Jump to content

Declaration of war: Difference between revisions

From Wikipedia, the free encyclopedia
Browse history interactively
← Previous editNext edit →
Content deleted Content added
VisualWikitext
Pretty Green (talk | contribs)
5,967 edits
Undid revision 214494222 by Pretty Green (talk)
Pretty Green (talk | contribs)
5,967 edits
rv to may 4 to incorporate spelling correction
Line 1: Line 1:
{{NPOV}}
{{otheruses}}
{{otheruses}}


[[Image:Franklin Roosevelt signing declaration of war against Germany.jpg|thumb|200px|[[United States]] [[President of the United States|President]] [[Franklin D. Roosevelt]] signs a declaration of war against [[Germany]] on [[December 11]] [[1941]].]]
[[Image:Franklin Roosevelt signing declaration of war against Germany.jpg|thumb|200px|[[United States]] [[President of the United States|President]] [[Franklin D. Roosevelt]] signs a declaration of war against [[Germany]] on [[December 11]] [[1941]]<ref>Insert footnote text here</ref>.]]


A '''declaration of war''' is a formal performative [[speech act]] or signing of a document by an authorised party of a government in order to initate a state of [[war]] between two or more [[nation]]s. The legality of who can declare war varies between nations and forms of government, though power is usually given to the [[head of state]] or [[sovereign]]. However, it has been noted that "developments in international law since 1945, notably the [[United Nations]] (UN) [[United Nations Charter|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." <ref> [http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf Waging war: Parliament’s role and responsibility] [[House of Lords]] Select Committee on the Constitution; 27-07-06; Accessed 21-04-08 </ref> In addition to this, non-state or [[terrorist]] organisations may claim to or be described as "declaring war" when engaging in violent acts. <ref> [http://news.bbc.co.uk/1/hi/world/europe/7031815.stm Basque raid 'declaration of war'] BBC News; 06-10-07; Accessed 21-04-08 </ref> <ref> [http://www.albawaba.com/en/news/225920 Iraq: Sadr speaks on ”open war” as al Qaeda to launch new campaign] Al-Bawaba News; 20-04-08; Accessed 21-04-08 </ref> These declarations may have no legal standing in themselves, but may still act as a call to arms for supporters of these organisations.
A declaration of war is a formal performative [[speech act]], the signing of a document by an authorized party in order to initiate a state of [[war]] between two or more groups or [[nations]]. For a private war, the authorized party is a revolutionary assembly, a national liberation movement, or some a non-state actor, a warlord nowadays or a feudal noble during the Middle Ages. Declaration of private war possess questionable legal status and must be evaluated on a case-by-case basis.

For a public war, the authorized party is a government. The legality of who can declare war varies between nations and forms of government, though power is usually given to the[[ head of state]] or [[sovereign]]. However, "developments in international law since 1945, notably [[United Nations]] (UN) 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."<ref> [http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf Waging war: Parliament’s role and responsibility] [[House of Lords]] Select Committee on the Constitution; 27-07-06; Accessed 21-04-08 </ref>


In recent times, political strategies with the name ''War on...'', such as the ''[[War on Drugs]]'' may also be said to start with a declaration of war.
In recent times, political strategies with the name ''War on...'', such as the ''[[War on Drugs]]'' may also be said to start with a declaration of war.


==History==
==Definition==
A useful definition of the three ways of thinking about a declaration of war were developed by [[Saikrishna Prakash]]. <ref> [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=977244#PaperDownload Unleashing the Dogs of War: What the Constitution Means by 'Declare War'] Prakash, Saikrishna; 2007; Cornell Law Review, Vol. 93, October 2007; Subscription Required </ref> He argues that a declaration of war can be seen from three perspectives:
The practice of declaring war has a long history. The ancient Sumerian [[Epic of Gilgamesh]] gives an account of it,<ref>Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN 0-252-06726-6, pp.65f.</ref> as does the Old Testament.<ref>Deut. 20:10-12, Judg. 11:1-32.</ref><ref>Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN 0-252-06726-6, pp.66f.</ref>


* ''Categorical theory'' under which the declare war power includes “the power to control all decisions to enter war”. This means that the power to 'declare war' in effect rests with the ability engage in combat
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 [[treaty|treaties]] governing such declarations are the [[Hague Conventions (1899 and 1907)|Hague Conventions]].


* ''Pragmatic theory'' which states that the power to declare war is made unnecessary by an act of war in itself.
The [[League of Nations]] formed in [[1919]] in the wake of the [[World War I|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 the world war. Nevertheless, these powers were unable to stop the [[World War II|Second World War]] and, thus, the [[United Nations]] (UN) was put in place after that war in an attempt to prevent international aggression through declarations of war.


* ''Formalist theory'' under which the declare war power 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. <ref> [http://prawfsblawg.blogs.com/prawfsblawg/2008/01/scholarship-on.html Scholarship on the "Declare War" Power] 22-01-08; Accessed 21-04-08 </ref>
== The UN 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, especially for defensive purposes only.

