"Berlin, Dec. 11, 1880.
"You have been so good as to forward to me the manual published by the Institut de Droit International, and you hope for my approval of it. In the first place I fully appreciate the philanthropic effort to soften the evils which result from war. Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developed; courage and the abnegation of self, faithfulness to duty, and the spirit of sacrifice: the soldier gives his life. Without war the world would stagnate, and lose itself in materialism.
"I agree entirely with the proposition contained in the introduction that a gradual softening of manners ought to be reflected also in the mode of making war. But I go further, and think the softening of manners can alone bring about this result, which cannot be attained by a codification of the law of war. Every law presupposes an authority to superintend and direct its execution, and international conventions are supported by no such authority. What neutral States would ever take up arms for the sole reason that, two Powers being at war, the 'laws of war' had been violated by one or both of the belligerents? For offences of that sort there is no earthly judge. Success can come only from the religious moral education of individuals and from the feeling of honour and sense of justice of commanders who enforce the law and conform to it so far as the exceptional circumstances of war permit.
"This being so, it is necessary to recognise also that increased humanity in the mode of making war has in reality followed upon the gradual softening of manners. Only compare the horrors of the Thirty Years' War with the struggles of modern times.
"A great step has been made in our own day by the establishment [025]of compulsory military service, which introduces the educated classes into armies. The brutal and violent element is, of course, still there, but it is no longer alone, as once it was. Again, Governments have two powerful means of preventing the worst kind of excesses—strict discipline maintained in time of peace, so that the soldier has become habituated to it, and care on the part of the department which provides for the subsistence of troops in the field. If that care fails, discipline can only be imperfectly maintained. It is impossible for the soldier who endures sufferings, hardships, fatigues, who meets danger, to take only 'in proportion to the resources of the country.' He must take whatever is needful for his existence. We cannot ask him for what is superhuman.
"The greatest kindness in war is to bring it to a speedy conclusion. It should be allowable with that view to employ all methods save those which are absolutely objectionable ('dazu müssen alle nicht geradezu verwerfliche Mittel freistehen'). I can by no means profess agreement with the Declaration of St. Petersburg when it asserts that 'the weakening of the military forces of the enemy' is the only lawful procedure in war. No, you must attack all the resources of the enemy's Government: its finances, its railways, its stores, and even its prestige. Thus energetically, and yet with a moderation previously unknown, was the late war against France conducted. The issue of the campaign was decided in two months, and the fighting did not become embittered till a revolutionary Government, unfortunately for the country, prolonged the war for four more months.
"I am glad to see that the manual, in clear and precise articles, pays more attention to the necessities of war than has been paid by previous attempts. But for Governments to recognise these rules will not be enough to insure that they shall be observed. It has long been a universally recognised custom of warfare that a flag of truce must not be fired on, and yet we have seen that rule violated on several occasions during the late war.
"Never will an article learnt by rote persuade soldiers to see a regular enemy (sections 2-4) in the unorganised population which takes up arms 'spontaneously' (so of its own motion) and puts them in danger of their life at every moment of day and night. Certain requirements of the manual might be impossible of realisation; for instance, the identification of the slain after a great battle. Other requirements would be open to criticism did not the intercalation of such words as 'if circumstances permit,' 'if possible,' 'if it can be done,' 'if necessary,' give them an elasticity but for which the bonds they impose must be broken by inexorable reality.
"I am of opinion that in war, where everything must be individual, the only articles which will prove efficacious are those which are addressed specifically to commanders. Such are the rules of the [026]manual relating to the wounded, the sick, the surgeons, and medical appliances. The general recognition of these principles, and of those also which relate to prisoners, would mark a distinct step of progress towards the goal pursued with so honourable a persistency by the Institut de Droit International.
"COUNT VON MOLTKE, Field-Marshal-General."
PROFESSOR BLUNTSCHLI'S REPLY TO COUNT VON MOLTKE
Sir,—In accordance with a wish expressed in several quarters, I send you, on the chance of your being able to make room for it, a translation of Professor Bluntschli's reply to the letter from Count von Moltke which appeared in The Times of the 1st inst.
"Christmas, 1880.
