Would not his Excellency Mr. EYSCHEN be satisfied if the Conference would express a wish to have this question studied by a future conference?

Baron Bildt emphasizes the importance of the proposition of his Excellency Mr. EYSCHEN, whose purpose is great and noble, but he questions whether this subcommission is really the forum where it ought to be discussed. In his opinion, this proposition comes within the sphere of jurisdiction of the Conference in plenary session. It alone can designate a committee to examine the proposition. The subcommission should confine itself to examining the questions of neutrality connected strictly with the Brussels Declaration.

After an exchange of views between the President, his Excellency Mr. Beernaert, Chevalier Descamps, and Count de Selir, Mr. Beldiman expresses himself as being in favor of the principle which his Excellency Mr. EYSCHEN evolved in his statement regarding the question of neutrality. He thinks that, before definitely deciding whether it is proper to enter upon the course suggested by the first delegate from Luxemburg, it would be useful for his Excellency to explain the exact points which might come within the scope of the labors assigned to the subcommission, and to present to the next meeting a more concrete basis for discussion.

This motion, seconded by Chevalier Descamps, is carried by the subcommission.

His Excellency Mr. Eyschen declares that he will endeavor to submit to the subcommission, for discussion at the next meeting, some formulated articles on the questions of neutrality connected with Article 53 and following on the order of the day of this meeting.

Mr. Odier declares that the instructions from his Government do not permit him to enter into a discussion of the questions connected with the rights and duties of neutrals. Nor do these questions, in his opinion, form part of the program of the Conference.

Mr. Stancioff thinks that the question of neutrality does not come within the domain of the labors of the Conference. The Bulgarian delegation will therefore not express an opinion in this regard.

The meeting adjourns.

SIXTH MEETING

JUNE 6, 1899

Mr. Martens presiding.

The minutes of the fifth meeting are read and adopted.

The President has a letter read which was addressed to him by his Excellency Mr. EYSCHEN. This letter, an extract from which has been printed and communicated to the members, is couched in the following terms:

MR. PRESIDENT:

THE HAGUE, June 5, 1899.

I have had the honor to call the attention of the second subcommission to the usefulness of determining the "Rights and duties of neutral States " and I had proposed a preliminary meeting of the delegate members who are specially interested in these questions.

The subcommission was in favor of confining itself to examining the ques[86] tions coming within the scope of the Brussels draft Declaration concerning the laws and customs of war. It asked me to examine whether it would be possible to frame some propositions relating to Articles 53 to 56 of that Declaration.

These articles have in view only the treatment of interned belligerents and wounded persons cared for in neutral countries.

Along this line of ideas we might determine the inviolability of neutrals. and the principles relating thereto, define the obligation of a neutral State not to receive any belligerents on its territory, provide for cases of violation of these principles and the consequences which may result therefrom as regards belligerent and neutral States.

In going into details of wording I could not fail to see that, while this subject may be connected to some slight extent with Articles 53 to 56 of the Brussels Declaration, it is nevertheless much more closely connected with other general principles of neutrality, the simultaneous discussion of which cannot be avoided.

I persist in believing that a general examination of the questions relating to neutrality will be necessary in future.

I should therefore be glad if something could be done along this line and in any event if, in accordance with the suggestion of its honorable President, the Commission would express a vœu that this question be placed on the program of the next congress.

Please accept, Mr. PRESIDENT, the assurances of my high consideration. (Signed) ExSCHEN, Delegate from Luxemburg.

His Excellency Mr. Eyschen says that it is a duty of courtesy for him to give the assembly some explanations as to the direction in which he sought to

discharge his mission. The subcommission had requested him to formulate some propositions connected with the articles concerning the internment of belligerents and the passage of wounded in neutral countries.

The provisions contained in these articles constitute exceptions to the general principle that a neutral State, in its impartiality, should not receive or allow one of the belligerents to pass over its territory.

This general rule might have been formulated, but on the contrary the duty of the belligerent to respect the territory of the neutral State might also have been defined, and this principle might have been reenforced by saying that the inviolability of neutral territory is placed, just as are for instance parlementaires, under the safeguard of the military honor of the belligerents.

Along this line of thought it was again natural to provide for the violation of these principles and the consequences which would arise therefrom with respect to the two parties. This subject has already been treated by Articles 5, 6, and 7 of the conclusions adopted at The Hague by the Institute of International Law under date of August 30, 1875. According to that text it would be necessary, in order to render a Government responsible, that it should have a hostile intention or exhibit real negligence. Only in serious and urgent cases and only during the existence of war has the injured Power the right to consider neutrality as abandoned and to resort to force to defend itself against the State which has violated neutrality. In cases of a minor character or where the matter is not urgent, or after the war is over, complaints of this character should be settled exclusively by arbitration. This jurisdiction decides ex aequo et bono on the question of damages which the neutral State should, by reason of its responsibility, pay to the injured State, either for the State itself or for its nationals.

It must be admitted that a debate arising on these various points had necessarily to involve a discussion of the fundamental rules of neutrality. The subcommission had declared previously that it desired to avoid this result when it decided to adhere as far as possible to an examination of the Brussels Declaration, which is the only thing it considers itself competent to do.

Another incident has come in to modify the situation. Mr. EYSCHEN had declared that he wished to act in this question in concert with the delegates from the States which have an interest similar to that of Luxemburg. The delegate from Switzerland, Dr. Rотн, having had to leave suddenly, it was not even possible to attempt this agreement.

The only thing, therefore, remaining to be done is to prepare for the future. The President proposes to adopt a vau that the question of the regulation [87] of the rights and duties of neutral States be postponed for the study of a future conference.