The UN became a war combatant itself after [[North Korea]] invaded [[South Korea]] on [[June 25]], [[1950]] (see [[Korean War]]). The [[United Nations Security Council|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 of the United States|President]] [[Harry S. Truman]] characterized these hostilities as not being a "war," but a "police action."<ref>{{cite web |url=http://teachingamericanhistory.org/library/index.asp?document=594 |title=The President's News Conference|accessdate=2007-07-03 |date= 1950-06-29}}</ref>

The United Nations has issued [[United Nations Security Council Resolution|Security Council Resolution]]s that declared some wars to be legal actions under international law, most notably Resolution [[United Nations Security Council Resolution 678|678]], authorizing [[Gulf War|war]] with [[Iraq]] in [[1991]].

==Denigration of Formal Declarations of War==

The utility of formal declarations of war has always been questioned, either as sentimental leftovers from an 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."<ref> 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)</ref> 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 opportnity to put himself in a state of defence, and it is needless to say that no one asserts such a quixotism to be obligatory."<ref> Hall, William Edward. 1924. A Treatise on International Law. 8th ed. by A. Pearce Higgins. London: Humphrey Milford: Oxford University Press. (p. 444)</ref>

==The Speech Act Character of Declarations==
A declaration of war is a performative [[speech act]] (See also [[John Austin]] and [[John Searle]].). It is, therefore, a necessary, but not sufficient, condition for transforming the state and condition of peace into the state and condition of war. The sufficient empirical conditions for war are, of course, the initiation of hostile diplomatic, economic, or military operations. But these hostile operations cannot be initiated for no reason at all. Reasons must be given. Without a public speech act "declaring" the reasons, armed operations are not war, but brigandage or piracy, "the motives being to serve their own cupidity and to support the needy," as [[Thucydides]] points out (I, 5).

Consequently, the necessary speech act condition for war, as opposed to brigandage, is a public announcement that justifies the resort to war from the declarer's perspective. In general, the explanation is in three parts. First, the declarer must explain why the state and condition of peace is no longer tolerable. This is done by listing the grievances that are said to have turned amity into enmity. Second, the declarer must identify the group who has caused the grievances that have made peace intolerable. And, third, the declarer must explain when and how peace will be restored. This is done by stating the declarer's preferred peace terms, which, not incidentally, are the nation's war aims.

When both conflict partners make such public announcements, each from his own perspective, both of the conflict partners and third-party bystanders know the declared reasons for the conflict. On the (not necessarily accurate) assumption that the conflict partners are sincere and honest, the public declarations explain the origins of the conflict and point the way towards potential resolutions.

==A Conflict Resolution Technology==

The oldest known declaration of war is found in the five-thousand-year-old Sumerian epic Agga and Gilgamesh. In this epic, Agga of Kish sends heralds to [[Gilgamesh]] of Erech with a conditional declaration of war listing the causus belli and making a series of demands that must be met, under a threat of war. Before he can respond, Gilgamesh must go before two councils, one of elders and one of armed men. The council of elders counsels accepting the peace terms, but the council of armed men refuses to go along. Gilgamesh sides with the armed men, repudiates Agga's grievances as unfounded and his peace terms as unjust, and responds to the heralds with an absolute declaration of war. The heralds return to Kish with Gilgamesh's defiant declaration; Agga accepts the challenge, makes his own absolute declaration, and invades Erech. Unfortunately for Gilgamesh and the people of Erech, Agga's forces prove the stronger, and he prevails in the ensuing siege.<ref> Pritchard, James B., ed. 1955. Ancient Near Eastern Texts, Relating to the Old Testament. 2d ed. Princeton, NJ: Princeton University Press, pp44-7. </ref>

What is most notable about this epic is how the reciprocal declarations of war are key elements in the conduct of the conflict. They are the formal speech acts through which the conflict is made manifest, articulated, and negotiated before any hostile actions occur. For, no conflict can be managed, much less negotiated and resolved, if it has not first been made manifest. Then, once manifest, it must be articulated. To do this, the conflict partners must, reciprocally, 1) list their grievances, 2) identify the party who caused them, and 3) state their preferred remedies. Due to these most fundamental principles of conflict resolution, all cultures throughout history have utilized formal declarations of war in their external diplomacy. However, only during the [[Roman Republic]] (510BC-27BC) was the full potential of this conflict resolution technology realized.

