1. Patrick S. O'Donnell - October 12, 2009 at 9:18 pm

   I think Roger Alford has a nice discussion of possible reasons why Obama won the Nobel Prize. As he explains in his discussion of the fourth theory and most plausible theory, it speaks to an avowed commitment to the spirit of internationalism, including a belief in the value and efficacy of multilateral diplomacy and international institutions. And this idea does NOT have a poor track record: http://opiniojuris.org/2009/10/09/why-did-barack-obama-receive-the-nobel-peace-prize-my-theories-and-your-vote/ See too Eric Muller’s post at Faculty Lounge: http://www.thefacultylounge.org/2009/10/a-prize-for-strengthening-america.html#comments

   And yet we might bear in mind the structural and institutional obstacles posed by the National Security State that stand in the way of such commitment, as discussed here by Garry Wills in an article for the NYRB: http://www.nybooks.com/articles/23110

2. Patrick S. O'Donnell - October 12, 2009 at 9:49 pm

   First, please read “…the fourth and most plausible theory…” above.

   Secondly, I think the Wikipedia entry on the “effect and legacy” of the Kellog-Briand Pact gives a fair assessment of its value for international law:

   “The 1928 Kellogg-Briand Pact was concluded outside the League of Nations, and remains a binding treaty under international law. In the United States, it remains in force as federal law (see U.S. Const. art. VI). As a practical matter, the Kellogg-Briand Pact did not live up to its aim of ending war, and in this sense it made no immediate contribution to international peace and proved to be ineffective in the years to come…. However, the pact is an important multilateral treaty because, in addition to binding the particular nations that signed it, IT HAS ALSO SERVED AS ONE OF THE LEGAL BASES ESTABLISHING THE INTERNATIONAL NORMS THAT THE THREAT OR USE OF MILITARY FORCE IN CONTRAVENTION OF INTERNATIONAL LAW, AS WELL AS THE TERRITORIAL ACQUISITIONS RESULTING FROM IT, ARE UNLAWFUL [emphasis added].

   Notably, the pact served as the legal basis for the creation of the notion of crime against peace — it was for committing this crime that the Nuremberg Tribunal sentenced a number of persons responsible for starting World War II.

   The interdiction of aggressive war was confirmed and broadened by the United Nations Charter, which states in article 2 paragraph 4 that

   ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

   The consequence of this is that after World War II, nations have been forced to invoke the right of self-defense or the right of collective defense when using military action and have also been prohibited from annexing territory by force.”

   So, in the long term, I think we might assess this Pact rather more favorably than your post suggests. For recent work clarifying the moral and legal meaning of “crimes against peace” or waging aggressive war, please Larry May’s third volume in his remarkable series of book on the philosophical and legal aspects of international and criminal law: Aggression and Crimes Against Peace (2008).

3. Gerard Magliocca - October 13, 2009 at 5:16 am

   Sorry, I don’t buy this argument. World War II created an anti-war norm, not the Kellogg-Briand Pact. Your view gives far too much credit to law.

4. Patrick S. O'Donnell - October 13, 2009 at 5:48 am

   It is not merely my view that, for example, the 1928 Pact of Paris was absolutely central to the Judgment of the Nuremberg International Criminal Tribunal, aptly described as a “seminal moment in international criminal justice,” indeed, “perhaps the defining moment in international criminal law” (Robert Cryer, ‘Nuremberg International Criminal Tribunal,’ in Antonio Cassese, ed., The Oxford Companion to International Criminal Justice, 2009: 441). The Kellogg-Briand Pact was invoked because it “rendered non-defensive resort to war unlawful,” thereby rejecting the argument made by Hermann Jahrreiss, co-defense counsel for the Chief of the High Command of the Wehrmacht, Alfred Jodl, that the prosecution of crimes against peace violated the nullum crimen sine lege principle. I rather think this is giving due credit to law.

5. Gerard Magliocca - October 13, 2009 at 6:03 am

   I think the Nuremberg Trials are vastly overrated as legal events. Sure, it was better than a battlefield drumhead, but not by much. I doubt that the Soviet judges spent a lot of time in the law library.

