International Law. A Treatise Volume Ii Part 30

532-547--Nordon in _The Law Magazine and Review_, x.x.xII. (1907), pp. 166-188. See also the literature quoted above, vol. I., at the commencement of -- 286.

[Sidenote: Uncertainty of Rules concerning Interference with Submarine Telegraph Cables.]

-- 214. As the "International Convention[426] for the Protection of Submarine Telegraph Cables" of 1884 expressly stipulates by article 15 that freedom of action is reserved to belligerents, the question is not settled how far belligerents are ent.i.tled to interfere with submarine telegraph cables. The only conventional rule concerning this question is article 54 of the Hague Regulations, inserted by the Second Peace Conference, which enacts that submarine cables connecting occupied enemy territory with a neutral territory shall not be seized or destroyed, and that, if a case of absolute necessity has compelled the occupant to seize or destroy such cable, it must be restored after the conclusion of peace and indemnities paid. There is no rule in existence which deals with other possible cases of seizure and destruction.

[Footnote 426: See above, vol. I. ---- 286 and 287.]

The Inst.i.tute of International Law has studied the matter and adopted,[427] at its meeting at Brussels in 1902, the following five rules:--

(1) Le cable sousmarin reliant deux territoires neutres est inviolable.

(2) Le cable reliant les territoires de deux belligerants ou deux parties du territoire d'un des belligerants peut etre coupe partout, excepte dans la mer territoriale et dans les eaux neutralisees dependant d'un territoire neutre.

(3) Le cable reliant un territoire neutre au territoire d'un des belligerants ne peut en aucun cas etre coupe dans la mer territoriale ou dans les eaux neutralisees dependant d'un territoire neutre. En haute mer, ce cable ne peut etre coupe que s'il y a blocus effectif et dans les limites de la ligne du blocus, sauf retabliss.e.m.e.nt du cable dans le plus bref delai possible. Le cable peut toujours etre coupe sur le territoire et dans la mer territoriale dependant d'un territoire ennemi jusqu'a d'une distance de trois milles marins de la laisse de ba.s.se-maree.

(4) Il est entendu que la liberte de l'etat neutre de transmettre des depeches n'implique pas la faculte d'en user ou d'en permettre l'usage manifestement pour preter a.s.sistance a l'un des belligerants.

(5) En ce qui concerne l'application des regles precedentes, il n'y a de difference a etablir ni entre les cables d'etat et les cables appartenant a des particuliers, ni entre les cables de propriete ennemie et ceux qui sont de propriete neutre.

[Footnote 427: See _Annuaire_, XIX. (1902), p. 331.]

The U.S. Naval War Code, article 5, laid down the following rules:--

(1) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the United States and that of an enemy, are subject to such treatment as the necessities of war may require.

(2) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy.

(3) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from interruption.[428]

[Footnote 428: It is impossible for a treatise to discuss the details of the absolutely unsettled question as to how far belligerents may interfere with submarine telegraph cables. Readers who take a particular interest in it may be referred to the excellent monograph of Scholz, _Krieg und Seekabel_ (1904), which discusses the matter thoroughly and ably.]

CHAPTER V

NON-HOSTILE RELATIONS OF BELLIGERENTS

I

ON NON-HOSTILE RELATIONS IN GENERAL BETWEEN BELLIGERENTS

Grotius, III. c. 19--Pufendorf, VIII. c. 7, ---- 1-2--Bynkershoek, _Quaest. jur. publ._ I. c. 1--Vattel, III. ---- 174-175--Hall, -- 189--Lawrence, -- 210--Phillimore, III. -- 97--Halleck, I. pp.

310-311--Taylor, -- 508--Wheaton, -- 399--Bluntschli, -- 679--Heffter, -- 141--Lueder in Holtzendorff, IV. pp.

525-527--Ullmann, -- 185--Bonfils, Nos. 1237-1238--Despagnet, No.

555--Pradier-Fodere, VII. Nos. 2882-2887--Rivier, II. p.