During the Republic, one of the [[Pontifical Colleges]], the collegium fetialis was the sacred congregation charged with sanctifying treaties and declarations of war in accordance with the jus fetiale (the rule or law of the fetials). After the Senate had passed a conditional declaration of war, it was, first, vetted by the fetials in accordance with their rules. If the document did not violate any of their standards, one of the fetials would lead a delegation that took the declaration to the enemy and negotiated for up to 30 days over the grievances and remedies articulated by the Senate. Should the negotiations fail, the fetial delegation would return to Rome and denounce the enemy before the Senate. The Senate would once again debate the casus belli. Should the Senate decide to pursue its grievances, a formal absolute declaration would be passed; the fetials would again vet the document, and, if approved, return to the enemy's homeland, this time, declaring war absolutely ([[Livy]]I, xxxii, 6-14).<ref> See also ch 3 in Hallett, Brien. 1998. The Lost Art of Declaring War. Champaign-Urbana, IL: University of Illinois Press. </ref>

==Technical Vocabulary==

Like all technologies,<ref> s.v. Declaring War. Encyclopedia of Violence, Peace, and Conflict, 2nd ed. Kurtz, Lester R., ed. San Diego, CA: Academic Press, 2008. </ref> declarations of war have a technical vocabulary. Indeed, there are two separate sets, derived from Roman law, one describing the formal elements for the composition of the speech act and another describing the different types of declarations. With regard to the types, the best starting point is [[Convention III]] of the [[Hague Peace Conference]], Relative to the Opening of Hostilities, of the 18 October 1907. In Article I, the operative article, "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."

To be sure, most jurists would opine that Convention III is desuetude, because the "outlawing" of war during the twentieth century makes the declaring of war both illegal and pointless. Nonetheless, Convention III is still illustrative of several of the most basic descriptive terms for classifying declarations of war: reasoned/unreasoned, absolute/conditional, and the obligation to declare war formally, and not informally.


===The Types of Declarations===
===The 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:
More systematically, the speech acts that constitute a declarations of war may be described 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:
* 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 Existence''' of the War:
; 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.
<blockquote>
* An ''unreasoned declaration'' of war does not justify the resort to war, or does so only minimally.
• 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.</blockquote>
<blockquote>• 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.
</blockquote>


'''Degree of Justification''' of the War:
; 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 declarer following the appropriate laws, rites and rituals.
<blockquote>
* An ''informal or unsolemn declaration'' of war is a declaration made in an irregular manner either by a constitutionally unrecognized declarer or by the constitutionally recognized declarer using unlawful, inappropriate procedures.
• 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.</blockquote>
<blockquote>• An unreasoned declaration of war does not justify the resort to war, or does so only minimally.
</blockquote>


'''Degree of Ceremony''' with which the Speech Act was made:
; 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.

<blockquote>• A formal or solemn declaration of war is a declaration made by the constitutionally recognized declarer following the appropriate laws, rites and rituals.</blockquote>
* An ''imperfect declaration'' of war is an informal, unsolemn speech act not made in accordance with the proper laws, rites and rituals.
<blockquote>• An informal or unsolemn declaration of war is a declaration made in an irregular manner either by a constitutionally unrecognized declarer or by the constitutionally recognized declarer using unlawful, inappropriate procedures.
</blockquote>

'''Degree of Perfection''' with which the Speech Act was made:
<blockquote>
• A perfect declaration of war is a formal, solemn speech act made in accordance with the proper laws, rites, and rituals.</blockquote>
<blockquote>• An imperfect declaration of war is an informal, unsolemn speech act not made in accordance with the proper laws, rites and rituals.
</blockquote>

Employing these descriptive terms, one would characterize the following declarations:

<blockquote>
• The American Declaration of Independence is a fully reasoned, absolute, declaration. It is also a perfect declaration due to its solemn formality.</blockquote>

<blockquote>• The 8 December 1941 American declaration against the Empire of Japan is also a perfect, absolute declaration, because solemn and formal, but it is not a reasoned declaration, because it provides only a minimal grievance--the attack on Pearl Harbor--and no peace terms.</blockquote>

<blockquote>• The 19 March 2003 declaration by U.S. President George W. Bush against Iraq is also a reasoned, absolute declaration of war, but it is imperfect because informal, unsolemn, and made by a constitutionally unrecognized declarer.
</blockquote>

Curiously, all the perfect, and, hence, formal, declarations of war in American history are absolute, with one exception. <ref> In addition to the 1776 Declaration of Independence, the Congress of the United States has made eleven unreasoned, absolute declarations of war, and one reasoned, conditional declaration for the Spanish-American War. The congressional declarations may be found in the United States Statues at Large under the following Public Law numbers:
1) War of 1812 (Pub. L. No. 12-102, 2 Stat. 755),
2) Mexican-American War (Pub. L. No. 29-16, 9 Stat. 9),
3) Spanish-American War (Pub. Res. No. 55-24, 30 Stat. 738), (Pub. L. No. 55-189, 30 Stat. 364),
World War I:
4) against Imperial Germany (Pub. Res. No. 65-1, 40 Stat. 1),
5) against The Imperial and Royal Austro-Hungarian Government (Pub. L. No. 65-1, 40 Stat. 429),
World War II:
6) against the Empire of Japan (Pub. L. No. 77-328, 55 Stat. 795),
7) against Germany (Pub. L. No. 77-331, 55 Stat. 796),
8) against Italy (Pub. L. No. 77-332, 55 Stat. 797),
9) against Bulgaria (Pub. L. No. 77-563, 55 Stat. 307),
10) against Hungry (Pub. L. No. 77-564 55 Stat. 307),
11) against Rumania (Pub. L. No. 77-565, 55 Stat. 307), </ref> As a result, the Congress, as the constitutionally recognized declarer of war, has never really made use of the conflict resolution potential of the process of declaring war. It has never really made use of the conditional-before-absolute declaration that lies at the heart of Agga and Gilgamesh, the Roman jus fetiale, and Hague Convention III. Instead of beginning at the beginning in the traditional manner, the Congress has always begun at the end with a perfect, and, hence, formal, but unreasoned, absolute declaration.

