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When Does War Exist?

Published online by Cambridge University Press:  12 April 2017

Quincy Wright
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Editorial Comment
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American Journal of International Law , Volume 26 , Issue 2 , April 1932 , pp. 362 - 368
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Copyright © American Society of International Law 1932

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References

1 McNair, , “The Legal Meaning of War and the Relation of War to Reprisals,” Transactions of the Grotius Society, 1925, p. 45;Google Scholar Maccoby, , “Reprisals as a Measure of Redress short of War,” Cambridge Law Journal, 1924, p. 70 ff.; Google Scholar Wright, , “Opinion of Commission of Jurists in Janina-Corfu Affair,” this JOURNAL, Vol. 18 (1924) p. 536. See also note 21 infra. Google Scholar

2 The Prize Cases, 1863, 2 Black 635; The Three Friends, 1897,166 U. S. 1; Gray, Admr. v. U. S., 21 Ct. CI. 340, 368; Moore's Int. Law Dig., Vol. 6, p. 1025, Vol. 7, pp. 157-8; Wright, The Control of American Foreign Relations, 1922, p. 284, this JOURNAL, Vol. 18 (1924), p. 761.

3 Numerous episodes of this type are discussed in J. Reuben Clark, Right to Protect Citizens in Foreign Countries by Landing Forces, Washington, 1912; Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States, Baltimore, 1928; Stowell, Intervention in International Law, Washington, 1921. “The Blockade of Turkey in 1827 by British, French, and Russian squadrons, which resulted in the so-called Battle of Navarino, is remarkable in this respect—that although the Turkish and Egyptian fleets were destroyed with a loss of from 7,000 to 8,000 men and the blockading Powers sustained several hundred casualties, there was no war and the Powers' ambassadors remained at Constantinople for seven weeks after the battle.” McNair, op. cit., p. 37. These measures short of war are classified from various points of view in Westlake, International Law, 2nd ed., Vol. 2, p. 6 ff.; Borchard, The Diplomatic Protection of Citizens Abroad, 1919, pp. 445-455; Wright, Control of American Foreign Relations, p. 293 ff.

4 See Oppenheim, International Law, 3rd ed., Vol. 2, p. 143 ff.; McNair, loc. cit.

5 See Moore's Int. Law Dig., Vol. 7, pp. 153-164; Wright, Changes in the Conception of War, this JOURNAL, Vol. 18 (1924), p. 762.

6 Action by one state is enough. The state acted against may be forced into a state of war against its will. The Eliza Ann, 1 Dods. 244; The Nayade, 1902,4 C. Rob. 253; Higgins, The Hague Peace Conferences, 1909, p. 205, answering question of Chinese delegation at the Second Hague Conference, 1907, “What would happen if a state against which war was declared did not wish to fight?” Hudson, however, suggests that “It may be open to a powerful state to disregard a declaration of war against it by a weaker state which fails to follow up the declaration with actual hostilities.” Harvard Law Review, Vol. 39, p. 1024. The act must proceed from the authority competent under the constitution of the state to recognize or to make war. In England this authority is the crown, Y. B. Hil., 1480,19 Edw. 4. f. 6; Janson v. Dreifontain Consolidated Mines, Ltd. (1902) A. C. 484, and other cases quoted by McNair, loc. cit., p. 46 ff. In the United States the authority competent to declare war is Congress, and to recognize war is the President, note 8 infra.

7 Westlake, op. cit., Vol. 2, p. 28; Hudson, loc. cit., p. 1022; Wright, this JOURNAL, Vol. 18 (1924), p. 758 ff.; Higgins, op. cit., p. 202 ff. This convention has been ratified by 28 states, including China, Japan, United States, Great Britain, France, Germany, and Russia. It was well observed by the parties on the opening of the World War (Naval War College, Int. Law Docs. 1917, p. 15). Art. 2 provides “that a state of war shall not take effect in regard to neutrals until after the receipt of a notification” unless “it be established beyond doubt that they were in fact aware of the state of war.”

