It’s well known that despite myriad police actions, interventions and whatnot, the US hasn’t made any formal declaration of war (as outlined in the Constitution) in the past 69 years. My question is, have any wars started with a formal declaration during that time? Also, is there any kind of internationally recognized mechanism for notifying the world that your state A is at war with the other state B?
I’m not sure about what the laws are in other countries.
The US constitution makes no requirement that the Congress make a formal “declaration of war.” It only says that congress has the power to authorize war. They have typically met their constitutional requirement with joint resolutions authorizing the use of military force, or in some cases in support of UN Security Council resolutions.
The US has made a declaration of war only five times. They’ve had joint resolutions 12 times, and supported UN actions eight times (wikipedia has a list)
I don’t know of any that have been formally declared. The declaration of war seems to be going the way of the dodo.
Most of the larger conflicts have been internal wars so you wouldn’t have a declaration. The Congo War, Vietnam, Korea, Eritrea/Ethiopia etc
Noted conflicts between two countries, Iran/Iraq, UK/Argentina etc were not declared formally.
It would seem declaring war has given way to “authorizing military action”
IIRC Saddam Hussein did formally declare war on the US during the invasion of Iraq, but everyone just ignored it.
A few related questions:
Is there a generic term for documents like the Japanese Instrument of Surrender at the end of WWII?
Did the Axis ever formally surrender to the Allies at the end of WWII?
Suppose there’s a formal beginning to the war but there’s no formal end, only a cease-fire – is the war still on?
Sounds like The Korean War; The US still considers North Korea an openly hostile State.
From here: List of wars extended by diplomatic irregularity - Wikipedia
For the second question: WW2:
For the third question: See Montenegro v. Japan
Declaring war (and the deployment of the armed forces) is one of the royal prerogatives in the UK, which of course means in practice that it’s down to the Prime Minister of the day, in consultation with the Foreign Secretary, etc. Given the various controversial circumstances surrounding the UK’s involvement in the last Iraq war, there has been some discussion of introducing a formal procedure involving parliamentary approval; this can also be seen as part of a wider process over time of replacing prerogative powers with more carefully defined statutory powers. There’s already a convention that any military action by the UK requires parliamentary debate, but at present the result of that debate has no direct legal consequences. (However, the government would inevitably face a motion of “no confidence” if it failed to resign after losing such a debate.)
So far as I am aware, the last declaration of war by the UK was against Japan, following the latter’s unprovoked attack in 1941 on various British colonial territories in South-East Asia.
The UK’s procedure for declaring war appears to have been to issue a formal note either to the other country’s ambassador in London, or via the British ambassador to the other country.
Note that the treaty-making power is also part of the royal prerogative.
Naturally enough, asserting neutrality is also a prerogative power. Certainly in the nineteenth century the procedure was to issue a royal proclamation; this was considered necessary so as to trigger legislation aimed at preventing British subjects from enlisting in any belligerent’s armed forces, and to prevent British ports from being used to aid any of the belligerents’ war effort. Royal proclamations are published in The London Gazette, and this would have been considered sufficient notification to other governments of the UK’s position.
Declarations of war, etc. prior to 1931 were legally binding on all parts of the British Empire. On the other hand, the convention was already established by then that the self-governing dominions (Canada, Australia, New Zealand, South Africa, the Irish Free State, and Newfoundland) were responsible for their own foreign policy. The British Government therefore was moving at this time to formally expressing itself specifically as “His Majesty’s Government in the United Kingdom”, thus drawing a distinction that had not previously existed. As a result, the 1939 British declaration of war on Germany was on behalf of the UK alone, whereas in 1914 it had effectively also been on behalf of the dominions.
U.S. Consitution, Article I, Section 8, Clause 11:
“[The Congress shall have Power] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”
[emphasis mine]
While there’s no requiement that Congress make a formal declaration of war, the power to declare war is definitely granted to Congress by the Constitution.
Yes, my point was that the constitution does not include any requirements about how they shall declare war, i.e. the format of their declaration. The method employed after Pearl Harbor, for example, was a joint resolution which contained just three sentences. It basically just said that a state of war exists, and that the president was authorized to use the military to prosecute the war.
In other instances, both before and after WW2, Congress adopted a resolution which authorized the president to use military force that did not include the phrase “declaration of war” or say that a state of war existed. The Tonkin Gulf resolution, for example.
During the Vietnam war, some members of Congress were concerned about giving the President an open-ended commitment to the use of force. That led to enactment of the War Powers Act in 1973, which helped to clarify the balance between their authority to “declare” war, and the President’s role as commander in chief. It specified that the President needed to seek congressional approval for military action of more than 60 days. While that has never been tested in the Supreme Court, it remains the law of the land. Congress has invoked their authority under that law several times to bring troops home, including in Lebanon, Somalia, and the Balkans.
All of this is to say that it is a popular misconception to say that Congress has to “declare war” in the way that they did after Pearl Harbor, or that subsequent wars such as Vietnam or Iraq were “illegal” or “unconstitutional.”
I agree that no formality is required by the Constitution, but wouldn’t a fair reading of it require the resolutions to at least recognize that a state of war exists? I don’t think that simply authorizing military action meets with the spirit of the clause.
The idea of making such a declaration is rooted in the Hague Convention of 1907, which preceded the Geneva Convention in its effort to define protocols and international laws of war. The point of the declaration was to give official notice to the opposing country, an action which may have been necessary in the 19th century when before communications networks existed. Wikipedia notes that from 1700 to 1870 “in only 10 cases war was declared, while in other 107 cases, war was waged without such declaration.”
