Christopher Greenwood, The Concept of War in Modern International Law

THE CONCEPT OF WAR IN MODERN
INTERNATIONAL LAW
CHRISTOPHER GREENWOOD*
DOES war still exist in the eyes of international law? In one respect the
answer is obvious. "War", in the factual sense of hostilities involving the
use of armed force between States, still exists and rules of international
law exist to regulate it. Less obvious, however, is whether war continues
to exist as a legal condition, the creation of which automatically pro-
duces certain legal consequences both for the parties and for other
States. While there have been many instances of hostilities since 1945,
some on a major scale, there have been no formal declarations of war
and only a handful of those conflicts have been characterised as "war".
It is not simply that "today the term 'war' is out of fashion".1 It has been
asserted by a number of States and writers that creating a state of war is
incompatible with the UN Charter so that war no longer exists as an
institution of international law and no legal consequences follow from
describing a particular conflict as "war" rather than "armed conflict"
(the term more widely used today).2 Even writers who do not accept
that the concept of war is dead describe it as a "declining concept",
largely devoid of legal significance.3
Nevertheless, the theory that the concept of war has become legally
irrelevant as a result of the legal order embodied in the Charter is by no
means universally accepted.4 In particular, references to war have, if
anything, become more common in State practice in the last few years.5
The purpose of this article, therefore, is to consider whether modern
• Fellow of Magdalene College, Cambridge; Lecturer in Law in the University of Cam-
bridge. This article is a revised version of a paper first given at a meeting of the British
Branch of the International Law Association on 3 May 1986.
1. McNair and Watts, The Legal Effects of War (4th ed., 1966), p.vii.
2. See e.g. the statements by the Permanent Representative of Israel to the Security
Council, 26 July 1951, S.C.O.R., 549th Mtg., paras.4(Ml, and the Permanent Represen-
tative of Mexico to the Security Council, 19 June 1981, U.N.Doc. S/PV.2288, p.43. See
also Feinberg, The Legality of a State of War (1961) and E. Lauterpacht, "The 'Legal Irre-
levance' of a State of War" (1968) 62 Proc. Am.Soc.Int. Law 58.
3. Schindler, "State of War, Belligerency, Armed Conflict" in Cassese (Ed.), The
New Humanitarian Law of Armed Conflict (1979), p.3. See also Partsch, "Armed Con-
flict", in Max Planck Encyclopaedia of Public International Law (1982), Vol.III, p.28.
4. See e.g. Baxter, "The Legal Consequences of the Unlawful Use of Force under the
Charter" (1968) 62 Proc.Am.Soc.Int. Law 68; McNair and Watts, op. dt. supra n.l, at
pp.2-34; Meng, "War" in Max Planck Encyclopaedia of Public International Law (1982),
Vol.IV, p.282; Stone, Of Law and Nations (1974), p.427.
5. See in particular the Egypt-Israel Treaty of Peace (1979) XVTI I.L.M 362, and the
unratified Israel-Lebanon Treaty (1983) XXII I.L.M. 708, discussed infra.
283 (1987)36I.C.L.Q.
Downloaded from https://www.cambridge.org/core. Oxford Union Society, on 14 Jul 2021 at 13:27:26, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.
https://doi.org/10.1093/iclqaj/36.2.283
284 International and Comparative Law Quarterly [VOL. 36
international law continues to recognise war as a legal concept and
whether there is any legal significance in characterising a particular con-
flict as war. These questions are far from being of purely academic inter-
est. The application of important bodies of international law,
particularly the law of neutrality, may depend upon the existence of a
state of war. In addition, an examination of the current significance of
the concept of war involves questions of fundamental importance about
the prohibition on the threat or use of force in Article 2(4) of the
Charter at a time of increasing willingness to employ force as an instru-
ment of foreign policy.
I. PEACE AND WAR IN INTERNATIONAL LAW PRIOR TO 1945
THE concept of war was an important feature of international law prior

