ANYTHING CAN BE RESCINDED
By Isabel Hull
[1] The Paris Peace Pact of 1928 is a treaty few remember and which is ridiculed by many of those who do. Otherwise known as the Kellogg-Briand Pact –
after its authors, the US secretary of state, Frank Kellogg, and his French counterpart, Aristide Briand – its signatories agreed specifically to ‘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’.
Lacking any means of enforcement, and seemingly swept aside by the Second World War only 11 years later, Kellogg-Briand has been seen as hopelessly
utopian, as evanescent and dated as the Charleston (a popular dance of that period). But Oona Hathaway and Scott Shapiro, in their book The
Internationalists and Their Plan to Outlaw War, argue that it was revolutionary. By outlawing war, it laid the legal foundations for a ‘New World Order’
which still prevails, but which we fail to appreciate.
[2] The book begins with a bleak description of the ‘Old World Order’, which rested on the right of states, in the absence of a world court, to resort to war
to redress grievances or solve disputes. War was a legal mechanism. Hathaway and Shapiro’s study of more than four hundred declarations of war from
the late 16th century to 1939 reveals that self-defence and the enforcement of treaty, international or succession laws were the reasons cited most often
by states. In addition to permitting frequent armed conflict, the lawful status of war had other consequences for international relations. Since force could
be used to resolve conflicts, the system rewarded the powerful, sanctifying the principle of ‘might is right’. It also legitimated conquest, both as
compensation for injury and as the outcome of a contest of force in which the weaker side lost. It permitted the threat of force (gunboat diplomacy). It
protected the decision makers who waged war and the soldiers who fought it, because both were engaged in a legal activity. Killing in war wasn’t murder.
And, finally, lawful war required absolute impartiality from neutrals (for example, in their trade or commerce with belligerents), since they were not parties
to the dispute. Economic sanctions were therefore illegal. This state of affairs lasted into the 20th century, and Hathaway and Shapiro see the First World
War as its ‘terrible culmination’. Even the League of Nations ‘did not herald’ [anunciar] its end because its covenant still permitted member states to resort
to war over serious, non-judiciable disputes after a three-month cooling-off period.
[3] Hathaway and Shapiro’s premise is that since states seemed incapable of weaning themselves off [se desacostumar de] warfare, civil society had to
intervene.
[4] Among the ‘internationalists’ who helped broker, institutionalize and interpret the Kellogg-Briand Pact, one of the most significant was Hersch
Lauterpacht, the Whewell Professor of International Law at Cambridge University. In the late 1930s, he rigorously and successfully argued that the Kellogg-
Briand Pact had overturned the basic structures of the international order. Neutrals were no longer bound [amarrados, obrigados] to impartiality,
permitting policies that helped victims of aggression. And because it resulted from a criminal act, conquest was now illegal. Individual leaders could be
held responsible for waging [fazer, proseguir] illegal wars (the principle behind the Nuremberg Trials). And treaties extorted by coercion were invalid.
Lauterpacht’s briefs [pareceres] to the US and British governments in the 1940s helped establish these principles, making him ‘the father of the New World
Order’, which since 1945 has been characterized by remarkably few inter-state wars or annexations.
[5] Hathaway and Shapiro’s point, then, is that ‘for all its problems, the New World Order is better than the Old.’
Adapted from the London Review of Books, 26 April 2018.
In The Internationalists and Their Plan to Outlaw War, authors Oona Hathaway and Scott Shapiro most likely