Binding

Force of

of War.

status of enemy merchantmen at the outbreak of hostilities.1

(11) The Hague Convention of 1907 concerning the conversion of merchantmen into men-of-war.2

(12) The Hague Convention of 1907 concerning the laying of automatic submarine contact mines.3

(13) The Hague Convention of 1907 concerning bombardment by naval forces in time of war.4

(14) The Hague Convention of 1907 concerning certain restrictions on the exercise of the right of capture in maritime war, 5

(15) The two Hague Conventions of 19076 concerning the rights and duties of neutral Powers and persons in land warfare and in sea warfare.?

8

§ 69. As soon as usages of warfare have by custom the Lows or treaty evolved into laws of war, they are binding upon belligerents under all circumstances and conditions, except in the case of reprisals as retaliation against a belligerent for illegitimate acts of warfare by the members of his armed forces or his other subjects. In accordance with the German proverb, Kriegsraeson geht vor Kriegsmanier (necessity in war overrules the manner of warfare), many German authors before the

1 See below, § 102a.

2 See below, § 84.

3 See below, § 182a.

See below, § 213.

See below, §§ 85, 186, 187, 191.
See below, § 292.

A declaration concerning the
Laws of Naval War was signed at the
Conference of London on February
26, 1909, by Great Britain, Ger-
many, the United States of America,
Austria-Hungary, Spain, France,
Italy, Japan, Holland, and Russia.
It was to have enacted rules con-
cerning blockade, contraband, un-
neutral service, destruction of neutral
prizes, transfer of vessels to a neutral
flag, enemy character, convoy, and
resistance to search, but failed to
secure ratification. See below, § 292.
See below, § 248.

See, for instance, Lueder in Holtzendorff, iv. pp. 254-257; Ullmann, § 170; Meurer, ii. pp. 7-15. Liszt, who in former editions agreed with these writers, deserts their ranks in the sixth edition (§ 24, iv. 3), and correctly takes the other side, See also Nys, iii. p. 202; Holland, War, § 2, where the older literature is quoted; Cybichowski, Studien zum internationalen Recht (1912), pp. 21-71, who treats the subject accurately and in more detail; Huber in Z. V., vii. (1913), pp. 351-374, whose distinction between military and other kinds of necessity is very helpful; Visscher in R. G., xxiv. (1917), pp. 74-108, who discusses the influence of necessity on the laws of war very thoroughly; Lammasch, op. cit., pp. 20-23; Schoen, Die

World War were already maintaining that the laws of war lose their binding force in case of extreme necessity. Such a case was said to arise when violation of the laws of war alone offers, either a means of escape from extreme danger, or the realisation of the purpose of war-namely, the overpowering of the opponent. This alleged exception to the binding force of the laws of war was, however, not at all generally accepted by German writers; for instance, Bluntschli did not mention it. English, American, French, and Italian writers did not, so far as I am aware, acknowledge it. The protest of Westlake 1 against it was the more justified, as a great danger would have been involved in its admission.

The proverb dates very far back in the history of warfare. It originated and found recognition in those times when warfare was not regulated by laws of war, i.e. generally binding customs and international treaties, but only by usages (Manier, i.e. Brauch), and it says that necessity in war overrules usages of warfare. In our days, however, warfare is no longer regulated by usages only, but to a greater extent by laws-firm rules recognised, either by international treaties, or by general custom.2 These conventional and customary rules cannot be overruled by necessity, unless they are framed in such a way as not to apply to a case of necessity in self-preservation. Thus, for instance, the rules that poisoned arms and poison are forbidden, and that it is not allowed treacherously to kill or wound individuals belonging to the hostile army, do not lose their binding force even if their breach would effect an escape from extreme danger or the realisation of the purpose of war. Article 22 of the Hague Regulations stipulates

völkerrechtliche Haftung der Staaten aus unerlaubten Handlungen (1917), pp. 112-118; Nys, L'Occupation de Guerre (1919), pp. 92-110. See also the Swiss-Belgian Rivier, ii. p. 242.

1 See Westlake, ii. pp. 115-117, and Papers, p. 243.

* Concerning the distinction between usage and custom, see above, vol. i. § 17.

distinctly that the right of belligerents to adopt means of injuring the enemy is not unlimited, and this rule does not lose its binding force in a case of necessity. What may be ignored in case of military necessity are not the laws of war, but only the usages of war. Kriegsraeson geht vor Kriegsmanier, but not vor Kriegsrecht ! 1

Region of War in contradis

Theatre

IV

THE REGION OF WAR

Taylor, §§ 471, 498-Heffter, § 118-Lueder in Holtzendorff, iv. pp. 362364-Klüber, § 242-Liszt, § 40, i.-Ullmann, § 174-Pradier-Fodéré, vi. No. 2733, and viii. Nos. 3104-3106-Rivier, ii. pp. 216-219Boeck, Nos. 214-230-Longuet, §§ 18-25-Perels, § 33-Rettich, Zur Theorie und Geschichte des Rechts zum Kriege (1888), pp. 174-213-Boeckner, Der Kriegsschauplatz (1911)—Schramm, § 6-Wehberg, § 3, p. 55.

