fair that foreigners in a State should, in case of war, be treated better than the citizens, can this feeling, which is more human than just on the whole, cause us to forget that the citizens of this same State, when abroad, would enjoy the benefits of the proposed plan in the far more numerous wars to which their country will be not a party, but a neutral? As to the difficulties of execution indicated, they can scarcely be considered as insurmountable. It is for those interested individuals to prove their nationality; and it will not be necessary to recognize as neutrals persons not furnishing this proof in an entirely satisfactory manner.

These considerations had led to the adoption by the committee of examination by a vote of 6 to 5, with 1 abstention,1 of the proposal to establish in favor of neutrals the rules laid down in Articles 66 to 68 of the project. As to Article 66 it will suffice to observe again that it does not deal with ordinary taxes, even though increased in time of war.

ARTICLE 67

The property of neutrals shall not be destroyed, damaged or seized, unless absolutely necessary by reason of the exigencies of the war. In case of destruction or damage, the belligerent is only bound to pay an indemnity in its own country or in the enemy country, when the ressortissants of another neutral country or of its own are likewise given the benefit of an indemnity and reciprocity is guaranteed.

While providing for the case of an indemnity Article 67 does not impose upon the belligerents the obligation to repair the damage in the cases in point. Each State remains free to recognize or not this obligation and to put it into execution either in a general way or according to circumstances.

What the project demands of them is that in each case the neutrals be treated on a footing of equality among themselves or with the nationals in consideration of guaranteed reciprocity. Supposing that in such and such a case the belligerent State decides to indemnify the national or neutral owners of real property destroyed by necessity of war, he will not be able to indemnify either the nationals alone or the ressortissants of the neutral State A without being under the necessity of according the same treatment to the ressortissants of the neutral State B whose Government guarantees reciprocity.

To this system, which, in short, makes everything depend upon the good-will of the responsible belligerent, the Swiss delegation would have preferred a [69] general stipulation by which the States would bind themselves to indemnify

entirely the owners in the cases provided for in the first sentence of Article 67. It made a proposal to that effect and called attention to the fact that while being inspired by the generous and humanitarian tendencies of which we have already spoken, this solution would have the practical merit of insuring in itself reciprocity between all the contracting States and of exempting the injured Voting for Article 66: Germany, United States of America, Austria-Hungary, Cuba, Luxemburg, Switzerland. Voting against this article: France, Great Britain, Japan, Netherlands, Persia. Not voting: Denmark.

owners from furnishing a proof which they might at times have some difficulty in producing. But, without ignoring the value of these arguments, the Commission had to state that the Swiss proposal gave rise to the most serious objections by reason of the financial consequences which might arise from it; and this proposal was withdrawn for lack of support.

The prohibition against seizing neutral property is conformable to the ruling of Article 23, letter g, of the 1899 Regulations. It is well to state in this respect that in case of seizure indemnity is a matter of right and does not depend, as in the case of destruction or of deterioration, on the good-will of the responsible belligerent. The following articles of the project regulate the payment of indemnities in the case where, as an exception, the seizure is permitted.

ARTICLE 68

The belligerent parties shall make compensation for the use of real property belonging to neutrals in the enemy country, the same as in its own country, provided that reciprocity is guaranteed in the neutral State. Nevertheless, this indemnity shall in no case exceed that which the legislation of the enemy country provides in case of

war.

Article 68 refers to the single case of the utilization by a belligerent of real property belonging to a neutral on the enemy territory. The expropriation or utilization of real property on the territory of the State itself which resorts to this measure, is still regulated in time of peace as in time of war by the legislation of that State. As to the expropriation by a belligerent of real property in enemy country, that is a case which it is useless to consider for the simple reason that it will never occur. The necessities of war may lead a belligerent to utilize, even to destroy, real property; but one searches in vain for any reason and purpose for which it might wish to acquire the property.

ARTICLE 69

Movable property belonging to a neutral in the territory of a belligerent party can be expropriated or made use of by it for a military purpose only by an immediate payment of an indemnity in specie.

Article 69,1 differing therein from the preceding article, refers to and regulates exclusively the expropriation or utilization by a belligerent State of movable property belonging to neutrals on its own territory. It lays down the general and absolute principle that this expropriation or utilization can take place only in consideration of an immediate payment of an indemnity in specie. In the German proposition the second paragraph of Article 70, which became Article 69 of the project, provided for the application of the same principle in enemy country within the limits and under the conditions stipulated in Article 52 of the Regulations of 1899. The German delegation renounced this paragraph because the question is already regulated by Articles 52 and 53 of the Regulations, [70] which, in its opinion, are as applicable to the property of neutrals as to that of ressortissants of the enemy State.

This same question had arisen in the first subcommission and had been referred by it to the examination of the second subcommission of the Second Commission. We had to acknowledge that in effect the Regulations of 1899 had established no difference between the two categories of owners and, consequently, of

1

This article was adopted in the committee of examination by nine votes to five.

property of which we have just spoken. As for making a difference here relative to the neutrals, that would have been useless since Article 52 of the Regulations amended by the Conference August 17, 1907, carries the provision, in favor of all owners, that: "Contributions in kind shall, as far as possible, be paid for in cash; if not, a receipt shall be given, and payment shall be arranged as soon as possible."