to the creation of the United Nations. Like peace, war was not simply a
state of affairs or fact, it was a legal condition. When States moved from
a condition of peace into one of war their relations with each other and
with other States became subject to an entirely different legal regime.6
In the nineteenth century the creation of a condition of war had three
main consequences in international law.
1. The laws of war became applicable to govern the conduct of
hostilities between the parties.
2. The non-hostile relations of the parties, such as the application
of treaties between them, were affected.
3. Relations between the belligerents and other States became
subject to the laws of neutrality.7
To this list one can add that, in the twentieth century, the creation of a
state of war acquired added significance in relation to a belligerent's
obligations to the international community as a whole under the Coven-
ant of the League of Nations and the Pact of Paris 1928. Both instru-
ments prohibited recourse to war in certain circumstances.8 In addition,
the creation of a state of war had important repercussions in national
law.9
Before 1919 the sharp distinction between war and peace was thought
to admit of no intermediate state or status mixtus.10 War was an omnibus
6. McNair and Watts, op. tit. supra n.l, at p.2.
7. See the discussion in Brownlie, International Law and the Use of Force by States
(1963), p.19 etseq.
8. Covenant, Arts.X-XVI, 112 B.F.S.P. 1; Pact, Art.I, 94 L.N.T.S. 57.
9. For a discussion of the effects of war in English law, see McNair and Watts, op. tit.
supra n.l, at p.34 etseq.
10. The theory enunciated by Grotius that 'inter bellum et pacem nihil est medium"
(De lure Belli ac Pads, 3, 21,1,1) appears to have been almost universally accepted. Only
in this century have writers suggested that there was an intermediate legal status, des-
cribed by Professor Schwarzenberger as a "status mixtus": (1943) 37 A.J.I.L. 460.
APRIL 1987] War in Modern International Law 285
legal concept. When a State crossed the line between war and peace all
the legal consequences outlined in the preceding paragraph followed.
Moreover, it has been widely assumed in this century that nineteenth-
century international lawyers could identify with reasonable ease the
point in time when a State crossed that line, because States were in the
habit of marking the event by a declaration of war or some other formal
pronouncement.11 Compared with the complexities of modern practice
regarding war, the nineteenth-century law appears a model of clarity.
However, declarations of war were not as common in the last century
as is generally believed. In 1881 a Board of Trade committee consider-
ing plans for the construction of a tunnel under the English Channel
commissioned a report on the number of instances when hostilities had
commenced without a prior declaration of war. The report revealed that
out of 117 conflicts between 1700 and 1870, there had been a prior dec-
laration of war in only ten cases.12 The requirement of a prior declar-
ation of war or an ultimatum in Hague Convention No. Ill of 1907 was
an innovation rather than an attempt at codification.13
Moreover, there were several instances during the nineteenth and
early twentieth centuries when it was far from clear whether States were
at war or not. w The naval conflict between the United States and France
which lasted from 1798 to 1801 involved extensive fighting but neither
side regarded it as war at the time.15 Nevertheless, the status of this con-
flict was still troubling the United States courts a century later.16 Similar
uncertainty surrounded the blockade of Venezuela by Great Britain,
Germany and Italy in 1902-3.17 The agreement resolving the dispute
between Britain and Venezuela is a model of ambiguity on this point.
Article VIII provided:
. . . inasmuch as it may be contended that the establishment of a block-
ade of a Venezuelan port by the British naval forces has, ipso facto,
created a state of war between Britain and Venezuela . . . 18
As the twentieth century progressed, the number of conflicts in which it
was difficult to determine whether or not the parties were at war
increased.
11. See e.g. the comments of Goddard J in Kawasaki Kisen Kabushiki Kaisha of Kobe
v. Bantham S.S. Co. Ltd, [1938] 3 All E.R. 80, 84.
12. Maurice, Hostilities without Declaration of War from 1700 to 1870 (1883). See also
Eagleton, "The Form and Function of the Declaration of War" (1938) 32 A.J.I.L. 19.
13. Eagleton, idem, p.20.
14. See Brownlie, op. cit. supra n.7, at pp.28-37; and Grob, The Relativity of War and
Peace (1949).
15. Brownlie, idem, pp.29-30; Grob, idem, pp.37-£3.
16. See e.g. The Schooner Endeavour, 44 Ct. a . 242 (1909). Not until 1915 were all
claims finally settled (Grob, idem, p.55).
17. Brownlie, op. cit. supra, n.7 at pp.35-36.
18. Martens, I N.R.G.,3rd series, 30.
Doubts over the status of some international conflicts fuelled a long-
running debate amongst jurists over the definition of war.19 Two main
schools of thought can be identified. The subjective school, of which
Lord McNair20 was a chief proponent, maintained that the decisive con-
sideration was the intentions of the States concerned. War existed if,
and only if, one of the parties chose to regard the situation as war. This
animus belligerendi could be manifested by a declaration of war or some
other formal pronouncement, or might be inferred from the circum-
stances. The rival school21 propounded an objective definition of war in
which the views of the parties were not conclusive and a conflict was
characterised as war if certain objective criteria were satisfied.
Neither approach was free from difficulty. The subjective approach
had two particularly undesirable results. In so far as certain rules of
international law applied only in time of war, the subjective approach
made their application depend upon the whim of the parties to the con-
flict. Since some of these rules—the laws of neutrality and the prohibi-
tions contained in the Covenant and the Pact of Paris—were of direct
concern to other States, it was doubted whether their application should
be dependent upon the choice of parties to a conflict. Moreover, the
subjective approach helped to create an artificial separation between the
"state of war" as a legal concept and the fact of war in the sense of
actual fighting. Hostilities could exist without a state of war, if the par-
ties to the conflict so elected. Conversely, a state of war could be in exis-
tence between two States even though nofightingtook place.
Yet if these effects made an objective approach to the definition of
war appear more attractive, the objective approach suffered from the
even more important flaw that there was no agreement amongst States
or writers regarding the criteria by which a state of war was to be identi-
fied and distinguished from other uses of force falling short of war. In
the absence of such agreement, the search for an objective definition of
war was fruitless. Professor Brownlie therefore concludes his review of
the state of war doctrine prior to 1919 by saying that:
The state practice leads to the conclusion that in so far as a "state of war"
had any generally accepted meaning it was a situation regarded22by one or
both of the parties to a conflict as constituting a "state of war".
State practice between 1919 and 1945 widened the gap between the
19. For a stimulating discussion of the various approaches to defining "war", see Meng,
op. at. supra n.5, and McDougal and Feliciano, Law and Minimum World Public Order
(1961), pp.97-120.
20. McNair, "The Legal Meaning of War and the Relation of War to Reprisals" (1925)
11 Trans. Grotius Soc. 45.
21. See e.g. Borchard, " 'War' and 'Peace' " (1933) 27 A.J.I.L. 114.
22. Op. at. supra, n.7 at p.38.
state of war and actual hostilities. Although there were suggestions that
an objective definition of war might be adopted for the purposes of
determining whether there had been a breach of the Covenant or the
Pact,23 the search for a general, objective definition of war which would
serve all purposes failed because no definition could be reconciled with
state practice. This period saw numerous conflicts, such as that between
China and Japan, in which it suited all the States concerned not to
regard the conflict as war.24 With the notable exception of World War
II, declarations of war became a rarity.
II. THE STATE OF WAR SINCE 1945
A. The Alleged Incompatibility of War and the UN Charter

Since the establishment of the UN it has been alleged that war has
ceased to exist as a legal condition on the ground that to create a state of
war would be incompatible with the prohibition of the threat or use of
force in Article 2(4) of the Charter. 25 This argument was advanced by
Israel in a Security Council debate in 1951 concerning the legality of
Egypt's action against shipping passing through the Suez Canal bound to
or from Israel. Egypt defended the measures as a lawful exercise of bel-
ligerent rights, maintaining that Israel and Egypt were at war. Israel
countered that no state of war had ever existed between Israel and
Egypt or that, if it had, the 1949 armistice between the two countries
had ended it. The representative of Israel asserted that:
The Charter has created a new world of international relations within
which the traditional "rights of war" cannot be enthroned. Members of
the United Nations are pledged to refrain entirely in their international
relations from the threat or use of force, except on behalf of the purposes
of the United Nations. There can, therefore, be no room within the
regime of the Charter for any generic doctrine of belligerency since belli-
gerency is nothing but a political and legal formula for regulating the
threat or use of force . . . Israel is in no state of war with Egypt and denies
that Egypt has the least right to be at war with Israel.26
The Security Council rejected Egypt's claim of belligerent rights. The
Security Council resolution of 1 September 1951 declared that:
. . . since the armistice regime, which has been in existence for nearly
two and a half years, is of a permanent character, neither party can
reasonably assert that it is actively a belligerent or required to exercise the
23. Brierly, The Basis of Obligation in International Law (1955), p.230.

24. Brownlie, op. tit. supra n.7 at pp.384-391; Kotzsch, The Concept of War in Con-
temporary History and International Law (1956).
25. See the references supra n.2.
26. S.C.O.R. 549th Mtg., 26 July 1951, paras.40-41.
right of visit, search, and seizure for any legitimate purpose of self-
defence . . .
and went on to describe the Egyptian measures as "an abuse of the exer-
cise of the right of visit, search and seizure".27 The Council did not,
however, come to any conclusion regarding the alleged incompatibility
of a state of war, with the Charter. The resolution was based on the
armistice agreements, rights of passage through the canal, and the fact
that active hostilities had ceased in 1949.M While it has been suggested29
that the resolution provides support for the wider thesis that the main-
tenance of a state of war and the exercise of belligerent rights after the
cessation of active hostilities are incompatible with the Charter, the
resolution cannot be regarded as conclusive of the question whether a
state of war can exist where hostilities are still taking place.
Israel's position that a state of war is incompatible with the Charter
has received a measure of support from other States.30 In response to
the establishment of a prize court by Pakistan during the 1965 Indo-
Pakistan conflict, the government of India stated:
It is well known that the United Nations Charter has banned war and no
country can, therefore, legally declare a war. Without such declaration of
war, prize court action is illegal.31
More recently, in the Security Council debates on Israel's attack on
Iraq's nuclear reactor, the representative of Mexico asserted:
By the terms of the Charter the prohibition of the use of force is a categor-
ical obligation. All war is illegal.32
The argument that the state of war is incompatible with the Charter
has been further developed by a number of writers.33 Their thesis is that
to allow an aggressor to create a state of war, and thus acquire rights
against neutral countries and the victim of aggression, would be to allow
the aggressor to benefit from his own wrongful act.34 Taken to extremes,
this argument would mean that members of the aggressor's armed forces
would not be entitled to prisoner of war status or be protected by other
rules of the laws of war. The jus in bello would then become entirely
27. S.C.Res. S/2322 of 1 September 1951.