"I am very grateful for your Excellency's detailed and kind statement of opinion as to the manual of the laws of war. This statement invites serious reflections. I see in it a testimony of the highest value, of historical importance; and I shall communicate it forthwith to the members of the Institut de Droit International.
"For the present I do not think I can better prove my gratitude to your Excellency than by sketching the reasons which have guided our members, and so indicating the nature of the different views which prevail upon the subject.
"It is needless to say that the same facts present themselves in a different light and give a different impression as they are looked at from the military or the legal point of view. The difference is diminished, but not removed, when an illustrious general from his elevated position takes also into consideration the great moral and political duties of States, and when, on the other hand, the representatives of science of international law set themselves to bring legal principles into relation with military necessities.
"For the man of arms the interest of the safety and success of the army will always take precedence of that of the inoffensive population, while the jurist, convinced that law is the safeguard of all, and especially for the weak against the strong, will ever feel it a duty to secure for private individuals in districts occupied by an enemy the indispensable [027]protection of law. There may be members of the Institut who do not give up the hope that some day, thanks to the progress of civilisation, humanity will succeed in substituting an organised international justice for the wars which now-a-days take place between sovereign States. But the body of the Institut, as a whole, well knows that that hope has no chance of being realised in our time, and limits its action in this matter to two principal objects, the attainment of which is possible:—
"1. To open and facilitate the settlement of trifling disputes between nations by judicial methods, war being unquestionably a method out of all proportion in such cases.
"2. To aid in elucidating and strengthening legal order even in time of war.
"I acknowledge unreservedly that the customs of warfare have improved since the establishment of standing armies, a circumstance which has rendered possible a stricter discipline, and has necessitated a greater care for the provisionment of troops. I also acknowledge unreservedly that the chief credit for this improvement is due to military commanders. Brutal and barbarous pillage was prohibited by generals before jurists were convinced of its illegality. If in our own day a law recognised by the civilised world forbids, in a general way, the soldier to make booty in warfare on land, we have here a great advance in civilisation, and the jurists have had their share in bringing it about. Since compulsory service has turned standing armies into national armies, war has also become national. Laws of war are consequently more than ever important and necessary, since, in the differences of culture and opinion which prevail between individuals and classes, law is almost the only moral power the force of which is acknowledged by all, and which binds all together under common rules. This pleasing and cheering circumstance is one which constantly meets us in the Institut de Droit International. We see a general legal persuasion ever in process of more and more distinct formation uniting all civilised peoples. Men of nations readily disunited and opposed—Germans and French, English and Russians, Spaniards and Dutchmen, Italians and Austrians—are, as a rule, all of one mind as to the principles of international law.
"This is what makes it possible to proclaim an international law of war, approved by the legal conscience of all civilised peoples; and when a principle is thus generally accepted, it exerts an authority over minds and manners which curbs sensual appetites and triumphs over barbarism. We are well aware of the imperfect means of causing its decrees to be respected and carried out which are at the disposal of the law of nations. We know also that war, which moves nations so deeply, rouses to exceptional activity the good qualities as well as the evil instincts of human nature. It is for this very reason that the jurist is impelled to present the legal principles, of the need for which he is [028]convinced, in a clear and precise form, to the feeling of justice of the masses, and to the legal conscience of those who guide them. He is persuaded that his declaration will find a hearing in the conscience of those whom it principally concerns, and a powerful echo in the public opinion of all countries.
"The duty of seeing that international law is obeyed, and of punishing violations of it, belongs, in the first instance, to States, each within the limits of its own supremacy. The administration of the law of war ought therefore to be intrusted primarily to the State which wields the public power in the place where an offence is committed. No State will lightly, and without unpleasantness and danger, expose itself to a just charge of having neglected its international duties; it will not do so even when it knows that it runs no risk of war on the part Of neutral States. Every State, even the most powerful, will gain sensibly in honour with God and man if it is found to be faithful and sincere in respect and obedience to the law of nations.
"Should we be deceiving ourselves if we admitted that a belief in the law of nations, as in a sacred and necessary authority, ought to facilitate the enforcement of discipline in the Army and help to prevent many faults and many harmful excesses? I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war, and everything is allowable against the enemy nation—that this abominable error can but increase the unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way.
