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• Front Matter: Preface
• List of Cases Cited
• Introduction
• Declaration of Paris, 1856 1
• Déclaration De Paris, 1856.
• The Declaration of Paris, 1856.
• Declaration of St Petersburg, 1868 1
• Geneva Convention, 1864 1
• Convention Pour L’amélioration Du Sort Des Militaires Blessés Dans Les Armées En Campagne.
• Convention For the Amelioration of the Condition of Soldiers Wounded In Armies In the Field.
• Articles Concerning Naval Warfare ( La Marine ).
• Geneva Convention, 1906 1
• Convention Pour L’amélioration Du Sort Des Blessés Et Malades Dans Les Armées En Campagne.
• Convention For the Amelioration of the Condition of the Wounded and Sick In Armies In the Field.
• Chapitre Premier. —: Des Blessés Et Malades.
• Chapter I.—: The Wounded and Sick.
• Chapitre II.—: Des Formations Et Établissements Sanitaires.
• Chapter II.—: Medical Units and Establishments.
• Chapitre III.—: Du Personnel.
• Chapter III.—: Personnel.
• Chapitre IV.—: Du Matériel.
• Chapter IV.—: Material.
• Chapitre V.—: Des Convois D’Évacuation.
• Chapter V.—: Convoys of Evacuation.
• Chapter VI.—: Du Signe Distinctif.
• Chapter VI.—: The Distinctive Emblem.
• Chapitre VII.—: De L’application Et De L’exécution De La Convention.
• Chapter VII.—: Application and Carrying Out of the Convention.
• Chapitre VIII.—: De La Répression Des Abus Et Des Infractions.
• Chapter VIII.—: Prevention of Abuses and Infractions.
• Dispositions Générales.
• General Provisions.
• Protocole Final De La Conférence De Revision De La Convention De Genève.
• Final Protocol of the Conference For the Revision of the Geneva Convention.
• The Hague Peace Conferences 1899 and 1907
• The Peace Conference of 1899 1 .
• The Second Peace Conference of 1907 1 .
• Final Acts of the International Peace Conferences.
• The Conventions of the Hague Conferences of 1899 and 1907 1 .
• I.: Convention For the Pacific Settlement of International Disputes.
• 1.: Règlement Pacifique Des Conflits Internationaux.
• 1.: Pacific Settlement of International Disputes
• I.: Convention For the Pacific Settlement of International Disputes 1 .
• II.: The Recovery of Contract Debts.
• II.: Convention Concernant La Limitation De L’emploi De La Force Pour Le Recouvrement De Dettes Contractuelles.
• II.: Convention Respecting the Limitation of the Employment of Force For the Recovery of Contract Debts.
• Convention No. 2. the Limitation of the Employment of Force For the Recovery of Contract Debts 1 .
• III.: Convention Relative to the Commencement of Hostilities.
• III.: Convention Relative à L’ouverture Des Hostilités.
• III.: Convention Relative to the Opening of Hostilities.
• Convention No. 3. The Commencement of Hostilities 1 .
• IV.: Les Lois Et Coutumes De La Guerre Sur Terre.
• II.: Convention Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• IV.: Convention Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• Règlement Concernant Les Lois Et Coutumes De La Guerre Sur Terre.
• Section I.: Des Belligérants.
• Section II.: Des Hostilités.
• Section III.: De L’autorité Militaire Sur Le Territoire De L’État Ennemi.
• Section IV.: Des Belligérants Internés Et Des Blessés Soignés Chez Les Neutres.
• IV.: The Laws and Customs of War On Land.
• II.: Convention With Respect to the Laws and Customs of War On Land.
• IV.: Convention Concerning the Laws and Customs of War On Land.
• Regulations Respecting the Laws and Customs of War On Land.
• Section I.: Belligerents.
• Section II. Hostilities.
• Section III.: Military Authority Over the Territory of the Hostile State.
• Convention No. 4. Concerning the Laws and Customs of War On Land 1 .
• Appendix to Note On the Laws and Customs of War On Land. Translation of the Draft of an International Declaration Concerning the Laws and Customs of War Adopted By the Conference of Brussels, 27th August, 1874 1 .
• V.: Neutral Powers and Persons In Land Warfare.
• V.: Convention Concernant Les Droits Et Les Devoirs Des Puissances Et Des Personnes Neutres En Cas De Guerre Sur Terre.
• V.: Convention Respecting the Rights and Duties of Neutral Powers and Persons In War On Land.
• Convention No. 5. Respecting the Rights and Duties of Neutral Powers and Persons In War On Land 1 .
• VI.: Enemy Merchant-ships At the Outbreak of Hostilities.
• VI.: Convention Relative Au Régime Des Navires De Commerce Ennemis Au Début Des Hostilités.
• VI.: Convention Relative to the Status of Enemy Merchantships At the Outbreak of Hostilities.
• Convention No. 6. Relative to the Status of Enemy Merchant-ships At the Outbreak of Hostilities 1 .
• VII.: Conversion of Merchant-ships Into War-ships.
