Enemy Character In International Law

In today’s article we are going to learn about Enemy character In International Law and enemy character of the individuals, goods, corporations, and ships.

Immediately after the outbreak of war between the States, a significant change comes in relations which are governed in accordance with the needs of war. With the outbreak of war, parties to the war become enemies and are called belligerents.

Belligerent are entitled to take many kinds of measures against enemy persons and enemy property for realization of the purpose of law. The Belligerent states acquire a character which under International law is called Enemy character.

During the First World War different tests and standards were used to determine the enemy character of individual goods, ships and corporations. From the practice of the States and the rules that have been formulated so far, we can derive the following conclusions:

There are two categories of an individual enemy character, which are as follows:

I) Enemy character of the individuals of the belligerent States

There are different tests and standards for determining the enemy character of individuals of belligerent states. For example in Britain and America the enemy character of individuals is determined on the basis of their residence and domicile. On the other hand in European countries (Except England) enemy character of of individuals is determined on the basis of nationality.

II) Enemy character of individuals of neutral States

Individuals of neutral states do not bear enemy character unless they participates in any activities against the belligerent State, then they may be deemed to having enemy character. For example in America and England if the individual of neutral states carry goods to enemy states or territory then they will be deemed to be having enemy character or in other words they will be treated as enemies. But the citizens of the enemy States living in the neutral States will not be deemed to be having enemy character.

According to practices following category of individuals are regarded as to bear enemy character

• Combatants
• Residents of enemy states
• Person living in the places held by the enemy
• Person carrying on trade with enemy
• Persons assisting enemy

2. Enemy character of corporations

Enemy character of corporations are determined mainly by their permanent residence and registration.

If a corporation is registered in enemy state, then it will be deemed to be having enemy character. The enemy character of the corporation is also determined by its permanent residence. By permanent residence of the corporation is meant its existence and conduct of business.

Case law : Daimler Co. Ltd. v. Continental Tyre and Rubber Co., Ltd

Important principles were propounded in this case regarding the enemy character of corporations. The the most important principle that was propounded was that if the persons or agents of the corporation who are in de facto control of the company reside in the enemy State or territory, then the company shall be deemed to be having enemy character. The House of Lords observed company may, however assume enemy character or if its agents or the persons in de facto control of its affairs whether authorised or not, or resident in an enemy territory.

3. Enemy character of goods

All the goods owned by the person who bears the enemy character are deemed as enemy goods. It is a well-established customary rule that a goods found on board an enemy merchantman are presumed to be enemy goods unless the contrary is proved by the neutral owners.

Usually, enemy character of the goods is determined by their ownership. If the owners of the goods are the residents of the enemy state, then the goods may be deemed to be having enemy character and if the owners of the goods live in neutral State, the goods will not be deemed to be having enemy character.

Different countries have modified and amended this rule in accordance with their convenience and needs of time and circumstances. But the general rule which is evident from the general practice of the States is that the enemy character of the goods is determined by the ownership of the goods.

Transfer of goods in sea

If the sale of the goods takes place before war or without its consideration, State law is applied to determine whether the transfer of ownership had been effected. If the change in ownership is attempted during war or in view of war, the goods are deemed to be of enemy character and such goods are not considered to be the property of neutral State and may be confiscated.

4. Enemy character of ships

The enemy character of ships is determined by their flags. This rule was adopted in the Declaration of Geneva, 1909. All ships having flags of the enemy state would bear enemy character.
For example, if a ship of France uses the American Flag, then it will be unauthorised. If the ship of an enemy state unauthorisedly uses the flag of a neutral State and is seized by the belligerent State then such a ship shall be deemed to be having enemy character.

For example, if a ship of France uses the American Flag, then it will be unauthorised. If the ship of an enemy State unauthorisedly uses the flag of a neutral State and is seized by the belligerent State then such a ship shall be deemed to be having enemy character.

Transfer of enemy Ships:
Clear rules in this connection were formulated in the declaration of London but it is not ratified by the States. Enemy ships can be transferred to and under the flag of neutral States under the following two situation:

Before outbreak of war:
It is necessary that such transfer should not have been made with an objective to evade the capture of the ship.
After the start of war:
Transfer of ships after the start of war is generally considered illegal but it may be allowed it the owner of the ship established that it was not made with a view to evade the capture of the ship.