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French Government declared that its public armed ships would not resort to search and capture on the high seas, but would seize any merchantman, whether of Chinese or other nationality, which attempted to enter the blockaded ports; and Earl Granville, who was then the English Secretary for Foreign Affairs, replied that in that case Great Britain was obliged to hold that a state of war existed between France and China, and must put in force her neutrality regulations in the ports of Singapore and Hong-Kong. In consequence of this France claimed and exercised full belligerent rights against neutrals; but the matter was settled almost immediately by the restoration of normal pacific relations with China. In 1886 the Great Powers, with the exception of France, established a Pacific Blockade of the coasts of Greece, in order to prevent the Greeks from making war upon Turkey and thus precipitating a great European struggle. The allied fleets were instructed to detain all vessels under the Greek flag attempting to run the blockade, but it was added that even Greek ships were not to be seized when any part of their cargo belonged to subjects of a state other than Greece or the blockading powers, should such cargo have been shipped before notification of the blockade, or after notification but under a charter made before notification.2 The blockade was raised in a few weeks in view of the pacific assurances of a new Ministry and the commencement of Greek disarmament; and while it lasted no protests were raised by states unconnected with it. In this respect it contrasts favorably with the French Blockade of Formosa two years before. The history of the two cases points unmistakably to the conclusion that Pacific Blockade is lawful, provided it is enforced against none but vessels of the power which is to be coerced by it; and on this condition it was approved in 1887 by the Institute of International Law.3

1 British State Papers, France, No. 1 (1885), pp. 1-13; French State Papers, Affaires de Chine (1885), pp. 1–15.

2 British State Papers, Greece, No. 4 (1886), p. 14.

3 Annuaire de l'Institut de Droit International, 1887-1888, pp. 300, 301. Note, however, that the condition was not observed in the so-called Pacific Blockade of Crete by the ships of the Great Powers in 1897. Their proceed. ings have thrown the whole law of Pacific Blockade back into obscurity. See Appendix, § IV.

$160.

these anomalous

measures.

The power against which Reprisal, Embargo or Pacific Blockade is resorted to can, if it pleases, resort to war in return; and it is certain that any powerful The value and and high-spirited nation would do so. Self- admissibility of respect would forbid it to give way under violent and coercive pressure, thought it might have been willing to settle the question at issue after negotiation by some acceptable concession. But in cases where a strong state or group of states finds itself obliged to undertake what are practically measures of police against weak or barbarous powers, one or other of the means above described may be a useful alternative to war. They are less destructive and more limited in their operation. It is true that they may be used to inflict injury on small states and extort from them a compliance with unreasonable demands. But war can be equally unjust, and would certainly cause more suffering. There seems no reason to endeavor to banish from International Law its sanction of these anomalous operations, which are neither wholly warlike nor wholly peaceful. What should be done is to create a strong public opinion against their use on slight provocation, or for a manifestly unjust cause.

§ 161.

necessary.

Writers on International Law are divided as to the necessity of Declarations of War. Among the early publicists there was a great preponderance of opinion in Declarations of favor of requiring them, and some went so far War are not as to say that the enemy should not be attacked till some time after a Declaration had been issued. writers are inclined to hold that formal Declarations of War are not needful, but a few of them still uphold the older doctrine.1 If we turn to practice we shall find that in the

