JURI 4640:
International Law I
The International Legal Process

Professor Bodansky
University of Georgia School of Law

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Class 19:
The Limits of International Law: The Kellogg-Briand Pact

Assignment

Read the: Then consider the following questions:
  1. Is the Kellogg-Briand Pact a legally binding treaty?

    1. If your answer is yes, in what sense is the Pact binding? How is it distinguishable in effect from a non-binding recommendation or declaration?
    2. If your answer is no, what distinguishes it from a binding agreement?

  2. In determining whether a treaty is binding, should we look to:

    1. The formal characterization of the instrument?
    2. The intent of the parties?
    3. The treaty's actual effectiveness?

  3. Kaplan and Katzenbach have called the Kellogg-Briand Pact the "supreme monument to human futility." Why hasn't the Pact been more effective? Are its weaknesses due to:

    1. The lack of enforcement mechanisms? Would a provision providing for compulsory, binding third-party dispute settlement (for example by the International Court of Justice) make the Pact more effective? How did Stimson (in the excerpt below) think the Pact would be enforced?
    2. The subject matter it addresses? Are there some issues that are simply not capable of being addressed by international law (for example, because they are too political)?

  4. The eminent international law scholar, James Brierly, has commented:
    [I]f the Pact had been followed up, it might have been the starting point of a great advance. But those who made the pact, or at any those of its members who took it seriously, made the same mistake as the early international lawyers, but without their excuse. They acted as though it was enough to make war illegal and to leave it at that; as though war could be exorcized by trusting to the conscience of nations to obey the legal ban. . . . Today we ought at least to have learnt that order cannot be had without organization.(7)
    What kind of "follow up" does Brierly have in mind? Could anything have been done differently that would have made the Kellogg-Briand Pact more effective?

Background

The Vienna Convention on the Law Treaties defines a "treaty" as "an international agreement concluded between states in written form and governed by international law" (article 2(1)(a)). The basic test of whether an instrument is a treaty is whether the parties intend to create legal obligations.(1)

This section considers the limits of treaties as a source of international law. In particular, it considers whether the Treaty for the Renunciation of War as a Matter of National Policy (also known as the Pact of Paris or the Kellogg-Briand Pact) really should be considered a binding international agreement.

In considering the criteria for binding agreements, a report prepared for the US Senate by the Congressional Research Service, stated:

A paramount principle of international law is pacta sunt servanda - that treaties must be kept. Treaties, therefore, are binding under international law. However, in the conduct of international relations, nations conclude business contracts or enter into understandings that fall short of being binding agreements with the status of international treaties.(2) It is therefore, vital to understand what elements are necessary for an agreement to be legally binding under international law. Important criteria in determining this include: (1) the intention of the parties to be bound under international law, (2) the significance of the agreement, (3) the specificity of the agreement, and (4) the form of the agreement.

Intention of the Parties to be Bound under International Law

So far as the US State Department is concerned, treaties cannot be concluded unless the parties involved intend their acts to be legally binding. Documents that are intended to invoke purely political or moral obligations are not, therefore, treaties under international law. The "Helsinki Agreement" on Cooperation and Security in Europe falls into this category....

Significance

To have the status of a treaty, an agreement should consider itself with significant matters. It cannot deal with trivial matters alone, even if they are couched in legal language and form. The significance of an agreement is frequently characterized as a matter of degree. For example, "a promise to sell one map to a foreign nation is not an international agreement; a promise to sell one million maps probably is." The exact point, however, between one and one million maps at which the transaction becomes an international agreement is difficult to determine. Since there are no detailed guidelines to assist in deciding the level of significance needed, this must remain a matter of judgment within the context of a particular transaction.

Specificity

A treaty should also clearly and specifically describe the obligations legally assumed by the parties. This requires that the terms indicating the obligations assumed under a treaty be worded specifically, so that an observer could determine by objective criteria whether a party is adhering to a promise. Thus, international diplomatic undertakings which do not specifically describe precise legal obligations, are not legally binding. An example would be a promise "to help develop a more viable economic system." In contrast, a promise to deliver 1,000 tractors of a specified type, for a specified amount of money, to be delivered at a specified place, on a specified date, would set forth the definable obligations necessary to make such a promise legally binding.

