Kellogg–Briand Pact

The main text is very short:[2]

Article I

The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another.

Article II

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

  Original signatories

  Subsequent adherents

  Territories of parties

  League of Nations mandates administered by parties

After negotiations, the pact was signed in Paris at the French Foreign Ministry by the representatives from Australia, Belgium, Canada, Czechoslovakia, France, Germany, Great Britain, India, the Irish Free State, Italy, Japan, New Zealand, Poland, South Africa, and the United States. It took effect on 24 July 1929.

By that date, the following nations had deposited instruments of ratification of the pact:

12 additional parties joined after that date: Persia, Greece, Honduras, Chile, Luxembourg, Danzig, Costa Rica, Mexico, Venezuela, Paraguay, Switzerland and the Dominican Republic[2] for a total of 57 states parties by 1929. Six states joined between 1930 and 1934: Haiti, Colombia, Saudi Arabia, Ecuador, Iraq and Brazil. After the Second World War, Barbados declared its accession to the treaty,[12] followed by Fiji (1973), Antigua and Barbuda, Dominica (both 1988), the Czech Republic and Slovakia (after Czechoslovakia dissolved in 1993), and, as a result of the dissolution of Yugoslavia, Slovenia (1992), Bosnia and Herzegovina and Croatia (both in 1994).[13] The Free city of Danzig, which had joined the Pact in 1929, ceased to exist in 1939 as it became a regular part of Poland after World War II.

In the United States, the Senate approved the treaty 85–1, with only Wisconsin Republican John J. Blaine voting against over concerns with British imperialism.[14] While the U.S. Senate did not add any reservations to the treaty, it did pass a measure which interpreted the treaty as not infringing upon the United States' right of self-defense and not obliging the nation to enforce it by taking action against those who violated it.[15]

• 
  French Foreign Minister Aristide Briand speaking
• 
  German Foreign Minister Gustav Stresemann signing
• 
  Canadian Secretary of State for External Affairs Mackenzie King signing

The 1928 Kellogg–Briand Pact was concluded outside the League of Nations and remains in effect.[3] One month following its conclusion, a similar agreement, General Act for the Pacific Settlement of International Disputes, was concluded in Geneva, which obliged its signatory parties to establish conciliation commissions in any case of dispute.[16] The pact's central provisions renouncing the use of war, and promoting peaceful settlement of disputes and the use of collective force to prevent aggression, were incorporated into the United Nations Charter and other treaties. Although civil wars continued, wars between established states have been rare since 1945, with a few exceptions such as the Russo-Ukrainian war and various conflicts in the Middle East.[11]

As a practical matter, the Kellogg–Briand Pact did not live up to its primary aims, but has arguably had some success. It did not end war or stop the rise of militarism, and was unable to keep the international peace in succeeding years. Its legacy remains as a statement of the idealism expressed by advocates for peace in the interwar period.[17] However, it also helped to erase the legal distinction between war and peace, because the signatories, having renounced the use of war, began to wage wars without declaring them, as in the Japanese invasion of Manchuria in 1931, the Italian invasion of Abyssinia in 1935, the Spanish Civil War in 1936, the Soviet invasion of Finland in 1939, and the German and Soviet invasions of Poland.[18]

Mockery of the Pact during the Paris Carnaval in 1929

The popular perception of the Kellogg–Briand Pact was best summarized by Eric Sevareid who, in a nationally televised series on American diplomacy between the two world wars, referred to the pact as a "worthless piece of paper".[11] In his history of Europe from 1914 to 1948, historian Ian Kershaw referred to the Pact as "vacuous" and said that it was "a dead letter from the moment it was signed."[19]

While the Pact has been ridiculed for its moralism and legalism and lack of influence on foreign policy, it did lead to a more activist American foreign policy.[11] Legal scholars Scott J. Shapiro and Oona A. Hathaway have argued that the Pact inaugurated "a new era of human history" characterized by the decline of inter-state war as a structuring dynamic of the international system. According to Shapiro and Hathaway one reason for the historical insignificance of the pact was the absence of an enforcement mechanism to compel compliance from signatories, since the pact only calls for violators to "be denied of the benefits furnished by [the] treaty". They also said that the Pact appealed to the West because it promised to secure and protect previous conquests, thus securing their place at the head of the international legal order indefinitely.

