Volume Ii Part 13 (1/2)

-- 94. According to article 1 of Convention III. hostilities must not commence without a previous and unequivocal warning, and one of the forms which this warning may take is a declaration of war stating the reasons why the Power concerned has recourse to arms.

A declaration of war is a communication of one State to another that the condition of peace between them has come to an end and a condition of war has taken its place. In former times declarations of war used to take place under greater or lesser solemnities, but during the last few centuries all these formalities have vanished, and a declaration of war nowadays may take place through a simple communication. The only two conditions with which, according to article 1, declarations of war must comply are, that they must be unmistakable, and that they must state the reason for the resort to arms. No delay between the declaration and the actual commencement of hostilities is stipulated, and it is, therefore, possible for a Power to open hostilities immediately after the communication of the declaration of war to the enemy. All the more is it necessary to emphasise that there could be no greater violation of the Law of Nations than that which would be committed by a State which sent a declaration to another without previously having tried to settle the difference concerned by negotiation.

However this may be, the question as to the way in which the communication of the declaration of war is to be made requires attention. Since there is nowhere a rule expressly formulated according to which the declaration must be communicated in writing, it might be a.s.serted that communication by any means, be it by a written doc.u.ment, by telegraph or by telephone message, or by direct word of mouth, is admissible. I believe that such an a.s.sertion cannot be supported. The essential importance of the declaration of war and the fact that according to article 1 of Convention III. it must be unmistakable and must state the reason for the resort to arms, would seem to require a written doc.u.ment which is to be handed over to the other party by an envoy. Further, the fact that article 2 of Convention III. expressly enacts that the notification of the outbreak of war to neutrals _may even be made by telegraph_, points the same way, for the conclusion is justified that the declaration of war stipulated as necessary by article I may _not_ be made by telegraph. And if a telegraph message is inadmissible, much more are telephone messages and communications by word of mouth. Moreover, the practice of the States throughout the last centuries has been to hand in a written declaration of war, when any declaration has been made.

Particular attention must be paid to the fact that, in case of a declaration of war, the war, as between the belligerents, is considered to have commenced with the date of its declaration, although actual hostilities may not have been commenced until a much later date. On the other hand, as regards relations between the belligerents and neutrals, a war is not considered to have commenced until its outbreak has either been notified to the neutrals or has otherwise become unmistakably known to them. For this reason, article 2 of Convention III. enacts that the belligerents must at once after the outbreak of war notify[177] the neutrals, even if only by telegraph, and that the state of war shall not take effect with regard to neutrals until after they have received notification, unless it be established beyond doubt that they were in fact aware of the condition of war.

[Footnote 177: See below, -- 307.]

[Sidenote: Ultimatum.]

-- 95. The second form which the unequivocal warning, stipulated by article 1 of Convention III. as necessary before the commencement of hostilities, may take is an ultimatum with a conditional declaration of war.

Ultimatum[178] is the technical term for a written communication of one State to another which ends amicable negotiations respecting a difference, and formulates, for the last time and categorically, the demands to be fulfilled if other measures are to be averted. An ultimatum may be simple or qualified. It is _simple_ in case it does not include an indication of the measures contemplated by the Power sending it; such measures may be acts of retorsion or reprisals, or hostilities.

It is _qualified_ if it includes an indication of the measures contemplated by the Power sending it, for instance a pacific blockade, occupation of a certain territory, or war. Now the ultimatum stipulated by article 1 of Convention III. must be a qualified one, for it must be so worded that the recipient can have no doubt about the commencement of war in case he does not comply with the demands of the ultimatum. For this reason, if a State has sent a simple ultimatum to another, or a qualified ultimatum threatening a measure other than war, it is not, in case of non-compliance, justified in at once commencing hostilities without a previous declaration of war. For this reason, Italy sent a declaration of war to Turkey in 1911, although an ultimatum threatening the occupation of Tripoli had preceded it.

Nothing is enacted by article 1 of Convention III. concerning the minimum length of time which an ultimatum must grant before the commencement of hostilities; this period may, therefore, be only very short, as, for instance, a number of hours. All the more is it necessary here likewise to emphasise that there could be no greater violation of the Law of Nations than that which would be committed by a State which sent an ultimatum without previously having tried to settle the difference concerned by negotiation.

