NOTIFICATION OF WAR TO NEUTRALS.

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.-Hague Convention III, 1907, Article 2.

The right to take prizes does not accrue to the belligerents until after the commencement of hostilities. It ceases during an armistice and with the preliminary negotiations for peace. So far as neutrals are concerned the right to take prize cannot be exercised until the belligerents have notified the neutrals that war exists.

Institute, 1882, p. 46.

There is nothing in international jurisdiction, as now practiced, to render such declaration [of war] obligatory, and the present usage entirely dispenses with it. All, however, agree that there should be some manifesto, declaration, or publication made within the territory of the state which declares the war, announcing the existence of hostilities; and such manifesto, or publication, usually sets forth the motives for commencing the war. Some such formal act, proceeding from the competent authority, seems necessary in order to announce to the people at home, and to apprise neutral nations of, the war, for their instruction and direction in respect to their intercourse with the enemy. * * * Moreover neutral states have a right to know, by some formal and authoritive act, that hostilities exist in form as well as in fact, on account of the interests of their own subjects, whose duties and relations to the belligerents are essentially changed by the new conditions of things. It is not material under what form such notice is given, whether by proclamation, or by a mere act of the legislative branch of the government. Halleck, pp. 352, 353.

Where there has been no official declaration of war, and no notification by manifesto of its actual existence, the conduct of neutrals is entitled to the most favorable construction, and neutral property cannot be condemned, for violation of neutral duty, without proof that the war de facto was so public and notorious that the neutral could not have been in ignorance of its existence. But where such knowledge is actually brought home to him, it seems to us to place him in the same position, with respect to the character of his acts, as if an official declaration or manifesto had been issued.

Halleck, p. 370.

Neutrals have a right to know that a state of war exists, and that early enough to adjust their commercial transactions to the altered state of things; otherwise a great wrong may be done them. [Their duties as neutrals date from this official announcement of a state of war or other positive knowledge of it]. Such notice is given in manifestoes.

Woolsey, p. 192.

It was shown in an earlier chapter that as between belligerents no necessity exists for a notification that war has begun or is about to begin. As between belligerents and neutrals, however, the case stands differently. As a matter of courtesy it is due to the latter as friends that a belligerent shall not if possible, allow them to find out incidentally and perhaps with uncertainty that war has commenced, but that they shall be individually informed of its existence. As a matter of law they can only be saddled with duties and exposed to liabilities from the time at which they have been affected with knowledge of the existence of war; when there is no privity between two persons, one can not impose duties or liabilities upon the other by doing an act without the knowledge of the person intended to be affected.

Hence it is in part that it has long been a common practice to address a manifesto to neutral states, the date of which serves to fix the moment at which war begins; and it is evident that when practicable the issue of such a manifesto is the most convenient way of bringing the fact of war to their knowledge. Where war breaks out at a moment which is not determined by the respective governments engaged, or by that which has just done acts of war; as for example when it results from conditional orders given to an armed force, or from an act of self-preservation or pacific intervention being regarded as hostile, a manifesto can not of course be issued before its commencement. But in such cases a belligerent can not expect states to take up the attitude of neutrality contemporaneously with the outbreak of hostilities; even when he has reason to think that the existence of war is known it is his clear duty to give every indulgence to neutrals; and where war breaks out through the performance of an act which one of the two parties elects to consider hostile, the date of its commencement, though carried back as between the belligerents to the occurrence of the hostile act, must be taken as against neutrals to be that of the election through which third powers become acquainted with the fact of war. Hence war can never so exist as to throw upon neutrals their ordinary duties and liabilities without opportunity for the issue of a manifesto having arisen; and though to give express notice, whether in that or in any other form, is merely an act of courtesy, because it is the fact of knowledge however acquired which constitutes the ground of neutral duty, it is evident that the omission of notice may be productive of so much inconvenience and even of loss to neutrals, through the doubt in which they may for some time be left, that the issue of a manifesto is as obligatory as an act of courtesy can well be.1

Hall, pp. 596, 597.

1 Cf. however sec. 168 *. What is said above as to the moment from which states, and therefore their subjects, become affected by the consequences of non-neutral actions does not apply to cases in which neutral persons are engaged knowingly or ignorantly in carrying out a naval or military operation for an intending belligerent.

even

If there has been a declaration of war, whether expressly to the enemy or by a manifesto, it is in practice communicated to third powers, although the publicity of a manifesto might make it as suitable for the purpose of notice against neutrals as against the enemy. If the declaration of war has been conditional, the fact that the time fixed by it has expired without the ultimatum being complied with will not be of so public a nature as to amount to notice to third powers, and it must be communicated to them. And in any case the communication to a third power will bind its subjects, it being the duty of every government to give the publicity necessary for the protection of its subjects to all international events of which it is apprised. If as between the belligerents the state of war is dated from the first act of force which either side chooses to regard as war, that antedating can have no effect as against third powers or their subjects. But it will not follow that if there has been no declaration of war, or if there has been a failure in the duty of communicating such a declaration, third powers and their subjects can escape the duties of neutrality during the whole of the contest. If they know the existence of the war, or if it is so notorious that they must be held to have known it, they will be bound by those duties. This is taught by all writers, and was applied by the Italian prize court, 8 December 1896, to justify the capture of the Dutch ship Doelwyk, carrying contraband during a de facto war between Italy and Abyssinia which had not been declared.