In their book, "The Internationalists," Hathaway and Shapiro explain how the Kellog-Briand Pact marked the start of the transition from the Old World Order and the New World Order. In this treaty, the signing nations expressed the wish to leave the custom of international war behind, which was the main motor for the architects of the ideas that would lead to the Pact.

These intellectuals tell us about the Old World Order, one in which states reserved the right to wage war as a legitimate method of solving problems with other states. In the West, this was the case for centuries, but a group of people whom the authors call the internationalists would undertake an enterprise to outlaw war, thus changing the world forever. From then on, there would be a tendency to reject war on the part of the States, which would stop recognizing as legal what was obtained by means of war. This would mark the beginning of the New World Order, one characterised by global trade and international institutions and treaties.

The Old World Order that preached the legality of war was based on the writings of the Dutch genius Hugo Grotius, who took the ideas of the social contract and international anarchy to conceptualize just war. In his extensive treatises, Grotius asserts that in a state of nature, individuals must be able to wage war to right wrongs done to them. However, the individual renounces this right in pursuit of belonging to a State, which monopolizes violence and is responsible both for judging who is the victim and who is the aggressor, as well as for administering the corresponding punishment. For their part, the States, which coexist with each other in a state of anarchy, have no higher authority to appeal to, so they retain their right to wage war. A just war, one that is waged to defend oneself or correct a perjury, gave the one who fought the right to keep what he captured in battle. This represented a fundamental problem, since without international institutions to mediate between the parties, the decision of whether an object had been obtained through a just or unjust war fell to the merchants. In turn, the risk factor that this would bring to the table would increase costs for merchants, and depress the economy in general. This problem would be solved by Grotius in a radical way: war would decide who the law should favor. Both in terms of ownership and conquest. This principle is often called the "Might is Right" principle, and would be the foundation of the international law of the Old World Order. In addition, this legal principle was widely reinforced by the military doctrine of the time: mercantilism. Based on the notion that the total resources of the world are distributed through a zero-sum game, to say that in order for one to win, the other has to lose, “mercantilism encouraged states to wage war to expand territorial control and market size, while the war, by expanding markets under unified sovereign control, helped sustain mercantilism.” This plunged the Western world into a vicious cycle of international aggression for centuries.

After the First World War, the Treaties of Paris would propose the League of Nations as a mechanism to avoid war. However, "[t]o solve the problem of war, the League's response seems to have been... more war." According to Article 16, in the case of observing an unjust war, the majority of the states in the Council of the League were to order the member states to take up arms in defense of the Pact. Observing this, people like Salmon Levinson or Philander Knox would begin to propose as a solution a revolutionary idea: the illegality of war. His efforts over the years would bear fruit with the Kellogg-Briand Pact. Despite being largely ignored during his time and during the following years, it would provide a fundamental model for the Charter of the United Nations, in addition to many other consequences that would manifest themselves over time. On the other hand, this vision of war would see an intensification of its momentum due to World War II. Among such consequences are: the low profitability of war, the inability to maintain long-term territorial gains obtained through conquest, the increase of the total number of States in the world, the increased survival capacity of smaller states, etc.

In the New World Order, war is no longer socially accepted by the community of states, and although there is still a long way to go before international institutions dedicated to the resolution of disputes become fully effective, immense progress has been made. Moreover, economic sanctions have gained popularity as a means of punishment against unilateral aggression by a State, avoiding falling into the same problem as the League of Nations. Despite the above, these premises are being called into question at this very moment, with the war in Ukraine by Putin's Russia. As this conflict progresses and develops, the effectiveness of sanctions is tested, as is the strength of the UN Security Council to prevent large-scale conflict.

