COMMENCEMENT OF WAR.

THE CONTRACTING POWERS RECOGNIZE THAT HOSTILITIES BETWEEN THEMSELVES MUST NOT COMMENCE WITHOUT PREVIOUS AND EXPLICIT WARNING, IN THE FORM EITHER OF A REASONED DECLARATION OF WAR OR OF AN ULTIMATUM WITH CONDITIONAL DECLARATION OF WAR.

-Article 1, Hague Convention III, 1907.

Report to the Conference from the Second Commission on Opening of Hostilities.

The Russian programme contains the following topic:

Additions to be made to the provisions of the Convention of 1899 relative to the laws and customs of war on land-besides others, those concerning: the opening of hostilities and the rights of neutrals on land.

It was the duty of the Second Commission to study this part of the programme; the present report, however, deals only with the opening of hostilities.'

The question whether there is an obligation upon a Government intending to make war to give notice to its adversary before beginning hostilities has been discussed for years and has given rise not only to lengthy theoretical expositions but also to frequent recriminations between belligerents. It would be a vain task, from the point of view that we must take here, to review the practice in the various wars since the beginning of the last century in an effort to determine whether there is, according to positive international law, any rule on this subject. We have only to ask ourselves whether it is advisable to lay one down, and if so, in what terms.

As to the first point, there can be no doubt. It is clearly desirable that the uncertainty seen in various quarters should cease. Everybody is in favor of an affirmative answer to the first question placed before us by the president of the second subcommission, his Excellency Mr. Asser, in his questionnaire.

The subcommission has had before it a proposition of the French delegation, and an amendment thereto, offered by the Netherland delegation. The proposition and its amendment were alike in requiring a warning to be given before opening hostilities and also a notification to neutrals. The difference between them lay in the interval between the warning and hostilities, which the Netherland delega

tion proposed to fix definitely. Some special questions have also been raised regarding the notification to neutrals. We shall give you | an explanatory statement on these several points. The French proposition was worded as follows:

ARTICLE 1.

The contracting Powers recognize that hostilities between themselves must not commence without a previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.

ARTICLE 2.

The existence of a state of war must be notified to the neutral Powers without delay.

The main provision of this proposal, which was inspired by a resolution passed by the Institute of International Law at its meeting at Ghent in September, 1906, is easily justified. Two distinct cases are provided for. When a dispute occurs between two States, it will ordinarily lead to diplomatic negotiations more or less lengthy, in which each party attempts to have its pretensions recognized, or at least to secure partial satisfaction. If an agreement is not reached. one of the Powers may set forth in an ultimatum the conditions which it requires and from which it declares it will not recede. At the same time it fixes an interval within which a reply may be made and declares that, in the absence of a satisfactory answer, it will have recourse to armed force. In this case there is no surprise and no equivocation. The power to which such an ultimatum is addressed can come to a decision with a full knowledge of the circumstances; it may give satisfaction to its adversary or it may fight.

Again, a dispute may arise suddenly, and a Power may desire to have recourse to arms without entering upon or prolonging diplomatic negotiations that it considers useless. It ought in that case to give a direct warning of its intention to its adversary, and this warning ought to be explicit.

When an intention to have recourse to armed force is stated conditionally in an ultimatum, a reason is expressed, since war is to be the consequence of a refusal to give the satisfaction demanded. This is, however, not necessarily the case when the intention to make war is made manifest directly and without a previous ultimatum.

The proposal set out above requires that reasons be assigned in this case also. A Government ought not to employ so extreme a measure as a resort to arms without giving reasons. Every one, both in the countries about to become belligerents, and also in neutral countries, should know what the war is about in order to form a judg ment on the conduct of the two adversaries. Of course this does not mean that we are to cherish the illusion that the real reasons for a

war will always be given; but the difficulty of definitely stating reasons, and the necessity of advancing reasons not well substantiated or out of proportion to the gravity of war itself, will naturally arrest the attention of neutral Powers and enlighten public opinion.

The warning should be previous in the sense of preceding hostilities. Shall a given length of time elapse between the receipt of the warning and the beginning of hostilities? The French proposition specifies no interval, which implies that hostilities may begin as soon as the warning has reached the adversary. The time limitation before war is begun is thus less determinable than in the case of an ultimatum. In the opinion of the French delegation the necessities of modern warfare do not allow of a requirement that the party desiring to take the aggressive should grant further time than what is absolutely indispensable to let its adversary know that force is to be employed against it.

The principle of the French proposal met with no objection and the text was voted almost unanimously by the subcommission, after the delegations of Germany, Great Britain, Japan, and Russia had expressly declared themselves in accord with it.

The delegation of the Netherlands desired to supplement the principle as follows:

The contracting Powers recognize that hostilities between themselves must not commence until the lapse of twenty-four hours after an explicit warning, having the form of a reasoned declaration of war, or of an ultimatum with conditional declaration of war, has officially come to the attention of the adversary's Government.

