International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
A declaration of war is a communication of one State to another that the
condition of peace between them has come to an end and a condition of
war has taken its place. In former times declarations of war used to
take place under greater or lesser solemnities, but during the last few
centuries all these formalities have vanished, and a declaration of war
nowadays may take place through a simple communication. The only two
conditions with which, according to article 1, declarations of war must
comply are, that they must be unmistakable, and that they must state
the reason for the resort to arms. No delay between the declaration and
the actual commencement of hostilities is stipulated, and it is,
therefore, possible for a Power to open hostilities immediately after
the communication of the declaration of war to the enemy. All the more
is it necessary to emphasise that there could be no greater violation of
the Law of Nations than that which would be committed by a State which
sent a declaration to another without previously having tried to settle
the difference concerned by negotiation.
However this may be, the question as to the way in which the
communication of the declaration of war is to be made requires
attention. Since there is nowhere a rule expressly formulated according
to which the declaration must be communicated in writing, it might be
asserted that communication by any means, be it by a written document,
by telegraph or by telephone message, or by direct word of mouth, is
admissible. I believe that such an assertion cannot be supported. The
essential importance of the declaration of war and the fact that
according to article 1 of Convention III. it must be unmistakable and
must state the reason for the resort to arms, would seem to require a
written document which is to be handed over to the other party by an
envoy. Further, the fact that article 2 of Convention III. expressly
enacts that the notification of the outbreak of war to neutrals _may
even be made by telegraph_, points the same way, for the conclusion is
justified that the declaration of war stipulated as necessary by article
I may _not_ be made by telegraph. And if a telegraph message is
inadmissible, much more are telephone messages and communications by
word of mouth. Moreover, the practice of the States throughout the last
centuries has been to hand in a written declaration of war, when any
declaration has been made.
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