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The Form and Function of the Declaration of War

Published online by Cambridge University Press:  12 April 2017

Clyde Eagleton
Clyde Eagleton*
Affiliation:
New York University
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Extract

In 1881–2, during discussions of a committee of the Board of Trade, which was considering the question of a tunnel under the English Channel, the following question was asked: “Is it possible that war would be declared against us, as we might say out of a clear sky, without any previous strain or notice that a quarrel was impending?” To answer this question, the Adjutant-General ordered a special investigation concerning the extent to which wars had been made without previous declaration. The report, when completed, evidenced the surprise of the author at the great number of undeclared wars, and incidentally remarked:

The most excellent general impressions as to what ought to be the mode of procedure by which statesmen give warning before they make war, will not be an adequate security for the freedom of a kingdom, if it is in fact true that under the excitement of popular passion or private ambition, rulers of armies or of armed nations have sometimes disregarded all obligations of the kind, and have, in the midst of profound peace, taken advantage of the confidence of their neighbors.

Type
Research Article
Information
American Journal of International Law , Volume 32 , Issue 1 , January 1938 , pp. 19 - 35
Copyright
Copyright © American Society of International Law 1938

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References

1 Brevet-Lt.-Col. Maurice, J. F., Hostilities Without Declaration of War. From 1700 to 1870. (London, H.M. Stationery Office, 1883.)Google Scholar

2 Phillipson, Coleman, The International Law and Custom of Ancient Greece and Rome (London, 1911), II, 179, 197–202. He adds: “This appears to have been the rule also amongst the ancient Chinese, as well as the Hebrews.” Google Scholar

3 Ebren, H. , “Obligation juridique de la déclaration de la guerre,” Revue Générate de Droit International Public , XI (1904), p. 136.Google Scholar

4 Grotius, , De Jure Belli et Pacis, III, 5; Vattel, Le Droit des Gens, III, 51.Google Scholar

5 Maurice, , op. cit., p. 4.Google Scholar

6 Rolin, A. , Le Droit Moderne de la Guerrea (Bruxelles, 1920), I, p. 181.Google Scholar

7 We do not at this time investigate undeclared war. Reference may be made to a previous study by the writer, “The Attempt to Define War,” in International Conciliation, June 1933, No. 291.

8 The Eliza Ann, 1 Dodson 244, 165 Reprint 1298 (1813). Even where there was no declaration by either side, but physical war conducted against an unwilling opponent, the latter has been held to be at war, even while denying it. The Nayade, 4 C. Rob. 251, 165 Reprint 602 (1802).

9 Proceedings of the 1907 Hague Conference (Oxford University Press, 1921), III, p. 169.

10 Costa Rica seems to have been an example. See Martin, P. A. , Latin America and the War (Baltimore, 1925), pp. 459–460. See also the editorial comment of G. G. Wilson, in this JOURNAL, Vol. 26 (1932), p. 327: “Under this convention there might be a state of war in the legal sense after declaration even though there might be no use of force upon the part of either state.” Of the termination of the World War he says: “There existed accordingly for the United States a legal state of war for a considerable period after the use of force had ceased…. There may, therefore, be a state of war without the use of force or after the use of force has ceased, or there may be the use of force without a state of war.”Google Scholar

11 Maurice, , op. cit., p. 9. See also the Maria Magdalena, Hay & M. 247, 165 Reprint 57 (1779): “They could not but know also, being French houses, of the King of France declaring in terms, on the 10th of July, that he was engaged in actual hostilities with England… .Where is the difference, whether a war is proclaimed by a Herald at the Royal Exchange, with his trumpets, and on the Pont Neuf at Paris, and by reading and affixing a printed paper on public buildings; or whether War is announced by royal ships, and whole fleets, at the mouths of cannon?”Google Scholar

12 Naval War College, International Law Documents, 1917, p. 49.

13 Coleman, Phillipson, International Law and the Great War (London, 1915), p. 54. He regards the Japanese action as quite in order. See also S. Takahashi, International Law Applied to the Russo–Japanese War (New York, 1908), p. 5.Google Scholar

