TOPIC II.

COMMENCEMENT OF HOSTILITIES.

What regulations should be made in regard to the commencement of hostilities?

REGULATIONS.

ARTICLE 1. Hostilities between the contracting powers must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war. ART. 2. The 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 even be given by telegraph. Neutral powers, nevertheless, can not plead the absence of notification if it is established beyond doubt that they were in fact aware of the state of war.

ART. 3. Article 1 of the present convention shall take effect in case of war between two or more of the contracting powers. Article 2 is binding as between a belligerent power which is a party to the convention and neutral powers which are also parties to the convention.

NOTES.

Introduction. Certain aspects of the subject of declaration of war were considered in the International Law Situations of this Naval War College in the conference of 1910, and appear in the publication of that year as Situation II, pages 45 to 65. It was then shown that no uniformity of practice had prevailed in regard to time, method, or form of declaration, that there were reasons why some regulation should prevail for the declaration, and that The Hague conference of 1907 had tried to meet this need in the convention relative to the opening of hostilities.

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HAGUE CONVENTION, 1907.

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Hague convention 1907, opening of hostilities.-The Hague conference of 1907 considered the question of the opening of hostilities, both from the point of view of the belligerent and of the neutral. The result of the long and careful discussion was a convention, of which the following are the essential articles:

ARTICLE 1. The contracting powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a declaration of war, giving reasons, or of an ultimatum, with a conditional declaration of war.

This convention has now been adopted by most of the larger states of the world.

The understanding of its significance as presented to the Secretary of State by the American delegates is shown in the following statement from their official report:

The convention is very short, and is based upon the principle that neither belligerent should be taken by surprise, and that the neutral shall not be bound to the performance of neutral duties until it has received notification, even if only by telegram, of the outbreak of war. The means of notification is considered unimportant, for if the neutral knows, through whatever means or whatever channels, of the existence of war, it can not claim a formal notification from the belligerents before being taxed with neutral obligations. While the importance of the convention to prospective belligerents may be open to doubt, it is clear that it does safeguard in a very high degree the rights of neutrals, and specifies authoritatively the exact moment when the duty of neutrality begins. It is for this reason that the American delegation supported the project and signed the convention. (60th Cong., 1st sess., S. Doc. 444, p. 34.)

It is to be observed that this convention establishes the principle that the declaration shall be previous to the opening of hostilities, but does not state how long before the opening of hostilities the declaration should be made. The propositions made for fixing a specified time between the declaration of war and the opening of hostilities did not receive sufficient support in the conference to secure adoption. The committee concerned particularly with the formulation of the rules for the opening of hostilities called attention to the fact that the Institute of International Law in 1906 had not been able to agree upon a

period for delay between declaration and opening of hostilities, even when sitting in an unofficial capacity. The essential point is that the declaration shall be previous to the opening of hostilities.

Recent declarations. Recent declarations of war show the necessity for definite regulations. The date of the commencement of the Spanish-American War of 1898 gave rise to many questions, some of which were taken to the Supreme Court of the United States.

Spanish-American War declaration, April 25, 1898.— According to the Constitution of the United States (Art. I, sec. 8, n.) Congress has power "to declare war."

On April 19, 1898, Congress passed the following:

Joint resolution for the recognition of the independence of the people of Cuba, demanding that the Government of Spain relinquish its authority and government in the island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters, and directing the President of the United States to use the land and naval forces of the United States to carry these resolutions into effect.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, First, That the people of the island of Cuba are, and of right ought to be, free and independent.

Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters.

Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect.

Fourth. That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.

Approved April 20, 1898. (Foreign Relations U. S., 1898, p.

765.)

This resolution was immediately dispatched to the American minister to Spain, with an ultimatum.

SPANISH-AMERICAN WAR, 1898.

Mr. Sherman to Mr. Woodford.

[Telegram.]

DEPARTMENT OF STATE,

Washington, April 20, 1898.

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You have been furnished with the text of a joint resolution voted by the Congress of the United States on the 19th instant (approved to-day) in relation to the pacification of the island of Cuba. In obedience to that act, the President directs you to immediately communicate to the Government of Spain said resolution, with the formal demand of the Government of the United States that the Government of Spain at once relinquish its authority and government in the island of Cuba and Cuban waters. In taking this step the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination when that is accomplished to leave the government and control of the island to its people under such free and independent government as they may establish.

If, by the hour of noon on Saturday next, the 23rd day of April, instant, there be not communicated to this Government by that of Spain a full and satisfactory response to this demand and resolution, whereby the ends of peace in Cuba shall be assured, the President will proceed without further notice to use the power and authority enjoined and conferred upon him by the said joint resolution to such extent as may be necessary to carry the same into effect.

(Ibid, p. 764.)

SHERMAN.

Before Mr. Woodford had delivered the communication to the Spanish Government, the Spanish minister of state sent to Mr. Woodford the following note:

In compliance with, a painful duty. I have the honor to inform your excellency that, the President having approved a resolution of both Chambers of the United States which, in denying the legitimate sovereignty of Spain and in threatening armed intervention in Cuba, is equivalent to an evident declaration of war, the Government of His Majesty has ordered its minister in Washington to withdraw without loss of time from the North American territory with all the personnel of the legation. By this act the diplomatic relations which previously existed between the two countries are broken off, all official communication between their respective representatives ceasing; and I hasten to communicate this to your excellency in order that on your part you may make such dispositions as seem suitable. (Ibid, p. 767.)

Mr. Woodford then (Apr. 21, 1898) requested his passports and withdrew from Spain.

Spain on April 21, 1898, at 7.30 a. m. had stated that the threat of intervention in Cuba "is equivalent to an evident declaration of war."

The Spanish minister at Washington had requested his passports on April 20 at about noon. Mr. Woodford had been instructed on April 20 to remain near the Spanish Court in his capacity of minister till noon of the 23d of April unless previously handed his passports; and he did remain, and diplomatic relations were continued till the morning of April 21.

A blockade of Cuban ports was proclaimed on April 22. On April 23, 1898, the Queen Regent of Spain issued a decree announcing the existence of war and declaring the termination of the treaties "and all other agreements, compacts, and conventions that have been in force up to the present between the two countries."

On April 25, 1898, Congress, exercising its constitutional authority, passed the following act:

First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, anno Domini eighteen hundred and ninety-eight, including said day, between the United States of America and the Kingdom of Spain.

Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this act into effect. (30 Stat., 364.)

By this act of April 25 war existed during the day of April 21 and from that time. By the Spanish decree treaty relations were superseded by war on April 23; in fact, diplomatic exchanges had taken place on April 21.

The Supreme Court of the United States acknowledged that war had existed since and including April 21, and that captures subsequent to that day were valid. This was two days prior to the Spanish decree and four days prior to the American declaration.

On the 25th of April President McKinley, recognizing that the position of the United States was not well de