Renouncing the Illegal Use of Force

Reading the essay in the latest edition of Foreign Affairs, titled Might Unmakes Right; The Catastrophic Collapse of Norms Against the Use of Force, by Oona Hathaway and Scott Shapiro. Oona, a professor of law at Yale Law School; Scott, a professor of law at Yale Law School and a professor of philosophy, cast a light on the reality we now face. We are seeing a “catastrophic collapse of norms against the use of force” which threatens the future of the world. The essay reminded me that there have been steps to outlaw war as an instrument of policy. Prior to World War I, it was commonly recognized, even international law, that war was a legitimate means to settle grievances. It was not “outlawed.” The horror of World War I led to the creation of the Kellogg-Briand Pact. Kellogg was the American Secretary of State, Briand the Prime Minister of France. The pact was formally called “The General Treaty for Annunciation of War as an Instrument of National Policy.” It acquired 58 signatories, including the United States. It established the principle that aggressive war was illegal, the parties agreed to “condemn recourse of war for the solution of international controversies, and renounce it, as an instrument of national policy in the relations with one another.” They pledged to settle any disputes between them “by civic means.” This pact has been widely mocked as naïve and ineffective because it did not stop World War II. But in truth, as this essay points out, “It set in motion a process that gave rise to the modern international legal order. The authors of the pact, for all their ambition, failed to appreciate the scale of what they had done.” When Japan invaded Manchuria in 1931, it took U.S. Secretary of State Henry Stimson, a year to draft a response consistent with the pact’s principles. Stimson decided the United States would refuse to recognize Japan’s right to the land it had illegally seized, and the members of the League of Nations soon followed suit. What became known as the Stimson Doctrine became a turning point: Conquest, once lawful, could no longer be recognized. Even if Japan could force China to sign a treaty to give the Japanese the illegally seized land, it would not be recognized as lawful. “Gunboat diplomacy would no longer give rise to valid treaty obligations.” Although Germany and Japan were both parties to the Kellogg-Briand Pact, they flouted it by launching World War II, and they eventually faced its consequences, losing all the territory they conquered by force, and their leaders stood trial at war crime tribunals. The UN Charter extended what the Kellogg-Briand Pact had set in motion, “prohibiting the threat or use of force against the territorial integrity or political interventions of any state. During the next eight decades after the charter entered into force, the kind of interstate wars and territorial conquests that had shaped and reshaped national borders for centuries became rare. Great powers had not openly fought a war against one another since 1945, and no U.N.-member state has permanently ceased to exist as a result of conflict. Conflict, of course, has not disappeared, but it has become far less prevalent. The century that preceded World War II saw over 150 successful territorial conquests; and the decades afterward, there have been fewer than 10. A lot of factors have underpinned this result. Certainly, nuclear deterrence and globalization, but this commitment to rule out the use of power cannot be discounted. This is being unraveled by the Trump administration. Threats to take over Greenland and Panama for willy-nilly reasons. And, of course, Russia’s invasion of Ukraine. We have stood up to that invasion and so has the West, so far. We do not recognize it. However, Russia today is asking us to recognize it. Ukraine has not. We are going to have to recommit ourselves to a revamped, renewed international system of renouncing force as a means of achieving political ends; reinforce the integrity of every state, and to provide the enforcing mechanism which will have to depend on much more than just the United States to do it. This was the task faced by leaders coming out of World War I and World War II. This is the task leaders will face going forward tomorrow post the insidious impact of the Trump administration and its policies, which amount to “might makes right.”