367--Calvo, IV. ---- 2411-2412--Fiore, III. No. 1482, and Code, Nos.

1721-1723--Martens, II. -- 127--Longuet, ---- 134-135--Merignhac, pp.

218-220--Pillet, pp. 355-356--_Kriegsbrauch_, p. 38--_Land Warfare_, ---- 221-223--Emanuel, _Les conventions militaires dans la guerre continentale_ (1904).

[Sidenote: _Fides etiam hosti servanda._]

-- 215. Although the outbreak of war between States as a rule brings non-hostile intercourse to an end, necessity of circ.u.mstances, convenience, humanity, and other factors call, or may call, some kinds of non-hostile relations of belligerents into existence. And it is a universally recognised principle of International Law that, where such relations arise, belligerents must carry them out in good faith. _Fides etiam hosti servanda_ is a rule which was adhered to in antiquity, when no International Law in the modern sense of the term existed. But it had then a religious and moral sanction only. Since in modern times war is not a condition of anarchy and lawlessness between belligerents, but a contention in many respects regulated, restricted, and modified by law, it is obvious that, where non-hostile relations between belligerents occur, they are protected by law. _Fides etiam hosti servanda_ is, therefore, a principle which nowadays enjoys as well a legal as a religious and moral sanction.

[Sidenote: Different kinds of Non-hostile Relations.]

-- 216. As through the outbreak of war all diplomatic intercourse and other non-hostile relations come to an end, it is obvious that non-hostile relations between belligerents must originate either from special rules of International Law or from special agreements between the belligerents.

No special rules of International Law which demanded non-hostile relations between belligerents existed in former times, but of late a few rules of this kind have arisen. Thus, for instance, release on parole[429] of prisoners of war creates an obligation on the part of the enemy not to re-admit the individuals concerned into the forces while the war lasts. And, to give another example, by article 4 of the Geneva Convention of 1906, and article 14 of the Hague Regulations--see also article 17 of Convention X. of the Second Peace Conference--it is the duty of either belligerent to return to the enemy, by his prisoner-of-war bureau, all objects of personal use, letters, jewellery, and the like found on the battlefield or left by those who died in hospital.[430] Non-hostile relations of this kind, however, need not be considered in this chapter, since they have already been discussed on several previous pages.

[Footnote 429: See above, -- 129.]

[Footnote 430: See above, -- 144.]

Non-hostile relations originating from special agreements of belligerents, so-called _commercia belli_, may either be concluded in time of peace for the purpose of creating certain non-hostile relations between the parties in case war breaks out, or they may be concluded during the actual time of war. Such non-hostile relations are created through pa.s.sports, safe-conducts, safeguards, flags of truce, cartels, capitulations, and armistices. Non-hostile relations can also be created by peace negotiations.[431] Each of these non-hostile relations must be discussed separately.

[Footnote 431: See below, -- 267.]

[Sidenote: Licences to Trade.]

-- 217. Several writers[432] speak of non-hostile relations between belligerents created by licences to trade granted by a belligerent to enemy subjects either within certain limits or generally. It has been explained above, in -- 101, that it is for Munic.i.p.al Law to determine whether or not through the outbreak of war all trade and the like is prohibited between the subjects of belligerents. If the Munic.i.p.al Law of one or both belligerents does contain such a prohibition, it is of course within the discretion of one or both of them to grant exceptional licences to trade to their own or the other belligerent's subjects, and such licences naturally include certain privileges. Thus, for instance, if a belligerent allows enemy subjects to trade with his own subjects, enemy merchantmen engaged in such trade are exempt from capture and appropriation by the grantor. Yet it is not International Law which creates this exemption, but the very licence to trade granted by the belligerent and revocable at any moment; and no non-hostile international relations between the belligerents themselves originate from such licences. The matter would be different if, either in time of peace for the time of war, or, during war, the belligerents agreed to allow certain trade between their subjects; but non-hostile relations originating from such an agreement would not be relations arising from a licence to trade, but from a cartel.[433]

[Footnote 432: See, for instance, Hall, -- 196; Halleck, II. pp. 343-363; Lawrence, -- 214; Manning, p. 168; Taylor, -- 512; Wheaton, ---- 409-410; Fiore, III. No. 1500; Pradier-Fodere, VII. No. 2938.]

