/AR.

ITS LEGAL CHARACTER AND EFFECTS 731

Despite the urgent need for the amendment in the laws of war, there is no likelihood
af sincere ettorts to amend them for the obvious reason that war, nay even use of force
as been prohibited under the charter for the settlement of international disputes. It is
feared, and rightly too, that if iaws of war are amended they may put the existing position
of outlawry of war to the reverse gear.
Commencement of War."-From very ancient period, there has been the practice of
qiving some sort of intormation or making some declaration or giving some ultimatum in
regard to the commencement of war. During sixteenth century there was a custom of
sending heralds to give information of the outbreak of war or otherwise declaration was
made through some mestanger, etc. This practice ended by the end of sixteenth century.
In seventeenth century, Grotius expressed the view that declaration is essential. Despite
this view, many wars took place in which no formal declaration was made. By the end of
nineteenth century, however, it was generally accepted that some sort of ultimatum or
warning was necessary before the start of war. In this twentieth century, there is no
uniformity in the practice of the States in regard to the commencement of war. In 1904
Japan started war against Russia without anyformal declaration or ultimatum. In 1907, the
Hague Convention propounded the rule that a formal declaration was necessary for the
start of war and an ultimatum should also be given before resorting to war. It was also
provided that information regarding the commencement of war should also be given to the
neutral States. But as is well known, these rules were flagrantly violated during the two
Worid Wars. Despite this in the present time it is still a valid rule of international law that
some declaration or ultimatum is necessary for the commencement of war.
Legal Regulation of War.**-Legal regulation of war was probably the most
important development of twentieth century. As pointed out by Oppenheim, "Prior to the
General Treaty for the Renunciation of war the institution of war fulfilled in International law
two contradictory purposes. In absence of an international
organ for enforcing the law,
war was a means of self-help for giving effect to claims based or alleged to be based on
International Law. Such was the legal and moral authority of this notion of war as an arm of
the law that in most cases in which war was in fact resorted to in
order to increase the
power and positions of a State at the expense of others, it was described by the States in
question as undertaken for the defence of a legal right. This conception of war was
intimately connected with the distinction which was established in the formative period of
International Law and which never became entirely extinct between and
unjust
wars.... In the absence of an International Legislature it fulfilled the function of
just
adopting the law to changed conditions. Moreover quite apart from thus supplying a crude
substitute for deficiency in international organisation,
admissible instrument for attacking and altering existing right of recognised
war was
legally
States independently of
as a

the objective merits of the attempted

change........ International Law did not consider as
illegal war hittedly waged for such purposes. It rejected, to that extent the distinction
between just and unjust wars. War was in law a natural function of the State and a
prerogative of its uncontrolled sovereignty." 13 Further, "The Hague Conferences of 1899
and 1907 and the movement or the Pacific Settlement of international disputes marked the
beginning of the attempts to limit the right of war both as an instrument of law and as a
legally recognised means for changing legal rights. At the same time more direct attempts
were made to limit the right of war." 14

In connection with the efforts made to limit the right of war or even to out-law war
tollowingdeserve special mention
(a) Hague Conventions of 1899 and 1907: (b) Covenant of the League of Nations; (c)
Treaty of Mutual Assistance, 1923; (d) Geneva Protocol of 1924; (e) Locarno Treaty of

See also tor lA.S., (1955), Q. No. 7; C.C.S. (1980), Q. 10 (a)

Seealso for 1.A.S. (1974), a. No.7; IA.S. (1959) No. 8; ILA.S. (1958), O. No. 5; LA.S. (1975), No. 5(b)
1A.S. (1961), Q. No. 9: 1A.S. (1965), Q. No. 7; P.C.S. (1982), a. No. 8: P.C.S. (1965), Q. 5-For answer
See also Chapter on "Collective Security": C.S.E. (1988), a. 8(a); C.S.E. (1990).
3. Oppenheim, note 3, at pp. 177-178: emphasis supplied.
14. Ibid, at p. 179.