Some international legal scholars also argue that this practice is antiquated, particularly after the formation of the United Nations, and the protocols established by the Security Council. So as a principal of international law, the requirement for a “declaration of war” really only existed between 1907 and 1948.
I think the spirit of the clause was a separation of powers, and that has been preserved. I don’t think including a phrase that says “a state of war exists” adds anything.
(my bolding). It probably doesn’t, but there’s a reason we don’t “declare” wars anymore. Simply, the UN.
Before the UN (think 1700-1800’s) states had unfettered discretion to war with one another. You didn’t need a reason, there was no limitations, except that you would usually formally declare you were at war with another state (mostly to let third party states know). It wasn’t a big deal (legally speaking). After WWI, that changed. The world wanted to put limits on the unfettered discretion to war. The League of Nations -> United Nations thus made war illegal. Under the UN, you can only go to war if it’s authorized or you’re acting in self defense, that’s it. If it’s not under those two reason, you’re violating the Charter.
So, we’ve moved from the unlimited right to war, to a prohibition against it. Because it’s still legal to use force in self defense, the focus is now on who the aggressor state is. (Ie, Iraq attacked Kuwait without UN approval, they are the aggressor, Kuwait can legally act in self defense).
So what does that have to do with “declaring war”. No state wants to be the aggressor, and a declaration of war is prima facie evidence that you are at war with another state. Separate, but co-existing with the UN Charter are the rules to determine when a “war” exists (and thus needs to be approved by the charter or fit within the self defense exception). It exists if there’s (1) an occupation, (2) an armed conflict (when a state actually uses force against another state), or (3) a declaration of war (you can be at ‘war’ without using armed force). So, if State A declares war, and State B does not, who is the aggressor (ie, not acting in self defense), who is acting illegally under the UN Charter? If that’s the only reliable evidence, it’s State A (they declared war), and because you they didn’t have UN authorization, that’s illegal.
However, an authorization to use military force is just that. Authorizes the President to use force (if needed), but does not trigger “(2) armed conflict” from above because that’s only triggered when you actually use the force. Whereas if Congress formally declared war, that’s an automatic trigger. And that’s evidence of being the aggressor, and no one wants to be the aggressor because it’s now illegal.
These are the laws, but obviously not reality. In the same vein that there are laws against murder, but you know, it happens everyday…Anyways, likely GDish, but I just wanted to take a stab at why there are no more declarations of war. It’s all about exploiting the self-defense exception to the UN Charter.
Note: Just saw anson2995’s post above, I believe it adds details to this post.
Nice post. However, I still don’t see why in cases of self-defense (like after Pearl Harbor) you can’t declare war. Let’s take the latest Iraq war for example. A classic example of where we had time to debate on whether or not we should go to war. Instead of authorizing military force, why couldn’t we have stated the doctrine of pre-emptive self defense and then declared that a state of war now existed between the United States and Iraq? (Note: I don’t want to start a debate about the Iraq War, let’s just take our claims at face value so as not to hijack the thread)
We would have been in full compliance with UN regulations as we noted self defense as a reason for going to war. Same way with Gulf War I, why no declaration of war by Congress? We had the backing of the UN on that one. In the same vein, why not in Korea?
Probably because it could be seen as abrogating to ourselves unqualified freedom to do anything we liked to Iraq, including invading and occupying it and making its population ours to do with as we will. Whereas measures taken under the UN Charter clause on self-defense must be ‘necessary and proportionate’. Similarly measures taken in pursuance of a UN Resolution would probably also be restricted to the terms of said Resolution, unless you can get a very broad one of the Korean War type - easier then when the UN was still largely a creature of the United States (or, depending on your assessment, the USSR made the blunder of declining to attend the Security Council meeting)
Making up new rules is not complying with the existing rules.
I think any further comment on what you’ve said here would be bad for my blood pressure, other than to say I cannot see any parallel at all between (a) a country launching an unprovoked military assault on US territory, and (b) a country that has not launched such an assault (and clearly has neither the intention nor the capacity for such an assault).
There’s a few reasons you wouldn’t declare war in your scenarios, and this is GD material, but it’s mostly just as I described earlier. It’s the exploitation of the self defense exception in the UN Charter.
Classic self defense in the First Iraq War (self defense also includes “collective” self defense, meaning if Iraq commits an act of aggression against Kuwait, then any member of the UN can act legally in Kuwait’s self defense.) However, we didn’t declare war because we didn’t need to. I would defer to the last sentence in anson2995’s post; ie, there’s nothing lost in the Congressional process by authorizing force v. declaring war. If you did declare war, you’re just going to cause confusion about all the times you don’t declare war.
Pre-emptive self defense is not necessarily self-defense under the UN Charter. This is very debatable. Depending on the facts, you’re most likely going to be seen as the aggressor. However, “armed conflict” is a highly factual question (who fired first, was it provoked, what provoked it, how imminent was the use perceived use of force, ect. ect. ect.). Declaring war is not factual; it’s a time stamped copy of when and who you claim to be at war with. Also, the actual legal reason we were “allowed” to fight that the second gulf war was we claimed the 1991 UN resolution never expired, thus that gave us the authorization to use force against Iraq. Obviously a stretch (putting it mildly), but it also goes to show you just how far the US will go to play by the UN Charter rules.
So, long story short, you gave all the reasons we were allowed to go to war, so why take the extra unnecessary step of declaring a state of hostilities exist. Some would say the Constitution requires it, but I’d say it allows it; plus, our history suggests it’s not necessary to use armed forces against other States.
Lastly, I would point out that the UN Charter prohibition against war only applies in State A v State B wars. It does not apply to internal wars. You don’t need authorization to put down an insurrection.
I go with this. If Congress allocates money to conduct a war, that’s a declaration of war.