CHAPTER II THE OUTBREAK OF WAR
I COMMENCEMENT OF WAR
Grotius, c. 3, 5-14—Bynkershoek, Quaestiones juris publici, I. c. 2—Vattel, III. §§ 51-65—Hall, § 123—Westlake, II. pp. 18-26, and 267—Lawrence, § 140—Manning, pp. 161-163—Phillimore, III. §§ 51-56—Twiss, II. §§ 31-40—Halleck, I. pp. 521-526—Taylor, §§ 455-456—Moore, VII. §§ 1106-1108—Walker, § 37—Wharton, III. §§ 333-335—Wheaton, § 297—Bluntschli, §§ 521-528—Heffter, § 120—Lueder in Holtzendorff, IV. pp. 332-347—Gareis, § 80—Liszt, § 39, V.—Ullmann, § 171—Bonfils, Nos. 1027-10312—Despagnet, Nos. 513-516—Pradier-Fodéré, VI. Nos. 2671-2693—Nys, III. pp. 118-133—Rivier, II. pp. 220-228—Calvo, IV. §§ 1899-1911—Fiore, III. Nos. 1272-1276, and Code, 1422-1428—Martens, II. § 109—Longuet, §§ 1-7, 15-16—Mérignhac, pp. 29-41—Pillet, pp. 61-72—Lawrence, War, pp. 26-44—Barclay, pp. 53-58—Boidin, pp. 116-121—Bordwell, pp. 198-200—Higgins, pp. 202-205—Holland, War, § 16—Lémonon, pp. 309-406—Nippold, II. pp. 6-10—Scott, Conferences, pp. 516-522—Spaight, pp. 20-33—Ariga, §§ 11-12—Takahashi, pp. 1-25—Land Warfare, §§ 8-10—Holland, Studies, p. 115—Sainte-Croix, La Déclaration de guerre et ses effets immédiats (1892)—Bruyas, De la déclaration de guerre, etc. (1899)—Tambaro, L'inizio della guerra et la 3a convenzione dell' Aja del 1907 (1911)—Maurel, De la déclaration de guerre (1907)—Soughimoura, De la Déclaration de Guerre (1912)—Brocher in R.I. IV. (1872), p. 400; Férand-Giraud in R.I. XVII. (1885), p. 19; Nagaoka in R.I. 2nd Ser. VI. p. 475—Rolin in Annuaire, XX. (1904), pp. 64-70—Ebren and Martens in R.G. XI. (1904), pp. 133 and 148—Dupuis in R.G. XIII. (1906), pp. 725-735—Stowell in A.J. II. (1908), pp. 50-62.
Commencement of War in General.
§ 93. According to the former practice of the States a condition of war could de facto arise either through a declaration of war; or through a proclamation and manifesto of a State that it considered itself at war with another State; or through the committal by one State of certain hostile acts of force against another State. History presents many instances of wars commenced in one of these three ways. Although Grotius (III. c. 3, § 5) laid down the rule that a declaration of war is necessary for its commencement, the practice of the States shows that this rule was not accepted, and many wars have taken place between the time of Grotius and our own without a previous[172] declaration of war. Indeed many writers,[173] following the example of Grotius, have always asserted the existence of a rule that a declaration is necessary for the commencement of war, but it cannot be denied that until the Second Peace Conference of 1907 such a rule was neither sanctioned by custom nor by a general treaty of the Powers. Moreover many writers[174] distinctly approved of the practice of the Powers. This does not mean that in former times a State would have been justified in opening hostilities without any preceding conflict. There was, and can be, no greater violation of the Law of Nations than for a State to begin hostilities in time of peace without previous controversy and without having endeavoured to settle the conflict by negotiation.[175] But if negotiation had been tried without success, a State did not act treacherously in case it resorted to hostilities without a declaration of war, especially after diplomatic intercourse had been broken off. The rule, adopted by the First Peace Conference of 1899—see article 2 of the Conventions for the peaceful settlement of international differences of 1899 and 1907—which stipulates that, as far as circumstances allow, before the appeal to arms recourse must be had to the good offices or mediation of friendly Powers, did not essentially alter matters, for the formula as far as circumstances allow leaves practically everything to the discretion of the Power bent on making war.
The outbreak of war between Russia and Japan in 1904 through Japanese torpedo boats attacking Russian men-of-war at Port Arthur before a formal declaration of war, caused a movement for the establishment of some written rules concerning the commencement of war. The Institute of International Law, at its meeting at Ghent in 1906, adopted three principles[176] according to which war should not be commenced without either a declaration of war or an ultimatum, and in either case a certain delay sufficient to ensure against treacherous surprise must be allowed before the belligerent can have recourse to actual hostilities. The Second Peace Conference at the Hague in 1907 took the matter up and produced the Convention (III.) relative to the commencement of hostilities which comprises four articles and has been signed by all the Powers represented at the Conference, except China and Nicaragua, both of which, however, acceded later.
[172] See Maurice, Hostilities without Declaration of War (1883).
[173] See, for instance, Vattel, III. § 51; Calvo, IV. § 1907; Bluntschli, § 571; Fiore, III. No. 1274; Heffter, § 120.