"With reference to several rules being stated with the qualifications 'if possible,' 'according to circumstances,' we look on this as a safety-valve, intended to preserve the inflexible rule of law from giving way when men's minds are overheated in a struggle against all sorts of dangers, and so to insure the application of the rules in many other instances. Sad experience teaches us that in every war there are numerous violations of law which must unavoidably remain unpunished, but this will not cause the jurist to abandon the authoritative principle which has been violated. Quite the reverse. If, for instance, a flag of truce has been fired upon, in contravention of the law of nations, the jurist will uphold and proclaim more strongly than ever the rule that a flag of truce is inviolable.
"I trust that your Excellency will receive indulgently this sincere statement of my views, and will regard it as an expression of my gratitude, as well as of my high personal esteem and of my respectful consideration.
"Dr. BLUNTSCHLI, Privy Councillor, Professor."[029]
THE UNITED STATES NAVAL WAR CODE.1
Sir,—The "Naval War Code" of the United States, upon which an interesting article appeared in The Times of Friday last, in so well deserving of attention in this country that I may perhaps be allowed to supplement the remarks of your Correspondent from the results of a somewhat minute examination of the code made shortly after its publication.
One notes, in the first place, that the Government of the United States does not shirk responsibility. It puts the code into the hands of its officers "for the government of all persons attached to the naval service," and is doubtless prepared to stand by the rules contained in it, as being in accordance with international law. These rules deal boldly with even so disagreeable a topic as "Reprisals" (Art. 8), upon which the Brussels, and after it The Hague, Conference preferred to keep silence; and they take a definite line on many questions upon which there are wide differences of opinion. On most debatable points, the rules are in accordance with the views of this country—e.g. as to the right of search (Art. 22), as to the two-fold list of contraband (Arts. 34-36), as to the moment at which the liability of a blockade-runner commences (Art. 44), and as to the capture of private property (Art. 14), although the prohibition of such capture has long been favoured by the Executive of the United States, and was advocated by the American delegates at The Hague Conference. So also Arts. 34-36, by apparently taking for granted the correctness of the rulings of the Supreme Court in the Civil War cases of the Springbok and the Peterhoff with reference to what may be described as "continuous carriage," are in harmony with the views which Lord Salisbury recently had occasion to express as to the trade of the Bundesrath and other German vessels with Lorenzo Marques. It must be observed, on the other hand, that Art. 30 flatly contradicts the British rule as to [030]convoy; while Art. 3 sets out The Hague Declaration as to projectiles dropped from balloons, to which this country is not a party. Art. 7 departs from received views by prohibiting altogether the use of false colours, and Art. 14 (doubtless in pursuance of the recent decision of the Supreme Court in the Paquete Habana), by affirming the absolute immunity of coast fishing vessels, as such, from capture.
On novel questions the code is equally ready with a solution. It speaks with no uncertain voice on the treatment of mail steamers and mail-bags (Art. 20). On cable-cutting it adopts in Art. 5, as your Correspondent points out, the views which I ventured to maintain in your columns when the question was raised during the war of 1898.2 I may also, by the way, claim the support of the code for the view taken by me, in a, correspondence also carried on in your columns during the naval manoeuvres of 1888, of the bombardment of open coast towns.3 Art. 4 sets out substantially the rules upon this subject for which I secured the imprimatur of the Institut de Droit International in 1896.
Secondly, the code is so well brought up to date as to incorporate (Arts. 21-29) the substance of The Hague Convention, ratified only in September last, for applying to maritime warfare the principles of the Convention of Geneva. Art. 10 of The Hague Convention has been reproduced in the code, in forgetfulness perhaps of the fact that that article has not been ratified.
Thirdly, the code contains, very properly, some general provisions applicable equally to warfare upon land (Arts. 1, 3, 8, 12, 54).
Fourthly, it is clearly expressed; and it is brief, consisting of only 54 articles, occupying 22 pages.
Fifthly, it deals with two very distinct topics—viz. the mode of conducting hostilities against the forces of the enemy, and the principles applicable to the making prize of merchant vessels, which as often as not may be the [031]property of neutrals. These topics are by no means kept apart as they might be, articles on prize occurring unexpectedly in the section avowedly devoted to hostilities.
It is worth considering whether something resembling the United States code would not be found useful in the British Navy. Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind.
