Years ago, while I was visiting the State Department legal adviser’s office, a lawyer who handled treaties said he wanted to show me something. He disappeared into the massive vault that safeguards the official copies of all U.S. treaties and emerged holding a document by its corner, between his thumb and index finger, as though it were a rare curiosity. “Look at this,” he said. It was an instrument of ratification from a nation that had only recently approved the 1928 Kellogg-Briand Peace Pact. (The United States is the designated depository.) “Can you believe that?” he asked. In years of working on use-of-force issues on Capitol Hill, I’d never heard anyone refer to the pact. But, as my friend pointed out, it had never been formally terminated, and now and then new instruments of ratification continued to trickle in.
By its terms, the pact should hardly be forgettable. In only two sentences, it lays out an unqualified prohibition against going to war. Article I provides that “[t]he 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 adds that “[t]he 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.” That’s it. The pact provides no exception for self-defense, whether in response to an actual armed attack or an imminent threat of one. Yet every major belligerent in World War II was a party.
The pact became a laughingstock. Thomas Bailey wrote that it “proved a monument to illusion.” George Kennan described it as “childish, just childish.” Robert Ferrell concluded that the pact showed “that American popular understanding of the great problems and policies of post-1918 international affairs was appallingly naïve.” To Ian Kershaw, it is “singularly vacuous.” James Lindsay called it “the international equivalent of an air kiss.”
Two prominent legal scholars, Oona Hathaway and Scott Shapiro, set out to prove them and a host of others wrong. “Provocative” is hardly the word for their effort. The dust jacket announces that “this book will change the way we view the history of the twentieth century...” The pact’s signing, the authors write, was “one of the most transformative events of human history” (p. xiii). Before its ratification, they suggest, the world was a Darwinian jungle in which states typically addressed wrongs through war. That world came to an end in 1928 with ratification of the pact. “War has been outlawed for nearly a century and the result has been a period of unprecedented peace and cooperation between states” (p. xxi). “[I]nterstate war has declined precipitously, and conquests have almost completely disappeared” (p. 418).
Theirs is quite a pirouette, spinning through not only two centuries of wars of conquest but a maze of interstate wars in general. As a history of ideas, the book is well-written, jargon-free, and informative. It’s filled with lively sketches of the main characters and engrossing historical vignettes.
As a work of international law and relations, however, the book suffers from an array of problems. Its main weakness lies in the shaky scaffolding supporting its thesis. The argument that the pact succeeded overstates the prevalence of war before its ratification and understates it afterwards. The book fudges the pact’s legal obligation. Wars of conquest, the pact’s supposedly indisputable success story, are rendered a thing of the past largely by defining them out of existence. The book fails to establish causality. And its case rests ultimately on a mistaken notion of law as the prime source of revolutionary change.
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