[174] See, for instance, Bynkershoek, Quaestiones juris publici, I. c. 2; Klüber, § 238; G. F. Martens, § 267; Twiss, II. § 35: Phillimore, III. §§ 51-55; Hall, § 123; Ullmann (first edition), § 145; Gareis, § 80.
[175] See above, § [3], where the rule is quoted that no State is allowed to make use of compulsive means of settling differences before negotiation has been tried.
[176] See Annuaire, XXI. (1906), p. 283.
Declaration of War.
§ 94. According to article 1 of Convention III. hostilities must not commence without a previous and unequivocal warning, and one of the forms which this warning may take is a declaration of war stating the reasons why the Power concerned has recourse to arms.
A declaration of war is a communication of one State to another that the condition of peace between them has come to an end and a condition of war has taken its place. In former times declarations of war used to take place under greater or lesser solemnities, but during the last few centuries all these formalities have vanished, and a declaration of war nowadays may take place through a simple communication. The only two conditions with which, according to article 1, declarations of war must comply are, that they must be unmistakable, and that they must state the reason for the resort to arms. No delay between the declaration and the actual commencement of hostilities is stipulated, and it is, therefore, possible for a Power to open hostilities immediately after the communication of the declaration of war to the enemy. All the more is it necessary to emphasise that there could be no greater violation of the Law of Nations than that which would be committed by a State which sent a declaration to another without previously having tried to settle the difference concerned by negotiation.
However this may be, the question as to the way in which the communication of the declaration of war is to be made requires attention. Since there is nowhere a rule expressly formulated according to which the declaration must be communicated in writing, it might be asserted that communication by any means, be it by a written document, by telegraph or by telephone message, or by direct word of mouth, is admissible. I believe that such an assertion cannot be supported. The essential importance of the declaration of war and the fact that according to article 1 of Convention III. it must be unmistakable and must state the reason for the resort to arms, would seem to require a written document which is to be handed over to the other party by an envoy. Further, the fact that article 2 of Convention III. expressly enacts that the notification of the outbreak of war to neutrals may even be made by telegraph, points the same way, for the conclusion is justified that the declaration of war stipulated as necessary by article I may not be made by telegraph. And if a telegraph message is inadmissible, much more are telephone messages and communications by word of mouth. Moreover, the practice of the States throughout the last centuries has been to hand in a written declaration of war, when any declaration has been made.
Particular attention must be paid to the fact that, in case of a declaration of war, the war, as between the belligerents, is considered to have commenced with the date of its declaration, although actual hostilities may not have been commenced until a much later date. On the other hand, as regards relations between the belligerents and neutrals, a war is not considered to have commenced until its outbreak has either been notified to the neutrals or has otherwise become unmistakably known to them. For this reason, article 2 of Convention III. enacts that the belligerents must at once after the outbreak of war notify[177] the neutrals, even if only by telegraph, and that the state of war shall not take effect with regard to neutrals until after they have received notification, unless it be established beyond doubt that they were in fact aware of the condition of war.
Ultimatum.
§ 95. The second form which the unequivocal warning, stipulated by article 1 of Convention III. as necessary before the commencement of hostilities, may take is an ultimatum with a conditional declaration of war.
Ultimatum[178] is the technical term for a written communication of one State to another which ends amicable negotiations respecting a difference, and formulates, for the last time and categorically, the demands to be fulfilled if other measures are to be averted. An ultimatum may be simple or qualified. It is simple in case it does not include an indication of the measures contemplated by the Power sending it; such measures may be acts of retorsion or reprisals, or hostilities. It is qualified if it includes an indication of the measures contemplated by the Power sending it, for instance a pacific blockade, occupation of a certain territory, or war. Now the ultimatum stipulated by article 1 of Convention III. must be a qualified one, for it must be so worded that the recipient can have no doubt about the commencement of war in case he does not comply with the demands of the ultimatum. For this reason, if a State has sent a simple ultimatum to another, or a qualified ultimatum threatening a measure other than war, it is not, in case of non-compliance, justified in at once commencing hostilities without a previous declaration of war. For this reason, Italy sent a declaration of war to Turkey in 1911, although an ultimatum threatening the occupation of Tripoli had preceded it.
Nothing is enacted by article 1 of Convention III. concerning the minimum length of time which an ultimatum must grant before the commencement of hostilities; this period may, therefore, be only very short, as, for instance, a number of hours. All the more is it necessary here likewise to emphasise that there could be no greater violation of the Law of Nations than that which would be committed by a State which sent an ultimatum without previously having tried to settle the difference concerned by negotiation.
It must be specially observed that the state of war following an ultimatum must likewise be notified to neutrals, for article 2 of Convention III. applies to this case also. And it must further be observed that, for the same reason as in the case of a declaration of war, an ultimatum containing a conditional declaration of war must be communicated to the other party by a written document.
Initiative hostile Acts of War.