Sir,—It is now nearly a year ago since I ventured to suggest in your columns (for April 10, 1901) that something resembling the United States "Naval War Code," dealing with "the laws and usages of war at sea," would be found useful in the British Navy.
The matter is, however, not quite so simple as might be inferred from some of the allusions to it which occurred during last night's debate upon the Navy Estimates. Upon several disputable and delicate questions the Government of the United States has not hesitated to express definite views; and they are not always views which the Government of our own country would be prepared to endorse. For some remarks upon these questions in detail, and upon the code generally, I must refer to my former letter, but may perhaps be allowed to quote its concluding words, which were to the following effect:—
"Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness [032]of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind."
Before issuing such a code our authorities would have to decide—first, what are the classes of topics as to which it is desirable to give definite instructions to naval officers; and, secondly, with reference to topics, to be included in the instructions, as to which there exist international differences of view, what is, in each case, the view by which the British Government is prepared to stand.
CHAPTER III
TERMINOLOGY
Sir,—Demands for the punishment of the ex-Kaiser have produced many "curiosities of literature," sometimes even over the signatures of men deservedly respected as authorities upon subjects which they have made their own; but ne sutor supra crepidam. A.B.,4 for instance, wrote of the Kaiser as guilty of "an indictable offence." X.Y.4 naturally protests against this misuse of terminology, which is, indeed, far more specifically erroneous than was the popular application, which you allowed me to criticise, of the terms "murder" and "piracy" to certain detestable acts perpetrated under Government authority.5 He goes on to give an elaborate, though perhaps hardly necessary, explanation that breaches of that generally accepted body of rules to be followed by States inter se, which is known as "international law," can be enforced, in the last resort, [034]only by hostile State action—a fact which he seems to suppose may entitle him to qualify the rules as "a mockery."
X.Y.4 then proceeds to give an account of the so-called "private international law" which surely needs revision for the benefit of any "man in the street" who may care to hear about it. X.Y.4 defines it as "that part of the law of each separate country, as administered in its own Courts, which deals with international matters," and he enumerates as such matters "prize, contraband, blockade, the rights of ambassadors." In fact none of these matters are within the scope of "private international law," but are governed by "(public) international law," non-compliance with which by the Courts or subjects of any State is ground of complaint for the Government of any other State thereby wrongfully affected.
The so-called "private international law," better described as "the conflict of laws," deals, in reality, with the rules which the Courts of each country apply, apart from any international obligation, to the solution of questions, usually between private litigants, in which doubt may arise as to the national law by which a given transaction ought to be governed—e.g. with reference to a contract made in France, but to be performed in England. There is here a "conflict," or "collision," of laws, and it is decided in accordance with rules adopted in the country in which the litigation occurs. These rules have no "international" validity, and the term is applied to them, merely in a popular way, to indicate that a Court may have in some cases to apply the law of a country other than that in which it is sitting. The unfortunate opposition of "public" to "private" international law has to answer for much confusion of thought. "International law," properly so called, has, of course, no need to be described as "public" to distinguish it from rules for solving the "conflicts" of [035]private laws, which are "international" rules only in the sense that laws are sometimes applied in countries other than those in which they are primarily binding.
A full discussion of the topics dealt with in the last paragraph of this letter may be found in my Elements of Jurisprudence, edit. xii., pp. 409-425. A translation, by Professor Nys, of the chapter in which those pages occur, as it stood in edit. i., appeared in the Revue de Droit International, t. xii., pp. 565, &c.[036]
CHAPTER IV
CONVENTIONS AND LEGISLATION
Not a few International Conventions necessitate, before they can be ratified, in order that their provisions may be carried into effect, a certain amount of municipal legislation.
The letters which follow are concerned with some measures introduced into the British Parliament for this purpose, relating respectively to Naval Prize, to the Geneva Convention of 1906, and to Conventions signed at The Hague Peace Conference of 1907. It is with criticisms of Bills dealing with the last-mentioned topic that this chapter is mainly occupied.
GOVERNMENT BILLS AND INTERNATIONAL CONVENTIONS
Sir,—You have already allowed me to point out how singularly ill-adapted is the resuscitated "Naval Prize Consolidation Bill"6 to inform Parliament upon the highly technical points as to which a vote in favour of the Bill might be supposed to imply approval of the Government policy.
