International law ..

PART II WAR by JOHN WESTLAKE, LL.D., K.C

Late Whewell Professor of International Law in the University

of Cambridge ; Honorary Fellow of Trinity College, Cambridge ;

Honorary D.C.L. of the University of Oxford ;

Honorary LL.D. of the University' of Edinburgh ;

Honorary President of the Institute of International Law ;

Late Member of the Permanent Court of Arbitration at the Hague.

SECOND EDITION

Cambridge :

at the University Press

19^3

First Edition 1907 Second Edition 1913

Preface To The Second Edition

TN this edition what related to the Ha<;rue Conference of 1907

-*- and the conventions that issued from it, and what relates

^ to the Declaration of London which has supplemented it, is

>- incorporated with the rest of the book, in which in other

respects only a few verbal changes have been made. The

y Declaration of London itself is added as an appendix.

to

J. WESTLAKE.

Feliruiirji l!)l:}.

Preface To The First Edition

AMONG the causes which have retarded this sequel to the -^-^ volume of 1904 — International Laze, Part I, Peace — the two principal have been, first, the necessity of bringing out a new edition of mv Private International Laic, and secondly, the imminence of a second Hague Conference, certain to produce important discussions and likely to produce notable amendments of the laws of war. Although the Conference is still silting wliile I write, it is now possil)lc to give an account of its work on the laws of war. ( )t)lig,(t()iv ai-bitration, a permanent court of arbitration, the Diago doctrine and the limitation of armaments belong to the laws of peace.

Time was gained l)\ printing, beforf the mci-tiiig of the Conference, most of wbal il was desired to say on the law as it vi Preface.

stood, a little however being reserved for treatment in connection with the Conference. In consequence it will be necessary, in order to obtain a complete view of many subjects, to refer as well to the last chapter, in which the proceedings at the Hague are dealt with, as to the former portions of the volume. Perhaps however the balance of convenience is on the side of keeping the old law distinct from discussions and amendments the full effect of which, and even to some extent their general acceptance, time will be recjuired to appreciate.

In reviewing the laws of war for the purpose of this volume, I have been more than ever struck with the differences which exist as to their principles. It is hoped that those differences have been presented and their history sketched without exaggeration or extenuation. One point which it may be worth while to notice here is the author's conviction that the common representation, according to which England early accepted fi-om the Consolat del Mar the immunity of neutral goods in enemy slnps, cannot survive Mr Marsden''s publication of the Select Pleas of the Court of Admiraltij for the Selden Society and his *S'/'.r Centuries of the Admiralty Comi. See pages 123-127 of the present volume [140-3 of the Second Edition].

J. WESTLAKE.

October 1907.

Chapter I. ^\'ar And Forcible Measures Short Of War

Definition of War .......

The Relation of A\'ar to International Law- Reprisals and Embargo ......

Pacific Blockade ........

Moral Justification of Force without War .

The (onimencement of War as between the Belligerents

Armed Interventions .......

The Commencement of ^\'ar as against Neutrals

PAGE 1 3

fi 11

18 19 28 30

CHAriKR II.

le(;al relations as affected by war.

War as a Relation between States: its Effect on Treaties General \'iew of the Relation of Individuals to A\'ar Enemy Subjects, and their I'roperty and Rights, within the Territory of a State ........

The Doctrine of Non-Intercourse (luring \\ ar ....

32 35

41 48

CHAi"n;i{ III.

THE LAWS OF WAR L\ (iENLRAL . . 5<;

Vlll

Contents.

CHAPTER IV.

THE LAWS OF WAR ON LAND, BEINC4 THE HAGUE REGULATIONS WITH A COMMENTARY.

Section III. On Military Authority over Hostile Territory Cases not provided for in the Hague Regulations

Between what parties codified Laws of AFar apply

The Laws of War in relation to Reprisals .....

Are the Laws of W^ar liable to be overridden by Necessity.''

PAGE

64 67

76 89 91 91 92

121 123 123 126

CHAPTER V.

NEUTRAL POA\ ERS AND PERSONS IN WAR ON LAND 129

Chapter VI. Naval War As Between Belligerents

Private Property at Sea and Persons on board

(A) Property: history to 1907

(B) Persons: history to 1907

(C) Private f^nemy Property at Sea Exceptions to the Capture of Enemy Property at Sea

Personal Effects

Coast Fisheries

Science, Art &c.