It must be specially observed that the state of war following an ultimatum must likewise be notified to neutrals, for article 2 of Convention III. applies to this case also. And it must further be observed that, for the same reason as in the case of a declaration of war, an ultimatum containing a conditional declaration of war must be communicated to the other party by a written doc.u.ment.

[Footnote 178: See above, -- 28.]

[Sidenote: Initiative hostile Acts of War.]

-- 96. There is no doubt that, in consequence of Convention III. of the Second Peace Conference, the recourse to hostilities without a previous declaration of war or qualified ultimatum is forbidden. But the fact must not be overlooked that a war can nevertheless break out without these preliminaries. Thus a State might deliberately order hostilities to be commenced without a previous declaration of war or qualified ultimatum. Further, the armed forces of two States having a grievance against one another might engage in hostilities without having been authorised thereto and without the respective Governments ordering them to desist from further hostilities. Again, acts of force by way of reprisals or during a pacific blockade or an intervention might be forcibly resisted by the other party, hostilities breaking out in this way.

It is certain that States which deliberately order the commencement of hostilities without a previous declaration of war or qualified ultimatum, commit an international delinquency, but they are nevertheless engaged in war. Further, it is certain that States which allow themselves to be dragged into a condition of war through unauthorised hostile acts of their armed forces, commit an international delinquency, but they are nevertheless engaged in war. Again, war is actually in existence if the other party forcibly resists acts of force undertaken by a State by way of reprisals, or during a pacific blockade or an intervention. Now in all these and similar cases, although war has broken out without a previous declaration or qualified ultimatum, all the laws of warfare must find application, for a war is still war in the eyes of International Law even though it has been illegally commenced, or has automatically arisen from acts of force which were not intended to be acts of war.

However that may be, article 2 of Convention III. also applies to wars which have broken out without a previous declaration or qualified ultimatum, and the belligerents must without delay send a notification to neutral Powers so that these may be compelled to fulfil the duties of neutrality. But, of course, neutral Powers must in this case likewise, even without notification, fulfil the duties of neutrality if they are unmistakably aware of the outbreak of war.

II

EFFECTS OF THE OUTBREAK OF WAR

Vattel, III. -- 63--Hall, ---- 124-126--Westlake, II. pp.

29-32--Lawrence, ---- 143-146--Manning, pp. 163-165--Phillimore, III. ---- 67-91--Twiss, II. ---- 41-61--Halleck, I. pp. 526-552, and II. pp. 124-140--Taylor, ---- 461-468--Walker, ---- 44-50--Wharton, III. ---- 336-337A--Wheaton, ---- 298-319--Moore, V. -- 779, and VII.

---- 1135-1142--Heffter, ---- 121-123--Lueder in Holtzendorff, IV. pp.

347-363--Gareis, -- 81--Liszt, -- 39, V.--Ullmann, -- 173--Bonfils, Nos. 1044-1065--Despagnet, Nos. 517-519--Pradier-Fodere, VI. Nos.

2694-2720--Nys, III. pp. 134-150--Rivier, II. pp. 228-237--Calvo, IV. ---- 1911-1931--Fiore, III. Nos. 1290-1301, and Code, Nos.

1439-1445--Martens, II. -- 109--Longuet, ---- 8-15--Merignhac, pp.

72-84--Pillet, pp. 42-59--Bordwell, pp. 200-211--Spaight, pp.

25-33--Ariga, ---- 13-15--Takahas.h.i.+, pp. 26-88--Lawrence, _War_, pp.

45-55--Sainte-Croix, _La Declaration de guerre et ses effets immediats_ (1892), pp. 166-207--Meyer, _De l'interdiction du commerce entre les belligerants_ (1902)--Jaconnet, _La guerre et les traites_ (1909)--Politis in _Annuaire_ XXIII. (1910), pp.

251-282, and XXIV. (1911), pp. 200-223.

[Sidenote: General Effects of the Outbreak of War.]