Two other Bills have now been presented to the House of Commons in such a shape as to raise a doubt whether the wish of the Government, or of the draftsman, has been that the topics to which they relate shall be discussed en pleine connaissance de cause.
The "Geneva Convention Bill"7 is intended to facilitate [037]the withdrawal of reservations subject to which the Convention was ratified by Great Britain. These reservations, upon which I insisted at Geneva, somewhat to the surprise of my French and Russian colleagues, relate to Arts. 23, 27, and 28 of the Convention, one of the effects of which would have been to impose upon our Government an obligation to carry through, within five years, an Act of Parliament, making the employment of the Geneva emblem or name, except for military purposes, a criminal offence. Any one who knows something of the difficulties which beset legislation in this country, especially where commercial interests are involved, will see that the performance of such an undertaking might well have proved to be impossible. Though myself strongly in favour of placing, at the proper time and in an appropriate manner, legislative restrictions upon the general use of the emblem and name, I can hardly think the Bill now before Parliament to be well adapted for its purpose. The "Memorandum" prefixed to it ought surely to have stated, in plain language, the effect of the articles in question and the reasons which prevented them from being ratified together with the rest of the Convention. Instead of this, only one of those articles is cited, and few members of Parliament will be aware that an omitted paragraph of that article requires that the use of the emblem or name should be penalised by British law at the latest five years and six months from the date of the British ratification, which was deposited on April 16, 1907—i.e., not later than October 16, 1912. This requirement is not satisfied by the Bill, which, even if passed in the present Session, would preserve intact till 1915 the rights of proprietors of trade-marks, while somewhat harshly rendering forthwith illegal the user of the emblem or name by all other persons.
On the drafting of the "Second Peace Conference Conventions Bill," I will only remark that neither in the preamble nor elsewhere is any information vouchsafed as to the[038] Conventions, out of thirteen drafted at The Hague, which are within the purview of the Bill. The reader is left to puzzle out for himself, supposing him to have the necessary materials at hand, that certain clauses of the Bill relate respectively to certain articles which must be looked for in the Conventions numbered I., V., X., XII., and XIII.
Questions were put and objections raised, in the sense of my criticisms upon the drafting of the "Second Peace Conference (Conventions) Bill" of 1911, upon several occasions in the House of Commons, especially in August of that year, and on December 16 the Bill was finally withdrawn. On the re-introduction of the Bill in 1914, see the following letter.
THE PRESENT BILL IN PARLIAMENT
Sir,—In reintroducing their Bill "to make such amendments in the law as are necessary in order to enable certain conventions to be carried into effect," the Government has justified the criticisms which I addressed to you upon the way in which this measure was first presented to Parliament.
I pointed out that neither in the preamble nor elsewhere was any information vouchsafed as to which of "the various conventions drawn up at the second Peace Conference" were within the purview of the Bill. Still less was any clue given to those articles, out of nearly 400 contained in the 13 conventions in question, which are relevant to the proposed legislation. Members of Parliament sufficiently inquisitive not to be inclined to take the measure on trust, were left to puzzle out all this for themselves, but proved so restive under the treatment that the Bill, which was introduced in June, 1911, had to be withdrawn in the following December.
As now resuscitated, the Bill is accompanied by a memorandum containing information which will enable [039]the reader, even though no specialist, supposing him to have the necessary documents at hand, though probably only after several hours of labour, to ascertain what would be the result of passing it. Is it too much to hope that similar aids to the understanding of complicated legislative proposals will be systematically provided in the future?
This Bill was introduced into the House of Commons on April 8, 1914, with a memorandum proposed in compliance with the criticisms, which had led to the withdrawal of its predecessor of 1911. Cf. supra, p. 37. It also was withdrawn, after sustaining much renewed criticism, on July 17, 1914.
Sir,—It is doubtless the case, as stated in your leading article of to-day, that the Foreign Enlistment Bill has not received the attention which it deserves. It may perhaps be worth while to mention, as affording some explanation of this neglect, the fact that the memorandum prefixed to the Bill vaguely describes its main object as being to bring our law into conformity with "The Hague Conventions" at large. An ordinary member of Parliament would surely be grateful to be referred specifically to Convention No. xiii., Arts. 8, 17, and 25. He might well shrink from the labour of exploring the hundreds of articles contained in "The Hague Conventions" in order to ascertain which of the articles suggest some modification of the English statute.