Licenses .....

Cartel Ships ....

Shipwreck or Peril of the Sea

Merchantships

Contents.

IX

Criterions of Enemy Character ....

Nationality, Domicile, Mouse of Business

Enemy Character of Ships

F^nemy Character of Cargoes .

Enemy Character of a Ship by reason of her Various Points of Prize Law

Privateers .....

Freight ......

Recapture .....

Ransom Bills .....

Naval Bombardments .....

Postal Correspondence at Sea The Red Cross in Naval Wav

PACK

Service .

Chapter VII. Neutrality

The Tlieory of Neutrality ......••

History of the Theory of Neutrality ......

Note on Aid in >Var given in pursuance of a Treaty by a Power claiming to continue a Neutral .....

100 198

Chapter VIII. Duties Of Neutral States

National Laws on the Subject

Illegal Enlistment . . . . •

Illegal Miipl)uilding .....

Illegal Ex])editions .....

Illegal Prize ......

Duties of Neutral States in their i'liblic Action- Part

I'se of Neutral VV^aters l»y belligerents .

Rule of 24 Hours' Interval

Rule of 24 Hours' Stay .

Fliglit from the enemy

Repairs and Suftplies, especially coal

Prizes in Neutral Ports .

>Vhere Previous Breacdi of Neutrality Part 2— under Convention .XIH of 1!)07 - Use of Neulnil Soil hy lielligf-rents

J^uans fo I'lelligercMt States

I'ostal and Telegraph Services

— 1)1

\iou

208 210 213 221

251 251 253

Contents.

Chapter IX. Declaration Of London And Blockade

Declaration of London .......

Limitation of Blockade by the rights of Neutral Territory

PAGE

255 256 275

Chapter X. Contraband Of War

Contraband at the Conferences of 1!)07 and 1909 Penalty for the Carriage of Contraband of \V^ar Continuous Voyage and Rule of War of 1756 . Export of Contraband and Convoy Analogues of Contraband: Men and Despatches

287 291

293 299 802

Chapter XI. The Open Questions Of Naval ^var

Conversion of Merchantmen into Ships of AVar . Destroying Prizes at Sea .......

Floating Mines .........

An International Prize Court ......

307 309 312 317

Appendix

THE DECLARATION OF LONDON

Index

TABLE OF CASES.

Abbott, Hanger v., 52

Albrecht i\ Sussmau, 54

Alexandra, The, 214, 215

Allen, Hoare v., 53

Amelia, The, 161

Amistad de Hues, La, 229

Angell, Pellecat v., 214

Anna Catherina, The, 174

Ann Green, The, 173

Anthon v. Fisher, 48, 181

Antoine v. Morshead, 47, 51, 52

Antonia Johanna, The, 1(54, 178

Apollo, The, 284

Askold, Tlie, 239

Atalaiila, The, 302, 305 .

Aurora, The, 13

Hailey, Seymour ik, 54

Jialtica, Tlie, 1(59, 172

liattle, The, 170

Heauvarlet v. Bureau de bienfai-

Boedes Lust, The, 10

Boyle, Thirty Hogsheads of Sugar (Bentzon claimant) v., 109, 175

Boussmaker, exp., 51, 53

Braune, De A\^a]il v., 52

Brown v. United States, 47

Bullen V. The Queen, 172

Bundesrath, The, 297

Bureau de bienfaisance de la Pointea-Pitre, Beauvarlet v., 98

Burton i\ I'inkerton, 225

Caiman, Tlie, 13

Carlos, The, v. Roses, 170

Caroline, The, 305

Catliarina Elizabeth, The, 302

C'haml)ers, Kennett i'., 253

('lia\'asse, exp., re Grazebrook, 299

Clarke *'. Morey, 54

Clugas V. Penaluna, 214

Comte de Thomar, The, 13

Conn r. Penn, 53

Cornu r. Blackburne, 181

Crawford v. The VV^illiam I'enn,

1(52, 181 Cross V. Harrison, 98

Danckebaar Afrikaan, The, 1(59, 173

Uart, The, 108

De (iiversvillc, De iJaiiiell r., 55

De .larnett r. De (iivcrsville, 55

De \\'ahl /'. lira. me, 52

XIV

Table of Cases.

