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Mr. Rolin having been unable to find any form of wording, taking all the objections into account, supports the proposal to abolish the article. The wording suggested by Mr. LAMMASCH also presents a danger, since it appears to stipulate that the functionaries may not remain at their posts without the consent of their Government.

It is necessary to take into account the interests of the populations, which require that the local and municipal functionaries shall be present in order to defend the rights and property of the populations as far as possible against the demands of the invader.

In acting thus the functionaries not only do not fail in their duties, but from a certain standpoint it may even be said that they fulfill an obligation towards their own country. It would therefore be dangerous to adopt a form of wording which might be construed to mean that the functionaries could not remain at their posts without having received permission from their own country.

The President observes that all these questions were discussed at length in 1874. Not only were the necessities of war kept in view, but experience was also taken as a basis, in the desire to safeguard the interests of the populations as much as possible.

If the enemy does not find any functionary at hand, he has no means of being equitable and just, and it is by virtue of the mandate of their own country that the functionaries are the natural defenders and protectors of the inhabitants in their relations with the occupant.

Recognizing the difficulties raised by this article, Mr. MARTENS consents to the proposal to abolish it.

Jonkheer van Karnebeek understands perfectly well how important it is to find mayors and other local authorities ready to place themselves at the disposal of the occupying enemy and to protect the population at the same time. However, there are other authorities whose functions are very important, notably in the Netherlands. These are the authorities in charge of the administration of dikes, of rivers, and of the movement of waters. In case of occupation their cooperation might be indispensable to the defense of the country. To the enemy the assistance of these authorities, who alone know the movement of the waters, would be of the highest importance, but if they were to enter his service this might constitute an act of treason at a time when it is a question of the defense of the country. For this special reason, he can never give his consent to the maintenance of Article 4.

Mr. Veljkovitch remarks that the question is already decided by Article 2. Respect for the laws which exist in the country implies the retention of the functionaries appointed by virtue of those laws.

The President says that the judicious interpretation of Mr. VELJKOVITCH shall be inserted in the minutes.

Article 4 is unanimously omitted.

Article 5 is read:

The army of occupation shall only collect the taxes, dues, duties and tolls imposed for the benefit of the State, or their equivalent, if it is impossible to collect them, and, as far as is possible, in accordance with the existing forms and practice. It shall devote them to defraying the expenses of the administration of the country to the same extent as the legitimate Government was so obligated.

The President says that Mr. ROLIN proposed the following new wordings:

If the occupant collects the taxes for his own benefit, he thereby incurs the obligation to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound.

His Excellency Mr. Beernaert asks that this article be examined at the same time as Articles 40 to 42, because in his opinion there is a connection between them.

Mr. Rolin thinks that Article 5, dealing with existing taxes, sets forth a different principle from that of the articles relating to extraordinary contributions, requisitions, and other charges collected by the occupant.

Jonkheer van Karnebeek observes that the wording proposed by Mr. ROLIN is not preferable to the original text, since it does not specify what taxes are referred to and is less favorable to the invaded country. Therefore, it seems preferable to him from a general standpoint that the text adopted at Brussels should be maintained.

Mr. Rolin points out that by his wording he tried to remove the scruples of which his Excellency Mr. BEERNAERT made mention. He does not disapprove the Brussels text in itself.

His Excellency Mr. Beernaert says that the words "already imposed" should at least be introduced into the proposition of Mr. ROLIN.

[103] Mr. Bihourd says that it is also proper to respect existing forms and usages as regards the collection of the taxes. The wording of Mr. ROLIN seems to him too vague.

Mr. Rolin answers that, since there is here merely a substitution of the authority of the occupant for the legal authority, it would have been sufficient, in his opinion, to say "collects the taxes," which comprises only the existing taxes in their various modes of collection.

Jonkheer van Karnebeek says that in the original text of 1874 he does not see the recognition of a right but only a restriction on the actual power of the invader. The Brussels text which he interprets in this way is more restricted and therefore in his opinion preferable.

