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Art. 44. The chief to whom a flag of truce is sent is not obliged to receive it under all circumstances and in all conditions. He is allowed to take all necessary measures to prevent the bearer of a flag of truce from profiting by his sojourn within the enemy's lines, to the prejudice of the latter, and if the bearer of a fiag of truce has rendered himself culpable of this abuse, he has the right of retaining him temporarily.

He can declare in advance that he will not receive flags of truce during a fixed time.

Flags of truce which shall present themselves after such a notification from the side of the party which shall have received it, shall lose the right to inviolability.

Art. 45. The bearer of a flag of truce loses his right to inviolability if it is proved in a positive and incontrovertible manner that he has profited by his privileged position to provoke or commit an act of

treason.

Capitulations.

Art. 46. The conditions of capitulations are to be debated between the contracting parties.

They shall not be contrary to military honor.

Once fixed by a convention, they shall be scrupulously observed by both parties.

Armistices.

Art. 47. An armistice suspends the operations of war by a mutual agreement of the belligerent parties. If its duration is not determined, the belligerent parties can at any time resume operations; provided, however, that the enemy is notified of it in proper time, conformable to the conditions of the armistice.

Art. 48. An armistice can be general or local. The first suspends everywhere the operations of war of the belligerent state; the latter, only between certain fractions of the belligerent armies, and within fixed lines.

Art. 49. The armistice ought to be official, and without delay notified to the competent authorities and to the troops. Hostilities are suspended immediately after the notification.

Art. 50. It depends on the contracting parties to fix in the clauses of the armistice the relations which can exist between the population.

Art. 51. The violation of the armistice by one of the parties gives to the other the right of denouncing it.

Art. 52. The violation of the clauses of the armistice by private persons, acting on their own initiative, gives right only to demand

the punishment only of those who are guilty, and an indemnity for the losses received, if any.

Belligerents confined and wounded cared for by

neutrals.

Art. 53. The neutral state which receives on its territory troops belonging to the belligerent armies shall confine them as far as possible from the theatre of war.

It shall keep them in camps, and even imprison them in fortresses or in fit places.

It shall decide if the officers can be left free on taking an engagement on parole not to quit the neutral territory without authorization.

Art. 54. In default of a special convention, the neutral state shall furnish to the persons so confined, the food, clothing, and help commanded by humanity.

When peace is made, indemnity shall be given for the expenses occasioned by this confinement.

Art. 55. The neutral state can authorize the passage over its territory of the wounded or sick belonging to the belligerent armies, with the reserve that the trains which bring them shall not transport other soldiers or materials of war. In such a case the neutral state is bound to take the necessary measures of safety and control.

Art. 56. The Geneva Convention is also applicable to the sick and wounded on neutral territory.

APPLICABILITY OF INTERNATIONAL LAW

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ORIENTAL NATIONS.

Paper presented to the Institute of International Law by the author of this Code.

AT the last session of the Institute the following question was, on my motion, referred to a commission: "To what extent, and under what conditions, is the unwritten international law of Europe applicable to Eastern nations?" During a recent voyage around the world, I was led to observe the anomalous condition, with respect to international law, of all those parts of the globe which are not subject to Christian nations. We are not apt to reflect that what we call the law of nations is after all but a collection of rules which Christendom has made or sanctioned for its own people, and that the greater part of the earth is still outside of its authority. Not that it is wholly silent or unobserved beyond America and Europe; I do not mean that. I have seen it appealed to in the correspondence between the governments of China and Japan relating to the affairs of Formosa, and I know that books on international law are studied in both Japan and China, and that the treatise of Mr. Wheaton has been translated into Chinese.

Nevertheless the international relations of the governments and people of China and Japan, and not of them only, but of all nonChristian States, are very different from those which prevail among the States and people of Christendom. In Turkey and all its dependencies, as well in Europe as in Asia, in all of Africa except Liberia and the English and Dutch settlements about the Cape, and in all of Asia except Siberia and Hindostan, the rules of international law, if they are recognized at all, are recognized with many exceptions and modifications.

Phillimore, speaking of Christians in infidel countries, says that "those persons who are entitled to exterritorial privileges retain the domicil of their own country, with all the incidental rights affecting their persons or property." (1 Phil. Int. Law, 2d ed., p. 398, citing HEFFTER.) And, again, "When a person is admitted to exterri

torial privileges, the things that belong to him, and the persons that form part of his household or suite, are, generally speaking, sheltered under the same immunities.