Society for the Propagation of the Gospel V. Town of Newhaven, 33

Soglasie, The, 173

Springbok, The, 298

Staadt Embden, Tlie, 16

Stathem, New York Life Insurance Company v., 52

Stephen Hart, The, 298

St Mark, The, 143

Susan, The, 305

Sussman, Albrecht v., 54

Sutton V. Sutton, 33

Terceira case, 211, 223 Thirty Hogsheads of Sugar (Bentzon chiimant) v. Boyle, 16!), 175 Thompso!!, Donaldson v., 168 Thoinyris, The, 296 Tobago, The, 170 Turner, The, 170 Twee Gebroeders, Tlie, 228, 231 Twee Gebroeders (2), 'J'he, 231

United States, Brown v., 47

5>

United States, McVeigh r., 54, 55 ,, ,, i\ Quincy, 215, 217

Vixen, The, 12

Voltigeante, La, Le Hardy c, 163

Vorwarts, The, 309

Vreyheid, The, 178

Vrow Anna C'atharina, The, 175

Vrow Henrica, The, 178

Vrow Margaretha, The, 173

„ V. Jones, 49 Waymell v. Read, 214 Weils V. \\'illiams, 50, 54, 165 William Peini, The, Crawford v.,

162, 181 William, The, 296 Williams, Wells v., 50, 54, 165 Wolff V. Oxholm, 47

Young Jacob and Johanna, The, 160

Zacheman, The, 281

ERRATA AND ADDENDA.

Page 86, middle paragraph : To avoid misconception as to the extent to whicli Great Britain is bound by the convention whicli contains the famous Art. 23 {h), supposing that Article to prohibit with full generality the denial to enemies of a persona standi in judicio, it must be pointed out that such denial, being a part of the law of England affecting private rights, cannot be effiiced from that law by a treaty. An act of parliament would be needed for the purpose. The king, as head of the executive, can bind himself by a treaty to instruct the commanders of his armies not to apply such denial in foreign places occupied by them ; and this I am of opinion tliat he has done, if ever it should be possible for the occasion to arise in an occupation. See an article by me— i* International Law a jxtrt of the Law of England'^ — 22 Law Quarterly Review, pp. 14, 2().

Page 116, line 10: for "Spanish" read "Danish."

Pages 29o, 296. The Declaration of London, Art. 57, leaves undecided the case of a neutral ship engaging in a trade closed in time of peace, whether, apparently, slie does so by special license or under a general opening of the trade not meant to be permanent.

The revision of the present edition and the necessary additions to it were made by the author shortly before his death.

Chapter I. War And Forcible Measures Short

OF WAR.

Definition of ]Va?\

For the redress of wrongs or the prosecution of cLainis states may appeal to force either by war or by certain measures — reprisals, embargo or pacific blockade — not inconsistent with peace. The consideration of measures of the latter class will naturally precede the detailed consideration of war, as being more akin to the subject of the preceding volume, but first of all war must be defined or those measures could not be distinguished from it. The definition of war given by Grotius was status per lylm certantlum qua tales S7cnt (1. 1. 2. 1), which includes, as he intended it should, private (juarrels waged by force. Rut it may well be doubted whether a term liecomes more useful by being made so comprehensive, nor does the common employment of the word "war"" now extend so far, whatever may have been the case three centuries ago as to helium. We therefore, accepting the definition of (irotiiis in other respects, will say that zvar Is the state or condition of governments contending hj force. Govermnents are here mentioned and not states, because the laws of war belong c(|iinliy lo insuigents not yet recogiu'sed as a state but recognised as liuving belligerent lights, which tliev could not be if tliey did not jjossess a goveriniient. W^hether and how far individuals cuji be tri'uted as parties to a war is a question to he discussed in I lie sccnicl, and is not prejudiced i)y the use of llir word ''government," as indeed it would not have been by the use of I lie woid "•state":

WK. II. 1

2 JVa?' and Fcwcible Measures Short of IVar. [cH. I.

if they are treated as parties to a war, that can only be justly done when there is reason for their being identified with their state or government.