§ 96. There is no doubt that, in consequence of Convention III. of the Second Peace Conference, the recourse to hostilities without a previous declaration of war or qualified ultimatum is forbidden. But the fact must not be overlooked that a war can nevertheless break out without these preliminaries. Thus a State might deliberately order hostilities to be commenced without a previous declaration of war or qualified ultimatum. Further, the armed forces of two States having a grievance against one another might engage in hostilities without having been authorised thereto and without the respective Governments ordering them to desist from further hostilities. Again, acts of force by way of reprisals or during a pacific blockade or an intervention might be forcibly resisted by the other party, hostilities breaking out in this way.
It is certain that States which deliberately order the commencement of hostilities without a previous declaration of war or qualified ultimatum, commit an international delinquency, but they are nevertheless engaged in war. Further, it is certain that States which allow themselves to be dragged into a condition of war through unauthorised hostile acts of their armed forces, commit an international delinquency, but they are nevertheless engaged in war. Again, war is actually in existence if the other party forcibly resists acts of force undertaken by a State by way of reprisals, or during a pacific blockade or an intervention. Now in all these and similar cases, although war has broken out without a previous declaration or qualified ultimatum, all the laws of warfare must find application, for a war is still war in the eyes of International Law even though it has been illegally commenced, or has automatically arisen from acts of force which were not intended to be acts of war.
However that may be, article 2 of Convention III. also applies to wars which have broken out without a previous declaration or qualified ultimatum, and the belligerents must without delay send a notification to neutral Powers so that these may be compelled to fulfil the duties of neutrality. But, of course, neutral Powers must in this case likewise, even without notification, fulfil the duties of neutrality if they are unmistakably aware of the outbreak of war.
II EFFECTS OF THE OUTBREAK OF WAR
Vattel, III. § 63—Hall, §§ 124-126—Westlake, II. pp. 29-32—Lawrence, §§ 143-146—Manning, pp. 163-165—Phillimore, III. §§ 67-91—Twiss, II. §§ 41-61—Halleck, I. pp. 526-552, and II. pp. 124-140—Taylor, §§ 461-468—Walker, §§ 44-50—Wharton, III. §§ 336-337A—Wheaton, §§ 298-319—Moore, V. § 779, and VII. §§ 1135-1142—Heffter, §§ 121-123—Lueder in Holtzendorff, IV. pp. 347-363—Gareis, § 81—Liszt, § 39, V.—Ullmann, § 173—Bonfils, Nos. 1044-1065—Despagnet, Nos. 517-519—Pradier-Fodéré, VI. Nos. 2694-2720—Nys, III. pp. 134-150—Rivier, II. pp. 228-237—Calvo, IV. §§ 1911-1931—Fiore, III. Nos. 1290-1301, and Code, Nos. 1439-1445—Martens, II. § 109—Longuet, §§ 8-15—Mérignhac, pp. 72-84—Pillet, pp. 42-59—Bordwell, pp. 200-211—Spaight, pp. 25-33—Ariga, §§ 13-15—Takahashi, pp. 26-88—Lawrence, War, pp. 45-55—Sainte-Croix, La Déclaration de guerre et ses effets immédiats (1892), pp. 166-207—Meyer, De l'interdiction du commerce entre les belligérants (1902)—Jaconnet, La guerre et les traités (1909)—Politis in Annuaire XXIII. (1910), pp. 251-282, and XXIV. (1911), pp. 200-223.
General Effects of the Outbreak of War.
§ 97. When war breaks out, even if it be limited to only two members of the Family of Nations, nevertheless the whole Family of Nations is thereby affected, since the rights and duties of neutrality devolve upon such States as are not parties to the war. And the subjects of neutral States may feel the consequences of the outbreak of war in many ways. War is not only a calamity to the commerce and industry of the whole world, but also involves the alteration of the legal position of neutral merchantmen on the Open Sea, and of the subjects of neutral States within the boundaries of the belligerents. For the belligerents have the right of visit, search, and eventually capture of neutral merchantmen on the Open Sea, and foreigners who remain within the boundaries of the belligerents, although subjects of neutral Powers, acquire in a degree and to a certain extent enemy character.[179] However, the outbreak of war tells chiefly and directly upon the relations between the belligerents and their subjects. Yet it would not be correct to maintain that all legal relations between the parties thereto and between their subjects disappear with the outbreak of war. War is not a condition of anarchy, indifferent or hostile to law, but a condition recognised and ruled by International Law, although it involves a rupture of peaceful relations between the belligerents.
Rupture of Diplomatic Intercourse and Consular Activity.
§ 98. The outbreak of war causes at once the rupture of diplomatic intercourse between the belligerents, if such rupture has not already taken place. The respective diplomatic envoys are recalled and ask for their passports, or receive them without any previous request, but they enjoy their privileges of inviolability and exterritoriality for the period of time requisite for leaving the country. Consular activity likewise comes to an end through the outbreak of war.[180]
[180] See above, [vol. I. §§ 413] and [436].
Cancellation of Treaties.