I would also venture to suggest that, in Article 1 (1) (b) of the Bill the words "or allows to depart," carried over from the old Act, should be omitted, as of doubtful interpretation. Would it not also be desirable to take this opportunity of severing the enlistment articles of the overgrown principal Act from those forbidding the despatch of [040]ships fitted for hostilities and restricting the hospitality which may be extended to belligerent war ships?
Upon quite a different subject, I should like to answer the question propounded in your article, as to the weight now to be given to the Declaration of London, by saying that no weight should be given to it, except as between Powers who may have ratified it or may have agreed to be temporarily bound by its provisions. One has of late been surprised to read of vessels carrying contraband being allowed to continue their voyage after surrendering the contraband goods, in accordance with a new rule suggested by the Declaration, whereas, under still existing international law, the duty of a captor is to bring in the vessel together with her cargo, in order that the rightfulness of the seizure may be investigated by a Prize Court.
The Bill of 1912 "to amend the Foreign Enlistment Act, 1870," passed the House of Lords with little comment, but was withdrawn, after much adverse criticism, in the House of Commons on February 12, 1913.[041]
CHAPTER V
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:—
1. Regarded as an isolated vessel, she was liable to be stopped, visited, and taken in for adjudication by a Japanese Prize Court. If, as was the fact, it was practically impossible for a Japanese prize crew to be placed on board of her, the Japanese commander was within his rights, in using any amount of force necessary to compel her to obey his orders.[043]
2. As one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, the Kowshing was clearly part of a hostile expedition, or one which might be treated as hostile, which the Japanese were entitled, by the use of all needful force, to prevent from reaching its destination.
The force employed seems not to have been in excess of what might lawfully be used, either for the arrest of an enemy's neutral transport or for barring the progress of a hostile expedition. The rescued officers also having been set at liberty in due course, I am unable to see that any violation of the rights of neutrals has occurred. No apology is due to our Government, nor have the owners of the Kowshing, or the relatives of any of her European officers who may have been lost, any claim for compensation. I have said nothing about the violation by the Japanese of the usages of civilised warfare (not of the Geneva Convention, which has no bearing upon the question), which would be involved by their having fired upon the Chinese troops in the water; not only because the evidence upon this point is as yet insufficient, but also because the grievance, if established, would affect only the rights of the Belligerents inter se; not the rights of neutrals, with which alone this letter is concerned. I have also confined my observations to the legal aspects of the question, leaving to others to test the conduct of the Japanese commander by the rules of chivalrous dealing or of humanity.
The controversy caused by the sinking of the Kowshing in 1894 was revived by the manner of the Japanese attack upon Port Arthur, in 1904 (see Professor Takahashi's International Law applied to the Russo-Japanese War, 1908, p. 1), and led to a careful study of the subject by a committee of the Institut de Droit International, resulting in the adoption by the Institut, at its Ghent Meeting in 1906, of the following resolutions:—[044]
(1) "It is in conformity with the requirements of International law, to the loyalty which the nations owe to one another in their, mutual relations, as well as to the general interests of all States, that hostilities ought not to commence without previous and unequivocal warning.
(2) "This warning may be given either in the shape of a declaration of war pure and simple, or in the shape of an ultimatum duly notified to the adversary by the State which wishes to begin the war.
(3) "Hostilities must not commence until after the expiration of a delay which would suffice to prevent the rule as to a previous and unequivocal warning from being thought to be evaded." See the Annuaire de l'Institut, t, xxi. p. 292.
In accordance with the principles underlying the first and second of these resolutions, The Hague Convention, No. iii. of 1907 (ratified generally by Great Britain on November 27, 1909), has now laid down as a principle of International Law, binding upon the contracting Powers, that—
(1) "Hostilities between them ought not to commence without a warning previously given and unequivocal, in the form either of a reasoned declaration of war, or of an ultimatum, with a conditional declaration of war."
