A declaration of war is a formal act by which one state announces existing or impending war activity against another. The declaration is a performative speech act (or the public 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.
Since 1945, developments in international law such as the United Nations Charter, which prohibits both the threat and the use of force in international conflicts, have made declarations of war largely obsolete in international relations,[1] though such declarations may have relevance within the domestic law of the belligerents or of neutral nations. The UN Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action to maintain or enforce international peace and security. Article 51 of the United Nations Charter also states that: "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state."[2]
Declarations of war have been exceedingly rare since the end of World War II.[3][4] Scholars have debated the causes of the decline, with some arguing that states are trying to evade the restrictions of international humanitarian law (which governs conduct in war)[4] while others argue that war declarations have come to be perceived as markers of aggression and maximalist aims.[3]
The practice of declaring war has a long history. The ancient Sumerian Epic of Gilgamesh gives an account of it,[5] as does the Old Testament.[6][7] The Roman Republic formalized the declaration of war by a special ceremony, the ritual of the Fetials, though the practice started to decline into the Imperial era.
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 and 1870 war was declared in only 10 cases, while in another 107 cases war was waged without such declaration (these figures include only 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 has 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, so the United Nations was established following that war in a renewed attempt to prevent international aggression through declarations of war.
Denigration of formal declarations of war before WWI
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."[9] 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."[10]
Declarations of war, while uncommon in the traditional sense, have mainly been limited to the conflict areas of the Western Asia and East Africa since 1945. Additionally, some small states have unilaterally declared war on major world powers such as the United States or Russia when faced with a hostile invasion and/or occupation. The following is a list of declarations of war (or the existence of war) by one sovereign state against another since the end of World War II in 1945. Only declarations that occurred in the context of a direct military conflict are included.
No formal declaration of war has been issued in the ongoing Russo-Ukrainian War. At the beginning of the Russian invasion of Ukraine, Putin gave a televised broadcast announcing the start of the invasion with the term "special military operation", side-stepping a formal declaration of war.[27] The statement was, however, regarded as a declaration of war by the Ukrainian government[28] and reported as such by many international news sources.[29][30] While the Ukrainian parliament refers to Russia as a "terrorist state" in regards to its military actions in Ukraine,[31] it has not issued a formal declaration of war on its behalf.
Procedures
In Title II, Article 2 of the first Hague Convention of 1899, the signatory states agreed that at least one other nation be used to mediate disputes between states before engaging in hostilities:
In case of serious disagreement or conflict, before an appeal to arms, the signatory Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers.[32]
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.[34]
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.[35]
The 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 combatant itself after North Korea invaded South Korea on 25 June 1950, which began the 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 29 June 1950, US President Harry S. Truman characterized these hostilities as not being a "war" but a "police action".[36]
The United Nations has issued Security Council Resolutions that declared some wars to be legal actions under international law, most notably Resolution 678, authorizing the 1991 Gulf War which was triggered by Iraq's invasion of Kuwait. UN Resolutions authorise the use of "force" or "all necessary means".[37][38]
Since 1945, developments in international law such as the United Nations Charter, which prohibits both the threat and the use of force in international conflicts, have made declarations of war largely obsolete in international relations,[1] though such declarations may have relevance within the domestic law of the belligerents or of neutral nations. The UN Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action to maintain or enforce international peace and security. Article 51 of the United Nations Charter also states that: "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state."[2]
Requirements by country
Declaring war is usually done through a process that involves prior approval before a formal announcement is made. This differs by country as some do not have a pre-approved process, and a given head of government can declare war with no pre-conditions.
The President of Brazil has the power to declare war, in the event of foreign aggression, when authorized by the National Congress or, upon its ratification if the aggression occurs between legislative sessions, and decree full or partial national mobilization under the same conditions.
The National People's Congress is vested with the power to decide "on issues concerning war and peace" while the President "in pursuance of the decisions of the National People's Congress...proclaims a state of war." The Standing Committee of the National People's Congress may "decide, when the National People's Congress is not in session, on the proclamation of a state of war in the event of an armed attack on the country or in fulfillment of international treaty obligations concerning common defense against aggression".
The Parliament "authorize" the declaration of war.[41] Both the National Assembly and the Senate does not vote on the declaration, but only debate on the proposal of the government. After 4 months of any military intervention, the Parliament can authorize the extension of the war. The 4 months period is not always respected by the government.[42]
Unless Germany is attacked by an opposing military force, a two-thirds majority vote must be held in the Bundestag if the federal republic is under the threat of war.
The Knesset: Article 40(a)[46] and The Government: Article 3(a)[47] of the Basic Laws of Israel
Prime Minister
Per article 40(a) of the Basic Law The Knesset, the state will declare war "pursuant to a government decision" with the prime minister to give notice to the Knesset "as soon as possible." Per article 3(a) of the Basic Law The Government, "the Government is comprised of the Prime Minister and Ministers."
Per Article 71: "The jurisdiction of the Russian Federation includes [...] foreign policy and international relations of the Russian Federation, international treaties and agreements of the Russian Federation, issues of war and peace;" Per Article 86:a "The President of the Russian Federation shall: [...] govern the foreign policy of the Russian Federation;"
The President may declare Turkey to be at war without the parliament's consent if the parliament is adjourned or in recess and Turkey is attacked first.
^While declaring war does not require the direct approval from the Parliament of Canada, such can be sought by the government.
^The NPC has been described as a rubber stamp legislature.
References
^ ab"Waging war: Parliament's role and responsibility"(PDF). House of Lords. 27 July 2006. Retrieved 21 April 2008. 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 (unlawful recourse to force does not sit happily with an idea of legal equality).
^Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN0-252-06726-6, pp. 66f.
^Thucydides. History of the Peloponnesian War, Book II.
^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)
^"Israel-Hamas War Day 349". Haaretz. Retrieved 19 September 2024. Hezbollah Chief Nasrallah: Israel Crossed All Red Lines, This Is a Declaration of War
^Scott, James Brown, editor The Hague Conventions and Declarations of 1899 and 1907, Oxford University Press (1918) p. 43 "Pacific Settlement of International Disputes"
^"Archived copy"(PDF). Archived from the original(PDF) on 2 November 2015. Retrieved 2 February 2015.{{cite web}}: CS1 maint: archived copy as title (link) The United Nations Security Council – Its Role in the Iraq Crisis: A Brief Overview
^"Magyarország Alaptörvénye" [Fundamental Law of Hungary]. Hatályos Jogszabályok Gyűjteménye (in Hungarian). Wolters Kluwer Hungary Kft. Archived from the original on 29 June 2023. Retrieved 4 July 2023.
