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Abstract
Why do states no longer declare war? In a provocative analysis, Tanisha M. Fazal argues that states stopped declaring war to evade the costs of complying with the growing body of international humanitarian laws. We argue instead that post-1945 normative and legal developments that sought to prohibit war changed the meaning of war declarations in a way that made them at best irrelevant and at worst counterproductive. Although war-making did not end, a once routine feature of warfare came to be seen as a signal of extreme aims that could complicate escalation management and coalition building. Moreover, the United Nations (UN) system provided more desirable ways for states to justify military operations, particularly through self-defense claims. We support this argument through a reassessment of the empirical pattern of war declarations, an analysis of self-defense claims made under Article 51 of the UN Charter, and case studies of undeclared wars in the post-1945 period.
Acknowledgements
The authors would like to thank Austin Carson, Martha Finnemore, Allen Weiner, and the Women’s IR Writing Group at Harvard’s Department of Government for conversations on this project and comments on earlier drafts. The authors are also grateful to Wesley Tiu, Jackson Beard, and Ben Chao for assistance with this research.
Data Availability Statement
The data and materials that support the findings of this study are available in the Security Studies Dataverse at https://doi.org/10.7910/DVN/7PWUFL.
Notes
1 “The Text of Address by McNamara to American Society of Newspaper Editors,” New York Times, 19 May 1966, 11.
2 Tanisha M. Fazal, “Why States No Longer Declare War,” Security Studies 21, no. 4 (2012): 557–93; Tanisha M. Fazal, Wars of Law: Unintended Consequences in the Regulation of Armed Conflict (Ithaca, NY: Cornell University Press, 2018).
3 Christopher Greenwood, “The Concept of War in Modern International Law,” International and Comparative Law Quarterly 36, no. 2 (April 1987): 283–306; Brien Hallett, The Lost Art of Declaring War (Urbana: University of Illinois Press, 1998); John Alan Cohan, “Legal War: When Does It Exist, and When Does It End?” Hastings International and Comparative Law Review 27, no. 2 (Winter 2004): 221–318; Oona A. Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, and Lisa Wang Lachowicz, “War Manifestos,” University of Chicago Law Review 85, no. 5 (September 2018): 1139–226.
4 Arthur M. Schlesinger Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973); Louis Fisher, Presidential War Power, 3rd ed. (Lawrence: University Press of Kansas, 2013); Terry M. Moe and William G. Howell, “Unilateral Action and Presidential Power: A Theory,” Presidential Studies Quarterly 29, no. 4 (December 1999): 850–73.
5 See, for example, Richard K. Betts, Surprise Attack: Lessons for Defense Planning (Washington, DC: Brookings Institution, 1982).
6 Bruce Russett, Grasping the Democratic Peace: Principles for a Post–Cold War World (Princeton, NJ: Princeton University Press, 1995).
7 Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences (New York: Oxford University Press, 2012).
8 Fazal, Wars of Law, 73.
9 Ibid., 80–81.
10 Ibid., 88–90.
11 Ibid., 117–20.
12 Cf. Hathaway et al., “War Manifestos,” 1170. Although these authors make a broadly similar point, it is asserted in a single paragraph without a theoretical argument or evidence.
13 Renato Corbetta and William J. Dixon, “Danger beyond Dyads: Third-Party Participants in Militarized Interstate Disputes,” Conflict Management and Peace Science 22, no. 1 (Spring 2005): 39–61.
14 Daina Chiba and Songying Fang, “Institutional Opposition, Regime Accountability, and International Conflict,” Journal of Politics 76, no. 3 (July 2014): 798–813.
15 Clyde Eagleton, “The Form and Function of the Declaration of War,” American Journal of International Law 32, no. 1 (January 1938): 19–35.
16 Hathaway et al., “War Manifestos.”
17 Cohan, “Legal War.”
18 See, for example, James L. Regens, Ronald Keith Gaddie, and Brad Lockerbie, “The Electoral Consequences of Voting to Declare War,” Journal of Conflict Resolution 39, no. 1 (March 1995): 168–82.
