Act of War

Act of War

The expression 'act of war' acquired a quasi-technical signifi cance primarily

by reason of the stipulation of art. 16(1) of the League of Nations Covenant that '[s]hould any Member of the League resort to war in disregard of its covenants under Articles 12,

13 or 15, it shall ipso facto be deemed to have committed an act of war (un acte de guerre)

against all other Members of the League….' By contrast, arts. 12, 13, and 15 do not speak

in terms of an 'act of war', but rather of 'resort to war' and of 'go[ing] to war'. Nevertheless

the Committee of Jurists consulted by the League Council following the Corfu Incident of

1923 was asked: 'Are measures of coercion which are not meant to constitute acts of war

consistent with the terms of Articles 12 to 15 when … taken … without prior recourse to

the procedure laid down in these Articles?' The Committee answered that '[c]oercive measures

… not intended to constitute acts of war …' might or might not be consistent with

arts. 12–15. From this it would seem to follow that an act of war is either intended by the

actor State to bring about a condition of war or, though not so intended, may be regarded

by the State against which it is directed as having done so. If a declaration of war is not 'a

mere challenge to be accepted or refused at pleasure but puts the other party also in a state

of war' ( The Eliza Ann (1813) 1 Dods. 244 at 299, per Lord Stowell), an act of war not

intended as a tacit declaration may be broadly described as being a challenge of this sort

in terms of international law as it stood before the adoption of the Charter of the United

Nations. Under Chap. VII of the Charter, collective enforcement measures to maintain or

restore international peace and security are predicated, not upon an act of war or resort

to war, but on a 'threat to the peace, breach of the peace or act of aggression': art. 39

Likewise, the right of self-defence is exercisable, not upon an act of war or resort to war,

but on an 'armed attack': art. 51.[1]

Resources

Notes

1. The entry “act of war” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press