Declaration of war


Declaration of war
United States President Franklin D. Roosevelt signs a declaration of war against Nazi Germany on December 11, 1941.

A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act (or the signing of a document) by an authorized party of a national government in order to create a state of war between two or more states.

The legality of who is competent to declare war varies between nations and forms of government. In many nations, power is given to the head of state or sovereign; in other cases, something short of a full declaration of war, such as a letter of marque or a covert operation, may authorise war-like acts by privateers or mercenaries. The official international protocol for declaring war was defined in the Hague Convention (III) of 1907 on the Opening of Hostilities.

It has been noted that "developments in international law since 1945, notably the United Nations Charter, including its prohibition on the threat or use of force in international relations, may well have made the declaration of war redundant as a formal international legal instrument."[1] In addition to this, non-state or terrorist organisations may claim to or be described as "declaring war" when engaging in violent acts.[2][3] These declarations may have no legal standing in themselves, but may still act as a call to arms for supporters of these organisations.

Contents

Definitions

Theoretical perspectives

A definition of the three ways of thinking about a declaration of war was developed by Saikrishna Prakash.[4] He argues that a declaration of war can be seen from three perspectives:

  • Categorical theory under which the power to declare war includes “the power to control all decisions to enter war”. This means that the power to 'declare war' in effect rests with the ability to engage in combat.
  • Pragmatic theory which states that the power to declare war can be made unnecessary by an act of war in itself.
  • Formalist theory under which the power to declare war constitutes only a formal documentation of executive war-making decisions. This sits closest to traditional legal conceptions of what it is to declare a war.[5]

Types of declarations

An alternative typology based upon the form the declaration is formulated according to 1) the degree to which the state and condition of war exists, 2) the degree of justification, 3) the degree of ceremony of the speech act, and 4) the degree of perfection of the speech act:

Degree of existence of the war
  • A conditional declaration of war declares war conditionally, threatening war if the grievances listed are not acknowledged and the preferred remedies demanded are not accepted.
  • An absolute declaration of war declares war absolutely due to the failure of negotiations over the grievances and remedies found in the conditional declaration. It ends absolutely the state and condition of peace, replacing it with the state and condition of war until such time as peace is restored.
Degree of justification of the war
  • A reasoned declaration of war justifies the resort to war by stating the grievances that have made peace intolerable and the remedies that will restore peace.
  • An unreasoned declaration of war does not justify the resort to war, or does so only minimally.
Degree of ceremony with which the speech act was made
  • A formal or solemn declaration of war is a declaration made by the constitutionally recognized nation following the appropriate laws, rites and rituals.
  • An informal or unsolemn declaration of war is a declaration made in an irregular manner either by a constitutionally unrecognized nation or by the constitutionally recognized nation using unlawful, inappropriate procedures.
Degree of perfection with which the speech act was made
  • A perfect declaration of war is a formal, solemn speech act made in accordance with the proper laws, rites, and rituals.
  • An imperfect declaration of war is an informal, unsolemn speech act not made in accordance with the proper laws, rites and rituals.

History

Adolf Hitler announcing a German declaration of war on the United States on 11 December 1941.

The practice of declaring war has a long history. The ancient Sumerian Epic of Gilgamesh gives an account of it,[6] as does the Old Testament.[7][8]

However, the practice of declaring war was not always strictly followed. In his study Hostilities without Declaration of War (1883), the British scholar John Frederick Maurice showed that between 1700–1870, in only 10 cases war was declared, while in other 107 cases, war was waged without such declaration (this figures only include wars waged in Europe and between European states and the United States, not including colonial wars in Africa and Asia).

In modern public international law, a declaration of war entails the recognition between countries of a state of hostilities between these countries, and such declaration acted to regulate the conduct between the military engagements between the forces of the respective countries. The primary multilateral treaties governing such declarations are the Hague Conventions.

The League of Nations formed in 1919 in the wake of the First World War, and the General Treaty for the Renunciation of War of 1928 signed in Paris, France, demonstrated that world powers were seriously seeking a means to prevent the carnage of another world war. Nevertheless, these powers were unable to stop the outbreak of the Second World War and, the United Nations (UN) was consequently established following that war in a renewed attempt to prevent international aggression through declarations of war.

United Nations and war

In an effort to force nations to resolve issues without warfare, framers of the United Nations Charter attempted to commit member nations to using warfare only under limited circumstances, particularly for defensive purposes.