28. Higgins, The Development of International Law through the Political Organs of the
United Nations (1963), pp.213-214.
29. Feinberg, op. cit. supra n.2 at p.44.
30. See e.g. the statement by the representative of Peru, S.C.O.R., 688th Mtg., 13
January 1955, pp.5-6.
31. McNair and Watts, op. cit. supra n.l, at p.457.
32. S/PV. 2288,19 June 1981, p.42; (1981) XX I.L.M. 991.
33. See in particular E. Lauterpacht, op. cit. supra n.2.
34. E. Lauterpacht, idem, p.63.
subordinate to the jus ad bellum.35 While such an extreme position has
occasionally been advanced,36 it is generally rejected on humanitarian
grounds. Thus, the preamble to the First Protocol to the Geneva Con-
ventions, 1977, provides that
. . . the provisions of the Geneva Conventions of 12 August 1949 and of
this Protocol must be fully applied in all circumstances to all persons who
are protected by those instruments, without any adverse distinction based
on the nature or origin of the armed conflict or on the causes espoused by
or attributed to the parties to the conflict.37
Similarly, most writers, including those who argue that an aggressor is
not permitted to profit from his wrongdoing, accept that humanitarian
law must apply equally to both sides in any conflict.38 Uncertainty arises
only with regard to whether an aggressor State can take advantage of
other parts of the laws of war, such as the law of neutrality, the rationale
of which is not based upon humanitarian considerations.
It has also been suggested that even a State which resorts to force in
lawful self-defence may not create a state of war. The right to use force
in self-defence, preserved by Article 51 of the Charter, is subject to the
important restriction of proportionality. The force used must not exceed
what is reasonably necessary to resist the attack which is being met. On
this basis, a State acting in self-defence would be entitled to create a
state of war only if that were a reasonably proportionate measure. Mr
Elihu Lauterpacht has contended that the creation of a state of war
would seldom, if ever, satisfy this requirement.39
Certainly in recent times, the decision to treat a conflict as war rather
than some lesser form of hostilities has been seen as implying a commit-
ment not merely to repelling an attack but to overthrowing one's oppo-
nent. This feature of war is inherent in the definition of war set forth in
Oppenheim's International Law.
War is a contention between two or more States through their armed
forces for the purpose of overpowering each other and imposing such con-
ditions of peace as the victor pleases.
Similarly, the US Department of Defense explained the United States'
decision not to declare war on North Vietnam on the grounds that:
35. Sec Greenwood, "The Relationship between ius ad bellum and ius in bello" (1983)
9Rev.Int.Stud. 221.
36. See e.g. the statement by the representative of Vietnam at the Geneva Conference
on Humanitarian Law 1974; Official Records, Vol.IV, p. 180.
37. Para.5 of the Preamble (1977) XVI I.L.M. 1391.
38. E. Lauterpacht, op. at. supra n.2, at p.63. See also H. Lauterpacht, "The Limits of
the Operation of the Law of War" (1953) 30 B.Y.I.L. 206; Greenwood, op. at. supra
n.35.
39. E. Lauterpacht, idem, p.64.
40. H. Lauterpacht, Oppenheim's International Law (7th ed., 1952), Vol.II, p.202.
To declare war would add a new psychological element to the inter-
national situation, since in this century declarations of war have come to
imply dedication to the total destruction of the enemy.41
Lauterpacht accepts that a conflict might reach a scale at which the
State acting in self-defence would be justified in taking measures which
resemble the exercise of traditional belligerent rights. He suggests, how-
ever, that:
. . . it would seem to be much more in accordance with principle that the
right of the defending State to require non-participants to accept some
limitation of their rights should rest, not upon so technical a concept as a
"state of war", whether established by declaration or otherwise, but
rather upon the obligation of Members of the United Nations to accept
some qualification of their legal position of impartiality in relation to the
State which is not the wrongdoer.42
B. War in State Practice since 1945

At first sight, state practice tends to support the thesis that war as a legal
condition is incompatible with the Charter. A number of States have
expressly adopted this view in statements to the Security Council.43
Moreover, few of the conflicts since 1945 have been characterised as
war, either by the States involved or by third parties. Nevertheless,
there is evidence that many States still regard the creation of a state of
war as a legal possibility.
1. The Middle East conflict