The one exception is the declarations for the Spanish-American War. On 18 April 1898, the Fifty-fifth Congress passed a conditional declaration. This conditional declaration is characterized as a fully reasoned, formal or solemn declaration and, hence as a perfect speech act. After negotiations over the grievances listed and the peace terms demanded--independence for Cuba--failed, on 25 April 1898, the Fifty-fifth Congress voted an unreasoned, absolute declaration that, nonetheless, must also be characterized as perfect, because formally and solemnly declared by the recognized declarer of war.

===The Elements of the Speech Act===

With regard to the formal elements for the speech act, they are five: 1) the indictment, 2) the denunciation, 3) the declaration of peace, 4) the declaration of war, and 5) the authorization. To illustrate these five elements, I shall cite Louis XV's 20 March 1744 fully reasoned, perfect, absolute declaration against Great Britain during the [[War of Austrian Succession]].<ref> Cobbett's Parlimenary History of England, From the Norman Conquest, in 1066, to the Year 1803. From which last-mentioned Epoch it is Continued downwards in the Work Entitled, "Corbbett's Parlimenttary Debates." 1806-1820 London: R. Bagshaw. 36 vols. Printed by T.C. Hansard. (Reprinted New York: Johnson Reprint Corporation; London: Johnson Reprint Company, Ltd.) </ref>

The five elements are distributed unevenly as between a conditional and an absolute declaration. Consider first the three elements of a fully reasoned conditional declaration of war:

• '''The indictment''' lists the grievances that have made peace intolerable and created the threat of war.
<blockquote>
". . .it [Britain] has taken all opportunities of irritating France, by every where disturbing her maritime commerce, in contempt of the law of nation, and the most solemn treaties. . . . The piracies of the English men of war increased with cruelty and barbarity; even the ports of the kingdom were no longer an asylum against their insults. The English have at length dared to block up the port of Toulon, to stop all ships, to seize upon the merchandize which they carried, and to take even the recruits and ammunition which his majesty was sending into his strong places."
</blockquote>

• '''The denunciation''' names the party who is responsible for the grievances.
<blockquote>
"Such disinterested views [on the Austrian succession on the part of the French king] would soon have restored peace [to Europe], if the court of London had thought with as much equity and moderation, and if it had consulted nothing but the welfare and advantage of the English nation; but the king of England, elector of Hanover, had very opposite intentions, which, as it was soon perceived, aimed at nothing less than kindling a general war [over the succession to the throne of Austria]."
</blockquote>

• '''The declaration of peace''' lists the declarer's preferred peace terms, which are also the nation's war aims.
<blockquote>
"The conduct which his majesty [the French king] has ever since observed, has sufficiently demonstrated, that he constantly persisted in the same dispositions; and his majesty, not being desirous of forming any pretensions for himself, which might in the least obstruct the re-establishment of the tranquillity of Europe, had no notion of being obliged to take part in the war, otherwise than in supplying his allies with the succours, which he was engaged to give them."
</blockquote>

Consider next the two additional elements of an absolute declaration of war:

• '''The declaration of war.'''
<blockquote>
"So many repeated injuries and outrages have at last tired the patience of his majesty [the king of France], who can no longer bear with them, without failing in the protection which he owes his own subjects, in the assistance he owes his allies, in the defence of himself, his honour and glory. These are the just motives that no longer permit his majesty to keep within the bounds of moderation which he had prescribed to himself, and which constrain him to declare war, as be does by these presents against the king of England, elector of Hanover, both by sea and land."
</blockquote>

• '''The authorization''' for hostile activities.
<blockquote>
"His majesty [the king of France] orders and commands the duke de Penthievre, admiral of France, the marshals of France, the governors and lieutenant-generals for his majesty in his provinces and armies, camp-marshals, colonels, captains, heads and conductors of his military people, as well horse as foot, French and foreigners, and all his officers whom it shall concern, that they, and each of them, cause the purport of these presents to be executed, in the extent of their powers and jurisdictions; for such is the will of his majesty."
</blockquote>

For obvious reasons, an absolute declaration must contain a clause formally declaring war. It would also be strange were it to omit the authorization clause, although, logically, this could be done. Most frequently, absolute declarations omit the indictment and the declaration of peace. But excellent reasons exist for including these in an absolute declaration.

For equally obvious reasons, a conditional declaration of war should not contain the declaration of war and authorization clauses, but must contain the indictment, the denunciation, and the declaration of peace clauses.