§ 99. The doctrine was formerly held, and a few writers[181] maintain it even now, that the outbreak of war ipso facto cancels all treaties previously concluded between the belligerents, such treaties only excepted as have been concluded especially for the case of war. The vast majority of modern writers on International Law have abandoned this standpoint,[182] and the opinion is pretty general that war by no means annuls every treaty. But unanimity as to what treaties are or are not cancelled by war does not exist. Neither does a uniform practice of the States exist, cases having occurred in which States have expressly declared[183] that they considered all treaties annulled through war. Thus the whole question remains as yet unsettled. Nevertheless a majority of writers agree on the following points:—
(1) The outbreak of war cancels all political treaties between the belligerents which have not been concluded for the purpose of setting up a permanent condition of things, for instance, treaties of alliance.
(2) On the other hand, it is obvious that such treaties as have been especially concluded for the case of war are not annulled, such as treaties in regard to the neutralisation of certain parts of the territories of the belligerents.
(3) Such political and other treaties as have been concluded for the purpose of setting up a permanent[184] condition of things are not ipso facto annulled by the outbreak of war, but nothing prevents the victorious party from imposing upon the other party in the treaty of peace any alterations in, or even the dissolution of, such treaties.
(4) Such non-political treaties as do not intend to set up a permanent condition of things, as treaties of commerce for example, are not ipso facto annulled, but the parties may annul them or suspend them according to discretion.
(5) So-called law-making[185] treaties, as the Declaration of Paris for example, are not cancelled by the outbreak of war. The same is valid in regard to all treaties to which a multitude of States are parties, as the International Postal Union for example, but the belligerents may suspend them, as far as they themselves are concerned, in case the necessities of war compel them to do so.[186]
[181] See, for instance, Phillimore, III. § 530, and Twiss, I. § 252, in contradistinction to Hall, § 125.
[182] See Jaconnet, op. cit. pp. 113-128.
[183] As, for instance, Spain in 1898, at the outbreak of the war with the United States of America, see Moore, V. pp. 375-380.
[184] Thus American and English Courts—see the cases of the Society for the Propagation of the Gospel v. Town of Newhaven (1823), 8 Wheaton 464, and Sutton v. Sutton (1830), 1 Russel & Mylne, 663—have declared that article IX. of the treaty of Nov. 19, 1794, between Great Britain and the United States was not annulled by the outbreak of war in 1812. See Moore, V. § 779 and Westlake, II. p. 30; see also the foreign cases discussed by Jaconnet, op. cit. pp. 168-179.
[185] See above, [vol. I. §§ 18,] [492, ] [555]-568b.
[186] The Institute of International Law is studying the whole question of the effect of war on treaties; see Politis, l.c., and especially Annuaire, XXIV. (1911), pp. 201-213, and 220-221.
Precarious position of Belligerents' subjects on Enemy Territory.
§ 100. The outbreak of war affects likewise such subjects of the belligerents as are at the time within the enemy's territory. In former times they could at once be detained as prisoners of war, and many States, therefore, concluded in time of peace special treaties for the time of war expressly stipulating a specified period during which their subjects should be allowed to leave each other's territory unmolested.[187] Through the influence of such treaties, which became pretty general during the eighteenth century, it became an international practice that, as a rule, enemy subjects must be allowed to withdraw within a reasonable period, and no instance of the former rule has occurred during the nineteenth[188] century. Although some[189] writers even nowadays maintain that according to strict law the old rule is still in force, it may safely[190] be maintained that there is now a customary rule of International Law, according to which all such subjects of the enemy as have not according to the Municipal Law of their country to join the armed forces of the enemy must be allowed a reasonable period for withdrawal. On the other hand, such enemy subjects as are active or reserve officers, or reservists, and the like, may be prevented from leaving the country and detained as prisoners of war, for the principle of self-preservation must justify belligerents in refusing to furnish each other with resources which increase their means of offence and defence.[191] However that may be, a belligerent need not allow[192] enemy subjects to remain on his territory, although this is frequently done. Thus, during the Crimean War Russian subjects in Great Britain and France were allowed to remain there, as were likewise Russians in Japan and Japanese in Russia during the Russo-Japanese War, and Turks in Italy during the Turco-Italian War. On the other hand, France expelled all Germans during the Franco-German war in 1870; the former South African Republics expelled most British subjects when war broke out in 1899; Russia, although during the Russo-Japanese War she allowed Japanese subjects to remain in other parts of her territory, expelled them from her provinces in the Far East; and in May 1912, eight months after the outbreak of the Turko-Italian War, Turkey decreed the expulsion of all Italians, certain classes excepted. In case a belligerent allows the residence of enemy subjects on his territory, he can, of course, give the permission under certain conditions only, such as an oath to abstain from all hostile acts or a promise not to leave a certain region, and the like. And it must be especially observed that an enemy subject who is allowed to stay in the country after the outbreak of war must not, in case the forces of his home State militarily occupy the part of the country inhabited by him, join these forces or assist them in any way. If, nevertheless, he does so, he is liable to be punished for treason[193] by the local Sovereign after the withdrawal of the enemy forces.
[187] See a list of such treaties in Hall, § 126, p. 107, note 1.
