Has the outlawry of war as an instrument of policy been achieved?
Updated: Nov 13, 2020
Author : Stephany Rosario Zarzuela
Due to many historical events and the seek peace in the international order, outlawry of war has been a discussion topic for years. The world as it is known used to be dominated by the idea that states have the lawful and uninhibited right to use war in aim to enforce rights, and to recognize the right to territorial occupation, the immunity from criminal responsibility for political leaders.
Since XVII and XVIII centuries, many scholars such as Salamanca School, Hugo Grocio, Immanuel Kant, Hans Kelsen, John Rawls, or Michael Walzer among others, have studied the theory of just war in various historical contexts. In the XIX century, this doctrine took more strength, its conception was that war should be considered as a sovereign right of the States to be used as an instrument of international policy and without any kind of limitation, simply attending to questions of State reason (Kolb, 1997).
At the beginning of the XX century, the outlawry of war began to be progressively demonstrated through diverse measures. The first formal restrictions were the limitation of the use of force for the collection of contractual debts, this pact was signed in The Hague in October 1907, it declared the need to resort to an arbitration procedure, allowing war only in the case when the debtor State refuses to follow the agreed process or renders it ineffective. The Convention established the rights and duties of neutral countries, naval bombardment, the laying of automatic contact submarine mines, customs, and conditions under which merchant ships could become ships of war. Also, a formal and reasoned declaration of war or an ultimatum was required to initiate hostilities in order to resort to the use of war.
Consequently, the Covenant of the League of Nations created by the Treaty of Versailles in 1919, followed the same parameters. It was intended to establish the basis for peace and the reorganization of international relations after the end of the World War I. It established that before starting a war the Member States had to submit their disputes to the Council of the League of Nations or to arbitration and wait for a period of three months from the decision. The conception that was behind this system is that within the established deadlines, non-violent solutions to the conflict would be found (Rodríguez 2002).
The first outlawry of war took place in the interwar period through the General Treaty of Renunciation of War as an Instrument of National Policy, known as the Paris Peace Pact or the Kellogg–Briand Pact in August 1928. Menand (2017) emphasized that the Pact was the unanticipated fruit of an attempt by the French Foreign Minister, to negotiate a bilateral treaty with the United States in which each nation renounces the use of war as a policy instrument. The American Secretary of State had been unenthusiastic about the idea, he saw no reason for going to war with France and therefore no point in promising not to and he questioned that the proposal was a tactic designed to constrain The United States from intervening on France’s behalf if Germany attacked it (as Germany did in 1914).
In modern political history, the international community may be facing a crisis of significant dimensions, many authors refer to the Paris Peace Pact just as a piece of paper signed because it didn’t avoid the fact that Japan invaded Manchuria (1931); Italy invaded Ethiopia (1935); Japan invaded China (1937); Germany invaded Poland (1939); the Soviet Union invaded Finland (1939); Germany invaded Denmark, Norway, Belgium, the Netherlands, Luxembourg, and France and attacked Great Britain (1940), and Japan attacked the United States (1941). The weakness of that treaty was the lack of guarantees to back it up and was ineffective in preventing the outbreak of all these armed conflicts mentioned above, ending in World War II that produced the atomic bomb and caused more than sixty million death.
Hathaway & Shapiro (2017) in the Internationalists, present an interesting explanation for the decline in interstate wars since 1945. They expose that nations rarely go to war anymore because war is illegal and has been since 1928. In their view, the signing of the Kellogg-Briand Pact was not a parable, did what its framers intended it to do; it effectively ended the use of war as an instrument of national policy.
At the end of World War II in the middle of the XX century, the League of Nations was dissolved in April 1946, being succeeded by the United Nations (UN). It was in 1946 when the United Nations Charter prohibited in its article 2 the use and threat of force, a prohibition that has been reaffirmed and developed in General Assembly Resolutions. It is difficult to pinpoint the exact date on which the prohibition of the use of force became a norm of international customary law. Article 2.4 of the United Nations Charter probably corresponded, in part to a codification of customary law, and also a progressive development. Brownlie (1963) affirm that the practice between 1920 and 1945 already allowed us to conclude the existence of a rule of customary law regarding the prohibition of the use of force. The main point is not the date on which the customary norm emerged; the important thing is that in 1945, the United Nations Charter prohibits the use of force in wide terms.