The Arab States, with the exception since 1979 of Egypt, have con-
sistently maintained that a state of war existed between themselves and
Israel.44 It was on this basis that Egypt maintained its claim to exercise
belligerent rights notwithstanding the Security Council Resolution of
1 September 1951 regarding freedom of passage through the Suez
41. (1966) V I.L.M. 791-792.
42. E. Lauterpacht, op. at. supra n.2, at p.65.
43. Sec text, section II.A.
44. Professor Shabtai Rosenne has described the attitude of the Arab States in the fol-
lowing terms: "There is no formal declaration of war by the Arab States, it is true. A for-
mal declaration of war in the sense of the Third Hague Convention of 1907 would
naturally have meant the recognition of Israel, something which the Arab States to this
day have consistently avoided. But in lieu of the polite diplomatic communications cus-
tomary even during World War II, there is a series of quite unambiguous statements made
to different organs of the United Nations, and these statements were accompanied by
quite unambiguous actions. The Arab States have, each in its own way, made clear that
they regard themselves as being at war, in a state of belligerency with Israel." ((1968) Law
and Contemporary Problems 44). The Egyptian courts took the view that the 1948-1949
hostilities had created a state of war between Egypt and Israel. See e.g. The Fjeld (1950)
17 I.L.R. 345 (Prize Court, Alexandria). See also the decision of the House of Lords in
Arab Bank Ltd v. Barclays Bank Ltd [1954] A.C. 495.
Canal.45 Egypt advanced the same argument to justify the closure of the
Straits of Tiran to shipping bound to or from Israel in 1967. The Egyp-
tian representative told the Security Council:
. . . since the Gulf of Aqaba has only three legitimate littoral States,
namely Saudi Arabia, Jordan and the United Arab Republic, all of which
are in a state of war with Israel, the three legitimate littoral States on the
Gulf of Aqaba have arightrecognised by international law to ban the ves-
sels of an enemy.46
The economic boycott of Israel by the Arab States was also based on
the assumption that they were at war with Israel. The letter sent by the
Arab League Central Office for the Boycott of Israel to companies sus-
pected of having dealings with Israel included a statement that "the
Arab countries are still in a state of war with Israel".47 Moreover, the
maintenance of this state of war was perceived by many international
lawyers in the Arab world as implying exactly that commitment to the
total overthrow of an enemy which the US Department of Defense iden-
tified as a feature of declarations of war in the late twentieth century.48
The significance of the state of war for the Arab States was described by
a seminar of Arab jurists in the following terms:
. . . the state of war . . . constitutes a fundamental refusal on the part of
the Arab States to recognise any right on the part of Israel to create a
State.49
As we have seen Israel initially took the view that even if a state of
war had come into existence in 1948 ,x it had been terminated by the
armistice agreements concluded between Israel and the four main Arab
protagonists in 1949.51 Before the Security Council Israel contended
45. In The Lea Lott (1959) 281.L.R. 652, the Prize Court of the United Arab Republic
said: "The state of war between the UAR and the Zionists who occupy Palestine still
legally exists: the armistice signed by the two parties on 24 February 1949 did not put an
end to the state of war." See also The Inge Toft (1960) 311.L.R 509. Egypt's position was
endorsed by Lebanon in a detailed memorandum to the Security Council in 1956 (UNDoc.
S/3683).
46. S.C.O.R., 1343rd Mtg., 29 May 1967, para.80.
47. Lowenfeld, International Economic Law (1977), Vol.3, p.464.
48. See the statement on the Vietnam conflict in the text accompanying n.41 supra.
49. Report of a Seminar of Arab Jurists (1967), p. 100.
50. The government of Israel did not accept that a state of war had existed. The Israeli
courts took the view that a state of war had existed in 1948-1949 but that it had been termi-
nated by the 1949 armistice agreements. See e.g. Diab v. Attorney-General of Israel (1953)
19 I.L.R. 550 (Supreme Court of Israel) and Yudsin v. Estate ofShanti (1953) 19 I.L.R.
555 (Tel Aviv District Court).
51. Egypt-Israel armistice, 42 U.N.T.S. 251; Israel-Jordan armistice, 42 U.N.T.S. 303;
Israel-Lebanon armistice, 42 U.N.T.S 287; Israel-Syria armistice, 42 U.N.T.S 327. For an
argument to the effect that the agreements ended the state of war, see Stone, Legal Con-
trols of Armed Conflict (1958), p.644. For a contrary argument, see Levie, "The Nature
and Scope of the Armistice Agreement" (1956) 50 A.J.I.L. 880; and Baxter (1976-1) 149
Hague Rec. 353.
that the maintenance of a state of war after the armistice was incompat-
ible with the Charter.52 However, in more recent years, the government
of Israel appears to have modified its position. In 1979 Israel and Egypt
concluded a peace treaty in the classical form. Article 1(1) of that treaty
provided:
The state of war between the parties will be terminated and peace will be
established between them upon the exchange of instruments of ratifica-
tion of this treaty.53
The unratified agreement between Israel and the Lebanon also provided
for the termination of the state of war between the two countries, albeit
in somewhat ambiguous terms. Article 1(2) of the agreement stated:
The Parties confirm that the state of war between Israel and Lebanon has
been terminated and no longer exists.54
No mention is made of when or how this event occurred.
In addition, Security Council Resolution 242 lists as one of the
requirements for a just and lasting peace in the Middle East the "termi-
nation of all claims or states of belligerency". While this provision does
not amount to recognition by the Security Council that a state of war
existed, it is at least as significant as the 1951 resolution already men-
tioned35 in revealing attitudes to the continued existence of war as a
legal condition.56
2. 1965 hostilities between India and Pakistan

The 1965 conflict between India and Pakistan has sometimes been
characterised as war. In a radio broadcast during the conflict, the Presi-
dent of Pakistan described the conflict as war, and Pakistan established
a prize court which operated on the basis that there was a formal state of
war.57 India, on the other hand, denied that the two States were at war.
Diplomatic relations were not broken off and the Tashkent Declaration
of 1966, by which the dispute was settled, makes no reference to war.58
The status of the conflict was considered by Professor Pierre Lalive
52. See text accompanying n.26.

53. Treaty of Peace between the Arab Republic of Egypt and the State of Israel (1979)
XVIII I.L.M. 362.
54. Agreement between the government of the State of Israel and the government of
the Republic of Lebanon (1983) XXII I.L.M. 708.
56. It suggests that the 1951 resolution should be interpreted on the narrower basis,
namely that the adoption of belligerent measures against shipping was unlawful because
no active hostilities were then taking place, rather than on the broader basis that any state
of war was incompatible with the Charter.
57. See Government of Pakistan v. R.S.N. and Others 401.L.R. 472, and the discussion
in McNair and Watts, op. cit. supra n.l, at p.457.
58. 560 U.N.T.S. 39; (1966) V I.L.M. 320.
sitting as a sole arbitrator appointed by the International Chamber of
Commerce, in Dalmia Cement Ltd v. National Bank of Pakistan.59 Pro-
fessor Lalive rejected the argument that "a state of war cannot exist
between members of the United Nations"60 but held that the obligation
of member States under the UN Charter gave rise to a presumption that
a State did not intend to create a state of war, even when it resorted to
armed force, in the absence of clear indications to the contrary. Apply-
ing that test, Professor Lalive found that no state of war had come into
existence. He considered the evidence that Pakistan had intended to
treat the conflict as war to be insufficient. In particular, he declined to
regard the President's radio broadcast as decisive on the ground that the
references to "war" in that broadcast should not be interpreted as refer-
ences to war in a technical or legal sense.61 Professor Lalive also found
that the conflict lacked the essentially unlimited nature and purposes
characteristic of war.62 The award is, however, based on the assumption
that it remains legally possible to create a state of war.
3. The Falklands conflict

Indications that the creation of a state of war is still a possibility can
also be found in some of the statements made by the UK government
regarding the Falklands conflict. Although the UK always denied that it
was at war with Argentina, the possibility that the conflict might develop
into war was clearly recognised. In a letter to George Foulkes MP, the
Lord President of the Council, the Rt Hon. John Biffen MP wrote that:
. . . we do not consider that there exists a state of war between this
country and Argentina. However, should Argentina formally declare war
against the 63
United Kingdom, an immediate statement would be made to
Parliament.
4. The Iran-Iraq conflict

There are strong indications that the conflict between Iran and Iraq is
viewed as war. The Ambassador of Iraq to the UK has stated that:
So far Iraq has not declared officially a state of war with Iran, but actual
59. 67I.L.R. 611.

60. Idem, p.619.
61. Idem, p.618. The arbitrator relied upon the following passage from McNair and
Watts, op. til. supra n.l, at p.8: "So serious a matter as the existence of a state of war is
not lightly to be implied. Furthermore, where leading political figures of a country
engaged in hostilities refer to their country being 'at war', caution must be exercised
before concluding therefrom that a state of war exists in any legal sense, since such refer-
ences may prove to be more of emotional and political significance than legal."
62. 671.L.R. 611, 621-622. See also text, section n.A.
63. Marston (Ed.), "United Kingdom Materials in International Law" (1982) 53
B.Y.I.L 519-520.
state of war docs exist even though diplomatic representation continues
between the two countries.64
Both Iran and Iraq have claimed belligerent rights with regard to ship-
ping in the Gulf and the UK government has stated that "we are neutral
in the war between Iran and Iraq".65
These examples of State practice suggest that many States still regard
the creation of state of war as a possibility and thus, presumably, accept
that war continues to exist as a legal institution. It therefore becomes
necessary to examine whether the creation of a state of war still has any
legal significance. What legal consequences, if any, follow from charac-
terising a conflict as war?
III. THE SIGNIFICANCE OF THE STATE OF WAR
IT must be conceded at the outset that characterising a conflict as war

