Arthur before a formal declaration of war, caused a movement for the establishment of some written rules concerning the commencement of war. The Institute of International Law, at its meeting at Ghent in 1906, adopted three principles according to which war should not be commenced without either a declaration of war or an ultimatum, and in either case a certain delay sufficient to ensure against treacherous surprise must be allowed before the belligerent can have recourse to actual hostilities. The Second Peace Conference at the Hague in 1907 took the matter up and produced the Convention (III.) relative to the commencement of hostilities which comprises four articles and has beeen signed by all the Powers represented at the Conference, except China and Nicaragua, both of which, however, acceded later.

According to article 1 of Convention III. hositilities 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 emphasize 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 asserted that communication by any means, be it by a written document, by telegraph or by telephone message, or by direct word of mouth, is admissible. I believe that such an assertion 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 document 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 1 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 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.

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 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 emphasize 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 document.

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 ultimatim 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.

Oppenheim, vol. 2, pp. 121–128.

A declaration of war is a formal notification on the part of a state that it considers itself at war with another state to which the notification is sent. The question whether such declarations are necessary was answered in the affirmative by the Hague Conference of 1907. But before we give the exact terms in which it ended a controversy as old as International Law, it will be advisable to state very briefly how matters stood before its intervention. Among the early publicists there was a great preponderance of opinion in favor of the doctrine that no state ought to commence hostilities before it had sent to its opponent a formal notice of its intention to fight. But if we turn to practice we find that, though in the Middle Ages heralds were generally despatched with much ceremony to give the enemy warning, sometimes the notice itself was turned into an insult, as when Charles V of France declared war in 1369 against Edward III of England by a letter the bearer of which was a common servant. After the decay of the mediaeval order the use of heralds gradually ceased. It was followed by formal diplomatic statements to the other side of a determination to commence hostilities. But these were often omitted, and at last in the eighteenth century they become the exception rather than the rule. Such declarations as we do find were made more often than not some time after acts of hostility had been going on. For instance, fighting commenced between England and France by land and sea in 1754, but the formal declarations of war were not made till 1756. One more case will suffice out of the many that lie ready to hand. At the end of 1787 Austria seized various Turkish fortresses, but she did not declare war till February, 1788. Little change took place till the latter part of the nineteenth century, when the practice of making declarations before resorting to the use of force showed signs of revival. In 1870 the French chargé d'affaires at Berlin handed in a formal declaration of war before the outbreak of hostilities between France and Prussia, and in 1877 a despatch declaring war was given to the Turkish representative at St. Petersburg.

With such a history as this behind them, it is evident that modern jurists could not insist on the ancient view that International Law

required a formal declaration of war as a preliminary to any warlike acts, or at least as contemporary with them. The contrary doctrine that no declaration is necessary was the only one that could be deduced from the practice of nations; and practice was the only evidence of their consent before the existence of a general international agreement embodied in a binding document. We find, therefore, that most writers on the subject uphold the latter view, though there still remain some who follow the ancient authorities, in a laudable endeavour to provide against treacherous attacks. But their zeal for righteousness causes them to fall into the old confusion between what is and what ought to be. International morality does undoubtedly demand that no hostile operations shall be commenced without warning. This is, however, a very different thing from commencing without declaration. To attack another state in a period of profound peace, without having previously formulated claims and endeavored to obtain satisfaction by diplomatic means, would amount to an act of international brigandage, and would probably be treated accordingly. But the state of things set up by such abominable means would nevertheless be war, and both sides would be expected to carry on their operations according to the laws of war. When in 1904 Admiral Togo made his celebrated dash on the Russian fleet in the outer harbor of Port Arthur, Japan was immediately accused, not of being engaged in operations that could not be regarded as war, but as having commenced a war by " a treacherous attack." The facts of the case lent no countenance to this view. Negotiations had been going on without avail since July, 1903. On February 6, 1904, the Japanese minister at St. Petersburg handed to Count Lamsdorff, the Russian Foreign Secretary, a note which not only broke off diplomatic negotiations, but added that the government of Japan "reserved to themselves the right to take such independent action as they may deem best to consolidate and defend their menaced position." This was an unmistakable warning that hostilities might be expected at any moment. On the day it was delivered the Japanese squadron sailed from Sasebo and one of its vessels captured a cruiser of the Russian Volunteer Fleet. On the 8th the Russian warships at Port Arthur were seriously damaged by Japanese torpedo boats, and on the 9th an action was fought off Chemulpo, as a result of which a Russian cruiser and gunboat were destroyed. After acts of hostility had been going on for four days, Japan published a formal declaration of war on February 10.

There can be no doubt that the conduct of the island empire on this occasion was in no way open to the charge of treachery. It was well within approved precedents. But the controversy it provoked called the attention of the civilized world to the matter; and the obvious unreality of making declarations of war some time after