19 Bryan Rooney, “Emergency Powers in Democracies and International Conflict,” Journal of Conflict Resolution 63, no. 3 (March 2019): 644–71.
20 In the online appendix, we provide additional material about emergency declarations during foreign wars across time. We observe that states of emergency are more common in the post-1945 period, but their use in wartime increases as early as World War I.
21 L. Elaine Halchin, National Emergency Powers (Washington, DC: Congressional Research Service, 14 October 2020).
22 Elihu Lauterpacht, “The Legal Irrelevance of the ‘State of War,’” Proceedings of the American Society of International Law at Its Annual Meeting (1921–1969) 62 (1968): 62.
23 International Committee of the Red Cross, Sixteenth International Red Cross Conference, London, June 1938: Report (Geneva: International Committee of the Red Cross, 1938), 78, https://library.icrc.org/library/docs/CI/CI_1938_RAPPORT_ENG.pdf. Italics in original.
24 Jean S. Pictet, Commentary on the Geneva Conventions of 12 August 1949, vol. 1, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva: International Committee of the Red Cross, 1952), 28–30, https://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-I.pdf; International Committee of the Red Cross, Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (Geneva, April 14–26, 1947) (Geneva: International Committee of the Red Cross, 1947), 8.
25 Neil Boister and Robert Cryer, eds., Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments (Oxford: Oxford University Press, 2008), 532–35.
26 Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963), 384–89.
27 Ibid, 38, 393.
28 Eagleton, “Form and Function of the Declaration of War”; Greenwood, “Concept of War in Modern International Law”; Cohan, “Legal War.”
29 Cohan, “Legal War.”
30 Fazal, Wars of Law, 76.
31 White House Office of the Press Secretary, “President Says Saddam Hussein Must Leave Iraq within 48 Hours,” 17 March 2003, https://georgewbush-whitehouse.archives.gov/news/releases/2003/03/20030317-7.html.
32 United Nations Security Council (UNSC), “Letter Dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council,” S/2003/351 (21 March 2003), https://undocs.org/en/S/2003/351.
33 Fazal, Wars of Law, 51–52.
34 Wayne Sandholtz, Prohibiting Plunder: How Norms Change (New York: Oxford University Press, 2007).
35 See, for example, James D. Fearon, “Signaling Foreign Policy Interests: Tying Hands versus Sinking Costs,” Journal of Conflict Resolution 41, no. 1 (February 1997): 68–90.
36 Alexander Thompson, Channels of Power: The UN Security Council and U.S. Statecraft in Iraq (Ithaca, NY: Cornell University Press, 2009); Erik Voeten, “Outside Options and the Logic of Security Council Action,” American Political Science Review 95, no. 4 (December 2001): 845–58; Erik Voeten, “The Political Origins of the UN Security Council’s Ability to Legitimize the Use of Force,” International Organization 59, no. 3 (July 2005): 527–57.
37 Kenneth W. Abbott and Duncan Snidal, “Why States Act through Formal International Organizations,” Journal of Conflict Resolution 42, no. 1 (February 1998): 3–32.
38 Sarah E. Kreps, “Legality and Legitimacy in American Military Interventions,” Presidential Studies Quarterly 49, no. 3 (September 2019): 551–80.
39 Terrence L. Chapman, Securing Approval: Domestic Politics and Multilateral Authorization for War (Chicago: University of Chicago Press, 2011).
40 Thomas C. Schelling, Arms and Influence (1966; repr., New Haven, CT: Yale University Press, 2020), 141.
41 Robert Axelrod, “An Evolutionary Approach to Norms,” American Political Science Review 80, no. 4 (December 1986): 1095–111.
42 Susan D. Hyde, The Pseudo-Democrat’s Dilemma: Why Election Monitoring Became an International Norm (Ithaca, NY: Cornell University Press, 2011).