Unreasoned declarations either leave out entirely or give only minimal indictments and declarations of peace.

== Undeclared wars ==

{{seealso|War Powers Clause|War Powers Resolution|War Powers Act}}

In most [[democratic]] nations, a declaration of war customarily must be passed by the [[legislature]]. In the United States there is no format required for declaration(s) of war. The Constitution states, "[[United States Congress|Congress]] shall have the power to ... declare War, ..." without defining the form such declarations will take. Therefore, many have argued congressionally passed authorizations to use military force are "Declarations of War."

After the United Nations action in Korea, a number of democratic governments pursued usually limited warfare by characterizing them as something else, such as a "military action" or "armed response." This was most notably used by the [[United States]] in its more than decade-long [[Vietnam War|involvement]] in [[Vietnam]]. Nations such as [[France]], which had extensive [[colony|colonies]] in which its military provided order, continued to intervene in their former colonies' affairs as police actions since they could no longer be deemed internal conflicts. The [[Falklands War]] was also undeclared, although an "exclusion zone" around the [[Falkland Islands]] was.

Not declaring war provides a way to circumvent constitutional safeguards against the executive declaring war, and also, in some cases, to avoid feeling bound by the established [[laws of war]]. Furthermore, the legislative branch benefits politically by passing the burden to the executive, for if a war were to go badly, the public's wrath would be directed against the executive and not the legislature. Not using the word "war" is also seen as being more [[public relations]]-friendly. For these reasons, governments have generally ceased to issue declarations of war, instead describing their actions by [[euphemism]]s such as "[[police action]]" or "[[authorized use of force]]."

===Informal Declarations of War===

If all declarations of war were perfect speech acts, because they were made formally by the constitutionally recognized declarer of war with the appropriate solemnities, all would be simple. But declarations of war need not be perfect; they can be, and most frequently are, imperfect speech acts. Thus, while no wars are "undeclared," only a few are "declared" wars, initiated perfectly by a constitutionally recognized declarer of war with a formal and solemn speech act.

The irregularities that cause a declaration to be informal are of two types: 1) either the declarer is not authorized or 2) the authorized declarer uses an irregular procedure. An example of the former is when the president of the United States, who is not a constitutionally authorized declarer of war, makes a public announcement initiating hostilities in the absence of a formal congressional declaration. An example of the latter is when the president of France, who is the constitutionally authorized declarer of war, issues an informal press release announcing his order for French troops to intervene in one of the sub-Saharan countries to quell a disturbance.

Previously, before the mid-nineteenth century, the speech act distinction between perfectly declared war, because formally declared, and imperfectly declared wars, because informally declared, caused no confusion. All the cultures of the world, throughout history, recognized that some wars were initiated solemnly in a constitutionally recognized manner with formal ceremony, while other wars were initiated unsolemnly in a constitutionally unrecognized manner without the appropriate formal ceremonies.

===The "Outlawing" of War===

However, during the "long peace" after the Napoleonic Wars, as international society warmed to the idea of "outlawing" war, the speech act distinction was lost to be replaced by an empirical distinction between formally declared "war" and informally declared "armed conflict." Had this campaign to "outlaw" war failed, no one could complain about this switch from a speech act terminology to an empirical terminology. Unfortunately though, the campaign was successful, first, with the Kellogg-Briand Pact of 1928 ([[The Pact of Paris]]) and, then, with the [[United Nations Charter]]. In this changed legal environment, the substitution of the empirical terms, "armed conflict," for an imperfect, informally declared "war" became universal, causing much confusion.

In particular, this change in terminology has led to the less than comforting fact that no "war" has been fought anywhere in the world since 1945, although 232 "armed conflicts" were fought between 1946-2006. <ref> Harbom Lotta & Peter Wallensteen. 2007. "Armed Conflicts 1989-2006." Journal of Peace Research 44(5). </ref> Which is only to say that 232-plus wars have been declared imperfectly, because informally, in an irregular, unconstitutional manner by all manner of warlords, by numerous presidents who are not authorized to declare war formally, but do so in an unconstitutional manner informally, or by other presidents who are authorized to declare war formally, but do so in an irregular informal manner.

Equally troubling is the non sequitor that arises out of Chapter VII, Article 42 of the United Nations Charter. This Article does not authorizes the Security Council to declare war either formally or informally. Instead, it authorizes the Council to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." "Taking action by air, sea, and land forces," of course, meets the sufficient empirical conditions for war, but fails to meet the necessary speech act conditions for declarations of war.

As a result, these so-called "peace enforcement" operations are but "armed conflicts" by another name, which means that they are really imperfect, informally declared wars, announced in a irregular manner, since the Council is not authorized to declare war formally, only to "take" action. And, indeed, the Security Council does not and cannot declare war perfectly, in a formal and solemn manner; rather, it only authorizes the member states "to use all necessary means" to carry out the Council's resolutions, which, again, is but another euphemism for an imperfect, because informal, "armed conflict," which is more accurately described as an imperfectly declared war.