8 Wright, Control of American Foreign Relations, 1922, p. 284 Jf.

9 Secretary of State Hay to Mr. Tower, Ambassador to Germany, Dec. 16, 1902, U. S. For. Eel. 1903, p. 420 Jf. and award in Venezuelan Preferential Case, Per. Ct. Arb., Feb. 22, 1904, Scott, Hague Court Reports, 1916, p. 59. Holland, “War sub Modo,” Law Quar. Rev. 1903, Vol. 19, p. 133. Such blockades have sometimes been accompanied by a denial of an intention to make war, and no state of war has resulted. It has been suggested that states might by such a blockade enforce Art. 16, par. 1, final clause of the League of Nations Covenant without making war against the Covenant-breaking state. League of Nations, Reports and Resolutions on Article 16 (Legal, 1927, V, 14), p. 88; Wright, The Future of Neutrality, International Conciliation, No. 242, Sept., 1928, p. 371.

10 Takahashi, International Law Applied to the Russo-Japanese War, 1908, pp. 22-25.

11 The Mahrousseh, France, Dec. du Cornell des Prises, Vol. 1, p. 94; Nav. War. Col., Int. Law Docs. 1917, p. 90; The Chereff, France, Journal Officiel, Jan. 9, 1916, p. 231; Scott, Cases on International Law, 2nd ed., p. 792.

12 Maurice, Hostilities without Declaration of War, 1883; Higgins, op. cit., p. 202. “An act of hostility unless it be done in the urgency of self-preservation or by way of reprisals, is in itself a full declaration of intention.” Hall, International Law, 8th ed., p. 444. On the meaning of “ Act of War'’ as distinct from other coercive measures applied to promote interests, see Wright, this JOURNAL, Vol. 18 (1924), p. 759.

13 Supra, note 3. Holland emphasizes the desirability of such a disclaimer. Letters on War and Neutrality, 2nd ed., 1914, p. 20.

14 Supra, notes 10-12.

15 Hall, op. cit., p. 434; Westlake, op. cit., Vol. 2, pp. 23-24; Holland, Studies in International Law, p. 132, and Letters on War and Neutrality, 2nd ed., p. 15; Oppenheim, op. cit., Vol. 2, p. 68; Hogan, Pacific Blockade, 1908, p. 27; McNair, loc. cit., pp. 34-36.

16 Maccoby (toe. cit., p. 71), takes it for granted “that war can only be waged under the conditions foreseen in the Covenant, and that acts of reprisal cannot be treated as acts of hostility entitling the State against which they have been directed immediately to claim full rights of war” but DeVisscher thinks it would be absurd if a state responding by declaration of war to armed reprisals directed against it, should be held to have violated the Covenant C'L'Interpretation du paete au lendemain du differend Italo-Grec,” Rev. de droit int. et Ug. camp., 1924, 3rd ser., Vol. 5, p. 384). McNair (loc. cit., p. 43) submits that “The plaintiff state which undertakes measures of force as a reprisal or an intervention, does so at the risk of being in breach of Covenant if the defendant state should elect to regard those measures as war, and the defendant state which elects in favour of war, cannot be said to have resorted to war and to be in breach of Covenant.” While agreeing with DeVisscher that the broad freedom to make reprisals supported by Maccoby would practically nullify the Covenant, it appears that the extreme risk which McNair attaches to reprisals is hardly compatible with his own interpretation of the opinion of the jurists after the Corfu case, that coercive measures, even involving the application of force, are not necessarily in violation of the Covenant (ibid., p. 43). To the present writer, the issue hinges not on the fact but on the justifiability of the particular reprisals in the particular circumstances, upon which the League of Nations would judge.

