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
(16) The Declaration of London of February 26, 1909, concerning the Laws
of Naval War, which was signed at the Conference of London by Great
Britain, Germany, the United States of America, Austria-Hungary, Spain,
France, Italy, Japan, Holland, and Russia, but is not yet ratified. This
Declaration enacts rules concerning blockade, contraband, unneutral
service, destruction of neutral prizes, transfer of vessels to a neutral
flag, enemy character, convoy, and resistance to search.[83]
[Footnote 83: The United States of America (see above, vol. I. § 32),
published on June 27, 1900, a body of rules for the use of her navy
under the title _The Laws and Usages of War on Sea_--the so-called
"United States Naval War Code." This code, although withdrawn on
February 4, 1904, will undoubtedly be the starting-point of a movement
for a Naval War Code to be generally agreed upon by the Powers. See
below, § 179.]
[Sidenote: Binding force of the Laws of War.]
§ 69. As soon as usages of warfare have by custom or treaty evolved into
laws of war, they are binding upon belligerents under all circumstances
and conditions, except in the case of reprisals[84] 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[85] and the
Swiss-Belgian Rivier[86] maintain that the laws of war lose their
binding force in case of extreme necessity. Such case of extreme
necessity is said to have arisen 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, is, however,
not at all generally accepted by German writers, for instance,
Bluntschli does not mention it. English, American, French, and Italian
writers do not, so far as I am aware, acknowledge it. The protest of
Westlake,[87] therefore, against such an exception is the more
justified, as a great danger would be involved by its admission.
[Footnote 84: See below, § 248.]
[Footnote 85: 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, and Holland, _War_, § 2, where the older literature is
quoted.]
[Footnote 86: See Rivier, II. p. 242.]
[Footnote 87: See Westlake, II. pp. 115-117, and Westlake, _Chapters_,
p. 238.]
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