The difference between this and the French proposal lies in requiring a fixed interval between the receipt of the warning and the opening of hostilities. The need for this delay was explained by Colonel Michelson, speaking for the Russian delegation, in these words:

The problem of such a delay is intimately connected with the relation which exists between the peace and war establishments of every country. Consequently a result of its adoption would be a more or less considerable reduction of expenditures. The time may not be so far distant after all when we shall be able to distinguish between the troops and other preparations for war which every country in its own sovereign judgment deems requisite in its political situation, and those that it is compelled to maintain only through the necessity of being constantly in readiness for fighting. By establishing a certain interval between the rupture of peaceful relations and the beginning of hostilities, an opportunity would be afforded to such countries as may desire it to realize certain economies during times of peace. It is undeniable that these economies would be beneficial in every way, and could not fail to bring about a great relief from the burden of peace armies, a relief all the more acceptable because it would in no way affect the right of each nation to fix its own forces and armament solely in accordance with its own views and needs.

There is still another advantage to be derived from the proposed delay. It would leave to friendly and neutral Powers some precious time which they could use in making efforts to bring about a reconciliation, or to persuade the disputants to submit their causes of difference to the high Court of Arbitration here. But, while speaking of this subject of a delay, we must not lose sight of what is at present possible. The idea of any considerable delay is not yet developed in the consciences of the people of the nations. Consequently it would perhaps not be wise to go too far with our desires, in order that we may not get beyond what is really possible in practice at the present day. So let us content ourselves with accepting the delay of twenty-four hours which has been proposed by the delegation of the Netherlands. Let us leave to the future the work of the future, and merely express our hope that in the future the benefits of a still longer delay will be secured.

While the force of this reasoning is undeniable, it did not convince the majority of the subcommission. It did not appear consistent with military exigencies of the present day to fix such an interval; a great advance is gained, however, in securing the admission of the need of a previous warning. Let us hope that in the future we shall make a further advance; but let us not proceed too rapidly. It is noteworthy that the Institute of International Law, in its resolution. referred to above, considered that it could not go so far as to suggest a definite interval, although in such a matter as this an assembly of jurists might be expected to be less conservative than an assembly of diplomatists and military and naval men. It limited itself to saying: Hostilities shall not commence before the expiration of a delay sufficient to make it certain that the rule of previous and explicit notice can not be considered as evaded.'

An obligation to make a declaration of war include the reasons therefor awakened some scruples as being contrary to provisions in some constitutions. Thus the Cuban delegates made the following statement: 'In view of the fact that paragraph 12 of Article 59 of the constitution of Cuba mentions among the powers of Congress that of declaring war, it is not possible for the delegation to subscribe to any act that does not reserve to our Congress the right to determine the form and conditions of such a declaration.' On the other hand, General Porter declared that the French proposal was not inconsistent with the provisions of the American federal constitution, under which Congress has the power to declare war.

Indeed, there seems to be some misunderstanding on this point. We should make a distinction between two acts that are often confused because the same expression is used to describe both: namely, the act of deciding on war and the act of communicating this decision to the adversary. According to the constitutions the decision. belongs to the sovereign or head of the State, either acting alone or in conjunction with the representatives of the people; but the notification is essentially for the executive. Since the notification closely follows the decision, they are combined under the term 'declara

tion,' and this is especially the understanding where there is externally only one sovereign act. Bearing this in mind, it is easily shown, that the French proposition voted by the subcommission is not at all inconsistent with constitutional provisions of the kind indicated. The liberty of a congress to decide on war in whatever way it chooses is not touched. Can it be supposed that war will be determined upon lightly, even though the formal resolution may not indicate the reasons, and is it too much to ask of a Government which, in execution of such a decision, declares war that it give its reasons therefor? We do not think so.

According to the second article of the French proposal, 'the existence of a state of war must be notified to the neutral Powers without delay'. As a matter of fact, war not only modifies the relations. existing between belligerents, but it also seriously affects neutral States and their citizens; it is therefore important that these be given the earliest possible notice. It is hardly to be supposed that, with the present rapid spread of news, much time will elapse before it is everywhere known that a war has broken out, or that a State will be able to invoke its ignorance of the existence of a order to evade all responsibility. But as it is possible, in spite of telegraph and cable lines and radiotelegraphy, that the news might not of itself reach those concerned, precautions must be taken. Accordingly two amendments were offered. The first, from the Belgian delegation, was as follows: The existence of a state of war must be notified to the neutral Powers. This notification, which may be given even by telegraph, shall not take effect in regard to them until forty-eight hours after its receipt.' The other, offered by the British delegation, in an article contained in a proposal submitted to the Third Commission and referred to this subcommission, said: 'A neutral State is bound to take measures to preserve its neutrality only when it has received from one of the belligerents a notification of the commencement of the war.'

The Belgian amendment was intended merely to put neutral States in a position to discharge their obligations, but as it might be differently interpreted, if taken literally, it was modified. It did not, however, even as amended, receive the approval of the Commission.

The view which has been adopted is that it is impracticable to fix any delay. The governing idea is a very simple one. A State can be held to duties of neutrality only when it is aware of the existence of the war creating such duties. From the moment when it is informed, no matter by what means (provided there is no doubt of the fact) it must not do anything inconsistent with neutrality. Is it at the same time obliged to prevent acts contrary to neutrality that might be committed on its territory? The obligation to do so