[188] With regard to the 10,000 Englishmen who were arrested in France by Napoleon at the outbreak of war with England in 1803 and kept as prisoners of war for many years, it must be borne in mind that Napoleon did not claim a right to make such civilians prisoners of war as were at the outbreak of war on French soil. He justified his act as one of reprisals, considering it a violation of the Law of Nations on the part of England to begin hostilities by capturing two French merchantmen in the Bay of Audierne without a formal declaration of war. See Alison, History of Europe, V. p. 277, and Bonfils, No. 1052.
[189] See Twiss, II. § 50; Rivier, II. p. 320; Liszt, § 39, V.; Holland, Letters upon War and Neutrality (1909), p. 39.
[190] See Land Warfare, § 12.
[191] See Land Warfare, § 13.
[192] See above, [vol. I. § 324].
[193] See above, [vol. I. § 317], p. 394, where the case of De Jager v. Attorney General is discussed.
Persona standi in judicio on Enemy Territory.
§ 100a. Formerly the rule prevailed everywhere that an enemy subject has no persona standi in judicio and is, therefore, ipso facto by the outbreak of war, prevented from either taking or defending proceedings in the Courts. This rule dates from the time when war was considered such a condition between belligerents as justified the committing of hostilities on the part of all subjects of the one belligerent against all subjects of the other, and, further, the killing of all enemy subjects irrespective of sex and age, and, at any rate, the confiscation of all private enemy property. War in those times used to put enemy subjects entirely ex lege, and it was only a logical consequence from this principle that enemy subjects could not sustain persona standi in judicio. Since the rule that enemy subjects are entirely ex lege has everywhere vanished, the rule that they may not take or defend proceedings in the Courts has in many countries, such as Austria-Hungary, Germany, Holland, and Italy, likewise vanished. But in Great Britain and the United States of America[194] enemy subjects are still prevented from taking and defending legal proceedings,[195] although there are six exceptions to the general rule. Firstly, enemy subjects who do not bear enemy character because they are resident in neutral country or have a licence to trade or are allowed[196] to remain in the country of a belligerent, are therefore permitted to sue and be sued in British and American Courts. Secondly, if during time of peace a defendant obtains an opportunity to plead, and if subsequently war breaks out with the country of the plaintiff, the defendant may not plead that the plaintiff is prevented from suing.[197] Thirdly, if a contract was entered into and executed before the war, and if an absent enemy subject has property within the boundaries of a belligerent, he may be sued.[198] Fourthly, a prisoner of war[199] may sue during war on a contract for wages. Fifthly, if the parties, being desirous to obtain a decision on the merits of the case, waive the objection, enemy subjects may sue and be sued.[200] Lastly, a petition on the part of a creditor who is an enemy subject, to prove a debt under a commission of bankruptcy must be admitted[201] although the dividend will not be paid till after the conclusion of peace.
[194] In strict law also in France.
[195] The leading case is the Hoop (1799), 1 C. Rob. 196.
[196] Wells v. Williams (1698), 1 Lord Raymond, 282.
[197] Shepeler v. Durand (1854), 14 P.C. 582.
[198] Dorsey v. Kyle (1869), 3 Maryland, 512. It would seem that the American Courts are inclined to drop the rule that an enemy subject cannot be sued; see De Jarnett v. De Giversville (1874), 56 Missouri, 440.
[199] Maria v. Hall (1800), 2 B. & P. 236.
[200] Driefontein Consolidated Gold Mines Co. v. Janson (1910), 2 Q.B. 419; App. Cas. (1902), 484.
[201] Ex parte Boussmaker (1806), 13 Vesey Jun. 71.
It is asserted that, in consequence of article 23 (h) of the Hague Regulations concerning land warfare enacting the injunction "to declare extinguished, suspended, or unenforceable in a Court of Law the rights and rights of action of the nationals of the adverse party," Great Britain and the United States are compelled to abolish their rule that enemy subjects may not sue. But the interpretation of article 23 (h) is controversial, Great Britain and the United States of America—in contradistinction to Germany and France—maintaining that the article has nothing to do with their Municipal Law but concerns the conduct of armies in occupied enemy territory.[202]
[202] It is impossible here to discuss the details of this controversy which the third Peace Conference must settle. See above, [ vol. I. § 554, No. 10;] Politis in R.G. XVIII. (1911), pp. 249-259, and the literature there quoted; Kohler in Z.V. V. (1911), pp. 384-393; Holland in The Law Quarterly Review, XXVIII. (1912), pp. 94-98; Charteris in The Juridical Review, XXIII. (1911), pp. 307-323; Oppenheim, Die Zukunft des Völkerrechts (1911), pp. 30-32.
However this may be, it must be especially observed that, according to British and American law, claims arising out of contracts concluded before the war do not become extinguished through the outbreak of war, but are only suspended during war, and the Statute of Limitations does not, according to American[203] practice at any rate, run during war.
[203] Hanger v. Abbot (1867), 6 Wallace, 532. The point is not settled in English law, for the obiter dictum in De Wahl v. Browne (1856), 25 L.J. (N.S.) Ex. 343, "It may be that the effect would ultimately be to bar the action by reason of the Statute of Limitations is no answer...", is not decisive, although Anson, Principles of the English Law of Contract (11th ed. 1906), p. 122, and other writers accept it as decisive.
