International Law. A Treatise Volume Ii Part 8

(8) The Convention for the adaptation to sea warfare of the principles of the Geneva Convention, produced by the First and revised by the Second Peace Conference.

(9) The Convention of 1907 concerning the opening of hostilities (Second Peace Conference).

(10) The Convention of 1907 concerning the status of enemy merchantmen at the outbreak of hostilities (Second Peace Conference).

(11) The Convention of 1907 concerning the conversion of merchantmen into men-of-war (Second Peace Conference).

(12) The Convention of 1907 concerning the laying of automatic submarine contact mines (Second Peace Conference).

(13) The Convention of 1907 concerning bombardment by naval forces in time of war (Second Peace Conference).

(14) The Convention of 1907 concerning certain restrictions on the exercise of the right of capture in maritime war (Second Peace Conference).

(15) The two Conventions of 1907 concerning the rights and duties of neutral Powers and persons in land warfare and in sea warfare (Second Peace Conference).

(16) The Declaration of London of February 26, 1909, concerning the Laws of Naval War, which was signed at the Conference of London by Great Britain, Germany, the United States of America, Austria-Hungary, Spain, France, Italy, j.a.pan, Holland, and Russia, but is not yet ratified. This Declaration enacts rules concerning blockade, contraband, unneutral service, destruction of neutral prizes, transfer of vessels to a neutral flag, enemy character, convoy, and resistance to search.[83]

[Footnote 83: The United States of America (see above, vol. I. -- 32), published on June 27, 1900, a body of rules for the use of her navy under the t.i.tle _The Laws and Usages of War on Sea_--the so-called "United States Naval War Code." This code, although withdrawn on February 4, 1904, will undoubtedly be the starting-point of a movement for a Naval War Code to be generally agreed upon by the Powers. See below, -- 179.]

[Sidenote: Binding force of the Laws of War.]

-- 69. As soon as usages of warfare have by custom or treaty evolved into laws of war, they are binding upon belligerents under all circ.u.mstances and conditions, except in the case of reprisals[84] as retaliation against a belligerent for illegitimate acts of warfare by the members of his armed forces or his other subjects. In accordance with the German proverb, _Kriegsraeson geht vor Kriegsmanier_ (_necessity in war overrules the manner of warfare_), many German authors[85] and the Swiss-Belgian Rivier[86] maintain that the laws of war lose their binding force in case of extreme necessity. Such case of extreme necessity is said to have arisen when violation of the laws of war alone offers either a means of escape from extreme danger or the realisation of the purpose of war--namely, the overpowering of the opponent. This alleged exception to the binding force of the Laws of War, is, however, not at all generally accepted by German writers, for instance, Bluntschli does not mention it. English, American, French, and Italian writers do not, so far as I am aware, acknowledge it. The protest of Westlake,[87] therefore, against such an exception is the more justified, as a great danger would be involved by its admission.

[Footnote 84: See below, -- 248.]

[Footnote 85: See, for instance, Lueder in Holtzendorff, IV. pp.

254-257; Ullmann, -- 170; Meurer, II. pp. 7-15. Liszt, who in former editions agreed with these writers, deserts their ranks in the sixth edition (-- 24, IV. 3), and correctly takes the other side. See also Nys, III. p. 202, and Holland, _War_, -- 2, where the older literature is quoted.]

[Footnote 86: See Rivier, II. p. 242.]

[Footnote 87: See Westlake, II. pp. 115-117, and Westlake, _Chapters_, p. 238.]

The proverb dates very far back in the history of warfare. It originated and found recognition in those times when warfare was not regulated by laws of war--that is universally binding customs and international treaties, but only by usages (_Manier, i.e. Brauch_), and it says that necessity in war overrules usages of warfare. In our days, however, warfare is no longer regulated by usages only, but to a greater extent by laws, firm rules recognised either by international treaties or by universal custom.[88] These conventional and customary rules cannot be overruled by necessity, unless they are framed in such a way as not to apply to a case of necessity in self-preservation. Thus, for instance, the rules that poisoned arms and poison are forbidden, and that it is not allowed treacherously to kill or wound individuals belonging to the hostile army, do not lose their binding force even if escape from extreme danger or the realisation of the purpose of war would result from an act of this kind. Article 22 of the Hague Rules stipulates distinctly that the right of belligerents to adopt means of injuring the enemy is not unlimited, and this rule does not lose its binding force in a case of necessity. What may be ignored in case of military necessity are not the laws of war, but only the usages of war. _Kriegsraeson geht vor Kriegsmanier_, but not _vor Kriegsrecht_!

[Footnote 88: Concerning the distinction between usage and custom, see above, vol. I. -- 17.]

IV

THE REGION OF WAR

Taylor, ---- 471 and 498--Heffter, -- 118--Lueder in Holtzendorff, IV. pp. 362-364--Kluber, -- 242--Liszt, -- 40, I.--Ullmann, -- 174--Pradier-Fodere, VI. No. 2733, and VIII. Nos.

3104-3106--Rivier, II. pp. 216-219--Boeck, Nos. 214-230--Longuet, ---- 18-25--Perels, -- 33--Rettich, _Zur Theorie und Geschichte des Rechts zum Kriege_ (1888), pp. 174-213.

[Sidenote: Region of War in contradistinction to Theatre of War.]

-- 70. Region of war is that part of the surface of the earth in which the belligerents may prepare and execute hostilities against each other.