• VII.: Convention Relative à La Transformation Des Navires De Commerce En Bâtiments De Guerre.
• VII.: Convention Relative to the Conversion of Merchantships Into War-ships.
• Convention No. 7. Convention Relative to the Conversion of Merchant-ships Into War-ships 1 .
• VIII.: Automatic Submarine Contact Mines.
• VIII.: Convention Relative à La Pose De Mines Sous-marines Automatiques De Contact.
• VIII.: Convention Relative to the Laying of Automatic Submarine Contact Mines.
• Convention No. 8. Relative to the Laying of Automatic Submarine Contact Mines 1 .
• IX.: Bombardment By Naval Forces In Time of War.
• IX.: Convention Concernant Le Bombardement Par Des Forces Navales En Temps De Guerre.
• IX.: Convention Respecting Bombardment By Naval Forces In Time of War.
• Convention No. 9. Respecting Bombardment By Naval Forces In Time of War 1 .
• X.: Conventions For the Adaptation of the Principles of the Geneva Convention to Maritime War (1899 and 1907)
• X.: La Convention De Genève Et La Guerre Maritime 1 .
• III.: Convention Pour L’adaptation à La Guerre Maritime Des Principes De La Convention De Genève Du 22 Août, 1864.
• X.: Convention Pour L’adaptation à La Guerre Maritime Des Principes De La Convention De Genève.
• X.: The Geneva Convention and Maritime Warfare 1 .
• III.: Convention For the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864.
• X.: Convention For the Adaptation of the Principles of the Geneva Convention to Maritime War.
• Convention No. 10. The Adaptation of the Principles of the Geneva Convention to Maritime Warfare 1 .
• A Convention Relating to Hospital Ships, Signed At the Hague, the 21st December, 1904 2 .
• XI.: Restrictions On Capture In Maritime War
• XI.: Convention Relative à Certaines Restrictions à L’exercice Du Droit De Capture Dans La Guerre Maritime.
• XI.: Convention Relative to Certain Restrictions On the Exercise of the Right of Capture In Maritime War.
• Convention No. 11. Relative to Certain Restrictions On the Exercise of the Right of Capture In Maritime War.
• XII.: Establishment of an International Prize Court.
• XII.: Convention Relative à L’Établissement D’une Cour Internationale Des Prises.
• XII.: Convention Relative to the Establishment of an International Prize Court.
• Annex to Article 15. Distribution of Judges and Deputy Judges By Countries For Each Year of the Period of Six Years.
• Convention No. 12. Relative to the Establishment of an International Prize Court 1 .
• XIII.: Neutral Rights and Duties In Maritime War.
• XIII.: Convention Concernant Les Droits Et Les Devoirs Des Puissances Neutres En Cas De Guerre Maritime.
• XIII.: Convention Respecting the Rights and Duties of Neutral Powers In Maritime War.
• Convention No. 13. The Rights and Duties of Neutral Powers In Maritime War 1 .
• Declarations (1899 and 1907) Prohibiting Discharge of Projectiles, Etc. From Balloons
• Les Déclarations De 1899 Et 1907.
• Déclaration I.: Des Projectiles Et Des Explosifs Du Haut De Ballons.
• XIV.: Déclaration Relative à L’interdiction De Lancer Des Projectiles Et Des Explosifs Du Haut De Ballons.
• The Declarations of 1899 and 1907.
• Declaration I.: Projectiles and Explosives From Balloons.
• XIV.: Declaration Prohibiting the Discharge of Projectiles and Explosives From Balloons.
• Declaration Ii (1899).
• Des Gaz Asphyxiants Ou Délétères.
• Asphyxiating Or Deleterious Gases.
• II.: Declaration Prohibiting the Use of Asphyxiating Or Deleterious Gases 1 .
• Declaration Iii (1899).
• Des Balles à Enveloppe Dure Etc.
• Bullets With a Hard Envelope Etc.
• III.: Declaration Prohibiting the Use of Expanding Bullets 1 .
• Annexe Au Premier Vœu émis Par La Deuxième Conférence De La Paix 1 .
• Projet D’une Convention Relative à L’Établissement D’une Cour De Justice Arbitrale.
• Draft Convention Relative to the Creation of a Judicial Arbitration Court.
• The Draft Convention Relative to the Creation of a Judicial Arbitration Court 1 .
• The Results of the Second Peace Conference.
• Table of the Deposits of Acts of Ratification and Accessions to the Conventions and Declarations Signed the 29th July, 1899, At the First Peace Conference.
• Table of Signatures.
• Final Protocol of the London Naval Conference.
• Protocole De Clôture.
• Final Protocol.
• The Declaration of London, 1909
• Déclaration Relative Au Droit De La Guerre Maritime.
• Declaration Concerning the Laws of Naval War 1 .
• General Report On the Declaration Presented to the Naval Conference On Behalf of Its Drafting Committee 1 . ( Translation 2 .)
• Appendix. Instructions to British Delegation At the Second Peace Conference.
• Addenda and Errata.