Intercourse, especially Trading, between Subjects of Belligerents.
§ 101. Following Bynkershoek,[204] all British and American writers and cases, and also some French[205] and German[206] writers assert the existence of a rule of International Law that all intercourse, and especially trading, is ipso facto by the outbreak of war prohibited between the subjects of the belligerents, unless it is permitted under the customs of war, as, for instance, ransom bills, or is allowed under special licences, and that all contracts concluded between the subjects of the belligerents before the outbreak of war become extinct or suspended. On the other hand, most German, French, and Italian writers deny the existence of such a rule, but assert the existence of another according to which belligerents are empowered to prohibit by special orders all trade between their own and enemy subjects.
[204] Quaestiones juris publici, I. c. 3: "quamvis autem nulla specialis sit commerciorum prohibitio ipsa tamen jure belli commercia sunt vetita."
[205] For instance, Pillet, p. 74, and Mérignhac, p. 57.
[206] For instance, Geffcken in his note 4 to Heffter, p. 265.
These assertions are remnants of the time when the distinction[207] between International and Municipal Law was not, or not clearly, drawn. International Law, being a law for the conduct of States only and exclusively, has nothing to do directly with the conduct of private individuals, and both assertions are, therefore, nowadays untenable. Their place must be taken by the statement that, States being sovereign and the outbreak of war bringing the peaceful relations between belligerents to an end, it is within the competence of every State to enact by its Municipal Law such rules as it pleases concerning intercourse, and especially trading, between its own and enemy subjects. And if we look at the Municipal Laws of the several countries, we find that they have to be divided into two groups. To the one group belong those States—such as Austria-Hungary, Germany, Holland, and Italy—whose Governments are empowered by their Municipal Laws to prohibit by special order all trading with enemy subjects at the outbreak of war. In these countries trade with enemy subjects is permitted to continue after the outbreak of war unless special prohibitive orders are issued. To the other group belong those States—such as Great Britain, the United States of America, and, unless desuetudo[208] has made an alteration, France—whose Municipal Laws declare trade and intercourse with enemy subjects ipso facto by the outbreak of war prohibited, but empowers the Governments to allow by special licences all or certain kinds of such trade.
[207] See above, [vol. I. § 20].
[208] See Meyer, op. cit. p. 91.
As regards the law of Great Britain[209] and the United States of America, it has been, since the end of the eighteenth century, an absolutely settled[210] rule of the Common Law that, certain cases excepted, all trading with alien enemies is ipso facto by the outbreak of war illegal unless it is allowed by special licences of the Crown. From the general principle asserted in the leading cases,[211] the Courts have drawn the following more important consequences:—
(1) All contracts, entered into
during
a war,
with alien enemies without a special licence are illegal, invalid, and can never be enforced, unless the contract was one entered into in case of necessity,
or in order to supply
an invading English army or the English fleet, or by prisoners
of war concerning personal services and requirements. (2) Trading with the enemy does not become legal by the fact that goods coming from the enemy country to Great Britain, or going from Great Britain to the enemy country, are sent to their destination through a neutral country.
(3) As regards contracts entered into
before
the outbreak of war, a distinction must be drawn:—(
a
) Executory contracts are avoided, both parties being released from performance. (
b
) Contracts executed before the outbreak of war and not requiring to be acted upon during the war are suspended until after the conclusion of peace. (
c
) Executed contracts which require acting upon during the war are dissolved. (4) Partnerships
with alien enemies are dissolved. (5) No interest runs on debts
or mortgages.
(6) A contract of affreightment
must not be fulfilled; therefore English ships must not load or unload goods in an enemy port. (7) Contracts of insurance of enemy vessels and goods are so to be construed as to contain a proviso that the assurance shall not cover any loss occurring during a war between the country of the assurer and the country of the assured.
(8) A life insurance policy,
entered into before the outbreak of war conditioning the payment of yearly premiums on pain of forfeiture of the policy, is forfeited
ipso facto
by the outbreak of war because the payment of the premium is now prohibited. After the conclusion of peace, however, the insured may claim the equitable value of the policy arising, at the time of the outbreak of war, from the premiums actually paid.
[209] See besides the English and American text-books quoted above at the commencement of § [97], Pennant, Chadwick, and Gregory in The Law Quarterly Review, XVIII. (1902), pp. 289-296, XX. (1904), pp. 167-185, XXV. (1909), pp. 297-316; Bentwich, The Law of Private Property in War (1907), pp. 46-61; Phillipson, The Effect of War on Contracts (1909); Latifi, Effects of War on Property (1909), pp. 50-58.
[210] Whereas the Admiralty Court did at all times, the Common Law Courts did not during the eighteenth century hold trading with enemy subjects to be illegal, at any rate not in so far as insurance of enemy vessels and goods against capture on the part of English cruisers was concerned; see Henkle v. London Exchange Assurance Co. (1749), 1 Vesey Sen. 320; Planche v. Fletcher (1779), 1 Dougl. 251; Lavabre v. Wilson (1779), 1 Dougl. 284; Gist v. Mason (1786), 1 T.R. 84.