1 E.g. Hautefeuille, Droits des Nations Neutres, I., 106.

Modern

Middle Ages heralds were generally sent to give the enemy formal warning of the approach of hostilities. It was part of the character of a true knight not to attack his opponent without notice, though 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 only a common servant.1 The practice decayed with the decay of feudal ideas; but heralds were occasionally used as messengers of war long after chivalry was forgotten, the date of the last instance being 1657, when Sweden sent a herald to Copenhagen to declare war against Denmark. Declarations handed in by diplomatic agents took the place of formal notices and challenges sent by heralds, but the use of them was by no means universal. In 1588 Philip II. of Spain sent the Armada against England without any Declaration of War, and Gustavus Adolphus did not issue one when he attacked the German Empire in 1630. Moreover Declarations were frequently issued after the war had gone on for some time, as was the case in 1665 when the English declared war against the Dutch, though all through 1664 the two nations had been fighting in Africa and the West Indies and along the coast of North America. Delay in the issue of the formal Declaration often happened when the war broke out in distant dependencies, or when one of the parties commenced as an accessory, by giving limited assistance to a friend, and afterwards became a principal. In such cases as these the treaty of peace sometimes stipulated that all prizes made before the Declaration of War should be restored. The nearer we approach to modern times the rarer do formal Declarations become. There have been only eleven of them between civilized states since 1700, whereas the present century has seen over sixty wars or acts of reprisal begun without formal notice to the power attacked.2 But the last two great 1 Ward, History of the Law of Nations, II., 208. 2 Maurice, Hostilities without Declaration of War.

European wars witnessed a return to the older practice. In 1870 a formal Declaration of War from the French Chargé d'Affaires at Berlin preceded the outbreak of hostilities and partook of the nature of a warning to Prussia ; 1 and in 1877 a despatch declaring war was handed to the Turkish representative at St. Petersburg. In the latter half of the last century it became the custom for a belligerent state to publish a Manifesto in its own territory at the outbreak of war. Copies of it were sent to neutral sovereigns, and it was regarded as the official justification of the war. But though such a document has often been issued when no Declaration was made, there have been plenty of instances where war was commenced without official warning of any kind. In 1812 the United States began war with England by seizing all British vessels in their harbors and invading Canada; and in 1854 the British fleet entered the Black Sea with orders to compel the Russian squadron to return to Sebastopol, before the ambassadors had been withdrawn on either side.2

It is clear from these facts that no Declaration or Manifesto is necessary in order to legalize a war; nor does morality demand that the publication of some formal document be made obligatory. Unless the attacking state acts with gross perfidy the state attacked must always be warned. Some demand must have been made upon it, some reason for hostility indicated. It is seldom that a ruler behaves as did Frederick the Great in 1740, when his troops crossed the border into Silesia two days before his ambassador arrived at Vienna to demand surrender to Prussia. Generally there is a period of negotiation followed by an ultimatum, that is a demand the refusal of which will be followed by war. A careful state can hardly be taken by surprise, especially as the case of communication in modern times

1 Maurice, Hostilities without Declaration of War, p. 76. 2 Ibid., pp. 44, 45, 66.

3 Ibid., pp. 16, 17.

4 Sometimes an ultimatum is a conditional Declaration of War. For instance, on October 9, 1899, the Transvaal government demanded the withdrawal of the British troops from their positions, failing which war would commence at the expiration of forty-eight hours.

renders the concealment of any unusual concentration of forces almost an impossibility. Moreover the legal effects of war can always be dated from the first act of hostility, and in fact are so dated except in the few cases where the struggle is inaugurated by a formal declaration.

The meaning
and effects of
Recognition of
Belligerency.

§ 162.

Every independent state decides for itself whether it shall make war or remain at peace. If it resorts to hostilities it obtains as a matter of course all the rights of a belligerent. Other states have no power to give or to withhold them. But the case is very different with regard to those communities which are not already states in the eye of International Law, though they are striving to become independent, and to have their independence recognized by other powers.1 Technically they form portions of old-established states. Practically each is in revolt against the state organization to which it belongs in law, and is endeavoring to set up a separate state organization for itself or to gain control of the existing organization. By the Municipal Law of the country of which the community is still legally a part its members are traitors and liable to punishment as such. Yet they are carrying on open war under the orders of authorities analogous to those of recognized states. How then are they to be treated? International Law gives no answer to this question as far as the government against which they are in revolt is concerned. Questions between it and its rebels are domestic questions to be resolved by internal authority. In modern times when civil strife reaches the dimensions of a war the parent state invariably treats the insurgents as belligerents, partly from motives of humanity and partly because it does not care to expose its own forces to military reprisals. An instance of this on a large scale is afforded 1 See § 59.

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