[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].