'Article 46 Absatz 2 bestimmt:—"Das Privateigentum darf nicht eingezogen werden." In konsequenter Durchführung dieses Satzes bestimmt der auf deutschen Antrag 1907 hinzugefügte Article 23(h):—"Untersagt ist die Aufhebung oder zeitweilige Ausserkraftsetzung der Rechte und Forderungen von Angehoerigen der Gegenpartei oder der Ausschliessung ihrer Klagbarkeit."'
Whittuck, International Documents, London 1908, Introduction p. xxvii, says—'In Article 23(h) it is prohibited to declare abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the other belligerent which is a development of the principle that the private property of the subjects of a belligerent is not subject to confiscation. This new prohibition if accepted by this country would necessitate some changes in our municipal law.'
Holland, The Laws of War on Land, 1908, says on p. 5 that:—'Article 23(h) seems to require the Signatory Powers to the convention concerned to legislate for the abolition of an enemy's disability to sustain a persona standi in judicio.' (See also Holland, loco citato, p. 44, where he expresses his doubts concerning the interpretation of Article 23(h).)
Bordwell, The Law of War between Belligerents, Chicago 1908, recognises on page 210 the fact that according to Article 23(h) an alien enemy must now be allowed to sue in the courts of a belligerent, and
Gregory, Professor in the University of Iowa, who reviews Bordwell's work in the American Journal of International Law, Volume 3 (1909), page 788, takes up the same standpoint.
The only author who interprets Article 23(h) in a different way is General Davis, who in his Elements of International Law, 3rd edition 1908, page 578, note 1, says:—
'It is more than probable that this humane and commendable purpose would fail of accomplishment if a military commander conceived it to be within his authority to suspend or nullify their operation, or to regard their application in certain cases as a matter falling within his administrative discretion. Especially is this true where a military officer refuses to receive well grounded complaints, or declines to receive demands for redress, in respect to the acts or conduct of the troops under his command, from persons subject to the jurisdiction of the enemy who find themselves, for the time being, in the territory which he holds in military occupation. To provide against such a contingency it was deemed wise to add an appropriate declaratory clause to the prohibition of Article 23.'
It is very unfortunate that the book of General Davis is not at all known on the Continent, and that therefore none of the continental authors have any knowledge of the fact that a divergent interpretation from their own of Article 23(h) is being preferred by an American author.
It is likewise very unfortunate that neither the English Bluebook on the Second Hague Peace Conference (see Parliamentary Papers, Miscellaneous No. 4, 1907, page 104) nor the official minutes of the proceedings of the Conference, edited by the Dutch Government, give any such information concerning the construction of Article 23(h) as could assist a jurist in forming an opinion regarding the correct interpretation.
It is, however, of importance to take notice of the fact that Article 23(h) is an addition to Article 23 which was made on the proposition of Germany, and that Germany prefers an interpretation of Article 23(h) which would seem to coincide with the interpretation preferred by all the continental writers. This becomes clearly apparent from the German Weissbuch ueber die Ergebnisse der im Jahre 1907 in Haag abgehaltenen Friedensconferenz, which contains on page 7 the following:—