has considerable factual significance. As we have seen, for a State to
treat a conflict as war has come to imply a commitment to very extensive
war aims.66 In addition, a State's decision to treat a particular conflict as
war may have important consequences in municipal law. However, it is
important to realise that the meaning of "war" in a particular municipal
legal system may be very different from the definition of war in inter-
national law. Moreover, the courts of a country often adopt different
definitions of war for different purposes of domestic law. Thus, the US
courts took the view that the conflict in Vietnam was to be treated as
"war" for certain purposes but not others.67
This article is concerned solely with the legal significance within the
international legal order of treating a particular conflict as war. As has
been seen,68 creating a state of war once had the following effects in
international law:
(a) the conduct of hostilities between the belligerents became sub-
ject to the laws of war;
64. The passage quoted was described as the "official reply" to a letter from the present
writer inquiring whether Iraq regarded itself as being in a state of war with Iran. A similar
letter to the government of Iran elicited no response.
65. Marston, op. cit. supra n.63, at p.559.
66. See text, section H.A.
67. Compare e.g. Broussard v. Pattern, 466 F.2d 816, (1972) 541.L.R. 527, in which the
US Court of Appeals, 9th Circuit, held the conflict was "war" for the purposes of a pro-
vision in the Uniform Code of Military Justice regarding the prosecution of deserters, with
Robb v. US, 456 F.2d 768, (1972) 601.L.R. 652, in which the Court of Claimi decided that
the conflict was not "war" for the purposes of another provision in the Uniform Code of
Military Justice which gave courts-martial jurisdiction in time of war over civilian
employees of US forces.
(b) non-hostile relations (e.g. trade, diplomatic, treaty relations)
between the belligerents were suspended or terminated;
(c) relations between the belligerents and third States became
subject to the laws of neutrality;
(d) the obligations of the belligerents to the international com-
munity as a whole, e.g. under the Pact of Paris, were affected.
We will now consider the extent to which it may be significant in any
of these areas that a particular conflict is treated as war.
A. The Laws of War

So far as the operation of the laws of war is concerned it makes little, if
any, difference whether or not a conflict is characterised as war. The
Geneva Conventions of 1949 apply:
. . . to all cases of declared war or of any other armed conflict which may
arise between two or more of the High Contracting Parties, even if the
state of war is not recognised by one of them.69
The final phrase was apparently intended to include a case where state
of war was not recognised by any of the parties,70 and it has been inter-
preted in that sense by the parties. The earlier Hague Conventions are
stated to apply only in time of war but in practice the rules which they
contain are treated as applicable in an international armed conflict,
whether or not that conflict is regarded as a war.71
It follows that the conduct of hostilities between States will be gov-
erned by the same body of rules regardless of whether those hostilities
are characterised as war. A declaration of war is significant, in this con-
text, only in the sense that it will bring into operation the Geneva Con-
ventions even if there are no actual hostilities and thus no armed
conflict. If, therefore, one State declares war upon another and no fight-
ing takes place between them, the Geneva Convention Relative to the
Protection of Civilian Persons in Time of War will apply if either State
interns the other's nationals.72
It has also been suggested73 that some of the rules regarding economic
69. Art.2, common to all four conventions.

70. Pktet (Ed.), Commentary to the Fourth Geneva Convention (1958), p.21; H. Lau-
terpacht, op. cit. supra n.40, at p.369, n.6.
71. See e.g. British Manual of Military Law, Part III (1958), para.7; US Field Manual,
FM 27-10 (1956), para.9. Israel has accepted the applicability of the provisions of the
Hague Rules on Land Warfare to its occupation of territories taken in 1967, notwithstand-
ing its denial of the existence of a state of war; Cohen, Human Rights in the Israeli-Occu-
pied Territories (1986), p.43.
72. Schindler (1979-H) 163 Hague Rec. 117, 132.
73. Partsch, op. at. supra n.3; Zemanek, in Max Planck Encyclopaedia of Public Inter-
national Law, p. 158.
warfare may be applicable only if a conflict is characterised as war. The
most important questions have arisen in the context of economic
measures which affect nationals of third States and are discussed
below.74 So far as economic measures taken by one party to an armed
conflict against the other party are concerned, there is little evidence in
state practice to support the view that such measures are lawful only if
the conflict is characterised as war. In many of the international conflicts
since 1965, the parties have adopted economic sanctions against one
another without any reference to war.73 In addition, economic sanctions
are frequently adopted in disputes which have not yet reached the stage
of resort to force. McNair and Watts say of economic measures such as
sequestration and "freezing" of assets:
The lawfulness of adopting such measures in peacetime is perhaps still not
clearly established, but, for example, if their imposition can properly be
regarded as satisfying the conditions for reprisals it would seem difficult to
deny that their adoption is in accordance with international law.76
Since this passage was written the use of economic sanctions outside the
context of war, or any form of hostilities, has become still more wide-
spread.77
B. Non-Hostile Relations between the Combatant States

The traditional view was that the outbreak of war automatically led to
the severance of diplomatic, commercial and, most important from the
lawyer's point of view, treaty relations between the belligerents.78
Armed conflict falling short of war did not have such a dramatic effect.
It was therefore open to argument at one time that characterising hosti-
lities as war rather than armed conflict was significant in that it led to the
abrogation or suspension of treaties and other non-hostile relations
between the parties.
However, the notion that war terminated or suspended most treaties
between the belligerents was contested even in the earlier part of this
century, and it is certainly not accepted today.79 The Institut de Droit
International has recently adopted a resolution regarding the effect of
armed conflict upon treaties,80 which draws no sharp distinction
74. Sec text, section Ul.C, infra.

75. See e.g. the measures taken by the UK during the Falkland} conflict.
76. Op. at. supra n.l, at p.22.
77. See e.g. the US-France Air Services Arbitration (1978) 54 I.L.R. 303. For a general
discussion, see Zoller, Peacetime Unilateral Remedies (1985).
78. See H. Lauterpacht, op. at. supra n.40, at p.302; McNair, The Effect of War upon
Treaties (1943).
79. H. Lauterpacht, ibid.
80. Resolution adopted at the Helsinki session, 1985.
between war and other forms of armed conflict. It adopts the position
that the outbreak of either kind of hostilities will lead to the suspension
of a treaty only if the parties so intended or if the maintenance of peace-
ful relations was essential to the treaty.
This is the better view today. Characterising a conflict as war has no
special legal significance in relation to the termination or suspension of
treaties. What it does have is a certain factual significance. The decision
of one of the parties to a conflict to treat it as war tends to imply that the
conflict is on a large scale or at least that that party's "war aims" are
extensive. Such conflict would be more likely to frustrate the operation
of a treaty than would lesser hostilities. Similarly, in so far as the effect
of an armed conflict upon a treaty depends, as the Institut resolution
suggests, upon the intentions of the parties to that treaty, it is more
likely that those parties will be taken to have intended that a large-scale
conflict will disrupt the operation of the treaty. This effect, however, is
not automatic but results from the intentions of the parties and stems
not from the creation of a legal state of war but from the scale of the
hostilities.
In the same way, war is more likely to be accompanied by a rupture of
diplomatic and commercial relations, because a conflict which is treated
as war is more likely to be on a large scale. Even so, there appears to be
no rule of international law which precludes belligerents from trading
with one another and such behaviour was commonplace at one time.81 It
is simply that States whose relations have deteriorated to the point
where at least one of them maintains that it is in a state of war are
unlikely to wish to maintain relations the severance of which is a more
common and less serious step than resort to war.82
C. The Law of Neutrality

