THE COMMENCEMENT OF WAR
SECTION 1
Declaration of War
The following letter bears upon the question, much discussed in recent years, of the lawfulness of hostilities commenced without anything amounting to a declaration of war. Although several modern wars, e.g. the Franco-Prussian of 1870, and the Russo-Turkish of 1877, were preceded by declaration, it was hardly possible, in view of the practice of the last two centuries, to maintain, that this was required by international law, and it has never been alleged that any definite interval need intervene between a declaration and the first act of hostilities. On the destruction of the Kowshing, the present writer may further refer to his Studies in International Law, 1898, p. 126, and to Professor Takahashi's International Law during the Chino-Japanese War, 1899, pp. 24, 192. But see now the note at the end of the "Letter" which follows.
Sir,—The words of soberness and truth were spoken with reference to the sinking of the Kowshing in the letter from Professor Westlake which you printed on Friday last. Ignorance dies hard, or, after the appearance of that letter and of your remarks upon it, one might have expected that leading articles would be less lavishly garnished with such phrases as "act of piracy," "war without declaration," "insult to the British flag," "condign punishment of the Japanese commander." But these flowers of speech continue to blossom; and, now that the facts of the case seem [042]to be established beyond reasonable doubt by the telegrams of this morning, I should be glad to be allowed to state shortly what I believe will be the verdict of international law upon what has occurred.
If the visiting, and eventual sinking, of the Kowshing occurred in time of peace, or in time of war before she had notice that war had broken out, a gross outrage has taken place. But the facts are otherwise.
In the first place, a state of war existed. It is trite knowledge, and has been over and over affirmed by Courts, both English and American, that a war may legally commence with a hostile act on one side, not preceded by declaration. How frequently this has occurred in practice may be seen from a glance at an historical statement prepared for the War Office by Colonel Maurice à propos of the objections to a Channel tunnel. Whether or no hostilities had previously occurred upon the mainland, I hold that the acts of the Japanese commander in boarding the Kowshing and threatening her with violence in case of disobedience to his orders were acts of war.
In the second place, the Kowshing had notice of the existence of a war, at any rate from the moment when she received the orders of the Japanese commander.
The Kowshing, therefore, before the first torpedo was fired, was, and knew that she was, a neutral ship engaged in the transport service of a belligerent. (Her flying the British flag, whether as a ruse de guerre or otherwise, is wholly immaterial.) Her liabilities, as such ship, were twofold:—