The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

PART V
THE SO-CALLED LAW OF WAR

CHAPTER XXV
THE CAUSES, CHARACTERISTICS, AND FUNDAMENTAL PRINCIPLES OF WAR

329. Definition of War. -- War, in a material sense, is a struggle or contention between States and belligerent or insurgent communities by means of organized armed forces. In a legal sense, war is the status or condition under which such a contest is carried on, and consists of the rules by which it is supposed to be regulated.1

330. War a Political Fact rather than a Legal Right .-- War is a political fact recognized and, to a certain extent, regulated by the Law of Nations; but, though the source of legal rights and duties, it is not a right in the ordinary legal sense of this term. Like intervention,2 for example, war is an exercise of sovereign or high political power -- a quality assumed to be inherent in sovereignty itself. The State which goes to war performs a political act, whether from pure political motives or as a means of self-help, presumably after all attempts to arrive at an amicable mode of settlement have failed.3

____________________
1
For various definitions of war, see 4 Calvo, § 1864; and 6 P.-Fodéré, No. 2650.

Ever since the days of Gentilis (who defined war as a "contention") and Grotius (who described it as a "condition"), authorities have differed on this point. As in the case of some other controversies of a similar nature, the truth is that both sides are in the right.

2
supra, No. 145.
3
War is not a mere means of execution or self-help, as claimed by some publicists, though a particular war may possibly have these motives. Such a claim is likely, however, to be more of a pretense than a reality. Nor is it a mode of legal procedure. As a means of execution or self-help, the remedy is entirely too dangerous and drastic; as a proper mode of procedure, it is too crude and defective. With modern facilities for settling international differences, it is seldom, if ever, that nations need have recourse to war in order to settle their controversies.

-545-

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