ARTICLE 27 The exercise by a neutral State of the rights laid down in this agreement within the limits there indicated can under no circumstances be considered by one or other belligerent as an unfriendly act. [728] Annex 64 AMENDMENT OF THE GERMAN DELEGATION TO THE SECOND DRAFT CONVENTION 1 Statement of reasons The German delegation proposes to insert the words "situated in the immediate proximity of the theater of war" after the word "State" in Article 12 and after "territorial waters" in Article 13. The reasons that have led it to make this proposal are as follows: There are two schools or rather two practices relative to the length of stay that neutral States may accord belligerent ships in their ports and waters. One restricts the stay to twenty-four hours everywhere except in special cases, the other does not restrict the stay and limits itself to prohibiting vessels from everything that might be considered as an act violative of neutrality. It is not necessary to the argument to cite the countries that apply these different theories, it is sufficient to state that these two schools exist. Now, the former, a very strict one, imposes a heavy responsibility upon neutrals, because it obliges them to guard all their ports and roadsteads in an effective manner so as to cause their sovereignty to be respected and to avoid every complaint on the part of belligerents. The latter school, a very liberal one, does not place the neutral under the necessity of watching all his anchorages unless to prevent the belligerents from making use of them as bases of operations. By reason of these two opposed principles the German delegation has tried to find an intermediate solution that can be accepted by all interested. To this end it has presented a proposal which, however, has not obtained a majority in the committee of examination, and which it has the honor to lay before you in order that it may be submitted to the full Commission in the hope that it may receive its high approval. The principle of this proposal is in brief as follows: We propose to apply a different system in the regions that we would like to call the "theater of war" than in the rest of the world. In proximity with the "theater of war" an international regulation would fix the length of stay of belligerent ships in neutral ports and roadsteads. In regions not having this character the neutral State would itself regulate the sojourn of vessels according to its own decision and in virtue of its sovereignty. To avoid all mistake I hasten to add that the expression "theater of war" is here employed in a special sense, and that any other expression, as field of activity of the hostilities, field of action of the belligerents, etc., would suffice, provided that the dominant idea be accepted that that sea area would be considered as the "theater of war" upon 1 Annex 63. which an operation of war is taking place or has just taken place, or upon which such an operation can take place in consequence of the presence or the approach of the armed forces of both belligerents. Thus, the presence or the approach of both adversaries who are relatively near each other is necessary in order that we may speak of the theater of war. The case where a single cruiser would exercise the right of capture or of search, or the case where a naval force of only one of the belligerents might be proceeding does not enter into our plan. [729] A navy must be very powerful in order to control all its coasts; it is certain that most States are not in a position to do this. There are some countries whose coasts are of great extent and sown with islands and islets; there are other countries that have vast colonial possessions with numerous roadsteads and anchorages. It is practically impossible, especially for Powers whose navies are small, to watch over all these regions where there may perhaps exist no establishment or no dwelling. Now, without a certain control, without any surveillance whatever, an international regulation would rest a dead letter; it is easily seen that this state of things could not help but cause complications. On the other hand, every State is in a position to keep a watch over some regions, some ports of its coasts in an efficacious manner. It can likewise control its waters near that part of the sea that is used as a field of battle for naval forces and squadrons, an area that is always relatively small. Here it is that the fate of fleets will be decided, and especial vigilance will be exercised. It is objected that it is impossible to define exactly the limits of the theater of war and that this definition cannot be left to the neutral. And also that it is to be feared that two neutrals may have different opinions as to what the theater of war is and that complications will result, and complaints and even serious dangers. But it does not seem to be very difficult to decide where the theater of war is. If, for example, we take the war between the United States and Spain in 1898, it is clear that the theaters of war were in the regions of the Philippines and the West Indies and not at all in the Mediterranean nor in the eastern part of the Atlantic Ocean. 