Chapter 91
(3) The Declaration of London does not purport to decide the controversy, since the Powers represented at the Naval Conference of London could not agree. Whereas Holland, Spain, and j.a.pan approved of the British and American practice, Austria-Hungary, Italy, Germany, and Russia sided with France. For this reason, the Declaration, by articles 58 and 59, only enacts that the enemy character of goods on enemy vessels is determined by the enemy character of their owner, and that all goods on enemy vessels are presumed to be enemy goods unless the contrary is proved. But the chief question, namely, what is the factor that decides the enemy character of an owner, is deliberately left unanswered. It would, therefore, according to article 7 of Convention XII., be for the proposed International Prize Court to settle it.
[Footnote 154: The _Postilion_ (1779), Hay & Marriot, 245; the _Danous_ (1802), 4 C. Rob. 255, note.]
[Footnote 155: The _Baltica_ (1857), 11 Moore, P.C. 141.]
[Footnote 156: The _Indian Chief_ (1801), 3 C. Rob. 12.]
[Footnote 157: The _Venus_ (1814), 8 Cranch, 253.]
[Footnote 158: From the judgment of Sir William Scott in the case of the _Phoenix_ (1803), 5 C. Rob. 41; see also _Thirty Hogsheads of Sugar_ v.
_Boyle_ (_Bentzen_ v. _Boyle_) (1815), 9 Cranch, 191.]
[Footnote 159: The _Portland_ (1800), 3 C. Rob. 41; the _Jonge Kla.s.sina_ (1803), 5 C. Rob. 297; the _Freundschaft_ (1819), 4 Wheaton, 105.]
[Footnote 160: See the French cases of:--_Le Hardy contre La Voltigeante_ (1802) and _La Paix_ (1803), 1 Pistoye et Duverdy, pp. 321 and 486; _Le Joan_ (1871), _Le Nicolaus_ (1871), _Le Thalia_ (1871); _Le Laura-Louise_ (1871), Barboux, pp. 101, 108, 116, 119.]
[Sidenote: Transfer of Enemy Vessels.]
-- 91. The question of the transfer of enemy vessels to subjects of neutral States, either shortly before or during the war, must be regarded as forming part of the larger question of enemy character, for the point to be decided is whether such transfer[161] divests these vessels of their enemy character. It is obvious that, if this point is answered in the affirmative, the owners of enemy vessels can evade the danger of having their property seized and confiscated by selling their vessels to subjects of neutral States. Before the Declaration of London, which is, however, not yet ratified, the maritime Powers had not agreed upon common rules concerning this subject. According to French[162]
practice no transfer of enemy vessels to neutrals could be recognised, and a vessel thus transferred retained enemy character; but this concerned only transfer after the outbreak of war, any legitimate transfer anterior to the outbreak of war did give neutral character to a vessel. According to British and American practice, on the other hand, neutral vessels could well be transferred to a neutral flag before or after the outbreak of war and lose thereby their enemy character, provided that the transfer took place _bona fide_,[163] was not effected either in a blockaded port[164] or while the vessel was _in transitu_,[165] the vendor did not retain an interest in the vessel or did not stipulate a right to recover or repurchase the vessel after the conclusion of the war,[166] and the transfer was not made _in transitu_ in contemplation of war.[167]
The Declaration of London offers clear and decisive rules concerning the transfer of enemy vessels, making a distinction between the transfer to a neutral flag _before_ and _after_ the outbreak of hostilities:
(1) According to article 55 of the Declaration, the transfer of an enemy vessel to a neutral flag, if effected _before_ the outbreak of hostilities, is _valid_, unless the captor is able to prove that the transfer was made in order to avoid capture. However, if the bill of sale is not on board the transferred vessel, and if the transfer was effected less than sixty days before the outbreak of hostilities, the transfer is presumed to be void, unless the vessel can prove that such transfer was not effected in order to avoid capture. To provide commerce with a guarantee that a transfer should not easily be treated as void on the ground that it was effected for the purpose of evading capture, it is stipulated that, in case the transfer was effected more than thirty days before the outbreak of hostilities, there is an absolute presumption of its validity, provided the transfer was unconditional, complete, and in conformity with the laws of the countries concerned, and further, provided that neither the control of, nor the profits arising from, the employment of the vessels remain in the same hands as before the transfer. But even in this case a vessel is suspect if the transfer took place less than sixty days before the outbreak of hostilities, and if her bill of sale is not on board. Hence she may
(2) According to article 56 of the Declaration, the transfer of an enemy vessel to a neutral flag, if effected _after_ the outbreak of hostilities, is _void_ unless the vessel can prove that the transfer was not made in order to avoid capture. And such proof is excluded, and an absolute presumption is established that the transfer is void, if the transfer has been made in a blockaded port or while the vessel was _in transitu_, further, if a right to repurchase or recover the vessel is reserved to the vendor, and lastly, if the requirements of the Munic.i.p.al Law governing the right to fly the flag under which the vessel is sailing have not been fulfilled.
