Recently, the New York Times published an opinion piece by Oona A. Hathaway and Scott J. Shapiro (both law professors at Yale University) in the “Gray Matter” section of the Sunday Review. Entitled, “Outlawing War? It Actually Worked,” this essay argues that the Kellogg-Briand Pact (1928) proved far more effective in changing international behavior than most of its critics would allow. For those of you who do not remember your 20th-century European diplomatic history, the pact required signatories to renounce war “as an instrument of national policy” and to resolve all differences through “pacific means.” In other words, it more or less outlawed war. Hathaway and Shapiro concede that the Kellogg-Briand Pact appears to have done little to prevent World War II, but they argue that in the post-1945 era, the behavior of states changed dramatically, largely because countries could no longer establish their right to rule a territory “by brute strength” alone. The authors proceed to get all political science-y on the reader by pointing out the following:
We found that from 1816 until the Kellogg-Briand Pact was first signed in 1928, there was, on average, approximately one territorial conquest every 10 months. Put another way, the average state during this period had a 1.33 percent chance of being the victim of conquest in any given year. . . . The average amount of territory seized between 1816 and 1928 was 114,088 square miles per year. Since World War II, conquest has almost come to a full stop. The average number of conquests per year fell drastically — to 0.26 per year, or one every four years. The average size of the territory taken declined to a mere 5,772 square miles per year. And the likelihood that any individual state would suffer a conquest in an average year plummeted — from 1.33 percent to 0.17 percent, or once or twice a millennium.
Before it goes any further, this blog wishes to signal that it has nothing but the greatest respect for those who study politics. Indeed, any field whose greats include people like Aristotle, Machiavelli, Hobbes, Locke, and Tocqueville must have something going for it (although One Thing after Another admits who to a special partiality for Discourses on Titus Livy, Democracy in America, and The Old Regime and the French Revolution). But One Thing after Another believes there are serious problems with the argument presented in this article by Hathaway and Shapiro
For one thing, this argument is insufficiently nuanced. Yes, the Kellogg-Briand Pact played a role in delegitimizing conquest, but the authors have stripped away the context within which the pact could play such a role. Matters could have turned out very differently; in other words, the influence of the agreement depended a great deal on contingency. For example, had the Axis powers won World War II, you can bet that we would never have heard of the Kellogg-Briand Pact again. But the Allies won and used the Kellogg-Briand Pact to prosecute Axis leaders for “crimes against peace” during the Nuremberg and Tokyo war crime trials. Allied victory, of course, was succeeded by a bipolar world and the emergence of the Cold War. Both the United States and the Soviet Union had an interest in avoiding a major conflict shortly after World War II, and this instinct was reinforced by the development of nuclear weapons. This situation, of course, meant that the superpowers had an interest in limiting armed conflicts (which contributed, among other things, to the era of détente), and this interest made wars of conquest much less likely. The collapse of the Soviet Union and its Eastern European satellites in the late 1980s and early 1990s led to the erection of a liberal world order whose aspirations corresponded with those that informed the men who signed the Kellogg-Briand Pact. But as we have seen in the recent past, that order is a fragile one whose staying power depends on much more than the pact. There are those in 2017 who, like many in the 1930s, refrain from conquest not because of their respect for principles or international law but because conditions are not yet propitious. If the seizure of the Crimea is a harbinger of things to come, the world will witness much more violence and larger chunks of territory will change hands with greater frequency. To summarize, then, outlawing war alone did not make armed conflicts less likely—a host of factors, a number of which had nothing to do with the pact—made this state of affairs possible.
Granted, Hathaway and Shapiro do “not deny the importance of many other causes that have been offered for the end of conquest and decline of war, such as the advent of nuclear weapons and the considerable rise in free trade.” But, they go on to claim that the pact has created an atmosphere more receptive to the idea that “might no longer makes right.” We see this spirit at work, the authors continue, when statesmen use nuclear weapons to deter aggression or impose sanctions on other states. One Thing after Another, however, is not entirely sure how the deterrence of nuclear weapons and sanctions embody the spirit of Kellogg-Briand; these are instruments of force designed to compel our opponents to bend to our will. The Kellogg-Briand Pact was about employing “pacific means” to settle disputes. And that point brings us back to the question of just what has played the preponderant role in keeping the peace for most of the twentieth century—law (in the form of the Kellogg-Briand Pact) or the balance of international power.
Deemphasizing crucial context is one reason that Hathaway and Shapiro’s essay does not fulfill the promise of its title. Another reason is that the authors lose sight of what the Kellogg-Briand Pact sought to do and why wars are fought. The main thrust of the piece’s argument is that the pact reduced the prevalence of fighting by making wars of conquest less frequent; since any power contemplating such a war knew it would enjoy an uncertain title to captured lands, so the argument goes, it often thought twice about engaging in aggressive behavior. Fair enough, but such an argument is a far cry from what the title of the essay and its opening paragraphs suggest. Outlawing armed conflict did not actually lead to its extinction which is what the signatories to the Kellogg-Briand Pact sought to achieve. Rather, it appears, placing war beyond the pale merely added a disincentive to a potential aggressor’s calculations—an altogether different and somewhat smaller achievement. The reason that discouraging wars of conquest did not end all wars is because, contrary to the authors’ assertions, many wars are not clearly about conquest at all. War is a tool by which to achieve a wide variety of political objectives of which conquest is only one among many. Think of the most disruptive and destabilizing conflicts in our own time—Syria and Afghanistan. Neither can strictly be classified as a war of conquest. Think of the major wars associated with decolonization as well (Indonesia, Indochina, Algeria, and so on). It is also hard to argue these were wars of conquest.
Hathaway and Shapiro are law professors, and one can see why they would be inclined to stress the significance of diplomatic agreements (by the way, the Yale Law School Library supports the wonderful Avalon Project, a website with a very large online collection of primary-source documents revolving around law and diplomacy). People who subscribe to a particular discipline often see what that field of study teaches them to see; psychologists, historians, and physicists are no better than law professors in that respect. Law, of course, is only one factor among many at work in international relations. For that reason, we should not oversell its role to the point where it appears to be a prime mover in diplomatic affairs—lest we forget the utility of force, trade, and the other influences that make the world go round.