1

subcommissions by a very elementary and relatively unimportant proposition. In connection with the question of the use of new arms and methods in naval warfare, Captain Schéine, of Russia, proposed that the contracting powers concede to neutral states the "faculty" of sending their naval attachés to "the theater of maritime warfare," with the authorization and under the control of the competent military authorities of the belligerent powers. He argued that this action would give to neutral naval attachés the standing already conceded to military attachés in armies on land.

Against this proposition it was at first argued that there was no urgent need of providing for the measure, as it was already being resorted to. And when Captain Schéine replied that a recent case had proved that need, the subcommission decided that the proposition was equivalent to compelling belligerents to admit neutrals on board their war ships; that, since the practice differed in different countries, its regulation should be left to special treaties between neutrals and the belligerents; and that neither the subcommission nor the conference was competent to Ideal with the matter. It therefore declined to discuss it further, and the question of neutral rights and duties on the sea was not again brought up in the first conference. But, as will be seen later, in consequence of an important resolution adopted by the first conference concerning neutral rights and duties on land, the maritime rights and duties of neutrals came up in far more important aspects in the Conference of 1907.

1 Captain Schéine first used the word "right" (droit), but changed it to faculté.

b. THE CONFERENCE OF 1907

The question of neutral rights and duties on the sea was mentioned in the Russian programme, and was referred to the IV Commission, of which the eminent jurist, Professor de Martens, of Russia, was president. It was soon apparent that the discussion of the question would launch the commission forth upon a domain which was not only vast and complicated, but was almost untraversed. The commission therefore decided that it would not divide into sections, as the other commissions had done, and that its first task should be the assertion of fundamental principles.

After prolonged discussion, in both a special committee of revision and in the commission itself, a preamble was agreed upon which asserted that the basis of any set of rules is the sovereignty of a neutral state, which can not be altered by the mere fact of a war in which it intends to take no part. Hence, belligerents are bound to respect the sovereign rights of neutral states and to abstain, within neutral territory and waters, from all acts which would constitute on the part of the states which would tolerate them a breach of their neutrality. And it is agreed that the enforcement by a neutral state of its rights shall never be considered as an unfriendly act by either belligerent.

On the other hand, it is conceded to be a neutral's duty to apply impartially to all belligerents the rules adopted, to exercise all the vigilance it can to prevent their violation, and not to change any rules during the course of the war except when experience has demonstrated the necessity of doing so in order to safeguard its rights.

It was deemed impossible for the conference to adopt

rules to meet all the circumstances which may arise in practice, and hence it was admitted that each neutral state should adopt for itself the other rules necessary. But, desiring to diminish as much as possible the differences which still exist in the relations of the various nations with belligerents, the conference requested the various powers to decree precise rules for regulating the consequences of the state of neutrality, and to communicate them to each other by means of a notification addressed to the Netherlands government and sent by it to the others.

1. Belligerents in Neutral Waters

The rules adopted by the conference for the use of the powers in common had to do with some, though unfortunately not all, of the subjects considered to be of prime importance. The conduct of belligerents in neutral ports and waters is first taken up. Belligerents are forbidden to use them as a base of naval operations against their enemy, and, specifically, to install in them radio-telegraphic stations or other apparatus designed to serve as a means of communication with belligerent forces on land or sea.

Any act of hostility, including the capture of ships and exercise of the right of visit, committed by belligerent war ships within neutral waters, constitutes a violation of neutrality and is strictly forbidden. If a ship be captured within the territorial waters of a neutral state, that state should, if the prize is still within its jurisdiction, use the means within its power of procuring its release together with its officers and crew, and for the confinement of the crew placed on board of it by the captor; if the prize has been taken beyond the jurisdiction of the neutral state, that

state may address itself to the belligerent government, which must release the prize with its officers and crew. A discussion arose over the word may in the last clause of the above rule, some delegations desiring that the word must should be used instead; but the majority decided to give to the neutral state the option of addressing itself to the offending belligerent, or to the new International Prize Court established by the conference. In accordance with old usage, belligerents are forbidden to establish any prize court on neutral territory or on a ship in neutral

waters.

Belligerents are forbidden to bring their prizes into a neutral port, except when the bad state of the sea or lack of coal or provisions prevents navigation; and in such cases, the prize must be taken away as soon as the reason justifying its entrance has ceased to exist. If this is not done, the neutral power must order it to be done at once; and if its order is disobeyed, it must use all the means in its power to release the prize with its officers and men, and to confine the crew sent on board by the captor. The same rule applies to prizes which are brought into a neutral port without the reasons stated; except that access to neutral ports may be granted to prizes which are to be sequestered pending the decision of a prize court. This last exception, it was hoped, would help to abolish the destruction of neutral prizes.

The stay and transactions of belligerent war ships in neutral waters are regulated by a number of important rules. It is admitted that the neutrality of a state is not compromised by the simple passage through its territorial waters of belligerent war ships and their prizes; and that it can even permit such ships to make use of its licensed

pilots.

A neutral state is conceded the right of imposing its own conditions for admission to its ports and waters, provided it enforces them impartially; and it may even exclude belligerent war ships which ignore such conditions or violate its neutrality.

Belligerent war ships are forbidden, in neutral ports and roadsteads, to repair their damages, except to the extent indispensable to the security of their navigation. These repairs must be effected as quickly as possible and under the supervision of the neutral power.

Belligerents are forbidden to increase, in any manner whatever, their military strength, in neutral waters. And neutral governments are bound to use all the means they possess to prevent, within their jurisdiction, the equipment or armament of any ship which they have reasonable grounds for believing is designed to cruise or to participate in hostile operations against a power with which they are at peace; they are also bound to prevent the departure of any such ship if, within their jurisdiction, it has been adapted wholly or partially to military operations. When this restriction on belligerents and neutrals alike was adopted, the delegation from Brazil proposed an amendment permitting the delivery from neutral dockyards of war ships which have been ordered more than six months before the declaration of war. This proposition was objected to chiefly by Dr. Drago, of Argentina, and was rejected in committee by a vote of seven against two, with five abstentions; and it was not renewed in the commission.

Belligerent war ships are forbidden, within neutral ports or waters, to renew or increase their military stores, their armament, or their crews. Neutral states, too, are forbidden, directly or indirectly, to furnish belligerent