Westlake, vol. 2, p. 30; article by Brusa în 4 Revue Générale, 157–175.

The reference to neutral powers in the second article of the Convention [Hague, III] is a recognition of the fact that their interests, as well as those of belligerents, are involved in the substitution of a state of war for a state of peace. When the change comes, it involves both neutral governments and neutral individuals in a complex of new obligations, and confers on them a number of new rights. Obviously it is most important that they should know the exact time when the alteration in their legal position takes effect. The parties to the struggle are, therefore, bound to send them without delay notification of the outbreak of war, a message by telegraph being deemed sufficient. Without such notification belligerents cannot enforce their rights against neutrals, unless they are able to show that the requisite knowledge has been acquired in some other way. With modern means of communication a war is not a thing that can be kept concealed. Its existence would be known all over the world in a very short time. But nevertheless the rule that neutrals are not liable for breach of neutrality till knowledge of the outbreak of war has been brought home to them, might affect the validity of captures made at sea in the first outburst of a maritime conflict. In addition to the mere notification required by the Convention, belligerents will probably continue to issue the manifestoes it has long been customary for them to publish in their own territories, as a warning to their subjects and a justification of themselves before the world. And doubtless copies of these manifestoes will be sent, as heretofore, to neutral governments.

Lawrence, pp. 350-351.

Since neutrality is an attitude of impartiality deliberately taken up by a State not implicated in a war, neutrality cannot begin before the outbreak of war becomes known. It is only then that third States can make up their minds whether or not they intend to remain neutral. They are supposed to remain neutral, and the duties deriving from neutrality are incumbent upon them so long as they do not expressis verbis or by unmistakable acts declare that they will be parties to the war. It had long been the usual practice on the part of belligerents to notify the outbreak of war to third States for the purpose of enabling them to take up the necessary attitude of impartiality, but such notification was not formerly in strict law necessary. The mere fact of the knowledge of the outbreak of war which had been obtained in any way gave a third State an opportunity of making up its mind regarding the attitude which it intended to take up, and, if it remained neutral, its neutrality was to be .dated from the time of its knowledge of the outbreak of war. But it is apparent that an immediate notification of the war on the part of belligerents is of great importance, as thereby all doubt and controversy regarding the knowledge of the outbreak of war are excluded. For the fact must always be remembered that a neutral State may in no way be made responsible for acts of its own or of its subjects which have been performed before it knew of the war, although the outbreak of war might be expected. For this reason article 2 of Convention III. of the Second Peace Conference enacts that belligerents must without delay send a notification of the outbreak of war, which may even be made by telegraph, to neutral Powers, and that the condition of war shall not take effect in regard to neutral Powers until after receipt of a notification, unless it be established beyond doubt that they were in fact aware of the outbreak of war.

Oppenheim, vol. 2, pp. 373–374.

SUBMARINE CABLES CONNECTING OCCUPIED AND NEUTRAL TERRITORY.

Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made.-Hague Convention IV, 1907, Article 54.

It would be very advantageous if the several States would agree to declare that the destruction or injury of submarine cables in the high seas is an offense against the law of nations, and to determine in a precise manner the criminal character of the acts and the applicable penalties; with regard to this latter point a degree of uniformity compatible with the diversity of criminal legislations would be sought.

The right of seizing persons who are guilty or presumed to be guilty might be granted to government ships of all nations under conditions regulated by treaties; but the right to pass judgment upon them should be reserved to the national courts of the captured vessel.

A submarine telegraphic cable uniting two neutral territories is inviolable.

It is desirable, when telegraphic communications must cease by reason of a state of war, that the measures taken be only those strictly necessary to prevent use of the cable and that they be withdrawn, or that their consequences be repaired, as soon as cessation of hostilities permits.

Institute, 1879, pp. 24, 25.

1. A submarine cable connecting two neutral territories is inviolable.

2. A cable connecting the territories of two belligerents or two parts of the territory of one of the belligerents may be cut anywhere except in the territorial sea and in the neutralized waters appertaining to a neutral territory ("neutralized" by treaty or by declaration in accordance with Article 4 of the Paris resolutions of 1894).

3. A cable connecting a neutral territory with the territory of one of the belligerents can in no case be cut in the territorial sea or in the neutralized waters appertaining to a neutral territory.

On the high seas such a cable can only be cut if there is an ef fective blockade and within the limits of the line of blockade, subject to the repair of the cable within the briefest possible time. Such a cable can always be cut in the territory and in the territorial sea appertaining to enemy territory up to the distance of three marine miles from low-water mark.