presupposes the ability. What can be required of a neutral Government is that it take the necessary measures without delay. The interval within which the measures can be taken will vary, naturally, according to circumstances, extent of territory, and facility of communication. The interval of forty-eight hours, as was proposed, might be, in a given case, too long or too short. There is no need of establishing a legal presumption that the neutral is or is not responsible. It is a question of fact which can be determined usually but with little difficulty.

The subcommission therefore confined itself to the following draft:

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph.

In the committee of examination it was pointed out that the rule phrased in this way is too positive, since it implies that a neutral Government which through some circumstance or other had not received the notification provided for, even though it is unquestionably aware of the existence of a war, could evade all responsibility for its acts, simply by relying on the absence of a notification. The essential point would seem to be that a Government must be aware of the existence of a state of war in order to take necessary measures. Proof is easy when a notification is given; but if there has been no notification, the belligerent who complains of a violation of neutrality must clearly establish that the existence of the war was with certainty known in the country where the alleged unlawful acts took place. After a discussion the majority of the committee decided to add the following clause:

However, it is understood that neutral Powers can not rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.

This text was accepted by the Commission and seems to take all interests sufficiently into account.

It has been asked what form ought to be given to the provisions thus adopted. Shall they be placed in a special convention or declaration? or shall they be embodied in the Regulations of 1899 on the laws and customs of war on land? Without wishing to trespass on the field of the drafting committee, it is proper to say that the latter mode may be dismissed from consideration since the provisions are of a general character applying to naval war as well as to war on land. Besides, provisions respecting the duties of neutrals do not ordinarily fall within the scope of regulations intended to serve as instructions for troops. We might consider combining all the provisions concerning neutrals adopted by the Second and Third Commissions; but it should be borne in mind that our Article 2 is closely

related to Article 1 and ought not to be separated from it. The drafting committee, however, will have the final decision.

We have the honor, therefore, to submit to the Conference the two following propositions:

ANNEX 1.

Draft of Regulations relating to the Opening of hostilities.

Text submitted to the Conference.

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, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. However, it is understood that neutral Powers can not rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.

ANNEX 2.

Questionnaire prepared by His Excellency Mr. T. M. C. Asser, president of the second subcommission of the Second Commission, to serve as a basis for discussion.

1. Is it desirable to establish an international understanding relative to the opening of hostilities? (On the supposition of an affirmative response to this question :)

2. Is it best to require that the opening of hostilities be preceded by a declaration of war or an equivalent act?

3. Is it best to fix upon a time which must elapse between the notification of such an act and the opening of hostilities?

4. Should it be stipulated that the declaration of war or equivalent act be notified to neutrals?

And by whom?

5. What should be the consequences of a failure to observe the preceding rules?

6. What is the diplomatic form in which it is best to set out the understanding?

ANNEX 3.

Proposal of the Netherland Delegation, amendments to the proposal of the French Delegation.

ARTICLE 1.

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.

ARTICLE 2.

The existence of a state of war must be notified to the neutral Powers without delay, and shall not begin with regard to them until after the notification thereof has officially come to their attention.

Reports to the Hague Conferences, pp. 502–508.

Convention No. 3. The Commencement of Hostilities.

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 infamous." 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 settlement.

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 adopted.

(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 opinion." 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 introduced.

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 recognized 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 mobilization: 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 operations.

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 war.

The Convention is a useful contribution to the rules of International Law. By Article 1 the contracting Parties recognize that they are now under an obligation 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