The subcommission accepts this resolution and mention will be made thereof in the minutes.

The President opens the discussion on Article 53:

A neutral State which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theater of war.

It may keep them in camps and even confine them in fortresses or in places set apart for this purpose.

It shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission.

His Excellency Mr. Eyschen, delegate from Luxemburg, calls the attention

of the subcommission to the peculiar situation in which the treaty of London of 1867 places his country with respect to the matter regulated by Article 53.

The intention of this treaty was to deprive Luxemburg of its ancient strategic importance. It decided that Luxemburg should cease to be a fortified town, that the stronghold should be converted into an open town, that the fortifications should not be restored in future and that no military establishments should be created or maintained. The country is allowed to have only the number of troops necessary for the maintenance of order.

The result is that, by a decision of the Powers, Luxemburg is rendered unable to assume the same obligations as other States. Under these circumstances Mr. EYSCHEN thinks he ought to ask that note be taken of the fact that he called the attention of the Conference to Articles 2, 3, and 5 of the London treaty of May 11, 1867, and that he intends to reserve to his country all the rights which flow therefrom.

The President takes note of the declaration of his Excellency Mr. EYSCHEN. Mr. Stancioff proposes to supplant the words "shall intern them" by "shall remove them."

Upon an explanation by the President, he does not insist on the maintenance of his motion, and the article is adopted without modification.

Article 54, as worded in the Brussels draft, is likewise adopted:

In the absence of a special convention, the neutral State shall supply the interned with the food, clothing, and relief required by humanity.

At the conclusion of peace the expenses caused by the internment shall be made good.

Article 55 is read:

A neutral State may authorize the passage through its territóry of the wounded or sick belonging to the belligerent armies, on condition that the trains bringing them shall carry neither personnel nor material of war.

In such a case, the neutral State is bound to take whatever measures of safety and control are necessary for the purpose.

Lieutenant Colonel von Khuepach thinks it would be suitable to add to the words "personnel nor material of war" in the first paragraph the words "which exceed the amount necessary for the care of the sick and wounded of the convoy."

On the proposition of his Excellency Mr. Beernaert, who points out that such is really the sense of the article, it is decided that the interpretation of the Austro-Hungarian delegate shall be mentioned in the minutes.

General Mounier observes that Article 55 may afford a considerable advantage to one of the belligerents. The passage of the wounded across the neutral territory opens up the line of communication of that army. It may thus communicate more easily with its base of operations. There is therefore here a special advantage in favor of the belligerent who is enabled to profit thereby, and no longer a humanitarian advantage.

His Excellency Mr. Beernaert is of opinion that the article was inspired solely by humanitarian interests. The only thing contemplated was the interest of those wounded on the field of battle.

General Mounier answers that the provision leaves to the neutral the choice of the belligerent to whom he wishes to grant this advantage. It will therefore

be necessary to introduce into the article a restriction as regards the case of vis major or absolute necessity.

His Excellency Mr. Eyschen cites a practical example: In 1870, after the three battles of Metz, Germany asked of Belgium and Luxemburg the permission to have the German and French wounded pass over their territory. Belgium, after consulting England, refused, while Luxemburg on the contrary granted the passage. The reason for Germany's request was as follows: Three days of battle under a burning sun and with a lack of water rendered the sanitary situation most critical. It was a question of the interests of the wounded, and also of the general hygiene of the country.

After Sedan, Germany renewed her request, and this time Belgium granted it. In the park of Bazeilles there were 3,000 wounded, sleeping day and night in the rain. Now, Germany could employ only the Belgian railroads, and Belgium. therefore performed a humane duty.

[88] Mr. EYSCHEN thinks that it is not going too far to say that a neutral State may authorize the passage, provided the general duties of neutrality are observed, which consist in not granting to one what is not granted to the other.

His Excellency Mr. Beernaert answers General MOUNIER that he is right when he says that a neutral who granted passage to one of the belligerents without treating the other likewise would be showing partiality and violating the duties of neutrality; but the very text of the article would be contrary to such a mode of procedure, for it says: "to the armies" and not "to the army."

General Mounier insists on the inequality of treatment which may arise from Article 55, according to circumstances. If the wounded Germans at Sedan were well treated, this was owing to the use of the Belgian railroads.

The example cited by his Excellency Mr. EYSCHEN shows that there was inequality in this case, as there always will be. The wounded confined at Metz could not avail themselves of transportation via Luxemburg. We must look at the question from a more general standpoint. If a Power has the assistance of a neutral railroad for its wounded, its strategic routes for the transportation of its fresh troops are cleared to just that extent.

Chevalier Descamps observes that the question is to find out whether there is any interference in the hostilities on the part of the neutral. This is the sole principle to be kept in view. The question must be asked, not whether a more or less considerable favor has actually been accorded, but whether one of the belligerents has been intentionally favored.

Colonel Gross von Schwarzhoff is of General MOUNIER's opinion as far as the technical question is concerned. However, there are cases in which the laws of humanity ought to be more respected than those of war. As for that matter, though, the inequality is but apparent, for the transportation of the wounded of the two armies gathered upon the field of battle is done by the victorious army, which constitutes a double burden for it.

General Mounier says this also is his opinion; but he merely remarks that the choice is given to the neutral. If the word shall were substituted for the word may the question would no longer be doubtful.

His Excellency Mr. Beernaert protests against this conception. It is impossible to impose on a neutral State the obligation to allow passage over its territory. As a matter of fact, the observation of General MOUNIER Would lead to the suppression of the article.

The President recalls the historical as well as juridical basis of the provi