[Footnote 161: See Holland, _Prize Law_, -- 19; Hall, -- 171; Twiss, II.
---- 162-163; Phillimore, III. -- 386; Boeck, Nos. 178-180; Bonfils, Nos.
1344-1349'1; Dupuis, Nos. 117-129, and _Guerre_, Nos. 62-66.]
[Footnote 162: See Dupuis, No. 97.]
[Footnote 163: The _Vigilantia_ (1798), 1 C. Rob. 1; the _Baltica_ (1857), 11 Moore, P.C. 141; the _Benito Estenger_ (1899), 176 United States, 568.]
[Footnote 164: The _General Hamilton_ (1805), 6 C. Rob. 61.]
[Footnote 165: The moment a vessel transferred _in transitu_ reaches a port where the new owner takes possession of her, the voyage of the vessel is considered to have terminated. The _Vrow Margaretha_ (1799), 1 C. Rob. 336; the _Jan Frederick_ (1804), 5 C. Rob. 128.]
[Footnote 166: The _Sechs Geschwistern_ (1801), 4 C. Rob. 100; the _Jemmy_ (1801), 4 C. Rob. 31.]
[Footnote 167: The _Jan Frederick_ (1804), 5 C. Rob. 128.]
[Sidenote: Transfer of Goods on Enemy Vessels.]
-- 92. The subject of the transfer of enemy goods on enemy vessels must likewise be considered as forming part of the larger subject of enemy character, for the question is here also whether such a transfer divests these goods of their enemy character. And concerning this question[168]
there was likewise no unanimous practice in existence among the maritime States before the agreement on the Declaration of London. British and American practice refused to recognise a sale _in transitu_ under any circ.u.mstances or conditions, if the vessel concerned was captured before the neutral buyer had actually taken possession of the transferred goods.[169] On the other hand, French practice recognised such a sale _in transitu_, provided it could be proved that the transaction was made _bona fide_.[170]
The Declaration of London now stipulates, by article 60, that enemy goods on board an enemy vessel retain their enemy character until they reach their destination, notwithstanding any transfer effected after the outbreak of hostilities while the goods are _in transitu_. Hence if such enemy vessel is captured before having reached her destination, goods consigned to enemy subjects may be confiscated, although they have been sold _in transitu_ to subjects of neutral States. A special rule is provided for the case of the enemy consignee of goods on board an enemy vessel becoming bankrupt while the goods are _in transitu_. In a number of countries[171] an unpaid vendor has, in the event of the bankruptcy of the buyer, a recognised legal right to recover such goods as have already become the property of the buyer, but have not yet reached him (right of stoppage _in transitu_). For this reason, article 60 of the Declaration stipulates in the second paragraph, that if, prior to the capture, the neutral consignor exercises, on the bankruptcy of the enemy consignee, his right of stoppage _in transitu_, the goods regain their neutral character and may not therefore be confiscated.
[Footnote 168: See Hall, -- 172; Twiss, II. ---- 162 and 163; Phillimore, III. ---- 387 and 388; Dupuis, No. 1421, and _Guerre_, Nos. 68-73; Boeck, Nos. 182 and 183.]
[Footnote 169: The _Jan Frederick_ (1804), 5 C. Rob. 128; the _Ann Green_ (1812), I Gallison, 274.]
[Footnote 170: See Boeck, No. 162; Dupuis, No. 142.]
[Footnote 171: Great Britain is one of them, see Section 44 of the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71).]
CHAPTER II
THE OUTBREAK OF WAR
I
COMMENCEMENT OF WAR
Grotius, c. 3, 5-14--Bynkershoek, _Quaestiones juris publici_, I.
c. 2--Vattel, III. ---- 51-65--Hall, -- 123--Westlake, II. pp. 18-26, and 267--Lawrence, -- 140--Manning, pp. 161-163--Phillimore, III.
---- 51-56--Twiss, II. ---- 31-40--Halleck, I. pp. 521-526--Taylor, ---- 455-456--Moore, VII. ---- 1106-1108--Walker, -- 37--Wharton, III. ---- 333-335--Wheaton, -- 297--Bluntschli, ---- 521-528--Heffter, -- 120--Lueder in Holtzendorff, IV. pp. 332-347--Gareis, -- 80--Liszt, -- 39, V.--Ullmann, -- 171--Bonfils, Nos. 1027-1031'2--Despagnet, Nos. 513-516--Pradier-Fodere, VI. Nos. 2671-2693--Nys, III. pp.
