Chapter II Steps Towards a Written Law of War
A large body of written International Law, with reference to the conduct of warfare, has been, in the course of the last half-century, and, more especially, in quite recent years, called into existence by means of General Conventions, or Declarations, of which mention must frequently be made in the following pages. Such are:—
(i.) With reference to war, whether on land or at sea: the Declaration of St. Petersburg, of 1868, as to explosive bullets; the three Hague Declarations of 1899 (of which the first was repeated in 1907), as to projectiles from balloons, projectiles spreading dangerous gases, and expanding bullets; The Hague Convention, No. iii. of 1907 as to Declaration of War; all ratified by Great Britain, except the Declaration of St. Petersburg, which was thought to need no ratification.
(ii.) With reference only to war on land: the Geneva Convention of 1906 (superseding that of 1864) as to the sick and wounded, which was generally ratified, though by Great Britain only in 1911 (it was extended to maritime warfare by Conventions iii. of 1899 and x. of 1907, both ratified by Great Britain, cf. infra, Ch. VI. Section 10); the Hague Conventions of 1907, No. iv. (superseding the Convention of 1899) as to the conduct of warfare, and No. v. as to neutrals, of which only the former has as yet been ratified by Great Britain.
(iii.) With reference only to war at sea: the Declaration of Paris, of 1856, supposed apparently to need no ratification (to which the United States is now the only important Power which has not become a party), as to privateering, combination of enemy and neutral property and blockades; The Hague Conventions of 1907, No. vi. as to enemy merchant vessels at outbreak, No. vii. as to conversion of merchantmen into warships, No. viii. as to mines, No. ix. as to naval bombardments, No. x. as to the sick and wounded, No. xi. as to captures, No. xii. as to an International Prize Court, supplemented by the Convention of 1910, No. xiii. as to neutrals. It must be observed that, of these Conventions, Great Britain has ratified only vi., vii., viii., ix., and x., the three last subject to reservations. The Declaration of London of 1909, purporting to codify the laws of naval warfare as to blockade, contraband, hostile assistance, destruction of prizes, change of flag, enemy character, convoy, resistance and compensation, and so to facilitate the working of the proposed International Prize Court, if, and when, this Court should come into existence, has failed to obtain ratification, as will be hereafter explained.
Concurrently with the efforts which have thus been made to ascertain the laws of war by general diplomatic agreement, the way for such agreement has been prepared by the labours of the Institut de Droit International, and by the issue by several governments of instructions addressed to their respective armies and navies.
The Manuel des Lois de la Guerre sur Terre, published by the Institut in 1880, is the subject of the two letters which immediately follow. Their insertion here, although the part in them of the present writer is but small, may be justified by the fact that they set out a correspondence which is at once interesting (especially from its bearing upon the war of 1914) and not readily elsewhere accessible.
The remaining letters in this chapter relate to the Naval War Code, issued by the Government of the United States in 1900, but withdrawn in 1904, though still expressing the views of that Government, for reasons specified in a note to the British chargé d’affaires at Washington and printed in Parl. Papers, Miscell. No. 5 (1909), p. 8. The United States, it will be remembered, were also the first Power to attempt a codification of the laws of war on land, in their Instructions for the Government of Armies of the United States, issued in 1863, and reissued in 1898. Some information as to this and similar bodies of national instructions may be found in the present writer’s Studies in International Law, 1898, p. 85. Cf. his Manual of Naval Prize Law, issued by authority of the Admiralty in 1888, his Handbook of the Laws and Customs of War on Land, issued by authority to the British Army in 1904, and his The Laws of War on Land (written and unwritten), 1908. The Institut de Droit International, which has been engaged for some years upon the Law of War at Sea, by devoting the whole of its session at Oxford, in 1913, to the discussion of the subject, produced a Manuel des Lois de la Guerre sur Mer, framed in accordance with the now-accepted view which sanctions the capture of enemy private property at sea. It is to be followed by a manual framed in accordance with the contrary view. Cf. the letters upon the Declaration of London, in Ch. VII. Section 10, infra.