17 It is possible that the same is true where the state is recognized but its government is not. The Huerta government of Mexico stated in a note to the American Chargi d'affaires on April 22, 1914, that “according to international law these acts of the armed forces of the United States (at Vera Cruz) … must be understood as the initiation of war against Mexico.” Later, on April 28,1914, the Secretary of State of the United States asserted that “a state of war does not exist” (U. S. For. Rel. 1914, pp. 490, 505) and this opinion was supported by the U. S.-Mexican General Claims Commission. Mexico on behalf of El Emporia del Cafe v. U. S., No. 281, March 2, 1926; Hudson, loc. cit., p. 1024; supra, note 6.

18 Supra, notes 8-9. For conditions which justify recognition of belligerency by third state see Dana, note to Wheaton International Law, 8th ed., 1866, p. 34; Wilson, op. cit., pp. 40-43. In a careful statement of the ways in which a state of war may start, McNair (ibid., p. 45) does not consider the possibility that it may start through recognition by third states of acts of war, even done “sine animo belligerandi,” as initiating a state of war. Even where hostilities are confined to the land, third states may be forced to reach a decision whether legal war does or does not exist in order to determine the applicability of insurance contracts to property destroyed by bombardment, the incidence of international responsibility for such losses or other legal questions concerning the interests of their nationals, as well as the more general problems of obligations in respect to neutrality or anti-war treaties

19 Supra, note 9.

20 The Three Friends, 1897,166 U. 8. 1. On the status of insurgency, see Wilson, International Law, 2nd ed., p. 34.

21 The report of the commission of jurists in the Corfu episode of 1923 is equivocal on this point. Wright, this JOURNAL, Vol. 18 (1924), pp. 107, 541; Vol. 19 (1925), p. 87. De- Visscher argues that Art. 12 of the Covenant requires members of the League to submit “disputes likely to lead to a rupture either to arbitration or judicial settlement or to inquiry by the Council,” and that since measures of force would be likely to “lead to a rupture” the Covenant would be violated even if the duty “in no case to resort to war” had not been violated. Op. cit, p. 385. See also McNair, loc. cit., p. 41; Maccoby, loe. cit., p. 72.

22 Oppenheim, op. cit., Vol. 2, p. 41, refers to “peaceable although non-amicable means of settling international differences.” The use of the word “pacific blockade” suggests that coercive methods may be pacific (Hogan, Pacific Blockade, 1908, p. 15; Wilson, op. cit., p. 232), but perhaps Holland's expression “War sub Modo” {he. cit.) is more accurate.

23 Fenwick distinguishes “peaceful procedures” from “forcible procedures by methods short of war.” International Law, 1924, pp. 299, 420. See also Halleck, International Law, 4th ed., 1908, Vol. 1, p. 497. Writers usually avoid referring to such “forcible procedures” as “peaceful” or “pacific” but as “non-amicable measures short of war.” Hall, op. cit., p. 433; Wilson, op. cit., p. 225; Hyde, International Law, 1922, Vol. 2, p. 166; Westlake, op. cit., Vol. 2, p. 18.

24 League of Nations, 65th Sess. of Council, Min., par. 2954. See also M. Briand's statement in the Council on Dec. 10, 1931: “Except in the case of an express stipulation in treaties in force, the Covenant of the League of Nations does not authorize a state, however well founded its grievances against another state, to seek redress by methods other than the pacific methods set forth in Article 12 of the Covenant… . This responsibility was reaffirmed in the Pact of Paris, whose signatories assumed or renewed the undertaking to resort to pacific means alone for the settlement of international disputes.” Ibid., par. 2965. See Wright, Am. Pol. Sci. Rev., Feb. 1932, Vol. 26, p. 63, 67.

25 Japan, however, suggested in a note to the United States on Oct. 24,1931, that Chinese acquiescence in the anti-Japanese activities of Chinese nationals in China was “not in harmony with the letter or the spirit” of Article 2 of the Pact. Conditions in Manchuria, 72nd Cong., 1st sess., Sen. Doc. 55, p. 22.