118-133--Rivier, II. pp. 220-228--Calvo, IV. ---- 1899-1911--Fiore, III. Nos. 1272-1276, and Code, 1422-1428--Martens, II. -- 109--Longuet, ---- 1-7, 15-16--Merignhac, pp. 29-41--Pillet, pp.
61-72--Lawrence, _War_, pp. 26-44--Barclay, pp. 53-58--Boidin, pp.
116-121--Bordwell, pp. 198-200--Higgins, pp. 202-205--Holland, _War_, -- 16--Lemonon, pp. 309-406--Nippold, II. pp. 6-10--Scott, _Conferences_, pp. 516-522--Spaight, pp. 20-33--Ariga, ---- 11-12--Takahas.h.i.+, pp. 1-25--_Land Warfare_, ---- 8-10--Holland, _Studies_, p. 115--Sainte-Croix, _La Declaration de guerre et ses effets immediats_ (1892)--Bruyas, _De la declaration de guerre_, etc. (1899)--Tambaro, _L'inizio della guerra et la 3'a convenzione dell' Aja del 1907_ (1911)--Maurel, _De la declaration de guerre_ (1907)--Soughimoura, _De la Declaration de Guerre_ (1912)--Brocher in _R.I._ IV. (1872), p. 400; Ferand-Giraud in _R.I._ XVII.
(1885), p. 19; Nagaoka in _R.I._ 2nd Ser. VI. p. 475--Rolin in _Annuaire_, XX. (1904), pp. 64-70--Ebren and Martens in _R.G._ XI.
(1904), pp. 133 and 148--Dupuis in _R.G._ XIII. (1906), pp.
725-735--Stowell in _A.J._ II. (1908), pp. 50-62.
[Sidenote: Commencement of War in General.]
-- 93. According to the former practice of the States a condition of war could _de facto_ arise either through a declaration of war; or through a proclamation and manifesto of a State that it considered itself at war with another State; or through the committal by one State of certain hostile acts of force against another State. History presents many instances of wars commenced in one of these three ways. Although Grotius (III. c. 3, -- 5) laid down the rule that a declaration of war is necessary for its commencement, the practice of the States shows that this rule was not accepted, and many wars have taken place between the time of Grotius and our own without a previous[172] declaration of war.
Indeed many writers,[173] following the example of Grotius, have always a.s.serted the existence of a rule that a declaration is necessary for the commencement of war, but it cannot be denied that until the Second Peace Conference of 1907 such a rule was neither sanctioned by custom nor by a general treaty of the Powers. Moreover many writers[174] distinctly approved of the practice of the Powers. This does not mean that in former times a State would have been justified in opening hostilities without any preceding conflict. There was, and can be, no greater violation of the Law of Nations than for a State to begin hostilities in time of peace without previous controversy and without having endeavoured to settle the conflict by negotiation.[175] But if negotiation had been tried without success, a State did not act treacherously in case it resorted to hostilities without a declaration of war, especially after diplomatic intercourse had been broken off. The rule, adopted by the First Peace Conference of 1899--see article 2 of the Conventions for the peaceful settlement of international differences of 1899 and 1907--which stipulates that, _as far as circ.u.mstances allow_, before the appeal to arms recourse must be had to the good offices or mediation of friendly Powers, did not essentially alter matters, for the formula _as far as circ.u.mstances_ _allow_ leaves practically everything to the discretion of the Power bent on making war.
The outbreak of war between Russia and j.a.pan in 1904 through j.a.panese torpedo boats attacking Russian men-of-war at Port Arthur before a formal declaration of war, caused a movement for the establishment of some written rules concerning the commencement of war. The Inst.i.tute of International Law, at its meeting at Ghent in 1906, adopted three principles[176] 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 been signed by all the Powers represented at the Conference, except China and Nicaragua, both of which, however, acceded later.
[Footnote 172: See Maurice, _Hostilities without Declaration of War_ (1883).]
[Footnote 173: See, for instance, Vattel, III. -- 51; Calvo, IV. -- 1907; Bluntschli, -- 571; Fiore, III. No. 1274; Heffter, -- 120.]
[Footnote 174: See, for instance, Bynkershoek, _Quaestiones juris publici_, I. c. 2; Kluber, -- 238; G. F. Martens, -- 267; Twiss, II. -- 35: Phillimore, III. ---- 51-55; Hall, -- 123; Ullmann (first edition), -- 145; Gareis, -- 80.]
[Footnote 175: See above, -- 3, where the rule is quoted that no State is allowed to make use of compulsive means of settling differences before negotiation has been tried.]
[Footnote 176: See _Annuaire_, XXI. (1906), p. 283.]
[Sidenote: Declaration of War.]