The important point of the definition is that war is a state or condition : non actio sed status eo nomine indicatur says Grotius (u. s.). As such war is not set up by any mere act of force, whether an act of reprisal, embargo or pacific blockade, or an act of self-defence, or one of unlawful violence. It can be set up only by the will to do so, but that will may be unilateral because the state of peace requires the concurrent wills of two governments to live together in it, and is replaced by the state of war as soon as one of those wills is withdrawn. How the will to set up war may be manifested is a question which we shall have to consider : here attention is called to the fact that acts of force are not war unless either a government does them with the intent of war or the government against which they are done elects to treat them as war. Thus, for example, a pacific blockade may continue long and come to an end without there ever having been war.

It may serve to make our thoughts still clearer if with Grotius's definition of war we contrast an earlier and a later one, both due to writers of great distinction. Albericus Gentilis said that bellum est publicorum armoi'uvi jiista contentio: de Jure Belli, 1. 1 , c. 2. This does not bring out the cardinal point that war is a state or condition. Also, although the word publicorwn admits of the meaning necessary to make the definition correct, it would seem that Gentilis regarded it as not war but treason if insurgents not constitutionally having imperiuvi fight against their prince (1. 1, c. 3). The truth is that a great insurrection with a real government at its head may have both characters. It will be war for the purpose of the neutrality of the powers which recognise the insurgents as having belligerent rights, and even the government against which it is directed may and ought, for the sake of humanity, to treat it as war while the struggle continues, though if and when it has been put down the internal law of that government will not thereby be prevented from regarding it as treason. Lastly, to define war as SLjusta contentio is correct in the sense in which Justu7n means plenitudo gucedam, the satisfaction of certain requirements,

CH. I.] Defijiition of War. 3

as in pistce nupticc, justa a?tas; and in fact the common phrase juMum helium means only a regular war. Yet although Gentilis gets a glimpse of this (1. 1, c. 2), he does not hold firmly by it as his contemporary Ayala did, but, taking justum in the popular sense of consonant with justice, accounts for a war being entitled on both sides to that appellation by there being generally a show of justice on each side, and by the mean in which justice consists being not a point but a space possessing breadth, within which room may be found for each party though one is more just than the other (1. 1, c. 6).

The second writer above referred to is Bynkershoek, who says helium est eorum qui succ potestatis stmt juris siii perscquemU causa concertatio per vim vel duluvi : Ohservationes Juris Puhlici, 1. 1, c. 1. Here the sure touch of Grotius is wanting. The character of a state or condition, which when once it had been pointed out ought not to have been forgotten, is omitted, and the mention of dolus, which often accompanies force but is neither a necessary nor alone a sufficient ingredient in the constitution of war, gives to the sentence the character of a description rather than a definition. Juris sui must be understood and was doubtless intended to include a claim, whether in accordance with jus or not.

The Kelatiun of War to International Laze.

International law did not institute war, which it found already existing, but regulates it with a view to its greater humanity. War is a piece of savage nature partially reclaimed, and fitted out for the purpose of such reclamation with legal effects, such as the abrogation or suspension of treaties, and legal restrictions, such as what are called the laws of war and neutrality. No force is used in war by agents having an international character, as force is used by agents having a public character in order to secure obedience to the law of the land. That war is often waged by powers which have allied themselves for the purpose by international compacts is no excei)tion to this. If an international govenunent were to arise, either by the authority of the great powers growing into a definite and recognised system or by any otlier means, the employment of

1-2

4 IVa?^ and Forcible Measures Sho?'t of War. [cH. i.

force by such government would be comparable to its employment by the ministers of justice within a state. But that consummation is still far off, and until it shall be reached war cannot be described as an execution. Neither to the claims which furnish the reason or the pretext for war, nor to international law so far as it may pronounce such claims to be just, does war stand in the same relation in which an execution stands to the claim of a plaintiff or to the law of the land under which it is put forward. An attempt is sometimes made to determine in the name of international law the conditions on which a recourse may be had to arms, as that an offer of submitting to arbitration shall have been made, where the case is not one of those supreme ones for which it is generally considered that arbitration is unsuitable. No doubt that is the counsel of morality, and so too is it that much shall be borne rather than that war shall be begun for a slight though just cause, even when there is no other recoui'se. But these are not rules of law, for they are totally lacking in precision, the principles which they express receive nothing approaching to general observance, and the legal character of a war is the same whether they have been observed or not. The truth is that when war enters on the scene all law that was previously concerned with the dispute retires, and a new law steps in, directed only to secure fair and not too inhuman fighting. This, like the law which during the contest it replaces, consists of rules having the general approval of the society of nations and more or less enforced by the irregular action of that society ; but there are great differences in the efficacy of the enforcement.