In this meaning region of war ought[89] to be distinguished from theatre of war. The latter is that part of a territory or the Open Sea on which hostilities actually take place. Legally no part of the earth which is not region of war may be made the theatre of war, but not every section of the whole region of war is necessarily theatre of war. Thus, in the war between Great Britain and the two South African Republics the whole of the territory of the British Empire and the Open Sea, as well as the territory of the Republics, was the region of war, but the theatre of war was in South Africa only. On the other hand, in a war between Great Britain and another great naval Power it might well happen that the region of war is in many of its sections made the theatre of war.

[Footnote 89: This distinction, although of considerable importance, does not appear to have been made by any other publicist.]

[Sidenote: Particular Region of every War.]

-- 71. The region of war depends upon the belligerents. For this reason every war has its particular region, so far at any rate as territorial region is concerned. For besides the Open Sea[90] and all such territories as are as yet not occupied by any State, which are always within the region of war, the particular region of every war is the whole of the territories and territorial waters of the belligerents. It must, however, be specially observed that any part of the globe which is permanently neutralised,[91] is always exempt from the region of war.

[Footnote 90: See above, vol. I. -- 256.]

[Footnote 91: See below, -- 72.]

Since colonies are a part of the territory of the mother country, they fall within the region of war in the case of a war between the mother country and another State, whatever their position may be within the colonial empire they belong to. Thus in a war between Great Britain and France the whole of Australia, of Canada, of India, and so on, would be included with the British Islands as region of war. And, further, as States under the suzerainty of another State are internationally in several respects considered to be a portion of the latter's territory,[92] they fall within the region of war in case of war between the suzerain and another Power. Again, such parts of the territory of a State as are under the _condominium_ or under the administration of another State[93] fall within the region of war in case of war between one of the _condomini_ and another Power and in case of war between the administrating State and another State. Thus, in a war between Great Britain and another Power, Cyprus would fall within the region of war; and the Soudan, which is in the _condominium_ of England and Egypt, would likewise do so. On the other hand, Cyprus would not fall within the region of war in the case of war between Turkey and another Power, Great Britain excepted.

[Footnote 92: See above, vol. I. ---- 91 and 169.]

[Footnote 93: See above, vol. I. -- 171.]

Although as a rule the territories of both belligerents, together with the Open Sea, fall within the region of war, and neutral territories do not, exceptions to the rule may occur:--

(1) A belligerent can deliberately treat certain territories which legally fall within the region of war, as well as parts of the Open Sea, as though they were not parts of the region of war, provided that such territories on their part fulfil the duties inc.u.mbent upon neutrals.

Thus during the Turco-Italian War in 1911 and 1912, Italy treated Crete and Egypt as though they were not parts of the region of war.[94]

(2) Cases are possible in which a part or the whole of the territory of a neutral State falls within the region of war. These cases arise in wars in which such neutral territories are the very objects of the war, as Korea, which was at that time an independent State, and the Chinese province of Manchuria[95] were in the Russo-j.a.panese War of 1904 and 1905. Such a case may also occur if an army of one of the belligerents crosses the frontier of a neutral State, but is not at once disarmed and interned, and is, therefore, able at any moment to recross the frontier and attack the other belligerent.[96] Since necessity of self-preservation can compel the latter on his part also to cross the neutral frontier and pursue and attack the enemy on neutral territory, the part of such neutral territory concerned would for this reason become part of the region of war.

[Footnote 94: There is no doubt that this att.i.tude of Italy is explained by the fact that Egypt, although legally under Turkish suzerainty, is actually under British occupation, and that Crete is forcibly kept by the Powers under Turkish suzerainty.]

[Footnote 95: See below, -- 320.]

[Footnote 96: See below, -- 339.]

[Sidenote: Exclusion from region of war through neutralisation.]

-- 72. Although the Open Sea in its whole extent and the whole of the territories of the belligerents are as a rule within the region of war, certain parts can be excluded through neutralisation. Such neutralisation can take place permanently through a general treaty of the Powers or temporarily through a special treaty of the belligerents.

At present no part of the Open Sea is neutralised, as the neutralisation of the Black Sea was abolished[97] in 1871. But the following are some important instances[98] of permanent neutralisation of parts of territories:--

(1) The former Sardinian, but since 1860 French, provinces of Chablais and Faucigny[99] are permanently neutralised through article 92 of the Act of the Vienna Congress, 1815.

(2) The Ionian Islands through article 2 of the Treaty of London of November 14, 1863, are permanently neutralised since they merged in the kingdom of Greece. But this neutralisation was restricted[100] to the islands of Corfu and Paxo only by article 2 of the treaty of London of March 24, 1864.

(3) The Suez Ca.n.a.l is permanently neutralised[101] since 1888.

(4) The Straits of Magellan[102] are permanently neutralised through article 5 of the boundary treaty of Buenos Ayres of July 23, 1881. But this treaty is not a general treaty of the Powers, since it is concluded between Argentina and Chili only.

(5) The Panama[103] Ca.n.a.l is permanently neutralised through article 3 of the Hay-Pauncefote treaty of November 18, 1901. But this treaty is not a general treaty of the Powers either, being concluded between only Great Britain and the United States.

(6) A piece of territory along the frontier between Sweden and Norway is neutralised by the Convention of Stockholm of October 26, 1905, which includes rules concerning a neutral zone.[104] But this is a neutralisation agreed upon between Sweden and Norway only, no third Power has anything to do with it, and even the contracting Powers stipulate--see article 1, last paragraph--that the neutralisation shall not be valid in the case of a war against a common enemy.

[Footnote 97: See above, vol. I. ---- 181 and 256.]

[Footnote 98: The matter is thoroughly treated in Rettich, _Zur Theorie und Geschichte des Rechtes zum Kriege_ (1888), pp. 174-213, where also the neutralisation of some so-called international rivers, especially the Danube, Congo, and Niger, is discussed.]