===Constitutional Arrangements===

But, if no war has been declared perfectly, because formally, by the constitutionally recognized declarer of war since 1945, provisions to do so are found in all the constitutions of the world, except the [[Constitution of Japan]]. In Article IX, ". . .the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international dispute." The logical consequence of this renunciation is to remove any need to stipulate the constitutional provisions for declaring war formally. In contrast, the [[Italian Constitution]], which also has a provision renouncing war (Article XI), does make provision for the president to declare war formally "according to the decision of the parliament" (Article LXXXVII), which is not entirely logical.

Generally though, modern constitutions follow the age old custom of granting the power to declare war formally to the "war leader", the commander-in-chief of the armed forces, either the king in a constitutional monarchy or the president in a parliamentary republic. The only innovation is that the king or president can no longer declare war formally on his own authority. He now does so on the advice of either the cabinet, as in Britain, or the parliament, as in Germany and France.

Constitutions with an executive president, modeled on the Constitution of the United States, place the power to declare war formally in the Congress. But, as noted above, the power is normally exercised by the president declaring war informally, although, on rare occasions, the president does request a formal declaration from the Congress.

===How Not to Declare War===

As Article LXXXVII of the Italian Constitution cited above suggests, what form "the decision of the parliament" might take is left extremely vague in all modern constitutions, unlike in the jus fetiale. The ambiguity is enhanced by the fact that, since 1945, no government has even contemplated declaring war perfectly and, hence, formally by its constitutionally recognized declarer of war as the Charter of the United Nations is said to have "outlawed" war, and, hence, the declaring of war<ref>John N. Moore, "The National Executive and the Use of Armed Forces Abroad," Navel War College Review, 21, no. 5, 28-38. p33. Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN 0-252-06726-6, pp.92. http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf Waging war: Parliament’s role and responsibility] [[House of Lords]] Select Committee on the Constitution; 27-07-06; Accessed 21-04-08. p7.</ref>. This creates a procedural problem of great delicacy: what type of speech act might a parliament pronounce to "declare war" without actually declaring war? Two options have been developed: 1) utilize the "power of the purse" or 2) resolve to "authorize the use of the Armed Forces."

===The "Power of the Purse"===

In recent years, since the end of the Cold War, on those occasions when one of the west European governments felt compelled to involve its parliament in the decision, the form of the involvement has been an appropriation's bill, as for example in Germany. After the cabinet has decided to engage in a UN or [[NATO]] peacekeeping or peace enforcement mission, it drafts a plan, including the forces to be deployed and their anticipated expenditures. This force structure and budget is presented to the parliament for debate. Upon approval, the mission goes forward. The problem, of course, is that a budget debate and appropriation is an exercise of the "[[power of the purse]]," and not an exercise of the power to declare war formally and perfectly.

Whether this exercise of the "power of the purse" is an adequate substitute for a straightforward exercise of the power to declare war formally and perfectly is a matter of considerable concern. Certainly, a budget appropriation is a speech act and, also, in a manner of speaking, a means to approve or disapprove a military mission. Nevertheless, it is clearly not a formal declaration of war. Rather, it is an unsolemn, informal, irregular way to declare war imperfectly, the conflict resolution potential of declarations of war having been lost.

===An "Authorization to Use Armed Force" Resolution===

In the United States, and in Britain since 19 March 2003, a different speech act is used to accomplish the same imperfect objective. After the president or prime minister has decided to engage in a military action, he requests a resolution from the Congress or Parliament "authorizing the use of the Armed Forces." Once approved, as it always is, the mission goes forward.