The rules which lay down the conduct to be observed by neutrals during a war are among those in the elaboration and enforcement of which the action of the society of nations is the most influential. " Let war break out between two powers, and the whole non-belligerent world is at once related to that war as neutral, its political and commercial interests are affected by the views entertained about the mutual rights and duties of neutrals and belligerents, incidents occur which oblige even the remotest state to act on some view about those rights and duties, and a general vigilance is aroused not only as to the observance but even as to the shaping of the rules on the subject." Even what

CH. I.] The Relatioii of War to International Laiv. 5

in those circumstances neutrals tolerate on the part of belligerents without expressly sanctioning it easily tends to become clothed with the character of law. But the rules which lay down the mutual rights and duties of belligerents present the action of the society of nations at a low level. "A belliirerent may complain that his enemy has violated the laws of war, he may use measures of retorsion, but the discussion which so arises is seldom brought to any clear decision. The victory of one party, or such balance of power as may be reached between the parties, brings to a single comprehensive close the war and every thing connected with it, the disputes which led to the war, the ulterior aims which have been developed in its course, and the recriminations to which its incidents have given rise. In drawing up the treaty of peace what is thought of is the new departure in the relations of the parties," including third powers which may have intervened or made their pressure felt for political reasons — such interference on the ground of the misdeeds of a belligerent in the conduct of the war is scarcely known. •'Resentment at an act which he deems to have been a violation of the laws of war may swell the indemnity demanded by the con(|ueror, but the amount added on that score caiuiot be distinguislied, the vanquished pay the indemnity without admitting the violation, and if they condemn the conduct of the war by the conqueror their remonstrances remain wholly without effect. When in a subsequent war the temptation arises to repeat an act the lawfulness of which has been questioned in a previous war, the records of the latter furnish no pronouncement on its lawfulness which can be aj)pea]ed to'." Since tiiis was written the work of the Hague Conferences of 1899 and 1907 has marked a great advance in the part taken by the society of nations in shaping the laws of war, but the small part which it takes in their enforcement remains open to the same criticism. If on tlie other hand, with regard to the laws of war, general opinion lias less external support lliaii in other parts o\ international law, it speaks wilh more authority when it imposes restrictions on violence in the names of humanity and conscience.

' Tlic (jiKttatiims in tliis piiraffnij)]) are rrmii Chajifrrs on tin- l'niirii>lri> i>f hdcriiatioiiul Liiw, 1»1)4, pp. 'I'.Vl A.

6 TFar and Foixible Measures Short of War. [cH. i.

Reprisals and Embargo.

In the literature of international law there are for modes of self-help several terms which are not always carefully distinguished. The widest is retorsion, which applies whenever action is taken by a state in order to compensate it for some damage suffered through the action of another state, or in order to deter the latter from continuing the action complained of. There may be no breach of law on either side, as when state A imposes custom duties which do not contravene any treaty, and state B^ which believes its interests to be damaged by them, imposes by way of retorsion custom duties from which it also is not debarred by any treaty. These however are matters of policy. As a matter of law there is retorsion when state A deems that it has received from state B not merely damage but legal injury, exempting it from the duty of a strict observance of law towards the wrongdoer, and replies by another breach of law intended to be compensatory or deterrent. In time of peace such retorsion is not generally justifiable in the forum of conscience unless the complaining state has obtained in its favour the sentence of a court of arbitration, or there are no means of submitting the complaint to arbitration. There may be exceptional cases, as where there is reason to expect that a slight and very clear wrong may be remedied by a not very serious counter wrong, with less expenditure of time and trouble than an arbitration would require; or where, the wrong complained of being greater and very clear, retorsion may fairly be employed concurrently with a demand for arbitration. Such exceptions are especially likely to occur where the complaint is that some provision of a treaty has not been observed, and the retorsion consists in not observing some other provision of that treaty or of another treaty between the same states; but there can be no doubt that in the regular course of things remedies should be sought in arbitration before they are sought in self-help.