43 Hague Convention (III) of 1907 Relative to the Opening of Hostilities (Washington, DC: Carnegie Endowment for International Peace, 1915).
44 Eagleton, “Form and Function of the Declaration of War,” 35.
45 Greenwood, “Concept of War in Modern International Law,” 301–2.
46 Roger S. Clark, “Nuremberg and the Crime against Peace,” Washington University Global Studies Law Review 6, no. 3 (2007): 529–30.
47 “Second Day, Wednesday, 11/21/1945, Part 04,” in Trial of the Major War Criminals before the International Military Tribunal, vol. 2, Proceedings: 11/14/1945–11/30/1945 (Nuremberg: International Military Tribunal, 1947), 98–102, https://www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-tribunal/. The French delegation also advocated for employing this language. Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (Clark, NJ: Lawbook Exchange, 2006), 10.
48 Stone, Aggression and World Order.
49 “Treaty of Brotherhood and Alliance between the Hashimite Kingdom of Transjordan and the Kingdom of Iraq, June 10, 1947,” Middle East Journal 1, no. 4 (October 1947): 449–51.
50 UN General Assembly, Report of the 1956 Special Committee on the Question of Defining Aggression, 8 October–9 November 1956, A/3574 (1957), https://digitallibrary.un.org/record/713061?ln=en.
51 UN General Assembly, Report of the Special Committee on the Question of Defining Aggression, 1 February–5 March 1971, A/8419 (1971), undocs.org/A/8419.
52 Benjamin B. Ferencz, A Proposed Definition of Aggression by Compromise and Consensus (Geneva: International Commission of Jurists, 1973), 18.
53 US Department of State, “Statements to the Congress by Secretary Rogers: Congress, the President, and the War Powers,” in United States Foreign Policy 1971: A Report of the Secretary of State (Washington, DC: US Government Printing Office [GPO], 1972), 513; Hallett, Lost Art of Declaring War, 37.
54 Memorandum for the president from C. Boyden Gray, “Potential Significance of a Declaration of War against Iraq,” 6 August 1990, Counsel’s Office, White House, C. Boyden Gray Files, misc. file, folder 2, George H. W. Bush Library.
55 Email from James E. Baker to Mona K. Sutphen, Kosovo legal points, 13 April 1999, WJC-NSC: Records of the NSC (Clinton Administration), 1993–2001, emails, 1993–2001, [04/12/1999–04/15/1999] [04/16/1999–04/19/1999] [War Powers Resolution], William J. Clinton Library.
56 David Ackerman and Richard Grimmett, Declaration of War against Yugoslavia: Implications for the United States (Washington, DC: Congressional Research Service, 30 April 1999), 24. Report was made available to us by the Stockholm International Peace Research Institute.
57 Hathaway et al., “War Manifestos,” 1186.
58 Austin Carson, Secret Wars: Covert Conflict in International Politics (Princeton, NJ: Princeton University Press, 2018).
59 Hathaway et al., “War Manifestos,” 1183–84.
60 Voeten, “Political Origins.”
61 Thompson, Channels of Power.
62 Martha Finnemore, The Purpose of Intervention: Changing Beliefs about the Use of Force (Ithaca, NY: Cornell University Press, 2004).
63 Greenwood, “Concept of War in Modern International Law,” 290–91.
64 Fazal, Wars of Law, 93.
65 James A. Green, “The Article 51 Reporting Requirement for Self-Defense Actions,” Virginia Journal of International Law 55, no. 3 (2015): 563–624.
66 We searched the UN Dag Hammarskjöld Library’s DAG Repository for letters and other official documents that included the phrases “Article 51,” “self-defense,” and “defend itself.” Available at http://repository.un.org/.
67 Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum, “Quantum of Silence: Inaction and Jus Ad Bellum,” SSRN (July 2019), https://doi.org/10.2139/ssrn.3420959.
68 A notification was connected to a war if a participant issued it within a window of one month on either side of the start and end dates.
