Dr. G.O. Mazur

Andreeff Hall
12, rue de Montrosier
92200 Neuilly
Paris, France

Dr. Henry Kissinger
Kissinger Associates
350 Park Avenue
New York, New York

MAY 18 1998

April 7th, 1998

Dear Dr. Kissinger:

Following our brief conversation on the invitation for your participation in the Twenty-Five year Commemoration Volume to the Life of Hans Kelsen, and your comment that the suitable passages from your book on *Diplomacy* dealing with the Kellogg-Briand treaty could be included, as mentioned in the invitation I had mailed on Dec. 9, last year.

Enclosed are the proof sheets for your review. Kelsen had an especial interest in the Kellogg-Briand treaty in his concern regarding treaties constructed in the absence of effective corrective norms, a dilemma which he saw as lacking in realism. For this it would be of interest to include the segments from your book *Diplomacy*, dealing with the Kellogg-Briand treaty (p 9, pp 280-281, pp 374-376) as shown.

The date of the Commemorative year itself is in 1998, if you could indicate if the text is complete. My address during the compilation shall continue in England for the year at: Dr. G.O. Mazur, 14 Fox Crescent, Oxford OX1 4UX, England.

The Pact of Paris and the New World Order

Henry A. Kissinger

America's journey through international politics has been a triumph of faith over experience. Since the time America entered the arena of world politics in 1917, it has been so preponderant in strength and so convinced of the rightness of its ideals that this century's major international agreements have been embodiments of American values, from the League of Nations and the Kellogg-Briand Pact to the United Nations Charter and the Helsinki Final Act. The collapse of Soviet communism marked the intellectual vindication of American ideal and, ironically brought America face to face with the kind of world it had been seeking to escape throughout its history. In the emerging international order, nationalism has gained a new lease on life. Nations have pursued self-interest more frequently than high-minded principle, and have competed more than they have cooperated. There is little evidence to suggest that this age-old mode of behavior has changed, or that it is likely to change in the decades ahead.

What *is* new about the emerging world order is that, for the first time the United States can neither withdraw from the world nor dominate it. America cannot change the way it has perceived its role throughout its history, nor should it want to. When America entered the international arena, it was young and robust and had the power to make the world conform to its vision of international relations. By the end of the Second World War in 1945, the United States was so powerful (at one point about 35 percent of the world's entire economic production was American) that it seemed as if it was destined to shape the world according to its preferences.

Comparisons of the Wilson Era to the Roosevelt Era

Consideration of diplomatic initiatives of the Wilson era are instructive as none of the finely spun theories could get

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TWENTY-FIVE YEAR COMMEMORATION TO KELSEN

around the key issue, which was that, at equals levels of ar-
maments, however low, French security was in jeopardy be-
cause of Germany's superior mobilization potential. The more
France seemed to accept the premises of the Preparatory
Commission, the more maneuvers served primarily to mag-
nify the Anglo-Saxons' conviction that France was the real
obstacle to disarmament and therefore to peace.

The poignancy of the French dilemma was that, after Locarno, France was no longer in a position to pursue its convictions and had to settle for mitigating its fears. French policy grew increasingly reactive and defensive. Symbolic of this state of mind was that France began to construct the Maginot Line within two years of Locarno, at a time when Germany was still disarmed and the independence of the new states of Eastern Europe depended on France's ability to come to their aid. In the event of German offensive strategy centered on its using the demilitarized Rhineland as a hostage. Yet the Maginot Line indicated that France intended to stay on the defensive inside its own borders, thereby liberating Germany to work its will in the East. French political and military strategies were no longer in step. Confused leaders have a tendency to substitute public relations maneuvers for a sense of direction. Driven by the desire to b e perceived as doing something. Briand used the occasion of the tenth anniversary of America's entry into the war to submit in June 1927 a draft treaty to Washington according to which the two governments would renounce was in their relations with each other and agree to settle all their disputes by peaceful means. The American Secretary of State, Frank B. Kellogg, did not quite know how to respond to the document which renounced what no one feared and offered what everyone took for granted. The approach of the election year of 1928 helped to clear Kellogg's mind, 'peace' was popular, and Briand's draft had the advantage of not involving any practical consequence.

In early 1928, Secretary Kellogg ended his silence and
accepted the draft treaty. But he went Briand one better,

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proposing that the renunciation of war include as many other nations as possible. The offer proved as irresistible as it was meaningless. On August 27, 1928, the Pact of Paris (popularly known as the Kellogg-Briand Pact), renouncing war as an instrument of national policy, was signed with great fanfare by fifteen nations. It was quickly ratified by practically all the countries of the world, including Germany, Japan, and Italy, the nations whose aggressions would blight the next decade.