Mr. Veljkovitch observes that the enumeration is not complete. Municipal contributions are not comprised therein. He proposes to add "or any other contributions already imposed," and to omit " for the benefit of the State."

The President recalls Article 8, which declares that the property of municipalities shall be treated as private property.

Jonkheer van Karnebeek remarks that as the fundamental purport of this article is that the authority of the occupant is substituted for that of the invaded State, it cannot be admitted that the occupant, by assuming a right which the occupied State does not possess, may take possession of the municipal taxes, which the invaded State itself would not think of appropriating in normal cir

cumstances.

Mr. Veljkovitch remarks that in this eventuality the municipal authorities, being no longer able to discharge their duties, can likewise not collect the municipal taxes and especially the county rate; it is therefore proper for the occupant, whose power is substituted for that of the authorities, to take possession of the said taxes.

Mr. Rolin proposes the following wording, in which he has introduced some modifications, after an exchange of views participated in by his Excellency Mr. Beernaert and Messrs. Bihourd and Beldiman:

If the occupant collects the taxes imposed for the benefit of the State, he shall do so as far as is possible in accordance with the rules of assessment and incidence in force in the territory occupied, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate Government was so bound.

The President observes that it would be desirable to vote first on the complete abolition of the article, then on the Brussels text, and then on Mr. ROLIN'S text as amended following the remarks of Messrs. BIHOURD and BEERNAERT. It seems to him that the original text of Article 5 safeguards the interests of the populations better.

Mr. Beldiman is of the opinion that the proposition of Mr. ROLIN should first be voted on as being in the nature of a compromise between those who ask for the maintenance of Article 5 and those who ask for its abolition.

Jonkheer van Karnebeek thinks it would not be logical to vote for the abolition of the article first. It ought to be decided first what is to be substituted in its stead. If a majority cannot be secured in favor of any new text, it will be proper to vote for the abolition of the article.

It must, however, be remarked that there is but a slight difference between the wording of Mr. Rolin and that of 1874. It is very certain that this assembly wishes to meet the objections formed by his Excellency Mr. BEERNAERT, but perhaps the latter, in order to prevent a confusion in the discussion and the vote, would be willing on his part to make a concession by supporting the original wording of 1874. Of course this would be done with the understanding that the article should be construed as meaning that the invader should not be recognized therein as having any rights.

His Excellency Mr. Beernaert has already expressed his desire to have a perfect agreement reached. However, he could not vote ad referendum in the sense desired by Mr. VAN KARNEBEEK.

The President puts to vote the complete abolition of Article 5 with the understanding that no other provision is to be substituted therefor.

The following voted against this abolition: Germany, United States, Austria-Hungary, China, Denmark, France, Great Britain, Italy, Japan, Luxemburg, Mexico, Netherlands, Portugal, Roumania, Russia, Serbia, Sweden and Norway, and Turkey.

The following voted for the abolition: Belgium, under reservation of what may be substituted for the article submitted to vote, Spain, Persia, Siam (with the same reservation as made by the delegate from Belgium), Switzerland, and Bulgaria.

[104] Jonkheer van Karnebeek asks his Excellency Mr. BEERNAERT whether he could not, with a view to securing unanimity, agree to the text of Mr.

ROLIN.

Unanimity would be well worth a concession. On his part, although preferring that the text of 1874 should be maintained, he would consent to adopt Mr. ROLIN's wording.

Baron Bildt declares that he shares the view of Mr. VAN KARNEBEEK.

His Excellency Mr. Beernaert says that he cannot vote for this wording ad referendum, but that he will recommend its adoption to his Government. Mr. ROLIN's wording is unanimously adopted.

The meeting adjourns.

NINTH MEETING

JUNE 12, 1899

Mr. Martens presiding.

The minutes of the eighth meeting are read and adopted.