69 See, for example, UNSC, “Letter Dated 23 February 1999 from the Permanent Representative of Ethiopia to the United Nations Addressed to the President of the Security Council,” S/1999/192 (23 February 1999), undocs.org/en/S/1999/192.
70 Office of General Counsel, Department of Defense Law of War Manual (Washington, DC: US Department of Defense, 2016), 80, https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190. Italics in original.
71 See Lauren Sukin and Allen S. Weiner, “War and the Words: The International Use of Force in the United Nations Charter Era,” in Challenges to the International Legal Order, ed. David Sloss (Oxford: Oxford University Press, forthcoming).
72 Available at http://www.tanishafazal.com/s/Wars-of-Law-Replication-Data.zip.
73 Fazal, Wars of Law, 88–89.
74 Following Fazal, wars are put into periods by the start year of the war, which is not always the same as the entry year of the individual country.
75 Fazal, Wars of Law, 78.
76 Imtiaz Omar, Emergency Powers and the Courts in India and Pakistan (The Hague: Kluwer Law International, 2002), 29–30.
77 Fazal, Wars of Law, 88–89.
78 Four countries—the United States, the United Kingdom, Saudi Arabia, and Kuwait—made Article 51 notifications prior to the Persian Gulf War in addition to receiving UNSC authorization. In the Vietnam War, the US Article 51 claims were first made in 1970, with the invasion of Cambodia.
79 Tom Ruys, “Armed Attack” and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (New York: Cambridge University Press, 2010), 314–18.
80 Paper prepared in the Department of Defense, n.d., Foreign Relations of the United States [hereafter FRUS] 1977–1980, vol. 17, Horn of Africa, pt. 1 (Washington, DC: GPO, 2016), doc. 61.
81 Harry S. Truman, Memoirs: Years of Trials and Hope, 1946–52, vol. 2 (Garden City, NY: Doubleday, 1956), 331–33.
82 Memorandum of conversation, 25 June 1950, Acheson Papers, secretary of state file, May–June 1950, Harry S. Truman Library (HSTL).
83 US Department of State, “Authority of the President to Repel the Attack in Korea,” Department of State Bulletin 23, no. 578 (31 July 1950): 173–78.
84 Memorandum of conversation, Department of State, 1 August 1952, Papers of Harry S. Truman, staff member and office files, Korean War file, Department of State: background file, 1947–1950, box 6, folder 11, legal basis of US and UN action, HSTL. The meeting occurred in July 1950.
85 James D. Morrow, Order within Anarchy: The Laws of War as an International Institution (New York: Cambridge University Press, 2014).
86 Aide memoire by “safe hand,” 13 August 1952, Papers of Harry S. Truman, staff member and office files, Korean War file, Department of State, background file, 1947–1950, box 6, folder 11, legal basis of US and UN action, HSTL.
87 Memorandum by Mr. Carlton Savage, member of the Policy Planning Staff, to Mr. Paul H. Nitze, director of the Policy Planning Staff, FRUS 1950, vol. 1, National Security Affairs; Foreign Economic Policy (Washington, DC: GPO, 1977), doc. 114.
88 Fazal, Wars of Law, 129.
89 R. P. Barston and P. W. Birnie, “The Falkland Islands/Islas Malvinas Conflict: A Question of Zones,” Marine Policy 7, no. 1 (January 1983): 20.
90 UNSC, “Letter Dated 11 April 1982 from the Charge d’Affaires A. I. of the Permanent Mission of United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council,” S/14964 (11 April 1982), undocs.org/en/S/14964.
91 Christopher Michaelsen, “Maritime Exclusion Zones in Times of Armed Conflict at Sea: Legal Controversies Still Unresolved,” Journal of Conflict & Security Law 8, no. 2 (October 2003): 374.
92 Iain Sinclair, “Sir Iain Sinclair: Legal Adviser to the FCO, 1976–84,” in Memories of the Falklands, ed. Ian Dale (London: Politico’s, 2002), 125.