   More broadly, I think that public international law is basically useless. But we’re obviously not going to agree on that.

6. Patrick S. O'Donnell - October 13, 2009 at 6:34 am

   You might consider co-teaching a course on the futility of international public law with Eric Posner!

7. A.J. Sutter - October 13, 2009 at 6:55 am

   “I think that public international law is basically useless” — so that includes, say, bilateral treaties too?

8. Gerard Magliocca - October 13, 2009 at 7:03 am

   Well, I said basically useless, not totally useless. Bilateral treaties, though, are not typically aspirational.

9. A.J. Sutter - October 13, 2009 at 9:33 am

   Given that there are tens of thousands of bilateral treaties on file with the UN, and that they way outnumber the multilateral ones, I don’t think your adverbs will carry your point. You didn’t include the “aspirational” qualification in your original blanket condemnation, either, though I’m not sure how one could definitively say that any treaty is not aspirational, at least in some respect. (BTW, many aspects of real-world private commercial contracts are aspirational, too, but in my experience the parties don’t regard them as useless.)

10. Edward Swaine - October 13, 2009 at 9:53 am

    This strikes me as an odd occasion on which to debate whether international law is useless. President Obama’s award seems to have had nothing to do with achievements, purported or otherwise, in international law. And there are lots of winners after 1929 who might be described as aspirational or inspirational, while yet falling short of the mark, who had equally little to do with international law; to take a couple of prominent recent examples, Tibet and Iran aren’t exactly free or peaceful yet.

    So the relationship between Obama, Kellogg, and international law escapes me. Anyway, whatever one thinks of Obama’s award, or the efficacy of Kellogg-Briand, it’s hard to question the appropriateness of selecting Kellogg and the others associated with the effort, given that the award’s supposed to be for “the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.” The premise seems to be that complete attainment of world peace, and the mooting of future awards, isn’t strictly required. Imagine how annoyed all the future potential winners would be!

11. Patrick S. O'Donnell - October 13, 2009 at 10:22 am

    Edward,

    I think Roger’s post at Opinio Juris made, among other things, the connection between “Obama, Kellogg, and international law” insofar as he was implying that the commitment to multilateralism and international institutions was, as the same time, a commitment to the importance of international law (as part of the ’spirit of internationalism’; Roger also cites among the many Nobel laureates ‘those who promoted the spirit of Locarno and the Kellogg-Briand Pact’). Any further filling out of this “relationship” above I’m happy to be responsible for and you’re free to find incomprehensible or implausible.

12. Edward Swaine - October 13, 2009 at 10:33 am

    Patrick, I was referring to this post, not one at Opinio Juris, which I suspect did not use the occasion to address the uselessness of international law. But I will look. In any event, an award for diplomacy, multilateralism, and international institutions is not synonymous with one for accomplishments in international law, and probably shouldn’t be evaluated in those terms.

13. Patrick S. O'Donnell - October 13, 2009 at 10:37 am

    Edward,

    I agree, “an award for diplomacy, multilateralism, and international institutions is not synonymous with one for accomplishments in international law, and probably shouldn’t be evaluated in those terms.” Did someone argue to the contrary?

14. Edward Swaine - October 13, 2009 at 11:37 am

    Patrick: To close this loop (from my perspective), this is now a digression on a digression. I was simply observing that international law, which was being evaluated in these comments, was in no way associated with this particular award, nor to what we might think of as the aspirational strain of the prize (so that there is no compelling or singular resemblance between this and the award to Kellogg), and that in any event the award to Kellogg seemed to be apt within the terms of the prize — which does not require any particular resolution.

    All I am saying, is give [the nobel] peace [prize] a chance.

15. Gerard Magliocca - October 13, 2009 at 12:38 pm

    Well, the criticism is well taken in that the title of the post is misleading. I wasn’t trying to make a broad point about international law by mocking the award to the President. But I stand by the substance of the comments about Kellogg and what I said in the thread.

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