These privileges exempt them from liability to the civil or criminal tribunals. It is, however, possible that even privileged persons, by mixing themselves up with the trade or commerce of the country, or by becoming owners of immovable property therein, might of necessity be in some measure amenable to the civil tribunals."

The privilege does not extend to real or immovable property. This, like the property of the native, is subject to the municipal law of the land."

The United States Consular Regulations of 1867 contain the following in respect to Mohammedan governments: "It may be as sumed, in regard to these, as a principle of the international law of the world, so far as there is any, that unless there be an express agreement to the contrary, no Christian nation admits a full reciprocity of municipal rights, as between itself and any State not Christian, and, therefore, that in the Mohammedan governments above enumerated, Americans possess the rights of exterritoriality which belong to all other Franks." Among the published opinions of the AttorneysGeneral of the United States is one on the functions of consuls (vol. 7, pp. 348, 349), in which are these passages:

"In our relations with nations out of the pale of Christendom we must and shall retain for our citizens and consuls, though we can not concede to theirs, the right of exterritoriality.

"When the countries now Mohammedan shall be subjugated to the doctrines of the Roman law, whether by the arms of Eastern or the arts of Western Europe, is of secondary moment to us, provided it be done; and not until then can they be admitted to the same reciprocal community of private rights with us which prevails in Christian Europe and in America. Until that happens, Turkey and other Moslem States in Africa or Asia may, like China and Japan, enter into the sphere of our public law in the relation of government to government, but not in the relation of government to men. That full interchange of international right is admissible only among the nations which have unity of legal thought, in being governed by or constituted out of the once dissevered but since then partially reunited constituents of the Græco-Roman Empire."

In the case of Mahoney v. The United States (10 Wallace's Reports, 62), the Supreme Court of the United States held, that upon Algiers becoming a French province, the functions of an American Consul previously accredited to that country became ipso facto changed. And the Court observed that "the full reciprocity which by the general rule of international law prevails between Christian States in the exercise of jurisdiction over the subjects or citizens of

each other in their respective territories, is not admitted between a Christian State and a Mohammedan State in the same circumstances."

In the despatch of a former Minister of the United States to China, published by the American Government, this language was used: "The States of Christendom are bound together by treaties which confer mutual rights and prescribe reciprocal obligations; they acknowledge the authority of certain maxims and usages received among them by common consent, and called the law of nations, but which, not being fully acknowledged and observed by the Mohammedan and Pagan States, which occupy the greater part of the globe, is, in fact, only the international law of Christendom.”

In the treaty of 1844 between the United States and China (vol. 8, p. 592, art. 25), it was provided that questions between citizens of the United States in regard to rights, whether of property or person, should be subject to the jurisdiction and regulated by the authorities of their own government. A similar provision is contained in the treaty of 1858 (vol. 12, p. 1023). And the Act of Congress of 1860, passed to carry into effect treaties with China, Japan, Siam. Persia, and other countries, provides that the jurisdiction of the cousuls of the United States in those countries is to be exercised in conformity with the laws of the United States, which were thereby extended over all citizens of the United States, so far as such laws were suitable to carry said treaties into effect, and when defective or unsuitable, the common law, including equity and admiralty, is to be extended in like manner over such citizens in the said countries; "and if defects still remain, to be supplied, and neither the common law, including equity and admiralty, nor the statutes of the United States, furnish appropriate and suitable remedies, the ministers in the said countries respectively shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies."

Notwithstanding these and similar authorities, there are instances in which the local laws of Eastern countries have been applied to dealings between their people and citizens of the United States. Thus in the case of Consequa v. Fanning (3 Johns. Ch., 587), Chancellor KENT decided that the Chinese law, in respect to the interest of money, should be taken as the rule of decision by our Courts.

As a general rule, however, it may be considered certain that the law of nations, as understood in Christendom, is not yet extended in its plenitude to the rest of the world. The reason is obvious. That law was first planted in Europe, and has been cultivated only in Europe and America. Its object is the intercourse and community of nations. The object of all people outside of Christendom has been conquest or isolation and non-intercourse. China shut herself up in fancied superiority; Japan, after admitting foreigners for a hundred

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