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.