Convention No. 3. The commencement of hostilities¹ .

Declaration of war.The report of the Second Committee on the opening of hostilities was presented by M. Renault at the 5th Plenary Meeting of the Conference. It emanated from an Examining Committee of eighteen members.

There are few subjects connected with the laws of war on which a greater amount of divergence has appeared in the writings of publicists than the necessity for a declaration of war preceding the outbreak of hostilities; it has also led to frequent recriminations among belligerents. Russia accused Japan of gross treachery because her torpedo-boats attacked their warships at Port Arthur before a formal declaration of war had been made, a charge which was embodied in a Circular of Count Lamsdorff on the 22nd Feb. 1904 to the Russian diplomatic representatives at foreign courts. It is unnecessary to enter into a detailed examination of the practice of states and the theories of writers on this matter. General Maurice in his work on this subject which was published in 1883 examines the commencements of the wars that had taken place from 1700 to 1872, and during this period he found that less than 10 cases had occurred in which an actual declaration of war, prior to hostilities, had been made. In his article on this subject in the Nineteenth Century and after (April, 1904) he points out that the practice of not issuing a preliminary declaration was common to all the great Powers: “Numerically, within the time I more particularly examined, Britain struck thirty of these blows, France thirty-six, Russia seven (not reckoning her habitual practice towards Turkey and other bordering Asiatic States, including China), Prussia seven, Austria twelve, the United States five at least.”

In modern times there has been a tendency to revert to the older order of procedure under which a formal defiance was made before the outbreak of hostilities. The Franco-German War, 1870, and the Russo-Turkish War, 1877, both commenced with a formal declaration, while in the case of the Spanish-American War, 1898, and the Boer War, 1899, ultimatums, which are forms of conditional declaration, were presented.

Amongst this diversity of theory and practice one rule emerged with clearness, namely that “an attack which nothing had foreshadowed would be infamous¹ .” A gross violation of international law would be committed by the commencement of hostilities in time of peace without a previous controversy and negotiations with a view to a peaceful settlement² .

The Committee wisely refrained from a definite pronouncement as to whether there was a positive rule of international law on the subject; “we have,” they reported, “only to ask ourselves whether it is advisable to establish one and in what terms.” To the first part of this question an affirmative answer was returned. The Committee took as its basis for discussion a proposition of the French delegate, with amendments proposed by the Dutch and Belgian Delegations. The French proposal was based on the resolutions passed by the Institut de Droit International at its meeting at Ghent in September, 1906, when, after a careful examination of the whole question, the following rules were adopted³ .