93 Sinclair, “Sir Iain Sinclair,” in Dale, Memories of the Falklands, 124–25.
94 Lawrence Freedman, The Official History of the Falklands Campaign, vol. 2, War and Diplomacy (London: Routledge, 2005), 76.
95 Domenico Maria Bruni, “A Leader at War: Margaret Thatcher and the Falklands Crisis of 1982,” Observatoire de La Société Britannique 20 (2018): 135–57.
96 Margaret Thatcher, The Downing Street Years (New York: HarperCollins, 1993), 182.
97 See, for example, Thatcher, Downing Street Years, 188.
98 UNSC, “Letter Dated 9 April 1982 from the Charge d’Affaires A. I. of the Permanent Mission of United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council,” S/14963 (10 April 1982), undocs.org/en/S/14963.
99 UNSC, “Letter Dated 9 April 1982 from the Permanent Representative of Argentina to the United Nations Addressed to the President of the Security Council,” S/14961 (9 April 1982), undocs.org/en/S/14961.
100 UNSC, “Letter Dated 28 April 1982 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council,” S/15006 (28 April 1982), undocs.org/en/S/15006.
101 Email from Baker to Sutphen.
102 Finnemore, Purpose of Intervention.
103 House Comm. on International Relations, “Declaring a State of War between the United States and the Government of the Federal Republic of Yugoslavia,” H. R. Rep. No. 106-115 (27 April 1999), https://www.congress.gov/congressional-report/106th-congress/house-report/115.
104 Ackerman and Grimmett, Declaration of War against Yugoslavia.
105 “Declaring State of War between United States and Government of Federal Republic of Yugoslavia,” 145, pt. 6 Cong. Rec. (1999), 7770–84, https://www.govinfo.gov/content/pkg/CRECB-1999-pt6/html/CRECB-1999-pt6-Pg7770.htm.
106 House Comm. on International Relations, “Declaring a State of War,” 3.
107 Ackerman and Grimmett, Declaration of War against Yugoslavia, 24.
108 Alan K. Henrikson, “The Constraint of Legitimacy: The Legal and Institutional Framework of Euro-Atlantic Security,” in Alliance Politics, Kosovo, and NATO’s War: Allied Force or Forced Allies? ed. Pierre Martin and Mark R. Brawley (New York: Palgrave, 2001), 41–55.
109 Alister Miskimmon, “Falling into Line? Kosovo and the Course of German Foreign Policy,” International Affairs 85, no. 3 (May 2009): 561–73.
110 Jason W. Davidson, “Italy at War: Explaining the Italian Contribution to the Kosovo War (1999),” in Italy’s Foreign Policy in the Twenty-First Century: The New Assertiveness of an Aspiring Middle Power, ed. Giampiero Giacomello and Bertjan Verbeek (Lanham, MD: Lexington Books, 2011), 165–68.
111 Milada Anna Vachudová, “The Atlantic Alliance and the Kosovo Crisis: The Impact of Expansion and the Behavior of New Allies,” in Martin and Brawley, Alliance Politics, Kosovo, and NATO’s War, 208–10.
112 Roy Allison, Russia, the West, and Military Intervention (New York: Oxford University Press, 2013), 50–53.
113 See, for example, comments from Rep. Curt Weldon (R-PA) and Rep. Sheila Jackson Lee (D-TX) in “Declaring State of War between United States and Government of Federal Republic of Yugoslavia,” 145, pt. 6 Cong. Rec., 7778, 7782.
114 Email from Charles A. Allen to James E. Baker, Campbell bills: positions, 15 April 1999, WJC-NSC: Records of the NSC (Clinton Administration), 1993–2001, emails, 1993–2001, [04/12/1999–04/15/1999] [04/16/1999–04/19/1999] [War Powers Resolution], WJCL.
115 “Declaring State of War between United States and Government of Federal Republic of Yugoslavia,” 145, pt. 6 Cong. Rec., 7773.
116 Rooney, “Emergency Powers in Democracies and International Conflict.”