SOME QUESTIONS OF INTERNATIONAL LAW ARISING FROM THE RUSSO-JAPANESE WAR. I. Failure to Declare War and Alleged Violation of Korean Neutrality. Вт AMOS S. HERSHEY, Associate Professor of European History and Politics, Indiana University. THE present Russo-Japanese War prom ises to present an exceptionally inter esting and important field for the application of certain principles of International Law, more especially for some of those modern rules governing the rights and duties of neutral States and individuals1 which are of comparatively recent origin and to the growth of which the United States has so largely contributed. Certain of these rules or customs may be said to be still in process of formation, or have not as yet been fully es tablished by the general practice of nations; others are perhaps no longer observed, and are therefore of doubtful or decaying vali dity. International Law is in a state of con stant growth as well as of decay; for its rules are the result of international practice which, although based upon fundamental principles, varies in different times and under different circumstances. The present war may serve cither to strengthen such customs as are in a stage of 'formation or of imperfect develop ment on the one hand, or to weaken such as are in a state of decay on the other. These introductory remarks may perhaps serve as a sufficient apology for a series of articles which aim to deal with certain questions sug gested by the present struggle in the Far East, from the standpoint of International Law. War is an abnormal relation between indi viduals as well as between States, and its outbreak brings into existence an entirely 1 A number of nice and delicate questions re lating to the laws and principles of neutrality have, in fact, already arisen at the present writ ing. Some at least of these will be discussed in later articles.
new set of rules which regulate the rights and duties of neutral States and individuals in respect to belligerent States and indi viduals, as well as the relations of the belli gerents with one another, and which largely supplement or supplant those rights and obligations already in existence. In view of this fact, it becomes extremely important to fix upon a definite date for the beginning of these new and abnormal relations between neutrals and belligerents on the one hand and the two or more belligerents on the other. A majority of the more recent authorities2 on International Law hold that between bel ligerents a formal notice of intention or a declaration of war is no longer necessary prior or preliminary to the outbreak of hosti lities. "An act of hostility, unless it be done in the urgency of self-preservation or by way of reprisal, is in itself a full declaration of intention; any sort of previous declaration therefore is an empty formality unless an enemy must be given time and opportunity ' A majority of the older authorities insisted upon the necessity of a declaration in some form. They were doubtless influenced by traditional views or customs which had their origin in the fctia'l law of the Romans 'or in the chivalry and ceremonies of the Middle Ages. The Romans, e. g., were very strict in their observance of cer tain formalities connected with the declaration of war, and they largely measured the justice or the injustice of a war by the strictness with which these formalities had been observed. For a very extensive citation of the older authorities and historical examples, see Hall, Treatise on International Law (.id ed.) pp. 37679 and notes. Especially interesting is the cita tion from Burlamqui (note on p. 379), who naive ly says that "an enemy ought not to be attacked immediately after declaration of war, 'otherwise the declaration would only be a vain ceremony.'" This is a reductlo ad absurdum of the view that a declaration of war is necessary.