The New World Order also introduced us to a new use of weapons, where we see how nuclear weapons of mass destruction are used as deterrents, where international wars have almost completely disappeared, but that still has not prevented violence from proliferating. The reason for this that Hathaway and Shapiro give us is varied. On the one hand, there are conflicts that are generated because two or more States claim the same territory. Others occur within the same territory as civil wars. Nevertheless, although the Paris Peace Pact did not eliminate violence in the world, it did transform it into one where war was emptied of its legitimate foundation, where it is seen as something to be avoided, and where cooperation pays States better than confrontation with each other. Even though there is still a long way to go, with the Kellog-Briand Pact and the audacity of its rchitects and inspirations, we can ovserve how actively militating and knowing with whom and how to act the mentality of the world can be changed even in matters in which it seems silly to propose a paradigm shift because they have been taken for granted for millennia

Hathaway and Shapiro also show that between 1816 and 1928 there was on average one military conquest every ten months. After 1945, in very sharp contrast, the number of such conflicts declined to one in every four years.[20]

The pact, in addition to binding the particular nations that signed it, has also served as one of the legal bases establishing the international norms that the threat[21] or use of military force in contravention of international law, as well as the territorial acquisitions resulting from it,[22] are unlawful. The interdiction of aggressive war was confirmed and broadened by the United Nations Charter, which provides in article 2, paragraph 4, that "All Members shall refrain in their international relations from 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." One legal consequence is that it is unlawful to annex territory by force, although other forms of annexation have not been prevented. More broadly, there is now a strong presumption against the legality of using, or threatening, military force against another country. Nations that have resorted to the use of force since the Charter came into effect have typically invoked self-defense or the right of collective defense.[23]

Notably, the pact also served as the legal basis for the concept of a crime against peace. It was for committing this crime that the Nuremberg Tribunal and Tokyo Tribunal tried and executed the top leaders responsible for starting World War II.[7]

Political scientists Julie Bunck and Michael Fowler in 2018 argued that the Pact was:

an important early venture in multilateralism. ... [I]nternational law evolved to circumscribe the use of armed force with legal restrictions. The forcible acquisition of territory by conquest became illegitimate and individual criminal liability might attach to those who pursued it. In criminalizing war Kellogg–Briand played a role in the development of a new norm of behavior in international relations, a norm that continues to play a role in our current international order.[24]

• Washington Naval Treaty

Notes

Bibliography

• Bunck, Julie M., and Michael R. Fowler. "The Kellogg-Briand Pact: A Reappraisal." Tuland Journal of International and Comparative Law 27 #2(2018): 229–276 online.
• Hathaway, Oona A. and Scott J. Shapiro. The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017), 581 pp. online review
  • Carroll, Francis M. "War and Peace and International Law: The Kellogg-Briand Peace Pact Reconsidered." Canadian Journal of History (2018) 53#1 : 86–96.
  • "H-Diplo Roundtable XXI-15 on The Internationalists" online

Further reading

• Cavendish, Richard. "The Kellogg–Briand Pact Aims to Bring an End to War". History Today 58.8 (2008): 11+.
• Ellis, Lewis Ethan. Frank B. Kellogg and American foreign relations, 1925–1929 (1961).
• Ellis, Lewis Ethan. Republican Foreign Policy, 1921–1933 (1968).
• Ferrell, Robert H. (1952). Peace in Their Time: The Origins of the Kellogg-Briand Pact. Yale University Press. ISBN 978-0393004915.
• Hathaway, Oona A. and Shapiro, Scott J. "International law and its transformation through the outlawry of war". International Affairs (2019) 95#1 pp 45–62
• Johnson, Gaynor. "Austen Chamberlain and the Negotiation of the Kellogg-Briand Pact, 1928" in Gaynor Johnson, ed. Locarno Revisited: European Diplomacy 1920–1929. (Routledge, 2004) pp 54–67.
• Limberg, Michael. "'In Relation to the Pact': Radical Pacifists and the Kellogg–Briand Pact, 1928–1939". Peace & Change 39.3 (2014): 395–420.
• Swanson, David. When the World Outlawed War (2011).

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