Again, the problem is that a resolution "authorizing the use of the Armed Forces" is an irregular, imperfect, informal speech act lacking any sort of constitutional basis. In the United States, the Congress is already the constitutionally recognized declarer of war, whereas, in Britain, it is the Queen, on the advice of Her Cabinet. Being extra-constitutional, an "authorization of the use of the Armed Forces" resolution invests both the Congress and the Parliament with all the prestige and power of a rubber stamp, since it is the president or the prime minister who has made the actual decision.<ref> The United States Congress has passed ten resolutions "authorizing the use of the Armed Forces."
1) Protection of the Commerce and Coasts of the United States, (Act of May 28, 1798, ch. 48, 1 Stat. 561)
2) Protection of the Commerce of the United States, (Act of July 9, 1798, ch. 68, 1 Stat. 578)
3) Protection of the Commerce and Seamen of the United States, Against the Algerine Cruisers, (Act of February 6, 1802, ch. 4, 2 Stat. 129)
4) Protection of the Commerce and Seamen of the United States, Against the Algerine Cruisers, (Act of March 3, 1815, ch. 90, 3 Stat. 230)
5) Suppression of Piracy, (33 U.S.C. §§ 381-387. R.S.§§ 4293 - 4299. R.S.§ 4293,4294, and 4295 are derived from the Acts of Mar. 3, 1819, ch. 77, 3 Stat. 510 and 512; Jan. 30, 1823, 3 Stat. 513, ch. 7, 3 Stat. 721. R.S.§ 4296 is derived from the Acts of March 3, 1819, ch. 77, 3 Stat. 513; Jan. 30, 1823, ch. 7, 3 Stat. 721; Aug. 5, 1861, ch. 48, 12 Stat. 314. R.S.§§, 4297, 4298, and 4299 are derived from the Act of Aug. 5, 1861, ch. 48, 12 Stat. 315.)
6) Maintenance of International Peace and Security in Southeast Asia, (P.L. 88-408, 78 Stat. 384, August 10, 1964)
7) Multinational Force in Lebanon, (P.L. 98-119, 97 Stat. 805, October 12, 1983)
8) Authorization of the Use of U.S. Armed Forces Pursuant to U.N. Security Council Resolution 678 with Respect to Iraq, (P.L. 102-1, 105 Stat. 3, January 14, 1991)
9) Authorization of the Use of U.S. Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States, (P.L. 107-40, 115 Stat. 224, September 18, 2001)
10) Authorization of the Use of Force Against Iraq Resolution of 2002, (P.L. 107-243, 116 Stat. 1498, October 16, 2002)
(Source: Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, Updated August 11, 2006, CRS Report for Congress, Order Code RL31133.
http://digital.library.unt.edu/govdocs/crs/data/2003/meta-crs-8184.tkl Accessed 6 Sept 2007) </ref>


==Declarations of war during World War II==

===[[1939]]===

; [[September 3]]: [[United Kingdom]], [[New Zealand]], [[Australia]] and [[France]] declared war on [[Nazi Germany|Germany]].
; [[September 7]]: [[South Africa|The Union of South Africa]] declared war on Germany.
; [[September 10]]: [[Canada]] declared war on Germany.

===[[1940]]===

; [[April 9]]: [[Norway]] declared war on Germany.
; [[May 10]]: Germany declared war on the [[Netherlands]], Belgium, Luxembourg and France
; [[June 10]]: [[Kingdom of Italy (1861-1946)|Italy]] declared war on France and the [[United Kingdom]].
; [[June 11]]: United Kingdom, France, Australia, Canada, New Zealand and the Union of South Africa at war with Italy.
; [[October 28]]: Italy declared war on [[Kingdom of Greece|Greece]].
; [[November 23]]: [[Belgium]] declared war on Italy.

===[[1941]]===

; [[April 6]]: Germany and Italy declared war on [[Kingdom of Yugoslavia|Yugoslavia]].
; [[April 24]]: [[Kingdom of Bulgaria|Bulgaria]] declared war on Greece and Yugoslavia.
; [[June 22]]: Germany, Italy, and [[Kingdom of Romania|Romania]] declared war on the [[Soviet Union]].
; [[June 25]]: [[Finland]] officially notes that a state of war existed with the Soviet Union (no parliamentary motion was passed).
; [[June 27]]: [[Kingdom of Hungary|Hungary]] declared war on the Soviet Union.
; [[December 6]]: United Kingdom declared war on [[Finland]] and Romania.
; [[December 7]]: [[Empire of Japan|Japan]] declared war on the [[United States]], United Kingdom, Australia, Canada, New Zealand and the Union of South Africa. United Kingdom declared war on Hungary. Australia and New Zealand declared war on [[Finland]], Hungary and Romania. Canada declared war on [[Finland]], Hungary, Japan and Romania. [[Panama]] declared war on Japan. Yugoslavia at war with Japan.
; [[December 8]]: The United States, United Kingdom<ref>See there the text of the [[United Kingdom declaration of war on Japan (1941)|United Kingdom declaration of war on Japan]].</ref>, Australia, [[Republic of China]], [[Costa Rica]], the [[Dominican Republic]], [[El Salvador]], [[Haiti]], [[Honduras]], The Netherlands, New Zealand and [[Nicaragua]] declared war on Japan.
; [[December 11]]: Germany and Italy declared war on the United States. The United States declared war on Germany and Italy.
; [[December 12]]: Bulgaria declared war on the United States and the United Kingdom. Romania declared war on the United States.
; [[December 13]]: Hungary declared war on the United States.

===[[1942]]===
; [[January 10]]: Japan declared war on The Netherlands.
; [[January 25]]: United Kingdom, New Zealand and the Union of South Africa declared war on kingdom of [[Thailand]]. Thailand declared war on the United States and the United Kingdom.
; [[March 2]]: Australia declared war on Thailand.
; [[May 22]]: [[Mexico]] declared war on the [[Axis Powers]].
; [[June 2]]: United States declared war on Bulgaria, Hungary and Romania.
; [[August 22]]: [[Brazil]] declared war on the Axis Powers.

===[[1943]]===
; [[October 13]]: Italy declared war on Germany.

===[[1945]]===
; [[July 13]]: Italy declared war on Japan
; [[August 8]]: The Soviet Union declared war on Japan.