Another of the ill distinguished terms to which we have referred is retaliation, which is often used in the wide sense of retorsion of any kind, but is perhaps more properly used only for that kind of retorsion in which the thing done in return is the same as that complained of. "An eye for an eye" is retaliation.

CH. l] Reprisals and Embargo. 7

but that term would hardly be used of imprisonment for injury to an eye. Thus in war, breaking towards an enemy the particular rule of civilised warftire which you accuse him of breaking would be retaliation, while breaking another rule towards him would best be described as retorsion. And the non-observance of a treaty in one clause in return for its non-observance in another clause might well be called retaliation, the treaty being the same.

Reprisal is another of the terms referred to. Its etymology gives the sense of " taking in return," and its original use was in the plural (reprisals, repressaUa) as denoting a certain systematised taking by way of self-help which will presently be explained. From that sense it has come to be used in cases where there is no taking because the thing is already in the hands of the power seeking redress, as in that of Frederick the Great's withholding the interest on the Silesian loan in retorsion for what he alleged to be the unjust condemnation of Prussian vessels in English prize courts ; and occasionally even still more widely, as ecjuivalent to retorsion generally. But it is not retorsion generally, or even reprisal in the sense of withholding a payment or not observing a treaty provision, that we have to do with in this place. We are not here concerned with self-help in any other form than that of acts of force, because it is only those that are liable to be confused with war. And even among acts of force in time of peace our only concern is with certain classes of them which from various causes have been systematised, and that in modes which make their confusion with war diHicult to avoid, although their difference from it cannot be overlooked without underminin<; the definition of war as a state or condition. Take such an act of force as Jlussia's occupying the Danubian provinces of Turkey in 185J}, with the view of holding them as what she called a material guarantee. We shall see in its place that such an act is not necessarily one of war, l)iil it does not belong to the classified and systeinatised acts iiou io be considered.

Reprisals, as a forcible measure employed by states in Inne of peace, may be defined as the taking possession, at sea or on land, of the ships or other property of a foreign slate or its subjects, with a view either to pressure on that state for the

8 JFar and Foirible Measures Short of War. [CH. l.

redress of a wrong alleged to have been done by it or by one of its subjects, or to the application of such property in compensation of such alleged wrong.

Embargo, as a forcible measure employed by states in time of peace, is a special case of reprisals as above defined, being the detention of such property as mentioned, usually ships in the ports of the embargoing state, with such view as mentioned. Thus embargo, and reprisals in the special sense in which they are contrasted with it, differ as detention from capture ; but when the property embargoed is applied in compensation it is reprisal, and the two terms are not carefully distinguished in practice.

Reprisals {repressaUa) were based on the solidarity which according to ancient views, still far from having ceased to operate, existed between a prince and his subjects or between a city and its citizens, A wrong done by any of them to a foreign prince, city or person was the wrong of all, and all were answerable for it ; the cause of any of them who had suffered a wrong from a foreign prince, city or person was the cause of all, and often in practice all took it up, though perhaps in theory it was only for the wronged one or his prince or city to do so. Together with this there worked another mediaeval principle, that of self-help as the primary mode of redress. Even in England the history of our law teaches us that civil procedure at first rather came in aid of self-help than was looked on as being in itself the proper and whole remedy. It is necessary to dwell on this aspect of the case because it must not be supposed that the difference between self-help against the foreigner and war was not well known in the middle ages. War was entered on by d\fJidatio, defiance, severing the tie of faith between him who sent it and him who received it; and this not merely between superior and inferior, in order to discharge the feudal duty of either to the other, but between equals. That tie being severed, the dijfidatio set up a new relation between the parties, just as we still recognise that of war to be. But self-help neither required nor implied a severance of the tie of faith.

That a person who had a grievance against a foreigner should capture ships and cargoes belonging to him, or to those whom general opinion regarded as being solidary with him, was no

CH. I.] Reprisals and Embargo. 9

more deemed shocking or exceptioiud in a state of peace, than a man's forcibly retaking his goods from a neiglibour who had despoiled him of them was deemed to be inconsistent with the internal peace of a country. Nay, that he should capture and detain the persons of the fellow subjects or fellow citizens of his alleged debtor — for to that extent reprisals went — was a natural conclusion from the principles of solidarity and self-help, applied when imprisonment was deemed the natural remedy for debt.