The UN became a war combatant itself after North Korea invaded South Korea on June 25, 1950 (see Korean War). The UN Security Council condemned the North Korean action by a 9-0 resolution (with the Soviet Union absent) and called upon its member nations to come to the aid of South Korea. The United States and 15 other nations formed a "UN force" to pursue this action. In a press conference on June 29, 1950, U.S. President Harry S. Truman characterized these hostilities as not being a "war", but a "police action".[9]

The United Nations has issued Security Council Resolutions that declared some wars to be legal actions under international law, most notably Resolution 678, authorizing war with Iraq in 1991. The UN Resolutions authorise the use of "force" or "all means necessary".[10]

Denigration of formal declarations of war

In Classical times, Thucydides condemned the Thebans, allies of Sparta, for launching a surprise attack without a declaration of war against Plataea, Athens' ally - an event which touched off the Peloponnesian War.[11]

The utility of formal declarations of war has always been questioned, either as sentimental remnants of a long gone age of chivalry or as imprudent warnings to the enemy. For example, writing in 1737, Cornelius van Bynkershoek judged that "nations and princes endowed with some pride are not generally willing to wage war without a previous declaration, for they wish by an open attack to render victory more honourable and glorious."[12] Writing in 1880, William Edward Hall judged that "any sort of previous declaration therefore is an empty formality unless the enemy must be given time and opportunity to put himself in a state of defence, and it is needless to say that no one asserts such a quixotism to be obligatory."[13]

United States

In the United States, Congress, which makes the rules for the military, has the power under the constitution to "declare war". However neither the U.S. Constitution nor the law stipulate what format a declaration of war must take. War declarations have the force of law and are intended to be executed by the President as "commander in chief" of the armed forces. The last time Congress passed joint resolutions saying that a "state of war" existed was on June 5, 1942, when the U.S. declared war on Bulgaria, Hungary and Rumania.[14] Since then, the U.S. has used the term "authorization to use military force" as in the case against Iraq in 2003.

Sometimes decisions for military engagements were made by US presidents, without formal approval by Congress, based on UN Security Council resolutions that do not expressly declare the UN or its members to be at war. Part of the justification for the United States invasion of Panama was to capture Manuel Noriega (as a prisoner of war)[15] because he was declared a criminal rather than a belligerent.[citation needed]

Agreed Procedure for the Opening of Hostilities

The Hague Convention (III) in 1907 called "CONVENTION RELATIVE TO THE OPENING OF HOSTILITIES"[16] gives the international actions a country should perform when opening hostilities. The first two Articles say:-

Article 1

The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.[17]

Article 2

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.[18]

See also

References

  1. ^ Waging war: Parliament’s role and responsibility House of Lords Select Committee on the Constitution; 27-07-06; Accessed 21-04-08
  2. ^ Basque raid 'declaration of war' BBC News; 06-10-07; Accessed 21-04-08
  3. ^ Iraq: Sadr speaks on ”open war” as al-Qaeda to launch new campaign Al-Bawaba News; 20-04-08; Accessed 21-04-08
  4. ^ Unleashing the Dogs of War: What the Constitution Means by 'Declare War' Prakash, Saikrishna; 2007; Cornell Law Review, Vol. 93, October 2007; Subscription Required
  5. ^ Scholarship on the "Declare War" Power 22-01-08; Accessed 21-04-08
  6. ^ Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN 0-252-06726-6, pp.65f.
  7. ^ Deut. 20:10-12, Judg. 11:1-32.
  8. ^ Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN 0-252-06726-6, pp.66f.
  9. ^ "The President's News Conference". 1950-06-29. http://teachingamericanhistory.org/library/index.asp?document=594. Retrieved 2007-07-03. 
  10. ^ http://www.fas.org/man/crs/RS21323.pdf The United Nations Security Council – Its Role in the Iraq Crisis: A Brief Overview
  11. ^ Thucydides. History of the Peloponnesian War, Book II.
  12. ^ Bynkershoek, Cornelius van. 1930. Quæstionum Juris Publici Liber Duo (1737). Trans. Tenney Frank. The Classics of International Law No. 14 (2). Publications of the Carnegie Endowment for International Peace. Oxford at the Clarendon Press. (I, ii, 8)
  13. ^ Hall, William Edward. 1924. A Treatise on International Law. 8th ed. by A. Pearce Higgins. London: Humphrey Milford: Oxford University Press. (p. 444)
  14. ^ "Joint Declarations by the (U.S.) Congress, June 5, 1942", Dept. of State Bulletin, June 6, 1942
  15. ^ http://books.google.com/books?id=sYA4zY1ke6UC&lpg=PA45&ots=L8cPcudx8R&pg=PA45#v=onepage&q=&f=false
  16. ^ http://avalon.law.yale.edu/20th_century/hague03.asp
  17. ^ http://avalon.law.yale.edu/20th_century/hague03.asp#art1
  18. ^ http://avalon.law.yale.edu/20th_century/hague03.asp#art2

External links


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