In [[1945]], towards the end of the war, many countries declared war on [[Germany]] and the [[Axis powers]]. Some of these countries were previous barely involved in World War II. There follows a list of these countries, the date of declaration of war is in parentheses.

[[Ecuador]] ([[February 2]]), [[Paraguay]] ([[February 8]]), [[Peru]] ([[February 13]]), [[Chile]] ([[February 14]]), [[Venezuela]] ([[February 16]]), [[Turkey]] ([[February 23]]), [[Uruguay]] ([[February 23]]), [[Egypt]] ([[February 24]]), [[Syria]] ([[February 26]]), [[Lebanon]] ([[February 27]]), [[Saudi Arabia]] ([[March 1]]), [[Finland]] ([[March 2]]), [[Argentina]] ([[March 27]]).

{{see also|Participants in World War II}}

==Current declarations==
As of [[2007]], a few declarations of war remain in effect, though they are usually retained for lack of a peace treaty rather than reflecting an active state of hostilities.
*[[North Korea|North]] and [[South Korea]] have remained legally at war since the [[Korean War]].
*[[Syria]] has been at war with [[Israel]] since the [[Yom Kippur War]].
*[[Russia]] and [[Japan]] have not yet signed a peace treaty formally ending [[World War II]] due to territorial disputes<ref name="World War II">{{cite web |url=https://www.cia.gov/library/publications/the-world-factbook/geos/rs.html#Issues |title=CIA - The World Factbook -- Russia |accessdate=2007-11-16 |author=The United States Central Intelligence Agency}}</ref>
*[[People's Republic of China]] and [[Republic of China]] have not yet formally signed a peace treaty ending the [[Chinese Civil War]].


==See also==
==See also==
*[[Ongoing wars]] (mostly undeclared)
*[[Conflict management]]
* [[Conflict resolution]]
* [[Conflict resolution research]]
* [[Conflict transformation]]
*[[Declaration of war by the United States]]
*[[Declaration of war by the United States]]
* [[Democracy]]
*[[German declaration of war against the Netherlands (May 10 1940)]]
*[[German declaration of war against the Netherlands (May 10 1940)]]
*[[United Kingdom declaration of war on Japan (1941)]]
*[[Negotiation theory]]
* [[Nonviolent Communication]]
*[[Ongoing wars]] (mostly undeclared)
* [[Peace and conflict studies]]
*[[State of emergency]]
*[[State of emergency]]
*[[United Kingdom declaration of war on Japan (1941)]]


==References==
==References==
Line 291: Line 50:
[[Category:Laws of war]]
[[Category:Laws of war]]
[[Category:Euphemisms]]
[[Category:Euphemisms]]
[[Declarations of war by the United States]]
[[Speech Acts]]


[[da:Krigserklæring]]
[[da:Krigserklæring]]

Revision as of 20:32, 23 May 2008

For other uses, see Declaration of war (disambiguation).
United States President Franklin D. Roosevelt signs a declaration of war against Germany on December 11 1941[1].

A declaration of war is a formal performative speech act or signing of a document by an authorised party of a government in order to initate a state of war between two or more nations. The legality of who can declare war varies between nations and forms of government, though power is usually given to the head of state or sovereign. However, it has been noted that "developments in international law since 1945, notably the United Nations (UN) 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." [2] In addition to this, non-state or terrorist organisations may claim to or be described as "declaring war" when engaging in violent acts. [3] [4] These declarations may have no legal standing in themselves, but may still act as a call to arms for supporters of these organisations.

In recent times, political strategies with the name War on..., such as the War on Drugs may also be said to start with a declaration of war.

Definition

A useful definition of the three ways of thinking about a declaration of war were developed by Saikrishna Prakash. [5] He argues that a declaration of war can be seen from three perspectives:

  • Categorical theory under which the declare war power includes “the power to control all decisions to enter war”. This means that the power to 'declare war' in effect rests with the ability engage in combat
  • Pragmatic theory which states that the power to declare war is made unnecessary by an act of war in itself.
  • Formalist theory under which the declare war power 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. [6]

The 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 declarer 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 declarer or by the constitutionally recognized declarer 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.

See also

References

  1. ^ Insert footnote text here
  2. ^ Waging war: Parliament’s role and responsibility House of Lords Select Committee on the Constitution; 27-07-06; Accessed 21-04-08
  3. ^ Basque raid 'declaration of war' BBC News; 06-10-07; Accessed 21-04-08
  4. ^ Iraq: Sadr speaks on ”open war” as al Qaeda to launch new campaign Al-Bawaba News; 20-04-08; Accessed 21-04-08
  5. ^ Unleashing the Dogs of War: What the Constitution Means by 'Declare War' Prakash, Saikrishna; 2007; Cornell Law Review, Vol. 93, October 2007; Subscription Required
  6. ^ Scholarship on the "Declare War" Power 22-01-08; Accessed 21-04-08
Retrieved from "https://en.wikipedia.org/w/index.php?title=Declaration_of_war&oldid=214494468"