[211] Besides the Admiralty case of the Hoop (1799), 1 C. Rob. 196, the following are the leading cases:—Potts v. Bell (1800), 8 D. & E. 548; Furtado v. Rodgers (1802), 3 P. & B. 191; Esposito v. Bowden (1857), 7 E. & B. 763; the Mashona (1900), 10 Cape Times Law Reports, 170.
[212] Willison v. Paterson (1817), 7 Taunt, 439.
[213] Antoine v. Morshead (1815), 6 Taunt, 237.
[214] The Madonna delle Gracie (1802), 4 C. Rob. 195.
[215] Maria v. Hall (1800), 2 B. & P. 236.
[216] The Jonge Pieter (1801), 4 C. Rob. 79. But if the goods have been bought by the subject of a neutral State bona fide by himself and are afterwards shipped through neutral country to the enemy, it is not a case of trading with the enemy; see the Samuel (1802), 4 C. Rob. 284, note.
[217] Melville v. De Wold (1855), 4 E. & B. 844; Esposito v. Bowden (1857), 7 E. & B. 763; Ex parte Boussmaker (1806), 13 Ves. Jun. 71; Alcinous v. Nygreu (1854), 4 E. & B. 217; the Charlotta (1814), 1 Dodson, 390.
[218] Griswold v. Boddington (1819), 16 Johnson, 438; Esposito v. Bowden (1857), 7 E. & B. 763.
[219] Du Belloix v. Lord Waterpark (1822), 1 Dowl. & R. 16; Mayer v. Reed (1867), 37 Gallison, 482.
[220] Hoare v. Allan (1789), 2 Dallas, 102.
[221] Esposito v. Bowden (1857), 7 E. & B. 763. See also the Teutonia (1870), L. R. 4 Privy Council, 171.
[222] Brandon v. Curling (1803), 4 East, 410; but see also Potts v. Bell (1800), 8 D. & E. 548; Furtado v. Rodgers (1802), 3 P. & B. 191; Kellner v. Le Mesurier (1803), 4 East, 396; Gamba v. Le Mesurier (1803), 4 East, 407.
[223] New York Life Insurance Co. v. Stathem, v. Symes, and v. Buck (1876), 93 United States, 24; New York Life Insurance Co. v. Davis (1877), 95 United States, 425.
It must be specially observed that, if the continental interpretation of article 23 (h) of the Hague Regulations—see above, § [100a]—were not contradicted by Great Britain and the United States of America, both countries would be compelled to alter their Municipal Laws in so far as these declare such contracts as have been entered into with alien enemies before the outbreak of war dissolved, void, or suspended. Article 23 (h) distinctly enacts that it is forbidden to declare extinguished or suspended the rights of the nationals of the adverse party. Since, however, as stated above in § [100a], Great Britain and the United States of America uphold a different interpretation, this article does not concern their Municipal Laws respecting trading with alien enemies.
Position of Belligerents' Property in the Enemy State.
§ 102. In former times all private and public enemy property, immoveable or moveable, on each other's territory could be confiscated by the belligerents at the outbreak of war, as could also enemy debts; and the treaties[224] concluded between many States with regard to the withdrawal of each other's subjects at the outbreak of war stipulated likewise the unrestrained withdrawal of the private property of their subjects. Through the influence of such treaties as well as of Municipal Laws and Decrees enacting the same, an international usage and practice grew up that belligerents should neither confiscate private enemy property nor annul enemy debts on their territory. The last case of confiscation of private property is that of 1793 at the outbreak of war between France and Great Britain. No case of confiscation occurred during the nineteenth century, and although several writers maintain that according to strict law the old rule, in contradistinction to the usage which they do not deny, is still valid, it may safely be maintained that it is obsolete, and that there is now a customary rule of International Law in existence prohibiting the confiscation of private enemy property and the annulment of enemy debts on the territory of a belligerent. This rule, however, does not prevent a belligerent from seizing public enemy property on his territory, such as funds, ammunition, provisions, rolling stock of enemy state-railways, and other valuables; from preventing the withdrawal of private enemy property which may be made use of by the enemy[225] for military operations, such as arms and munitions; from seizing and making use of rolling stock belonging to private enemy railway companies, other means of transport of persons or goods which are private enemy property, and, further, all appliances for the transmission of news, although they are private enemy property, provided all these articles are restored and indemnities are paid for them after the conclusion of peace;[226] and from suspending, as a measure of self preservation, the payment of large enemy debts till after the conclusion of peace in order to prevent the increase of resources of the enemy.
[224] See above, § [100]; Moore, VII. § 1196; Scott, Conferences, pp. 559-563.
[225] The indulgence granted to enemy merchantmen in Russian and Japanese ports at the outbreak of the war in 1904, to leave those ports unmolested within a certain period of time, was conditional upon there being no contraband in the cargoes. See Lawrence, War, p. 52.