Let us observe, finally, that Article 69 is not applicable to railway material or to vessels, which are regulated by the special provisions of Articles 70 and 71.

ARTICLE 70

Railway material belonging to neutral States or to companies or to private persons, and recognizable as such, shall not be requisitioned or utilized by a belligerent except where and to the extent that it is absolutely necessary. It shall be sent back as soon as possible to its country of origin.

A neutral State may likewise, in case of necessity, retain and utilize to an equal extent material of the belligerent Power found on its territory.

Compensation shall be paid by one party or the other in proportion to the material used, and to the period of usage.

With reference to Article 70 of the German proposal,1 which in part became Article 69 of the project, the delegation of Luxemburg 2 had proposed an amendment as follows: "This authorization [to expropriate or make use of, for military purpose, movable or real property of neutrals in the country of the belligerent who requires them] does not extend to means of public transportation leading from neutral States, and belonging to said States or to their grantees, recognizable as such."

Before this proposition came up for discussion the delegation of Luxemburg followed it with a subsidiary amendment 3 to complete the same Article 70 by the following provisions:

The maintenance of pacific relations, especially of commercial and industrial relations, existing between the inhabitants of belligerent and neutral States, merits particular protection on the part of the civil and military authorities.

On the outbreak of hostilities, belligerents shall accord a sufficient delay to enable transportation material belonging to neutral States or to their grantees to be taken back to their country of origin.

Requisitions on means of transportation belonging to neutral States or to their grantees shall not be made except in case of imperative necessity.

The quantity of material to be requisitioned, as well as its use, shall be reduced to a minimum. Such material shall be returned within a short time to its country of origin.

Whenever public transportation material belonging to a neutral State or to its grantees is requisitioned by a belligerent State, material belonging to the latter or to its grantees found in neutral territory may likewise be held there by way of due compensation.

[71] The minutes of the sixth and seventh meetings of the second subcommission show in detail the very interesting discussion to which the propositions of the delegation of Luxemburg gave rise.

Annex 36.

2 Annex 39.

1 Annex 40.

We may be permitted therefore to confine ourselves here to the following observations:

(1) The principle enunciated by the first paragraph of the above subsidiary amendment received unanimous consent; but the Commission thought that a better form for it would be inat of a general resolution to be inscribed as a preamble at the head of the new contractual provisions concerning neutrals. If the Conference concurs in this view, it will be the duty of the General Drafting Committee to give the proposed resolution the place and wording that are most suitable.

(2) In the course of the discussion the Commission agreed at once that in regard to neutral railroad material in occupied territory, the question is regulated by Article 54 of the Regulations of 1899, which contains the provision that "The plant of railways coming from neutral States, whether the property of those States or of companies or of private persons, shall be sent back to them as soon as possible." The report of the subcommission which prepared the Regulations of 1899, gives this article the following comment:

His Excellency Mr. BEERNAERT had suggested ordering immediate restitution of this material [that is to say, the material contemplated by Article 54] with a prohibition of using it for the needs of the war; but the subcommission agreed with the drafting committee in thinking that it was sufficient to lay down the principle of restitution within a short time for the sole purpose of pointing out that the material belonging to neutrals cannot be the object of seizure.

Did the authors of the Regulations of 1899 by these last words intend to formulate a general principle prohibiting belligerents from requisitioning railway material belonging to neutrals? So his Excellency Mr. VAN DEN HEUVEL maintained, but the majority of the Commission took the opposite view as expressed by Mr. Louis RENAULT and others.

Article 54 does not absolutely forbid a belligerent to utilize the material of neutrals found in the territory occupied by its army. It is limited to imposing upon him the obligation to send back this material as soon as possible to the rightful possessor.

(3) On the question of principle raised by the Luxemburg amendments various opinions came to light in the Commission and its committee of examination. Some delegations utterly denied that a belligerent has a right of requisitioning and utilizing neutral material found in its territory. Among those who admitted this right within the limits of Article 70, some claimed in favor of the neutral State an indemnity as well as the right of retaining, to an equal extent, material belonging to the belligerent. Others were willing to grant to the neutral State only the indemnity without the right of retaining material, or only this right of retention to the exclusion of any indemnity.

It is impossible to reconcile these various opinions, which are contradictory on more than one point. The project contains what may be called an intermediate solution. The first paragraph of Article 70, which the German delegation proposed in order to take into account the amendments presented by the delegation of Luxemburg, does not deny the belligerents the right of requisitioning and utilizing material belonging to neutral States or their grantees, but it restricts it to the cases where such a step is demanded by an imperative necessity.

1 Report of Mr. EDOUARD ROLIN JAEQUEMYNS, annex to the fourth meeting of the second commission.

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