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Subjects of Belligerents

on each

other's

Territory.

population of the enemy territory. Their ships and
goods on the Open Sea and within the territorial
waters of the belligerents may therefore be captured,
and their property on land is submitted to all
measures which
which may be taken against private
property of enemy subjects by the invading enemy.
But it should be emphasised that their persons and
property do nevertheless not lose the protection of
their neutral home-State against treatment inconsis-
tent with the laws of war.1

§ 91. Since domicile is in many respects the test of enemy character, the private property of even domiciled such belligerents' subjects as are domiciled on each other's territory and allowed to remain there after the outbreak of the war acquires enemy character in the eyes of the belligerent Power whose subjects they are. The goods of such subjects on enemy ships may therefore be captured by the men-of-war of their home State, and their property on land is submitted to all measures which may be taken against private property of enemy subjects by the invading enemy. On the other hand, the private property of such enemy subjects loses its enemy character in the eye of the belligerent Power on whose territory they are allowed to remain, and therefore cannot be captured by his men-of-war, although found on enemy ships.

Property of foreigners

§ 92. The property of such subjects of neutral States as are not domiciled on enemy territory may on Enemy nevertheless be vested with enemy character. Thus, Territory or incor- the produce of an estate on enemy territory belongporated in Enemy ing to a neutral foreigner abroad may be captured, as may also all such property of neutral foreigners abroad, having a house of trade on enemy territory, as 1 See below, § 318.

Trade.

is concerned in commercial transactions of such house. Thus, further, merchantmen owned by subjects of neutral States, but sailing under enemy flag, may be captured.1

1 See below, § 198. As regards of enemy goods thereon during effect of sale of enemy vessels and war, see below, §§ 199 and 200.

Three

modes of commenc

CHAPTER II

THE OUTBREAK OF WAR

I

COMMENCEMENT OF WAR

Grotius, c. 3, §§ 5-14-Bynkershoek, Quaestiones juris publ. I. c. 2-Vattel, III. $$ 51-65-Hall, § 123-Lawrence, § 161-Manning, pp. 161-163-Phillimore, III. §§ 51-56-Twiss, II. §§ 31-40Halleck, I. pp. 521-526-Taylor, $$ 455-456-Walker, § 37Wharton, III. § 333-335-Wheaton, § 297-Bluntschli, §§ 521-528 -Heffter, § 120-Lueder in Holtzendorff, IV. pp. 332-347-Gareis, § 80-Liszt, § 39, V.-Ullmann, § 145-Bonfils, Nos. 1027-1043Despagnet, Nos. 517-520-Pradier-Fodéré, VI. Nos. 2671-2693— Rivier, II. pp. 220-228-Calvo, IV. §§ 1899-1911-Fiore, III. Nos. 1272-1276-Martens, II. § 109-Longuet, §§ 1-7, 15-16—Mérignhac, pp. 29-41-Pillet, pp. 61-72-Lawrence, War, pp. 26-44-Brocher in R.I., IV. (1872), p. 400; Féraud-Giraud in R.I., XVII. (1885), p. 19; Nagaoka in R.I., 2nd ser. VI. p. 475-Holland, Studies, p. 115 -Sainte-Croix, "La Déclaration de guerre et ses effets immédiats" (1892)—Bruyas, "De la déclaration de guerre," &c. (1899)-Rolin in Annuaire, XX. (1904), pp. 64-70-Ebren and Martens in R. G. xi. (1904), pp. 133-150.

§ 93. A state of war may in fact arise either through a declaration of war, or through a proclamaing War. tion and manifesto of a State that it considers itself at war with another State, or, thirdly, through committing certain hostile acts of force against another State. In practice all the three modes of commencing war occur, and history presents many instances of wars commenced in one or other way. If the practice of the States is taken into consideration, it becomes apparent that no rule of the Law of Nations is in existence which prescribes to intending belligerents

the way in which war is to be commenced. The only rules which may be said to exist concerning the commencement of war are that negotiation 1 must precede war, and that, according to article 2 of the Hague Convention for the peaceful settlement of international differences, recourse must be had, as far as circumstances allow it, to the good offices or mediation of one or more friendly Powers.

1

War.

§ 94. A declaration of war is a communication of Declaraone State to another that it considers a condition of tion of war existing between them. In former times declarations of war used to take place under greater or lesser solemnities, but nowadays all these solemnities have disappeared, and declarations of war take place through a simple communication in any form. They may even be coupled with an ultimatum, and they are in such a case conditional declarations of war, no war being declared if the respective State submits to the ultimatum. Many writers maintain that there is a rule of International Law forbidding the commencement of war without a declaration of war. But such rule, in fact, does not exist, for a great many wars take place without an initiative declaration of war. Nor is the necessity of a declaration of war stipulated by a general treaty or obligatory according to a recognised custom of the members of the Family of Nations.3) It must be specially observed that, in case of a declaration of war, the war is considered to have been commenced with the date of its declaration although hostilities may not have been commenced till a much later date.

1 See above, § 3, where the rule is quoted that no State is allowed use compulsive means of settling disputes before negotia. tion has been tried,

to

2 As regards the juristic value of this clause, see above, § 10, No. 1.

3 See below, § 96.

War Manifestoes.

Initiative
hostile
Acts of
War.

§ 95. A manifesto or proclamation of war is a public announcement of a State to its subjects, to neutral States, or urbi et orbi, that it considers itself at war with another State. A war manifesto may be an initiative step of war, or follow either a declaration of war or the actual commencement of war through a hostile act of force. The assertion of many writers that, if not a declaration of war, at least a manifesto is necessary for the commencement of war, is not based on a generally recognised rule of International Law, although the publication of war manifestos has become more and more usual in the nineteenth century. And it must be emphasised that there is good reason for the maintenance of this usage, for war is not only a relation between the belligerents but also between these and neutral States, and the latter cannot be held to fulfil the duties of neutrality before they know of the outbreak of war. § 96. Hostile acts of force initiative of war are such hostile acts as are considered by the other party acts of war, since, as has been stated above, § 55, hostile acts of force may be committed by a State. against another without war breaking out thereby, the passive party acquiescing in the act. For a war to commence by unilateral hostile acts of force, it is at least necessary that the passive party declares expressis verbis, or through unmistakable conduct, that it considers these hostilities as acts of war. Of what kinds of acts these hostilities may consist, it cannot be decisively laid down. They may, to give examples, consist of occupation of a part of foreign territory, an inroad into a foreign country, the blockade of a harbour, an attack on the frontier, an attack on a man-of-war, the capture of a merchantman, and the like. And it must be specially observed that the

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