Legal Labels, Escalation, and the Puzzle of Early Undeclared Wars

• In Event: The Historical Roots of 20th Century Global Governance

Abstract

Why do states declare legal states of war and why are these declarations avoided? The existing literature on war declarations focuses on their decline, theorizing that declarations have faded due to either the codification of international humanitarian law or changing legal norms ushered in by the UN Charter. However, both explanations overlook the large number of early undeclared wars in the 19th century. These cases present a puzzle to theories that rely on variables that did not come to fruition until the early 20th century. By focusing on these early cases of undeclared war, I recenter the debate to ask why states historically declared war in the first place. I argue that states declared war to recognize that a legal “state of war” exists, which I theorize is an example of legal labeling that states use to signal an intent to limit or escalate the conflict. The escalatory significance of these labels is derived from their understood meaning at the time and their position in a larger legal ladder of escalation. To assess this theory, I compare the undeclared naval war between the United States and France from 1798-1801 (known as the Quasi-War) and contrast it with the declared War of 1812 between the United States and Great Britain. I use process tracing to assess why war was formally declared or avoided in each case, drawing on archival evidence from key executive, congressional, and judicial actors. Finally, the paper extends insight from these cases to provide a fresh perspective on the comparative absence of declarations of war in the post-1945 period, including a brief look at how similar rationales played out in the undeclared Falklands War in 1982. This paper offers a new theory of declarations of war while contributing to existing literatures on escalation management, legalization, and rhetoric in international relations. The paper further offers a new perspective on the nature of war as a legal status and the significant material consequences it has for domestic politics, third-party states, and non-state actors.

Author

• Adam Saxton, University of Chicago