It is in the operation of the law of neutrality that the most important
legal consequences may flow from the decision that a particular conflict
constitutes a war. There is considerable support, both in State practice
and in the literature, for the view that:
Unlike the law governing the mutual behaviour of combatants, a large
part of which may be considered operative in any international armed
conflict, the rules regulating the behaviour of neutrals and belligerents
81. E.g. during the Napoleonic wars. Even diplomatic relations of a kind could be
maintained if the parties so desired, H. Lauterpacht, op. at. supra n.40, at p.301.
82. In Dalmia Cement Ltd v. National Bank of Pakistan 67 I.L.R. 610, 623-625, the
arbitrator held that the maintenance of diplomatic and other relations between India and
Pakistan was evidence that the parties did not intend to create a state of war.
remain strictly dependent for their operation upon the existence of a state
of war.83
Attempts to exercise belligerent rights under the law of neutrality in
conflicts falling short of war have generally met with widespread inter-
national resistance, although it appears to be accepted that a State not
participating in the hostilities may voluntarily assume the status of a
neutral.84
It has also been argued that even in a war the law of neutrality is inap-
plicable today, because States have a right, if not a duty, to discriminate
between the aggressor and the victim in a conflict. Those writers who
maintain that war has ceased to exist as a legal institution necessarily
also reject the legal status of belligerent and neutral to which the institu-
tion of war gave rise.85 However, even writers like Sir Hersch Lauter-
pacht, who thought that a state of war could still exist, asserted that non-
participants in a conflict were entitled to adopt a stance of "qualified
neutrality" on the ground that "the historic foundation of neutrality as
an attitude of absolute impartiality has disappeared with the renunci-
ation and the abolition of war as an instrument of national policy".86
Whether a combatant State is entitled to take action against a non-com-
batant State would depend upon whether such conduct could be justi-
fied as a reasonable measure of self-defence, not by reference to
traditional notions of belligerent rights.
There is some support for this view in the practice of States, most
notably that of the US in the period 1939-1941." There is also clear
force in the argument that a State has a duty not to remain impartial in a
conflict where the Security Council has branded one party the aggressor
and taken action against it (although even in the Korean conflict some
States elected to remain neutral). Since 1945, the practice of many non-
participants in the Middle East war shows a strong reluctance, if not an
outright refusal, to accept that States are bound by laws of neutrality
unless they choose to be so bound.88 On the other hand, there have
83. Tucker, The Law of War and Neutrality at Sea (1955), pp.199-200. To the same
effect, see Scfaindler, op. cit. supra n.3, at p.5; Castren, The Present Law of War and Neu-
trality (1954), pp.34-35; Kotzsch, The Concept of War in Contemporary History and Inter-
national Law (1956), p.60; H. Lauterpacht, op. cit. supra n.40, at p.655; and Bindschedler
in Max Planck Encyclopaedia of International Law (1982), Vol.IV, p.9.
84. See the reaction to French claims in the Algerian conflict, Schindler, op. cit. supra
n.3, at p. 10. See also O'ConneU, "International Law and Contemporary Naval Oper-
ations" (1970) 44 B.Y.I.L. 19 and The Law of the Sea (1984), Vol.11, p.1094 etseq.
85. See e.g. E. Lauterpacht, op. cit. supra, n.2.
86. H. Lauterpacht, op. cit. supra n.40, at p.221.
87. Idem, p.637 etseq.
88. See Schindler, op. cit. supra n.3, at p.14; Norton, "Between the Ideology and the
ReaHty: the Shadow of the Law of Neutrality" (1976) 17 HarvJ.I.L. 249, 257-262; Shi-
hata, "Destination Embargo of Arab Oil: Its Legality under International Law" (1974) 68
AJ.I.L591,614«M<7.
been numerous references to neutrality in the Middle East, the Gulf
conflict and the Indo-Pakistan conflict.89 The law of neutrality continues
to figure in manuals of military law.90 Moreover, a number of States
appear still to take the view that the creation of a state of war automati-
cally subjects them to the law of neutrality unless they choose to become
belligerents.91
In the light of this practice, ambivalent as it is, it is suggested that neu-
trality should not be regarded as obsolete. First, there have been numer-
ous cases in which States have elected to be treated as neutrals and have
thus voluntarily subjected their relations with the combatant States to
the law of neutrality.92 Except in the unlikely event that the Security
Council has authoritatively identified the aggressor in a conflict and
adopted measures against that State, there appears to be no reason why
a State which does not wish to become involved in the hostilities should
not choose the status of neutrality with the rights and duties which that
implies. While the victim of aggression in such a conflict is entitled to
take reasonable measures by way of self-defence even against States not
involved in the hostilities, it is very unlikely that the principles of self-
defence would ever justify measures more extensive than those permit-
ted a belligerent by the law of neutrality. The decision of the non-parti-
cipating State to proclaim itself neutral would not, therefore, involve
any restriction of the victim State's rights.
Second, whether or not non-participants have proclaimed themselves
neutral in a conflict, the law of neutrality may be useful in setting an
upper limit to the rights of the combatants. Since, as has just been sug-
gested, self-defence is unlikely to justify measures which go beyond the
traditional belligerent rights, if a State engaged in a conflict takes action
against, for example, shippingflyingthe flag of a non-participating State
and that action would be unlawful under the law of neutrality, it is
almost certainly an unlawful threat or use of force under the principles
in the UN Charter, whether or not the State concerned is the aggressor
in the conflict. In this way it will be possible to adjudge the legality of
this kind of interference with neutral shipping without having to make a
judgment about which State was the aggressor.
It is likely that, in these ways, the law of neutrality will grow in
89. See the works cited supra n.88.