(1) It is in accordance with the requirements of International Law, and with the spirit of loyalty which nations owe to each other in their mutual relations, as well as in the common interest of all states, that hostilities should not commence without previous and unequivocal notice.

(2) This notice may take the form of a declaration of war pure and simple, or that of an ultimatum, duly notified to the adversary by the state about to commence war.

(3) Hostilities should not begin till after the expiry of a delay sufficient to ensure that the rule of previous and unequivocal notice may not be considered as evaded.

Article 1 of the French draft embodied rules 1 and 2 adopted by the Institut and was framed in the words which now form Article 1 of this Convention. The object of the proposal was to prevent an attack by one Power on another by surprise. The reasons to be given in the declaration are required because “Governments ought not to have recourse to such an extreme measure without giving reasons. Everyone, whether citizens of the countries about to become belligerents or of neutral states, ought to know why there is to be a war in order to judge of the conduct of the two adversaries. We, of course, do not cherish the illusion that the real reasons for a war will always be given; but the difficulty of definitely stating reasons, the necessity of advancing those which have no foundation or are out of proportion to the gravity of war, will naturally have the effect of attracting the attention of neutral states and of enlightening public opinion¹ .” There was no opposition to the principle of the French proposal, but difficulties of a constitutional order were raised by the Delegations of the United States and Cuba; on further consideration, however, these were seen to be avoided by the form in which the proposition was introduced² .

The amendment of General den Beer Poortugael, the Dutch plenipotentiary, was proposed with the object of modifying Article 1 by providing that hostilities should not commence until the lapse of 24 hours from the time when an unequivocal declaration of war accompanied by reasons, or an ultimatum with a conditional declaration of war had been received by the government of the adversary. This was supported by Colonel Michelson on behalf of Russia on the ground that if a definite period was recognised it would enable a state to make certain economies, and to this extent might be a step towards the reduction of the military burdens of states which would then not feel the necessity of always keeping their establishments on a war footing and ready for instant mobilisation: and furthermore it would provide an opportunity for neutral Powers to employ their efforts at bringing about a reconciliation. The Dutch amendment was rejected by 16 to 13, with 5 abstentions. The discussions appear only to have dealt with the question from the point of view of land warfare. The position of armies is invariably well-known, but the delay of 24 hours, by enabling a change in the position of naval forces, the whereabouts of which are frequently matters of conjecture, might have most important consequences in the initial stages of belligerent operations³ .

The second Article of the French draft provided that “the state of war must be notified without delay to neutral Powers.” The Belgian delegate proposed to add that the notification might be made even by telegraph, and should only take effect as regards neutral Powers forty-eight hours after its receipt. It was felt that this might have been interpreted as permitting neutrals to act during this period in a way contrary to the principles of neutrality, and the amendment was rejected. The proposal that notification might be made by telegraph was accepted, and the Committee added the last sentence of Article 1 to meet the possible case of a neutral failing to receive notification. The mere absence, therefore, of official notification will not exonerate a neutral Power from the performance of its duties if it can be shown that it was actually aware of the existence of war. It has for many years been the practice of belligerents to issue notifications to neutrals at the commencement of war; the contracting Powers now formally accept the obligation to do so. The importance of notification is apparent both as regards the general principles of neutrality, and the freedom from capture of belligerent ships ignorant of the outbreak of war¹ .

The Convention is a useful contribution to the rules of International Law. By Article 1 the contracting Parties recognise that they are now under an obligation² to each other to issue an absolute or conditional declaration before the commencement of hostilities, whatever differences of opinion on this point may previously have existed. But although the contracting Powers have agreed on a rule that hostilities are not to commence without previous warning, they have not precluded the possibility of a surprise attack, for the Conference rejected the Dutch proposal for the very limited delay of twenty-four hours between the presentation of the declaration and the outbreak of hostilities. “No forms give security against disloyal conduct³ .”

The Chinese delegate put two very pertinent questions during the discussions. He asked for a definition of war, as distinct from “military expeditions,” and he also desired to know what was to happen if a state against which war was declared did not wish to fight: no answer appears to have been made to these enquiries. The difficulty of distinguishing between non-belligerent and belligerent action in cases of reprisals and pacific blockade (“war sub modo”) was not considered by the Committee⁴ . The practice of states, however, enables definite conclusions to be drawn with regard to the second point, and a state not wishing to resist would find itself subjected to all the consequences of a state of belligerency.

