A Georgetown Law professor named David Koplow has drafted what he calls a Nuclear Kellogg-Briand Pact. In an article proposing it, Koplow does something all too rare, he recognizes some of the merits of the Kellogg-Briand Pact. But he misses others of those merits, as I described them in my 2011 book When The World Outlawed War.
Koplow acknowledges the cultural shift that the pact was central to, that shifted common understanding of war from something that just happens like the weather to something that can be controlled, should be abolished, and would henceforth be illegal. He acknowledges the role of the pact in motivating trials (albeit one-sided trials) for the crime of war following World War II.
But Koplow also does something that I imagine any U.S. law professor must be expected to do. I have yet to find one who doesn’t. He declares that the pact “silently” includes language that it does not actually include, language opening up a loophole for defensive war. While Britain and France added reservations to the treaty, other nations ratified it as it is written. The United States Senate Foreign Relations Committee produced a statement interpreting the treaty, but not actually modifying the treaty. Japan did the same. That committee statement interprets the existence of a loophole for defensive war. The pact itself does not contain it and would not have been created, signed, or ratified had it done so.
The actual text of the treaty is superior to the United Nations Charter in not containing two loopholes, one for defensive wars and the other for UN-authorized wars. And contrary to what Koplow claims, but consistent with the facts of the matter that he relates, the Kellogg-Briand Pact is still law. That this makes numerous recent wars illegal is not so significant, as most — if not all — of those wars fail to fit into the UN Charter’s loopholes. But the existence of those loopholes allows endless claims to legality that muddy what would be clear waters if we looked to the peace pact instead of to the UN Charter.
Of course intent is often taken to override actual text. If the people who created the pact intended it to silently allow defensive war, then it allows defensive war, according to this theory. But did they? That all depends on who counts as being those people. Koplow only mentions one of them, Senator William Borah. In fact, Koplow drastically understates Borah’s role. Following the lead of the Outlawry movement and intense lobbying by its leaders, Borah had publicly promoted outlawing war for years before the pact came up for a vote, and he had been instrumental in making sure that it did. On November 26, 1927, Borah had written this in the New York Times:
“I do not think peace plans which turn upon the question of an ‘aggressor nation’ are workable. An aggressor nation is a delusive and wholly impracticable proposition as a factor in any peace plan.” Borah, agreeing with the widespread understanding of the Outlawrists, believed that in any war each side would label the other the aggressor, and that through ultimatums and provocations any side could make another into the aggressor. “I would not support a peace plan,” Borah wrote, “which recognized war as legitimate at any time or under any circumstances.” Having learned from the creators of outlawry, Borah tutored Kellogg and Coolidge, even overcoming the hurdle created by the latter’s belief that outlawing war would be unconstitutional.
But in what exactly did Borah tutor them? Surely not in what appears to every living U.S. law professor in 2017 utter nonsense or a suicide pact? Yes, in fact, in just that. And I’m not sure either Kellogg or Coolidge ever understood it to any greater extent than this: the public demand for it was a hurricane. But here’s what it was, and why those who come around to praising the Kellogg Briand Pact seem more intent on burying it. Outlawry was opposed to the entire institution of war on the model of opposition to dueling — which, outlawrists pointed out, had not been replaced by defensive dueling, but by abolition of the whole barbaric institution. Once you sanction some wars, you motivate preparation for wars, and that moves you toward wars of all kinds. The Outlawrists had grasped this even before Dwight Eisenhower had been part of a chemical weapons attack on World War I veterans in the streets of D.C., much less made any farewell addresses.
But if you ban all war, the Outlawrists grasped, you end up eliminating the need for any war. You organize nonviolent systems of conflict resolution. You create the rule of law. You mobilize a reverse arms race. Peace Studies Departments have largely grasped this just in recent years. Peace activists had it down in the 1920s. And they insisted on their vision in the treaty that they wrote, that they negotiated, that they lobbied for, and that they passed — against the very will of many of the Senators ratifying it. Si vis pacem, para pacem. Koplow quotes this inscription from the pen used to sign the treaty. If you want peace, prepare for peace. That people actually meant that in 1928 is beyond common understanding in 2017. Yet it is down in writing in both the text of the treaty and the many texts of the movement that created it. Banning all war was the intention and is the law.
So why should we, as Koplow proposes, create a brand new treaty, modeled on Kellogg-Briand, but banning only nuclear war? Well, first of all, doing so would not legally or otherwise cancel the existing Kellogg-Briand Pact, which is universally ignored by that tiny number of people who’ve ever heard of it. On the contrary, creating a nuclear KBP would bring attention to the existence of the total KBP. Ending all nuclear war would be a powerful step in the direction of ending all war, would quite possibly keep our species in existence long enough to do so, and would point our thinking in just the right direction.
The treaty as Koplow has drafted it would not be in any conflict with a treaty banning nuclear weapons, but might be a treaty that nuclear nations would sign and ratify, and it would be stronger than simply a commitment not to be the first to use nukes. As drafted, the Nuclear Kellogg-Briand Pact goes beyond mirroring the language of the KBP to finesse the defensive question and many others. It’s well thought out, and I recommend reading it. Buried toward the end of the draft treaty is a requirement to accelerate efforts toward total nuclear disarmament. I think passing such a ban on only nuclear war would actually accelerate the abolition of all war, and might just do so via creating awareness that all war has been illegal for 88 years.