Friday, January 4, 2019

Hathaway & Shapiro on How Kellogg-Briand Transformed International Law

Oona A. Hathaway and Scott J. Shapiro, Yale Law School, have posted International Law and Its Transformation Through the Outlawry of War, which is forthcoming in International Affairs:
The First World War was the last great war of what we have called the “old world order” — the legal regime that European states adopted in the seventeenth century and spent the next three centuries imposing on the rest of the globe. This order formed the basis of what scholars call “classical international law.” But this body of rules differed starkly from the ones that governs today: The old world order did not just sanction war, it relied on and rewarded it. States were permitted to wage war to right any legal wrong, and the right of the victors to extract territory and treasure from the losers was legally guaranteed. That all began to change when the nations of the world decided to outlaw war in the 1928 Kellogg-Briand treaty. As a result, the rules governing international behaviour have transformed radically — indeed, they are the polar opposite of what they once were. This article describes the decision to outlaw war and the transformation it unleashed in the world order generally, and in international law specifically. We argue that a simple but perplexing fact—that modern international law prohibits states from using force to enforce international law — is key to understanding international law and state behavior in the modern era.
H/t: Legal Theory Blog