90. See e.g. British Manual of Military Law, Part III (1958), Ch.XV; US Field Manual,
FM 27-10 (1956), Ch.9.
91. This view was apparently taken by some States which were prepared to offer facili-
ties to the UK during the Falkland* conflict, provided that the conflict did not become a
war.
92. E.g. Ceylon in the 1965 Indo-Pakistan conflict; Schindler, op. at. supra n.3, at
p. 15; Norton, op. at. supra n.88, atp.262. For other examples see the remainder of these
two articles.
importance in the near future. Problems of neutrality have always been
most acute and most difficult to avoid in maritime conflicts. The Falk-
land's conflict and the Gulf war, the most significant maritime conflicts
since 1945, may well prove to be the forerunners of a new age of con-
flicts in which naval power will play a more prominent role. In addition,
the growing willingness of States to resort to force, coupled with the
inability of the Security Council to identify the aggressor in a conflict,
suggests that there are likely to be more conflicts in the future in which
there will be real difficulty in determining which party is the aggressor
and in which States will wish to adopt a position of impartiality. If that is
the case, the law of neutrality still provides the only body of rules suf-
ficiently precise and detailed to regulate such matters as rights to inter-
cept shipping. The casualties amongst "neutral" shipping in the Gulf
conflict illustrate the need for a detailed body of rules on this subject
and the inadequacy of attempts to deal with such matters simply by
reference to the broad principles of self-defence.
Whether a State which does not wish to participate in hostilities
should be regarded as bound by the obligations of neutrality even if it
does not make a choice to that effect is another matter. Although there
is force in the suggestion that:
The sensible rule ought to be that by the very existence of armed conflict,
non-participants in the conflict should be considered neutral, with the tra-
ditional rights and obligations of neutrality coming into play . . . OT
there is little support in State practice or in the literature for the view
that a non-participating State can have the status of neutral foist upon it
unless the conflict amounts to war.94 However, to say that the unilateral
decision of one of the parties to a conflict to treat that conflict as war can
still have the effect of imposing the obligations of neutrality upon non-
participating States seems contrary to principle. That is particularly the
case if that decision is made by the party whose resort to force is wrong-
ful.
For that reason, some writers have suggested that even though the
law of neutrality will only automatically bind non-participating States if
the conflict has the status of war, the views of the parties to the conflict
regarding the status of the hostilities should not be regarded as conclu-
sive.93 If that is the case, it then becomes necessary to decide how one
determines whether or not the conflict has the status of war. It has
already been suggested that, even before 1945, there was no consensus
93. Salans (then Deputy Legal Adviser at the US Department of State), (1968) 62
Proc.Am.Soc.Int. Law 75, 76.
94. See the references supra n.83.
95. Brownlie, op. dt. supra n.7, at pp.396, 400-401.
96
regarding an objective definition of war. It is even less likely that
agreement could be reached on an objective definition today. Neither is
there any realistic prospect that the Security Council or another inter-
national body will provide an authoritative determination of whether a
particular conflict constitutes a war. That leaves the possibility that it is
for each non-participating State to determine whether the conflict has
attained the level of a war, so that it is the characterisation of the con-
flict by the "neutrals" rather than the "belligerents" which is decisive.
However, that is not very different from saying that a State is bound by
the law of neutrality only if it chooses to declare itself neutral, except
that it suggests the decision may not be purely discretionary.
Even in relation to the law of neutrality, therefore, the characterisa-
tion of a conflict as war by one of the parties has few, if any, legal conse-
quences. The law of neutrality is brought into operation by the acts of
the neutral States, not the belligerents. While a declaration of war may
lead other States to proclaim themselves neutral, it does not, as it used
to do, oblige them to choose between neutrality and belligerency. The
"state of war" is relevant only in that a non-participant in a conflict may
couch its election to be bound by the laws of neutrality in terms of a
statement that it regards the conflict as "war". It must be admitted,
however, that the position is far from clear. Many writers refer to the
law of neutrality as automatically applicable in war, without discussing
which State should determine whether the conflict has the status of war.
The result is that the belief lingers that a declaration of war by one of the
belligerents obliges other States to apply the laws of neutrality. There is,
therefore, room for doubt regarding the significance of war in this area
of the law.
D. The Prohibition on the Use of Force

Whereas the Covenant of the League of Nations and the Pact of Paris
restricted the right of recourse to war, Article 2(4) of the UN Charter
forbids States to employ:
. . . the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
purposes of the United Nations.
There is, therefore, no room for the argument that a State which resorts
to force without creating a state of war does not violate the Charter. For
the purpose of applying Article 2(4), it is unnecessary to consider
whether a conflict amounts to war. Manifestly a State which resorts to
force in violation of Article 2(4) cannot legitimise its actions by
96. See text, section I supra.
declaring war. Similarly, a State which uses force in response to an
armed attack and thus seeks to justify its actions as self-defence cannot
enlarge its rights by characterising the conflict as war. The right of self-
defence permits only the employment of such force as is reasonably
necessary. This limitation will apply whether or not the State which is
acting defensively regards itself as being in a state of war. It would be a
strange legal system indeed which, in a matter as fundamental as the use
of force, permitted its subjects to vary their obligations to the com-
munity as a whole by the unilateral act of declaring war.
That is not to say that the act of declaring war is of no significance in
relation to the application of Article 2(4) of the Charter. Since a declar-
ation of war implies a threat of force, it will generally be a violation of
the prohibition in Article 2(4) even if unaccompanied by any actual vio-
lence. The only possible exception would be if the declaration of war
could be regarded as a legitimate measure of self-defence. Except, per-
haps, in the context of global conflict, it is difficult to see how this could
be so. A declaration of war cannot permit the State making it to take
any measures against its opponent which it could not have taken
anyway. Moreover, since declarations of war have come to imply a com-
mitment to objectives which go beyond the normal scope of self-
defence,97 such a declaration would appear to be a threat to go beyond
the limits permitted by Article 51. The only justification for a declar-
ation of war by a State acting in self-defence would be the necessity of
bringing into operation the law of neutrality and a declaration of war
should not be regarded as having this effect anyway.
Statements by one of the parties to a conflict that it regards itself as
being at war may however be significant as evidence of a hostile intent.
As Professor Brownlie has said, "acts which would otherwise have been
equivocal may be treated as offensive"98 if the State which perpetrates
them considers itself to be in a state of war. This evidence of hostile
intent would be relevant in considering what would amount to a legit-
imate reaction in self-defence. In particular, it is suggested that it would
be relevant in assessing any claim based on notions of anticipatory self-
defence.
That was the approach adopted by Israel in defence of its action
against Iraq's nuclear reactor. Israel maintained that the building of the
nuclear reactor had to be seen in the light of repeated statements by Iraq
that it was at war with Israel, with the result that the building of the
reactor could be presumed to be hostile.99 This argument was materially
different from that advanced by Egypt in the 1951 Suez Canal debate.
97. See text accompanying nn.40-42.

98. Brownlie, op. cit. supra n.7, at p.368.
99. S/PV 2280,12 June 1981; (1981) XX I.L.M. 971 and 989.
APRIL 1987] War in Modem International Law 303
Egypt had then argued that because of the state of war with Israel, it was
automatically entitled to exercise all the rights of a belligerent.100 This
approach is incompatible with the Charter, because Egypt could only
have derived the right to take the measures it did from the principles of
self-defence and there was no necessity to adopt such measures in 1951.
The Israeli argument in the Iraqi reactor debates was based not upon
the notion of rights created de jure by the mere existence of a state of
war but on the theory that Iraq's contention that it was at war rendered
an otherwise ambiguous action hostile and thus triggered Israel's right
of self-defence. This argument was rejected by the Security Council on
the facts of the reactor dispute101 but the basic argument, it is suggested,
was right in principle even if its application by Israel was open to ques-
tion in that case.
This approach would be particularly significant in assessing the rights
of States to respond to a series of "pin-prick" attacks. As Professor
Bowett has pointed out, when a State uses regular armed forces in
response to a series of guerrilla attacks, it is often difficult to distinguish
between self-defence and reprisals.102 Where the guerrilla attacks ema-
nate from a country which maintains it is in a state of war, it is not
unreasonable to treat such acts as part of a sequence which will almost
certainly be continued. Seen in that light, such acts would constitute an
armed attack which the victim State would be entitled to meet with
force.
These suggested consequences of a declaration of war are factual,
rather than legal, in the sense that they flow not from the existence of
war as a legal institution but rather from the fact that a declaration
of war is such a hostile action. Other threatening statements falling short
of the assertion of a state of war ought logically to have a similar effect.
It is likely, however, that special attention would be paid to a declar-
ation of war, or other assertion that a State was at war, because of the
rarity of such statements and the connotations they have come to pos-
sess.
IV. CONCLUSION
THE picture which emerges from any study of the concept of war in
modern international law is one of confusion. War is certainly not the
omnibus legal concept it once was. The creation of a state of war no
longer triggers the operation of all the different bodies of rules which
100. See text accompanying nn.25-29.