The President, with a view to facilitating the work of the subcommission, proposes:

1. To have printed without comments the text of all the articles adopted thus far.

2. To appoint a drafting committee composed of Colonel GROSS VON SCHWARZHOFF, Messrs. LAMMASCH and RENAULT, Colonel GILINSKY, Colonel À COURT, General ZUCCARI, and Mr. BELDIMAN, with Mr. ROLIN as reporter. The PRESIDENT will be present at the labors of the committee, whose mission will be the correction and final drafting of the adopted text. The members of the subcommission will, after receiving this text, kindly communicate to the drafting committee their observations or questions. This procedure will enable them to arrive at the final text, as appearing from the minutes and as it may serve for the second reading.

General Zuccari asks that the old and new texts be printed opposite one

another.

The two propositions of the PRESIDENT are adopted.

The order of the day embodies a discussion of Articles 6 to 8.

Before opening the deliberations, the President suggests a modification in the order of the Articles. Article 5, setting forth fundamentally the rights and duties of the occupying State, was adopted with a happy unanimity. Articles 6 and following deal with the rights and duties of the occupant with respect to private property, railroads and the civilian population. Now, Articles 36 to 39, which have already been adopted, relate to similar subjects. There would therefore be an advantage in placing Articles 36 to 39 in Chapter I after Article 5. The subcommission formulated not only the rights, but also the duties of the occupant in regard to private property, peaceful persons, and families. This is the place to determine the restrictions to be placed on the principle of respect for private property by means of contributions and requisitions.

Accordingly there is no reason for discussing again Articles 36 to 39, which have already been adopted. Articles 40 to 42 might be taken up, to be then followed by Articles 6 and 7, which treat of the material interests of the occupied State. It will be seen what distinction is to be established between private property which is inviolable on land and the property of the State. Articles 9 to 11, which will remain to be examined, concern the combatants, their rights and their duties.

Mr. Bihourd is of opinion that the proposal of the PRESIDENT is worthy of approval. But he thinks that the drafting committee ought to be assigned the task of finding the final logical order of the articles.

The subcommission shares this view.

Articles 40, 41 and 42 are now read:

ARTICLE 40

As private property should be respected, the enemy will demand from communes or inhabitants only such payments and services as are connected with the generally [105] recognized necessities of war, in proportion to the resources of the country, and not implying, with regard to the inhabitants, the obligation of taking part in operations of war against their country.

ARTICLE 41

The enemy in levying contributions, whether as an equivalent for taxes (see Article 5) or for payments that should be made in kind, or as fines, shall proceed, so far as possible, only in accordance with the rules for incidence and assessment in force in the territory occupied.

The civil authorities of the legitimate Government shall lend it their assistance if they have remained at their posts.

Contributions shall be imposed only on the order and on the responsibility of the commander in chief or the superior civil authority established by the enemy in the occupied territory.

For every contribution a receipt shall be given to the person furnishing it.

ARTICLE 42

Requisitions shall be made only with the authorization of the commander in the territory occupied.

For every requisition indemnity shall be granted or a receipt delivered.

The President states that the following amendments are up for consideration:

1. His Excellency Mr. BEERNAERT desires to see these articles omitted and proposes two new articles thus worded:

A. The occupying army shall be allowed to collect taxes in the occupied territory only in accordance with the decision and under the responsibility either of the commander in chief or of the superior civil authorities instituted by him.

These taxes shall, as far as possible, be established in accordance with the rules of assessment and distribution in force in the occupied territories. B. The occupying army shall be allowed to make requisitions in kind. only on the written order of the officer commanding the occupied locality. For every requisition a compensation shall be allowed or a receipt delivered.

2. Mr. ROLIN, reporter, has proposed an Article 5a to take the place of Article 41:1

If the occupant levies extraordinary contributions, either by way of fines, or as an equivalent for unpaid taxes or payments not furnished in kind, he shall proceed so far as possible only in accordance with the local rules governing incidence and assessment.

1 See annex A.

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