14 Naval War College, op. cit, pp. 101–102.

15 Maurice, , op. cit., p. 6.Google Scholar

16 Of one such episode Maurice says that even the astute Lord Palmerston was deceived, though “it is abundantly clear that if ever the withdrawal of an ambassador was used as the modern equivalent of a declaration of war, or warning of war to be followed by acts of hostility without further notice, that withdrawal of the French Ambassador was so regarded by the withdrawing Cabinet, and so understood by the French Senate and House of Representatives to which it was announced.” Ibid.

A British court, called to pass upon the beginning of the Franco–Prussian War, said: “Their Lordships do not think that either the declaration made by the French Minister to the French Chambers on the 16th of July, or the telegram sent by Count Bismarck to the Prussian Ambassador in London, in which he states that that declaration appears to be equal to a declaration of War, amounts to an actual declaration of War.” And, though war can exist without declaration, yet “this can only be effected by an actual commencement of hostilities.” The Teutonic, VIII Moore N.S. 411, 17 Beprint 366 (1872).

17 Martin, op. cit., pp. 459–460.

18 Ibid., pp. 363, 376. A German submarine, acting upon orders from its government, stopped the ship upon which Uruguayan officials were traveling to visit the Allied front, took them off, and held them as prisoners of war until they gave their parole.

19 Ibid., p. 513.

20 Revue de Droit International et de Législation Coniparée, XVIII (1886), p. 518; Message of the President of the United States to the Senate, May 15, 1844. The Mexican position raises the question whether every rejection of an ultimatum, or action contrary to it, constitutes a declaration of war; and, in such a case, who has declared war?

21 “But whenever men are formed into a social body, war cannot exist between individuals. The use of force among them is not war, but a trespass, cognizable by municipal law.” U. S. v. The Active, 24 Fed. Cas. 755, No. 14, 420 (1814).

22 See, for example, Montoya v. U. S., 180 U. S. 261 (1900); Julian Alire v. U. S., 1 Ct. CI. 233 (1865); Marks et al. v. U. S., 28 Ct. CI. 147 (1893).

23 “From these principles it necessarily follows that in the absence of recognition by any government of their belligerent rights, insurgents that send out vessels of war are, in legal contemplation, merely combinations of private persons engaged in unlawful depredations on the high seas; that they are civilly and criminally responsible in the tribunals for all their act of violence; … that such acts are therefore piratical …” The Ambrose Light, 25 Fed. 408 (1885).

24 Quoted in Hudson, Cases and Other Materials on International Law (2d ed., St. Paul, Minn., 1936), p. 178. He adds, in a footnote, that the Permanent Court of International Justice (Series A, No. 7, p. 28), declared that this recognition could not “be relied on as against Germany, which had no share in the transaction.”

25 Martin, op. cit., p. 508; see also Graham, M. W. , “Neutrality and the Great War,” this JOTONAI, Vol. 17 (1923), p. 709.Google Scholar

26 We are speaking in terms of customary international law. Where states have agreed by treaty, as under the Covenant of the League of Nations, to permit other states to determine the existence of war, the situation is of course different. See, on this point, Gonsiorowski, M., in the American Political Science Review, XXX (1936), pp. 673–678.Google Scholar

27 There are numerous such cases. See for example, Compafifa Minera etc. v. Bartlesville Zinc Co., 115 Texas 21, 275 S. W. 388; or The Ambrose Light, (cited in note 23, supra); or The Nayade (cited in note 8, supra); or The Teutonia (cited in note 16, supra).

