International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
History
International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 215. Although the outbreak of war between States as a rule brings
non-hostile intercourse to an end, necessity of circumstances,
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 passports, 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.]
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