§ 70. Region of war is that part of the surface of the earth in which the belligerents may prepare and tinction to execute hostilities against each other. In this meanof War. ing, ing, region of war' ought to be distinguished from 'theatre of war.' The latter is that part of territory, or the open sea, on which hostilities actually take place.2

1 For here the general rule that
necessity in the interest of self-pre-
servation is an excuse for an illegal
act cannot find application, because
in the preamble of Hague Convention
IV. it is expressly stated that the
rules of warfare were framed with
regard to military necessities.
'Ac-
cording to the views of the High
Contracting Parties, these provisions,
the wording of which has been in-
spired by the desire to diminish
the evils of war as far as military
requirements permit, are intended to
serve as a general rule of conduct
for belligerents in their mutual re-
lations and in their relations with
the inhabitants.'

2 The distinction between 'region'
and theatre' of war, although of
considerable importance, does not

In

appear to have formerly been made
by any other publicist. It becomes
quite apparent from Article 39 of the
Hague Regulations and Article 11
of Hague Convention v., where the
'theatre of war' means that part of
territory on which hostilities actu-
ally take place. See also Schramm,
§ 6, p. 58, and Wehberg, p. 59.
The Dominion Coal Co. v. Maskin-
onge Steamship Co., ((1916) 33 T. L. R.
132, 340; (1917) 34 T.L.R. 212),
the question was of importance
whether a vessel had been ordered
by the charterers to trade 'in the
war region.' It is, however, obvious
that the parties did not thereby
mean the region of war' in the
sense used above, but the 'theatre
of war.' The distinction is particu-
larly evident in relation to the open

Legally no part of the earth which is not region of war may be made the theatre of war; but not every section of the whole region of war is necessarily theatre of war. Thus, in the war between Great Britain and the two South African Republics, the whole of the territory of the British Empire and the open sea, as well as the territory of the Republics, was the region of war, but the theatre of war was in South Africa only. On the other hand, in the World War the theatre of war was almost coextensive with the region of war.

§ 71. The region of war depends upon the belligerents. Particular For this reason, every war has its particular region, so every Region of far, at any rate, as the territorial region is concerned. War. For besides the open sea,1 and all such territories as are as yet not occupied by any State (which are always within the region of war), the particular region of every war is the whole of the territories and territorial waters of the belligerents. But any part of the globe which is permanently neutralised 2 is always outside the region of war.

Since dominions and colonies are a part of the territory of the empire or mother country, they fall within the region of a war between the latter and another State, whatever their position may be within it. Thus

sea. For instance, the right of visit and capture may be exercised throughout this region of war, mines may only be laid on the theatre of war, that is, where actual fighting takes place. Therefore the region of war remains unaltered, but the theatre of war may shift about.

1 Can States, through a unilateral declaration, extend the width of their neutral maritime belt beyond three miles, and thereby curtail the region of war? By a decree of October 18, 1912, France claimed a maritime belt six miles wide for all purposes of neutrality. After the outbreak of the World War, Italy, when still neutral, by a decree of August 6, 1914, likewise claimed a neutral maritime belt six miles wide. However, the decision of the German Prize Court in

The Elida, Z. V., ix. (1915), p. 109, and
the arrangement between the British
and the Norwegian Governments
that, for the decision of The Loekken,
(1918) 34 T.L. R. 594, the three-mile
limit should be postulated, would
seem to show that belligerents are
not prepared to recognise the claim
of any State to a neutral maritime
belt more than three miles wide.

Newspapers reported at the
beginning of the World War that
Great Britain had refused the claim
of Argentina and Uruguay to a
neutral belt wider than three miles;
but the author was unable to obtain
confirmation of this. On the other
hand, Great Britain, as a matter of
policy, ordered her cruisers to respect
the six miles claimed by Italy.
2 See below, § 72.

in the World War the whole of Australia, Canada, India, and so on, were included with the British Islands in the region of war. And, further, as States under the suzerainty of another State are internationally in several respects considered to be a portion of its territory, they fall within the region of a war between it and another Power. Again, such parts of the territory of a State as are under the condominium, or under the administration, of another State,2 fall within the region of a war between one of the condomini, or the administrating State, and another Power. Thus, in the World War, Cyprus at once fell within the region of war; and also the Soudan, which is under the condominium of England and Egypt. On the other hand, Cyprus would not have fallen 3 within the region of a war between Turkey and any other Power than Great Britain.

Although as a rule the territories of both belligerents, together with the open sea, fall within the region of war, and neutral territories do not, exceptions may

(1) A belligerent can deliberately renounce its right to treat certain territories, or parts of the open sea, as being within the region of war, provided that such areas fulfil the duties incumbent upon neutrals. Thus, during the Turco-Italian War, in 1911 and 1912, Italy treated Crete and Egypt as though they were not parts of the region of war.4

(2) Cases are possible in which a part, or the whole, of the territory of a neutral State falls within the region of war. These cases arise in wars in which such neutral territories are the very objects of the war, as were Korea (then an independent State) and the Chinese province

1 See above, vol. i. §§ 91, 169.

2 See above, vol. i. § 171.

3 Cyprus has since been annexed by Great Britain. See above, vol. i. §§ 50a.

There is no doubt that this

attitude of Italy is explained by the fact that Egypt, although then legally under Turkish suzerainty, was actually under British occupation, and that Crete was forcibly kept by the Powers under Turkish suzerainty.