This does not mean, however, that every provision of a treaty must meet this criterion of specificity in order for the treaty to be legally binding. In fact, treaties often contain individual clauses which describe non-specific obligations assumed by the parties.(3)

Form of the Agreement

Form is not central to the validity of a binding international agreement, but it may reflect the intention of the parties to conclude an agreement, or something less than an agreement. Thus, in all probability, a formal document entitled "Agreement" - one with final clauses, signature blocks, entry into force dates, and dispute settlement provisions - would reflect a general intent to conclude an international agreement.

It must be emphasized that the substance, and not the form, of the agreement determines whether it is a treaty. Occasionally, however, failure to use a customary form to conclude an agreement may constitute evidence of an intent not to be legally bound. In such cases, it is important to determine whether the general content of the agreement, and the context of its making reveal an intent to be legally bound; if so, the lack of a customary or proper form will not be decisive. Moreover, if an agreement is made within the context of formal international negotiations in a diplomatic setting, this may be construed as supporting evidence of an intent to be legally bound....(4)

* * * *

The Kellogg-Briand Pact was adopted in 1928, primarily at the initiative of France and the United States. In it, the contracting parties "solemnly declare ... that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy."

The drafters of the Kellogg-Briand Pact believed that the Pact would help prevent wars from occurring. An example of these high hopes can be seen in the speech given by the US Secretary of State, Henry Stimson, in 1932 (reproduced below). (In private life, Stimson was apparently a hard-boiled Wall Street lawyer.)

Despite the Pact, however, wars have continued to be a common occurrence in the modern world. Only a decade after the Pact was concluded, Germany (which was a party to the Treaty) invaded Poland, beginning World War II. This violation of the Pact provided one of the grounds for the Nuremberg prosecutions at the end of the war, and a number of German leaders were ultimately found guilty of waging aggressive war, in violation of the Kellogg-Briand Pact.

The Kellogg-Briand Pact is still in force and currently has more than sixty parties, including the United States, Russia, the United Kingdom, France, India, Brazil, Japan and Iraq. It is included in the US State Department publication, Treaties in Force, which lists those agreements to which the US is a party that, in the US view, meet the definition of "treaty" in the Vienna Convention. One legal scholar has concluded:

In view of the fact that this treaty has never been terminated and in light of its widespread acceptance, it is clear that the prohibition on the resort to war is now a valid principle of international law. It is no longer possible to set up the legal relationship of war in international society. However, this does not mean that the use of force in all circumstances is illegal. Reservations to the treaty made by some states made it apparent that the right to resort to force in self-defense was still a recognized principle of international law Whether in fact measures short of war such as reprisals were also prohibited or were left untouched by the treaty's ban on war was unclear and subject to conflicting interpretations.(5)
In contrast, critics such as George Kennan have dismissed the Pact as an example of the "legalistic-moralistic" approach of US foreign policy. As the historian Arnold Toynbee noted:
The Kellogg-Briand Pact ... was ... a brief afterglow of Wilsonian optimism on the darkening horizon of European politics at the close of the period of fulfillment. Calling for the renunciation of aggressive war, the ... Pact was almost universally subscribed. It stands as an ironic preface to the supervening decades of blood and steel, the 1930's and 1940's.(6)

Footnotes

1. An example of a non-binding agreement is the Final Act of the Conference on Security and Cooperation in Europe (often referred to as the Helsinki Accords), which expressly stated that it was "not eligible for registration under Article 102 of the [UN] Charter."

2. [Note in the original] The Department of State has compiled guidelines for internal purposes for determining the elements of a legally binding international agreement. The gist of these guidelines is: (1) The parties to an agreement must intend to be bound under international law. (2) The agreement must be of international significance and not deal with trivial matters. (3) The obligations undertaken must be clearly specified and be objectively enforceable. (4) The agreement must have two or more parties. (5) The agreement will preferably use a customary form. If not, content and context must reveal a legally binding intent....

3. [Note in the original] For example, under Articles 55 and 56 of the United Nations Charter, the members pledge to promote such broad goals as higher standards of living, solutions to international economic problems, and universal respect for human rights.

4. Congressional Research Service, Library of Congress, Treaties and Other International Agreements: The Role of the United States Senate, S. Prt. 98-205 (June 1984).

5. Malcolm Shaw, International Law 543 (2d ed. 1986).

6. Quoted in Barry Carter and Phillip Trimble, International Law 1229 (1991).

7. The Outlook for International Law 51 (1944).