[226] As the seizure of all these articles is, according to article 53 of the Hague Regulations, permissible in occupied enemy country, provided they are restored and indemnities paid after the conclusion of peace, seizure must likewise—under the same conditions—be permissible in case these articles are on the territory of a belligerent. As regards rolling stock belonging to private enemy railway companies, see Nowacki, Die Eisenbahnen im Kriege (1906), § 15.
Effect of the Outbreak of War on Merchantmen.
§ 102a. In former times International Law empowered States at the outbreak of war to lay an embargo upon all enemy merchantmen in their harbours in order to confiscate them. And enemy merchantmen on the sea could at the outbreak of war be captured and confiscated although they did not even know of the outbreak of war. As regards enemy merchantmen in the harbours of the belligerents, it became, from the outbreak of the Crimean War in 1854, a usage, if not a custom, that no embargo[227] could be laid on them for the purpose of confiscating them, and that a reasonable time must be granted them to depart unmolested; but no rule was in existence until the Second Peace Conference of 1907 which prescribed immunity from confiscation for such enemy merchantmen at sea as did not know of the outbreak of war. This Conference took the matter into consideration, and produced a Convention (VI.) relative to the status of enemy merchantmen at the outbreak of hostilities[228] which is signed by all the Powers represented at the Conference, except the United States of America,[229] China, and Nicaragua; but Nicaragua acceded later. In coming to an agreement on the subject, two facts had to be taken into consideration. There is, firstly, the fact that in all maritime countries numerous merchantmen are now built from special designs in order that they may quickly, at the outbreak of or during war, be converted into cruisers; it would therefore be folly on the part of a belligerent to grant any lenient treatment to such vessels. There is, secondly, the fact, that a belligerent fleet cannot nowadays remain effective for long without being accompanied by a train of colliers, transport vessels, and repairing vessels; it is, therefore, of the greatest importance for a belligerent to have as many merchantmen as possible at his disposal for the purpose of making use of them for such assistance to the fleet. For this reason, Convention VI. represents a compromise, and it distinguishes between vessels in the harbours of the belligerents and vessels on the sea. Its provisions are the following:—
[228] See Lémonon, pp. 647-661; Higgins, pp. 300-307; Nippold, II. pp. 146-153; Scott, Conferences, pp. 556-568; Dupuis, Guerre, Nos. 74-81; Scott in A.J. II. (1908), pp. 260-269.
[229] The United States of America refused to sign the Convention because she considers its stipulations retrogressive as they are less liberal than the practice which has prevailed since 1854. But circumstances have changed since that time, and the two facts explained in the text would seem to have compelled the maritime Powers to adopt rules somewhat less liberal. This was the more necessary since no agreement could be arrived at concerning the question of the locality in which belligerents should be allowed to convert merchantmen into cruisers.
(1) Article 1 of the Convention enacts that, in case an enemy merchantman is at the beginning of the war in the port of a belligerent, it is desirable that she should be allowed freely to depart, either immediately or after a sufficient term of grace, and, after being furnished with a passport, to proceed either direct to her port of destination or to such other port as may be determined. It is obvious that, since only the desirability of free departure of such vessels is stipulated, a belligerent is not compelled to grant free departure; nevertheless there must be grave reasons for not acting in accordance with what is considered desirable by article 1. And it must be specially observed that a belligerent may make a distinction in the treatment of several enemy vessels in his harbours, and may grant free departure to one or more of them, and refuse it to others, according to his discretion.
(2) The former usage that enemy merchantmen in the harbours of the belligerents at the outbreak of war may not be confiscated, has been made a binding rule by article 2 which enacts that such vessels as were not allowed to leave, or were by force majeure prevented from leaving during the term of grace, may not be confiscated, but may only be detained under the obligation that they shall be restored, without indemnity, after the conclusion of peace, or they may be requisitioned on condition of indemnities to be paid to the owners.
(3) Enemy merchantmen which have left their last port of departure before the outbreak of war and which, while ignorant of the outbreak of war, are met at sea by cruisers of the belligerents, may, according to article 3, be captured, but they may not be confiscated, for they must be restored after the war is ended, although no indemnities need be paid. Indemnities are only to be paid in case the vessels have been requisitioned or destroyed, for a belligerent is empowered to requisition or destroy such vessels provided he takes care to preserve the ship papers and makes arrangements for the safety of the persons on board.
It is obvious that, in case such vessels are not ignorant of the outbreak of war—having, for instance, received the news by wireless telegraphy—they may not any longer claim the privileges stipulated by article 3. And this article stipulates expressly that after having touched a port of their own or of a neutral country, such vessels are no longer privileged.
(4) Enemy goods on board such enemy merchantmen as are in the harbour of a belligerent at the outbreak of war or at sea and are in ignorance of the outbreak of war are, according to article 4, privileged to the same extent as the vessels concerned.
(5) Enemy merchantmen whose construction indicates that they are intended to be converted into cruisers may be seized and confiscated in the harbours of the belligerents, as well as at sea, although ignorant of the outbreak of war, for article 5 stipulates expressly that Convention VI. does not affect such vessels.