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Convention No. 3. The commencement of hostilities 1 . - A. Pearce Higgins, The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War 
The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War. Texts of Conventions with Commentaries, by A. Pearce Higgins, LL.D. (Cambridge University Press, 1909).
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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.
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.