28 The Pelican, Edw. (App.) iv, 165 Reprint 1160 (1809); affirmed in Blackburn v. Thompson, 3 Camp. 62,170 Reprint 1306 (1811). See Ronan, W. J., “English and American Courts and the Definition of War,” this JOURNAL, Vol. 31 (1937), pp. 656–657.Google Scholar

29 The Hoop, 1 C. Rob. 196,165 Reprint 146 (1799).

30 Sutton, v. Tiller, 46 Tenn. (6 Cold.) 593 (1869). See also Kneeland–Bigelow v. Michigan Central R. R. Co., 207 Mich. 546 (1919), where it was said: “The existence of war and restoration of peace are determined by the action of the legislature, supplemented by the executive department of the government.” Google Scholar

31 Martin, , op. cit., p. 508.Google Scholar

32 Naval War College, op. cit., pp. 71–74.

33 Annual Register, 1866, p. 222.

34 The argument for delay is presented in Rolin, op. cit, I, pp. 185–189.

35 Maurice, , op. cit., p. 76.Google Scholar

36 This case is cited in note 16, supra.

37 Maurice, , op. cit., p. 68; Annual Register, 1859, p. 231.Google Scholar

38 The Pedro, 175 U. S. 354 (1899), from which the facts above stated are taken. See also The Buena Ventura, 175 U. S. 384; and The Rita, 87 Fed. 925.

39 U. S. v. Pelly, 4 Com. Cases, 100 (1899).

40 The Boedes Lust, 5 C. Rob. 233, 165 Reprint 759 (1804).

41 The Fortuna, Edw. 56,165 Reprint 1031 (1809). In The Herstelder, dealing with a capture made almost three weeks before war was declared: “Subsequent events have retroactively determined, that the character of Holland during the whole of that doubtful state of affairs, is to be considered as hostile; and that the property of Dutch subjects seised under it, is to be treated as hostile … ” 1 C. Rob. 113, 165 Reprint 116 (1799).

42 Thompson, Muller v. , 2 Camp. 610, 170 Reprint 1268 (1811).Google Scholar

43 Janson v. Driefontein Consolidated Mines, L. R. [1902] A. C. 484,509. In this case Lord Brampton said: “it would indeed be strange that a declaration of war should be held to have relation back to an indefinite period of time during which both the hostile countries believed themselves to be and conducted themselves towards each other as in a condition of amity, and were negotiating with a view to avoid any rupture of a then existing state of peace.” Ibid., p. 503.

44 More care as to timing came to be shown during the World War. Thus China, in her declaration against Germany, fixed the time at 10 a.m. on Aug. 14; France against Austria– Hungary on Aug. 12 at midnight; etc. Naval War College, op. cit., p. 74, and passim. See also M. O. Hudson, “The Duration of the War between the United States and Germany,”Harvard Law Review, 39 (1926), p. 1028, note 29.

45 Naval War College, op. cit., pp. 226–226. By subsequent act of Congress (Oct. 6,1917) the beginning of war was fixed at “midnight ending the day on which Congress has declared or shall declare war or the existence of a state of war.” This, however, seems inconsistent with the declaration, which affirms that Germany had already thrust a state of war upon the United States. See Hudson, he. cit; also F. R. Black, “The Declaration of War,” American Law Review, 61 (1927), p. 415.

46 See the declarations of war quoted in the Naval War College Documents above cited, particularly those of France against Turkey (p. 90), Germany against France (p. 103), Great Britain and France against Austria–Hungary (pp. 117–118). The Brazilian declaration says “The state of war initiated against Brazil is recognized and proclaimed,” Brazilian Green Book (authorized English version, London and New York, 1918).

47 McLeod, People v. , 1 Hill (N. Y.) 375 (1841).Google Scholar

48 Gray, Adm’r., v. TJ. S., 21 Ct. CI. 340 (1886). There remains, however, the interesting question whether there is an intermediate stage between war and peace. See Ronan, loc. tit., p. 643.

49 Maurice, , op. cit, p. 9.Google Scholar

50 Jones, Bishop v. Google Scholar & Petty, , 28 Texas 294 (1866).Google Scholar

51 Naval War College, International Law Situations, 1933, p. 96.

52 Hudson, M. O., loc. cit.Google Scholar