A declaration of war
) is a formal performative speech act
or signing of a document by an
authorized party of a government in order to initiate a state of
between two or more nations
. The legality of who can declare war varies
between nations and forms of government. In many nations power is
given to the head of state
. In other cases something short of a
full declaration of war, such as a letter of marque
or a covert operation
, may authorise warlike
acts by privateers
. The official international protocol
for declaring war was defined in the Hague Convention
1907 on the Opening of Hostilities.
It has been noted that "developments in international law since
1945, notably the United Nations
, 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." In addition to this,
non-state or terrorist
claim to or be described as "declaring war" when engaging in
violent acts. These declarations may have no legal standing in
themselves, but may still act as a call to arms for supporters of
In recent times, political strategies with the name War
, such as the War on
may also be said to start with a declaration of
A definition of the three ways of thinking about a declaration of
war were developed by Saikrishna
. He argues that a declaration of war can be seen from
- 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
- 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.
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
- 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
- An imperfect declaration of war is an informal,
unsolemn speech act not made in accordance with the proper laws,
rites and rituals.
The practice of declaring war has a long history. The ancient
Sumerian Epic of Gilgamesh
an account of it, as does the Old Testament.
In modern public international
, 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
declarations are the Hague Conventions
League of Nations formed in 1919
in the wake of the First World War, and
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.
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
attempted to commit member nations to using warfare
only under limited circumstances, particularly for defensive
became a war combatant itself after North Korea invaded South Korea on June 25, 1950 (see Korean War).
UN Security Council
condemned the North Korean action by a 9-0 resolution (with the
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
In a press
on June 29 1950
, U.S. President Harry S. Truman
characterized these hostilities as
not being a "war", but a "police action".
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
The UN Resolutions declare war by authorising the use
of "force" or "all means necessary".
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
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."
Writing in 1880, William Edward
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
In the United States, Congress which makes the rules for the
military has the power under the Constitution to "declare War,"
however there is no prescribed legal format for what a War
declaration will look like in the US Constitution or by law.
Declarations have the force of law and are intended to be executed
by a Commander in Chief when called into actual service. The last
time United States passed a bill with the title "Declaration of
War" was in 1942, against Romania. Since then, the United States
has used the term "Authorization to use Military Force" as in the
case against Iraq in 2003. Many times, such as the US Invasion of
Haiti in 1993, decisions for military engagements were made by US
presidents, without formal approval by Congress, based on UN
Security Council resolutions that did not declare UN or its members
at war. This has been seen also as a subterfuge to allow the United
States to dispense with the international laws of war, for example
by declaring hostages as criminals rather than as prisoners of war
(e.g., Manuel Noriega
- Waging war: Parliament’s role and
responsibility House of Lords Select Committee on the
Constitution; 27-07-06; Accessed 21-04-08
- Basque raid 'declaration of war' BBC News;
06-10-07; Accessed 21-04-08
- Iraq: Sadr speaks on ”open war” as al Qaeda to launch new
campaign Al-Bawaba News; 20-04-08; Accessed 21-04-08
- Unleashing the Dogs of War: What the Constitution
Means by 'Declare War' Prakash, Saikrishna; 2007; Cornell Law
Review, Vol. 93, October 2007; Subscription Required
- Scholarship on the "Declare War" Power
22-01-08; Accessed 21-04-08
- Brien Hallett, The Lost Art of Declaring War, University of
Illinois Press, 1998, ISBN 0-252-06726-6, pp.65f.
- Deut. 20:10-12, Judg. 11:1-32.
- Brien Hallett, The Lost Art of Declaring War, University of
Illinois Press, 1998, ISBN 0-252-06726-6, pp.66f.
- http://www.fas.org/man/crs/RS21323.pdf The United Nations
Security Council – Its Role in the Iraq Crisis: A Brief
- 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)
- Hall, William Edward. 1924. A Treatise on International Law.
8th ed. by A. Pearce Higgins. London: Humphrey Milford: Oxford
University Press. (p. 444)