Posted by Howard S. Schiffman on January 06, 2003 at 23:44:41:
In Reply to: Kellogg-Briand Pact posted by Doran Williams on January 06, 2003 at 07:58:31:
Although the Kellogg-Briand Pact of 1928, otherwise known as the General Treaty for the Renunciation of War, was a binding treaty signed by almost all states in the world at the time, it is very difficult to see it as anything more than a matter of some historical interest and a milestone in the development of the modern international legal framework. The thrust of the document, in effect to outlaw war as an instrument of policy, has been replaced in international law with the UN Charter and the customs and laws of war of the modern era. It is a general principle of law, most notably international law, that a later law prevails over an earlier law. Therefore, its rather sweeping exclusion of force is modified by newer legal obligations and standards. At the same time, the spirit of the Kellogg-Briand treaty lives on in Article 2(4) of the UN Charter.
Your question implies that because it is a treaty and therefore the "supreme law of the land" pursuant to the Supremacy Clause of the Constitution (Article VI) it would somehow prevent the US, as a matter of US domestic law, from lawfully deploying force in the exercise of its authority. This is just not so. Even if one were to consider the Kellogg-Briand Treaty to be in force and valid today (a highly speculative proposition) a treaty is equal in dignity and normative rank to federal legislation and inferior to provisions of the Constitution itself. Therefore, a constitutionally permissible use of force, either pursuant to a congressional declaration of war or an authorized use of force by the executive (typically delegated authority by Congress, as in the present legislation pertaining to Iraq) would satisfy the requirements of US domestic law. There are several key federal court decisions and many fine scholarly articles addressing the role of treaties in the US legal system that demonstrate this point.
I will add a historical note -- for all intents and purposes the Kellogg-Briand Pact was repudiated when Hitler invaded Czechoslovakia and Poland. The free European nations understood the dangers of the moment. The folly and shortsightedness of the Munich Pact left no choice but world war at a dreadful price.
Thank you for your participation in the InternationalLawHelp.com Forum.
Howard S. Schiffman, Esq.
Co-Founder and Administrator www.InternationalLawHelp.com
: Is the Kellogg-Briand Pact of 1928 a treaty which is, today, the Supreme Law of The Land in the United States? If not, why not?
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