We can say that the international order has been through different stages and historical events to achieve the objective of proscribing war. Nowadays are exceptions to the general principle of prohibition of the use of force and they should be interpreted as exceptions that are restrictive.
In order to answer the main question of this article we have to take into consideration the existence of exceptions for the use of force, exceptions that some authors believe can endanger the equilibrium of the nations, this is because the regulation of the use of force established in the United Nations Charter has the objective of not only broadly limiting the use of it by the states, but also establishing a system that allows a collective decision on the use of centralized force under the control of the United Nations.
The exceptions to the prohibition of the use of force are: (1) the right to self-defense and (2) coercive action by the Security Council. About the first one, the recognition of the right to self-defense, this is a right that states consider inherent and necessary in those cases where there is a threat to its preservation. In principle, the elements that integrate the exercise of legitimate defense within the framework of the Charter are three: the existence of an armed attack, provisional adoption of self-defense measures, and referral of the matter to the Security Council. Regarding coercive action by the Security Council, it has the competence to determine and act upon a threat to international peace and security. Basically, the decisions on the use of force to maintain international order are made by the Security Council, made up of fifteen members, among which are five great powers with the right veto.
We would like to say that the outlawry of war have been achieved but with the ambiguity of the exceptions mentioned above and the new legal, political, and institutional framework that we’re living we need more to assure this statement. As we have said, in the XIX century war was not prohibited and aggression was not illegal; consequently, the States had to protect themselves solely and exclusively through their deterrent capacity and, consequently, the so-called arms races could be considered a logical and even necessary effect, since the correlation of forces was finally what allowed ensuring peace.
Nowadays, states still have the same determination to protect themselves and their interest from any kind of aggression, using other mechanisms because interstate war is prohibited. But this seems to be an illusion because war still a business for some countries through “proxy wars”. Cases like Syria, NATO bombing in Lybia, negative arms forces, detention of nuclear weapons are examples of the relative victory of outlawry and could be called a failure.
Outlawry of war will be effective only when a powerful country decide to not let guns’ language to moderate bilateral or multilateral relations. As long as the peripheral realism of Escude (1998) in the international arena fit our world, outlawry will depend on economic interest and hegemonic appetite.
Should we give up? What has been achieved is considerable and can’t be compromised by excessive pessimism. States should invest more in common well by promoting peace everywhere and acting in a win-win perspective regardless to the position in the international order. One of the things to advocate for such ambition is either a hundred percent world free of nuclear weapon or liberalization of it. One of the key actors in the pursuing of outlawry is the United Nations, as the world is changing so fast in almost all aspect, this organization should be rethinking and leaders needs talk each other for a world free of war even if it may sound idealistic or long-term project.
· Brownlie Ian (1963) International Law and the Use of Force by States, Oxford University Press, pp. 110-111.
· Escudé, Carlos (1998) . “An Introduction to Peripheral Realism”. In Neuman, Stephanie G. (ed.) International Relations Theory and the Third World. New York: St. Martin’s Press, 55-75.
· Fuentes Torrijo, X. (2014). The prohibition of the threat and the use of force in international law. Retrieved from Universidad de Sevilla: http://institucional.us.es/revistas/Araucaria/A%C3%B1o%2016%20%20N%C2%BA%2032%20 %202014/La%20prohibici%C3%B3n.pdf
· Hathaway & Shapiro (2017), The Internationalists: How a Radical Plan to Outlaw War Remade the World.
· Kellogg-Briand Pact (Treaty Providing for the Renunciation of War as an Instrument of National Policy), Aug. 27, 1928, 46 Stat. 2343, 94 LNTS 57.
· Kolb, Robert (1997) Origin of the terminological couple ius ad bellum / ius in bello. War as a factual situation. International Review of the Red Cross, no. 143, pp. 589 to 598
· Menad, L. (2017, September 18). What Happens When War is Outlawed. Retrieved from The NewYorker: newyorker.com/magazine/2017/09/18/what-happens-when-war-is-outlawed
· Rodríguez Carrión, Alejandro J. (2002). Lecciones de Derecho internacional público. Madrid: Tecnos.
· Stemmet, Andre (2019) The Internationalists: How a Radical Plan to Outlaw War Remade the World, The RUSI Journal, 164:1, 76-78, DOI: 10.1080/03071847.2019.1605022