And the Convention goes on to provide that—
(2) "The state of war ought to be notified without delay to neutral Powers, and shall be of no effect with reference to them, until after a notification, which may be made even telegraphically. Nevertheless, neutral Powers may not plead absence of notification, if it has been shown beyond question that they were in fact cognisant of the state of war." Any reference to the need of an interval between declaration and the first act of hostility (such as is contained in the third of the resolutions of the Institut) was deliberately omitted from the Convention, although a declaration immediately followed by an attack would obviously be of little service to the party attacked. (See the present writer's Laws of War on Land (written and unwritten), 1908, P. 18.)
SECTION 2
The Immediate Effects of the Outbreak of War
Enemy Residents
Before any actual hostilities have taken place, each belligerent acquires, ipso facto, certain new rights over persons and property belonging to the other, which happen to be at the time within its power,[045] e.g. the right, much softened in modern practice, and specifically dealt with in The Hague Convention, No. vi. of 1907, of capturing enemy merchant vessels so situated.
The following letter deals with the permissible treatment of enemy persons so situated; and was suggested by a question asked in the House of Commons on February 25, 1909, by Mr. Arnold-Forster: viz. "What would be the status of officers and men of the regular Army of a hostile belligerent Power, found within the limits of the United Kingdom after an act or declaration of war; and would such persons be liable to be treated as prisoners of war, or would they be despatched under the protection of the Government to join the forces of the enemy?" The general effect of the Attorney-General's reply may be gathered from the quotations from it made in the letter.
The topic was again touched upon on March 3, in a question put by Captain Faber, to which Mr. Haldane replied.
Sir,—The question raised last night by Mr. Arnold-Forster is one which calls for more careful consideration than it appears yet to have received. International law has in modern times spoken with no very certain voice as to the permissible treatment of alien enemies found within the territory of a belligerent at the outbreak of war.
There is, however, little doubt that such persons, although now more usually allowed to remain, during good behaviour, may be expelled, and, if necessary, wholesale, as were Germans from France in 1870. But may such persons be, for good reasons, arrested, or otherwise prevented from leaving the country, as Germans were prevented from leaving France in the earlier days of the Franco-Prussian War? Grotius speaks with approval of such a step being taken, "ad minuendas hostium vires." Bynkershoek, more than a century later, recognises the right of thus acting, "though it is rarely exercised." So the Supreme Court of the United States in Brown v. United States (1814). So Chancellor Kent (1826), and Mr. Manning (1889) is explicit that the arrest in question is lawful, and that "the individuals are prisoners of war."
[046]Vattel, is it true (1758), ventures to lay down that—
"Le Souverain qui déclare la guerre ne peut retenir les sujets de ennemi qui se trouvent dans ses états au moment de la déclaration ... en leur permettant d'entrer dans ses terres et d'y séjourner, il leur a promis tacitement toute liberté et toute sûreté pour le retour."
And he has been followed by some recent writers. There is, however, I venture to hold, no ground for asserting that this indulgent system is imposed by international law. I am glad, therefore, to find the Attorney-General laying down that—
"for strictly military reasons, any nation is entitled to detain and to intern soldiers found upon the territory at the outbreak of war."
And I should be surprised if, under all circumstances, as the learned Attorney-General seems to think probable—
"England would follow, whatever the strict law may be, the humane and chivalrous practice of modern times, and would give to any subjects of a hostile Power who might be found here engaging in civilian pursuits a reasonable time within which to leave for their own country, even although they were under the obligation of entering for service under the enemy's flag."
The doctrine of Vattel has, in fact, become less plausible than it was before universal liability to military service had become the rule in most Continental countries. The peaceably engaged foreign resident is now in all probability a trained soldier, and liable to be recalled to the flag of a possible enemy.
There may, of course, be considerable practical difficulties in the way of ascertaining the nationality of any given foreigner, and whether he has completed, or evaded, the military training required by the laws of his country. It may also be a question of high policy whether resident enemies would not be a greater danger to this country if they were compelled to remain here, than if they were allowed, or compelled, to depart, possibly to return as invaders.
I am only concerned to maintain that, as far as inter[047]national law is concerned, England has a free hand either to expel resident enemies or to prevent them from leaving the country, as may seem most conducive to her own safety.