101. Any threat to Israel from the reactor was considered too remote in point of time
from the date of the attack.
102. (1972) 66 A.J.I.L. 1.
used to apply only in wartime. For the purpose of bringing into oper-
ation the rules regulating the conduct of hostilities, it no longer matters
whether those hostilities are characterised as war. It is the factual con-
cept of armed conflict rather than the technical concept of war which
makes those rules applicable. It is far more significant to determine
whether a particular conflict is an international armed conflict, an inter-
nal conflict or a "war of national liberation"103 than to ask whether that
conflict has the formal status of war. So far has war been superseded in
this respect that the definition of armed conflict, hitherto rooted firmly
in fact, is beginning to take on some of the technical features once
associated with war. Thus, the UK has repeatedly sought from Argen-
tina a formal declaration that the Falklands conflict has ended, suggest-
ing that a state of armed conflict, like a state of war, can survive after the
end of active hostilities. Similarly, the decision, embodied in Article
1(4) of Protocol I to the Geneva Convention, 1977, that conflicts
between national liberation movements and alien regimes should be
treated as international conflicts, has prompted argument about the
definition of armed conflict which may well have repercussions for con-
flicts between States.104
The characterisation of a conflict as war also appears to make no dif-
ference to the rules of law regulating economic measures and non-hos-
tile relations between the parties to the conflict. Neither can it have any
direct effect upon the rights and duties of States under Articles 2(4) and
51 of the Charter. Only in the context of the law of neutrality is much
real importance still attached by States and jurists to whether a particu-
lar conflict is characterised as war and even here it is probably wrong to
attribute such significance to any characterisation made by the parties to
the conflict. In the sphere of municipal law, where war retains an
element of legal significance, the definition of war has become frag-
mented, so that there are frequently different meanings or different pur-
poses, none of which bears much resemblance to any concept of war
which might still exist in international law.
103. Internal conflicts are regulated only by the provisions of common Art.3 of the
Geneva Conventions and, for tome States, Protocol II to those Conventions. Protocol I,
1977, treats wars of national liberation as international conflicts but it is thought there
would still be differences in the application of many of the rules.
104. See e.g. the declaration made by the UK representative, on signing the Protocols,
that "the term 'armed conflict' of itself and in its context implies a certain level of intensity
of military operations which must be present before the Conventions or the Protocol are to
apply to any given situation . . . " Roberts and Guelff, Documents on the Laws of War
(1982), pp.461-462. The UK appears to have been concerned that the threshold for
application of Protocol I to liberation conflicts should not be lower than the threshold for
application of the more restricted provisions of Protocol II to internal conflicts but it is
possible to envisage this declaration being invoked in the context of a conflict between two
States.
It is doubtful, therefore, whether it is still meaningful to talk of war as
a legal concept or institution at all. If no direct legal consequences flow
from the creation of a state of war, the state of war has become an
empty shell which international law has already discarded in all but
name. There is nothing disturbing in this conclusion. The argument that
war as a legal institution is incompatible with the principles embodied in
the Charter is difficult to refute. The main objections to this argument
centre on the supposed desirability of preserving various bodies of rules
(such as the law of neutrality) hitherto associated with the state of war.
However, what matters is the preservation of those rules, not of the
state of war. Such is the confusion surrounding the whole notion of war
and the political controversy attaching to any proclamation of war, that
it is probably more satisfactory to identify the factual situation in which
those bodies of rules will apply without any reference to a technical con-
dition of war. Even in its heyday, the state of war was never more than a
grudging concession by international lawyers to the practical necessity
of regulating a condition which they regretted but treated as inevitable.
As Sir Hersch Lauterpacht put it:
War is a fact recognised, and with regard to many points regulated, but
not established by international law.10*
Once the necessity for recognition of the institution of war has disap-
peared, there is no reason why the institution cannot be discarded.
Yet if war appears to have lost almost all its legal significance, there is
nevertheless a substantial body of practice suggesting that States still
regard the creation of a state of war as a possibility. To dismiss all the
references to war in State practice as statements made, for political
rather than legal, effect or as being based on a misunderstanding of the
law is a mistake. The continued acceptance by States that war can exist
as a legal institution should not be dismissed so lightly. In particular,
while it may be illogical that the application of the law of neutrality
should depend on whether a particular conflict is properly characterised
as war, if enough States act on that basis it is arguable that their practice
represents the present state of international law. At the very least,
therefore, there must be room for doubt whether war does not retain
some significance as a legal institution in the sphere of neutrality.
In addition, the assertion by one of the parties to a conflict that it is in
a state of war retains considerable factual and political significance as an
indication of the scope of the conflict and the intentions of that party.
That in turn may have a bearing on the exercise of the right of self-
defence, as suggested in the previous section. Thus, while the substance
105. H. Lauterpacht, op. at. supra D.40 at, p.202.
of the state of war has disappeared, it continues to cast its unhelpful
shadow over areas of modern international law. As the number of con-
flicts shows no sign of diminishing and as more of them have an impact
upon non-participating States, that shadow is likely to lengthen.

Christopher Greenwood, The Concept of War in Modern International Law

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Christopher Greenwood, The Concept of War in Modern International Law

Uploaded by

Copyright:

Available Formats

THE CONCEPT OF WAR IN MODERN

I. PEACE AND WAR IN INTERNATIONAL LAW PRIOR TO 1945

THE concept of war was an important feature of international law prior

II. THE STATE OF WAR SINCE 1945

A. The Alleged Incompatibility of War and the UN Charter

23. Brierly, The Basis of Obligation in International Law (1955), p.230.

27. S.C.Res. S/2322 of 1 September 1951.

B. War in State Practice since 1945

1. The Middle East conflict

2. 1965 hostilities between India and Pakistan

52. See text accompanying n.26.

3. The Falklands conflict

4. The Iran-Iraq conflict

59. 67I.L.R. 611.

III. THE SIGNIFICANCE OF THE STATE OF WAR

IT must be conceded at the outset that characterising a conflict as war

A. The Laws of War

69. Art.2, common to all four conventions.

B. Non-Hostile Relations between the Combatant States

74. Sec text, section Ul.C, infra.

C. The Law of Neutrality

89. See the works cited supra n.88.

D. The Prohibition on the Use of Force

96. See text, section I supra.

97. See text accompanying nn.40-42.

100. See text accompanying nn.25-29.

105. H. Lauterpacht, op. at. supra D.40 at, p.202.

You might also like