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 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 the necessary 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. Germany followed this rule in the war in the Far East, and experience has shown that it answered the necessity of the situation. Moreover, it is scarcely to be feared that two neutrals whose territories are near each other will have such different opinions on which constitutes the theater of war as to result in complications. In general, every neutral will take the greatest care to protect himself against every complaint, and it will be rather too strict than too complaisant. This proposed international rule is then a strict one for the theater of war, but for regions outside of that theater it is evident that such a rule would not be necessary. In regions where a meeting between belligerents is not to be feared or where the forces of a single one of the adversaries are present, national or local legislation will suffice. If the neutral sees that a cruiser is stationed in the neighborhood of its coasts and is desirous of making use of its ports as a base of operations, it will always possess the possibility and the right to forbid it access to its anchorages. Nothing in the proposition tends to permit a belligerent vessel to misuse the ports of a neutral State. The object aimed at is that outside of the theater of war the neutral itself decides what it may grant. [730] By accepting the proposal, neutrals would be disembarrassed of a responsibility that would weigh upon them if they accepted the strict rule of twenty-four hours. For they would not be obliged to guard their entire littoral, which would for many of them be also impossible. When the locality of the naval action is in the Indian Ocean, it is not necessary for Powers in the north of Europe to watch over their ports and roadsteads. In case the theater of war should be in the Mediterranean, the coasts of the two Americas would not need strict control. Moreover, neutral States are evidently free to make such enactments as seem good to them. In the absence of special provisions in the legisla tion of a neutral Power, the length of stay, outside the theater of war, would not be limited, provided that the belligerent respects the hospitality and conforms to the ordinary conditions of neutrality. To sum up, the proposal consists in this: 1. We propose an international regulation for the stay of belligerent ships in the sea area that we have called the theater of war; 2. We propose that the stay of belligerent ships outside of the theater of war be governed by national or local law. It is stated in the following amendment. ARTICLE 12 Belligerent 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. 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 in its territorial waters situated in the immediate proximity of the theater of war, it must notify the said ship that it is to depart within twenty-four hours. ARTICLE 13 bis In the absence of special provisions to the contrary in the law of the neutral State, the stay of belligerent war-ships in the ports and roadsteads outside of the theater of war is not limited. Nevertheless, the belligerent is bound to conform to the ordinary conditions of neutrality and to the requirements that the neutral State deems necessary. Moreover, it is bound to depart if the neutral State so orders. [731] Annex 65 DRAFT CONVENTION PRESENTED TO THE COMMISSION 1 With a view to harmonizing the divergent views which are still held on the relations between neutral Powers and belligerent Powers, and to anticipating the difficulties to which such divergence of views might give rise; Seeing that, even if it is not possible at present to concert measures applicable to all circumstances which may in practice occur, it is nevertheless undeniably advantageous to frame, as far as possible, rules of general application to meet the case where war has unfortunately broken out; Seeing that, in cases not covered by the present Convention, it is expedient to take into consideration the general principles of the law of nations; Seeing that it is desirable that the Powers should issue detailed enactments to regulate the results of the attitude of neutrality when adopted by them; Seeing that it is, for neutral Powers, an admitted duty to apply these rules impartially to the several belligerents; Seeing that, in this category of ideas, these rules should not, in principle, be altered, in the course of the war, by a neutral Power, except in a case where experience has shown the necessity for such change for the protection of the rights of that Power; The high contracting Parties have agreed to observe the following common rules, which cannot, however, modify provisions laid down in existing general treaties, to wit: ARTICLE 1 Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality. ARTICLE 2 Any act of hostility, including capture and the exercise of the right of search, committed by belligerent war-ships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly forbidden. ARTICLE 3 When a ship has been captured in the territorial waters of a neutral Power, this Power must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and crew, and to intern the prize crew. If the prize is not in the jurisdiction of the neutral Power, on the demand of that Power, the captor Government must liberate the prize with its officers and crew. A prize court cannot be set up by a belligerent on neutral territory or on a vessel in neutral waters. 1 See annexes 55 and 63. ARTICLE 5 Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose of communicating with the belligerent forces on land or sea. ARTICLE 6 The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden. ARTICLE 7 A neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet. ARTICLE 8 A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that Government is at peace, and also to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, this vessel having been adapted entirely or partly within the said jurisdiction for use in war. ARTICLE 9 A neutral Power must apply impartially to the two belligerents the conditions, restrictions, or prohibitions made by it in regard to the admission into its ports, roadsteads, or territorial waters, of belligerent war-ships or of their prizes. Nevertheless, a neutral Power may forbid a belligerent vessel which has failed to conform to the orders and regulations made by it, or which has violated neutrality, to enter its ports. ARTICLE 10 The neutrality of a Power is not affected by the mere passage through its territorial waters of war-ships or prizes belonging to belligerents. ARTICLE 11 A neutral Power may allow belligerent war-ships to employ its licensed pilots. 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 [733] ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases covered by the present Convention. 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 |