[Footnote 433: See below, -- 224.]

II

Pa.s.sPORTS, SAFE-CONDUCTS, SAFEGUARDS

Grotius, III. c. 21, ---- 14-22--Vattel, III. ---- 265-277--Hall, ---- 191 and 195--Lawrence, -- 213--Phillimore, III. ---- 98-102--Halleck, II. pp. 323-328--Taylor, -- 511--Wheaton, -- 408--Moore, VII. ---- 1158-1159--Bluntschli, ---- 675-678--Heffter, -- 142--Lueder in Holtzendorff, IV. pp. 525-527--Ullmann, -- 185--Bonfils, Nos.

1246-1247--Despagnet, Nos. 558-561--Pradier-Fodere, VII. Nos.

2884, 2932-2938--Nys, III. pp. 504-505--Calvo, IV. ---- 2413-2418--Fiore, III. No. 1499, and Code, Nos.

1742-1749--Longuet, ---- 142-143--Merignhac, pp. 239-240--Pillet, pp. 359-360--_Kriegsbrauch_, p. 41--Holland, _War_, No. 101--_Land Warfare_, ---- 326-337.

[Sidenote: Pa.s.sports and Safe-conducts.]

-- 218. Belligerents on occasions arrange between themselves that pa.s.sports and safe-conducts shall be given to certain of each other's subjects. Pa.s.sports are written permissions given by a belligerent to enemy subjects, or others, allowing them to travel within that belligerent's territory or enemy territory occupied by him.

Safe-conducts are written permissions given by a belligerent to enemy subjects, or others, allowing them to proceed to a particular place for a defined object, for instance, to a besieged town for conducting certain negotiations; but safe-conducts may also be given for goods, and they then comprise permission to carry such goods without molestation to a certain place. Pa.s.sports as well as safe-conducts make the grantee inviolable so long and in so far as he complies with the conditions specially imposed upon him or made necessary by the circ.u.mstances of the special case. Pa.s.sports and safe-conducts are not transferable, and they may be granted to enemy subjects for a limited or an unlimited period; in the former case their validity ceases with the expiration of the period. Both may be withdrawn, not only when the grantee abuses the protection, but also for military expediency. It must, however, be specially observed that pa.s.sports and safe-conducts are only a matter of International Law when the granting of them has been arranged between the belligerents or their responsible commanders, or between belligerents and neutral Powers. If they are granted without such an arrangement, unilaterally on the part of one of the belligerents, they fall outside the scope of International Law.[434]

[Footnote 434: The distinction between pa.s.sports and the like arranged between the belligerents to be granted, on the one hand, and, on the other, such as are granted unilaterally, would seem to be necessary, although it is not generally made.]

[Sidenote: Safeguards.]

-- 219. Belligerents on occasions arrange between themselves that they shall grant protection to certain of each other's subjects or property against their own forces in the form of safeguards, of which there are two kinds. One consists in a written order given to an enemy subject or left with enemy property and addressed to the commander of armed forces of the grantor, in which the former is charged with the protection of the respective individual or property, and by which both become inviolable. The other kind of safeguard is given by detailing one or more soldiers to accompany enemy subjects or to guard the spot where certain enemy property is, for the purpose of protection. Soldiers on this duty are inviolable on the part of the other belligerent; they must neither be attacked nor made prisoners, and they must, on falling into the hands of the enemy, be fed, well kept, and eventually safely sent back to their corps. As in the case of pa.s.sports and safe-conducts, it must be specially observed that safeguards are only a matter of International Law when the granting of them has been arranged by the belligerents, and not otherwise; except in the case of the safeguards mentioned by article 8, No. 2, of the Geneva Convention of 1906, who, according to articles 9 and 12 of that Convention, are inviolable.