Signatory Powers.This Convention has been signed by all the states enumerated in the Final Act except China and Nicaragua.

IV.

Les Lois et Coutumes de la Guerre sur Terre.

[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 33, 120-3; La Deux. Confér. T. i. p. 131; Livre Jaune, p. 78; Weissbuch, p. 5; L’Annuaire de l’Institut de Droit International (1907); Sir T. Barclay, Problems, etc. p. 53; Bonfils-Fauchille, Droit international (5th ed.), §§ 1027-1031; G. B. Davis, International Law (3rd ed.), pp. 279, 281, 571; C. Dupuis, La déclaration de guerre est-elle requise par le droit positif? Rev. gén. de Dr. int. Vol. xiii. p. 725; Idem, Le droit de la guerre maritime, etc. § 2; H. Ebren, Obligation juridique de la déclaration de guerre, Rev. gén. de Dr. int. Vol. xi. p. 725; A. S. Hershey, The international law and diplomacy of the Russo-Japanese War, Chap. i.; T. E. Holland, The laws of war on land, p. 18; T. J. Lawrence, War and Neutrality in the Far East, Chap. ii.; Idem, International problems, etc. p. 85; E. Lémonon, La seconde Conférence de la Paix, pp. 395-406; F. de Martens, Les hostilités sans déclaration de guerre, Rev. gén. de Dr. int. Vol. xi. p. 148; Sir J. F. Maurice, Hostilities without declaration of war; Idem, Nineteenth Century and after, for April, 1904; A. Mérignhac, Les lois et coutumes de la guerre sur terre, p. 29; E. Nys, La guerre et la déclaration de la guerre, Rev. de Dr. int. (2nd series), Vol. vii. p. 517; Idem, Le Droit inter. T. iii. ch. ii.; D. Owen, Declaration of War; A. Pillet, La guerre sans déclaration, Rev. pol. et parlem. April, 1904; F. E. Smith and N. W. Sibley, International Law interpreted during the Russo-Japanese War, Chap. iii.; Ellery C. Stowell, Am. Journ. of Int. Law, Vol. ii. p. 50; J. B. Scott, Leading Cases in Int. Law (bibliography, p. xlvii.); S. Takahashi, International Law applied to the Russo-Japanese War, p. 1; J. Westlake, War, pp. 18, 267. The subject is discussed by most of the text writers on Public International Law.[ ]

[1 ]J. Westlake, War, p. 23.

[2 ]L. Oppenheim, Int. Law, Vol. ii. p. 105.

[3 ]Annuaire, Vol. xxi. p. 292.

[1 ]Report of M. Renault, Parl. Papers, Misc. No. 4 (1908), p. 121; La Deux. Confér. T. i. pp. 132-3.

[2 ]See Parl. Papers, Misc. No. 4 (1908), p. 122; La Deux. Confér. T. i. p. 132; Ellery C. Stowell, op. cit. p. 55; G. B. Davis, op. cit. p. 572 note.

[3 ]See The Times, 8 July, 1907.

[1 ]See 6 H. C. 1907, Art. 3; Declaration of London, Art. 43.

[2 ]The French Delegation in their report to the Minister for Foreign Affairs enumerate among “Obligations de faire,” Obligation de ne pas commencer les hostilités sans un avertissement préalable et non équivoque (Livre Jaune, p. 111).

[3 ]“The use of a declaration,” says Mr Hall, “does not exclude surprise, but it at least provides that notice shall be served an infinitesimal space of time before a blow is struck” (Int. Law, p. 384).

[4 ]On the question whether a declaration is necessary before the commencement of reprisals see a letter from Dr J. Westlake, K.C., in The Times of 21 Dec. 1908, on the occasion of reprisals by Holland against Venezuela. See also Dr Westlake’s War, pp. 267, 24 for exceptional cases in which he considers the commencement of war still possible without a preceding declaration.

[P. 202, note 1,]add La Deux. Confér. T. iii. pp. 163-179, 253-5.