No sooner was the Pact signed than second thoughts began to seize the world's statesmen. France qualified its original proposal by inserting a clause legalizing wars of self-defense and wars to honor obligations arising out the League Covenant, the Locarno guarantees, and all of France's alliances. This brought matters back to their starting point, for the exceptions encompassed every conceivable practical case. Next, Great Britain insisted on freedom of action in order to defend its empire. America's reservations were the most sweeping of all, it involved the Monroe doctrine, the fight of self-defense, and the stipulation that each nation be its own judge of the requirements of self-defense. Retaining every possible loophole, the United States rejected participation in any enforcement action as well.

In testifying before the Senate Foreign Relations Committee a few months later, Kellogg presented the extraordinary theory that the United States had no obligation under the Pact to help victims of aggression, since such aggression would already have proved that the Pact had been abrogated. "Supporting some other nation does break this treaty, why should we interest ourselves in it," asked Senator Walsh from Montana. "There is not a bit of reason," replied the Secretary of State.

Kellogg had reduced the treaty to the tautology that the Pact of Paris would preserve the peace as long as the peace was being preserved. War was banned in all circumstances except those which were foreseeable. No wonder that D.W. Brogan had this to way about the Kellogg-Briand Pact, "The

83

United States, which had abolished the evils of drink by the
pledge. The world, not quite daring to believe or doubt,
obeyed."

In the event, Briand's original idea was transformed by
his erstwhile allies into a new means of putting pressure on
France. Henceforth it was widely argued that, with war out-
lawed, France had an obligation to accelerate its own disar-
mament. To symbolize the era of goodwill, the Allies ended
the occupation of the Rhineland in 1928, five years ahead of
schedule.

Transition into the Roosevelt Era

With the dawning of the Roosevelt era, the uniqueness of
America's mission as the exemplar of liberty, the moral super-
priority of democratic foreign policy, the seamless relationship
between personal and international morality, the importance
of open diplomacy, and the replacement of the balance of
power by international consensus as expressed in the League
of Nations.

All of these presumably universal principles were en-
listed on behalf of American isolationism. Americans were
still incapable of believing that anything outside the Western
Hemisphere could possibly affect their security. The America
of the 1920s and the 1930s rejected even its own doctrine of
collective security lest it lead to involvement in the quarrels
of distant, bellicose societies. The provisions of the Treaty of
Versailles were interpreted as vindictive, and reparations as
self-defeating. When the French occupied the Ruhr, America
used the occasion to withdraw its remaining occupying forces
from the Rhineland. The Wilsonian exceptionalism had es-
tablished criteria no international order could fulfill, made
disillusionment a part of its very essence.

Disillusionment with the results of the war erased to a
considerable extent the distinctions between the international-
ists and the isolationists. Not even the most liberal interna-
tionalists any longer discerned an American interest in sus-

84

taining a flawed postwar settlement. No significant group had a good word to say about the balance of power. What passed for internationalism was being identified with membership in the League of Nations rather than with day-to-day participation in international diplomacy. And even the most dedicated internationalists insisted that the Monroe Doctrine superseded the League of Nations, and recoiled before the idea of America's joining League enforcement measures, even economic ones.

The isolationists carried these attitudes toward their ultimate conclusion. They attacked the League of Nations in principle, on the ground that it jeopardized the twin pillars of historic American foreign policy, the Monroe Doctrine and isolationism. The League was believed to be incompatible with the Monroe Doctrine because collective security entitled, indeed required, the League to involve itself in disputes *within* the Western Hemisphere. And was inconsistent with isolationism because the League obliged America to involve itself in disputes *outside* the Western Hemisphere.

The isolationists had a point. If the entire Western Hemisphere were somehow excluded from the operation of collective security, what was to keep the other nations of the world from organizing regional groupings of their own and excluding them from the operations of the league. In that case, the League of Nations would have led to a restoration of a balance of power system, albeit on a regional basis. In practice, the internationalists and the isolationists converged on a bipartisan foreign policy. Both rejected foreign intervention within the Western Hemisphere and any participation in League enforcement machinery outside of it. They supported disarmament conferences because there was a clear consensus that arms caused war and that the reduction of arms contributed to peace. They favored internationally endorsed general principles of peaceful settlement, such as the Kellogg-Briand Pact, as long as these agreements did not imply enforcement. Finally, the United States was always helpful on

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technical, usually financial, issues with no immediate
political consequence, such as working out agreed reparations
schedules.

The gap in American thinking between approving a principle and participating in its enforcement became dramatically apparent after the 1921-1922 Washington Naval Conference. The Conference was important in two respects. It provided for ceilings in naval armaments for the United States, Great Britain, and Japan, granting to the United States a navy equal in size to that of Great Britain, and to Japan a navy three-fifths the size of the United States. This provision reaffirmed America's new role as the dominant power in the Pacific alongside Japan. Great Britain's role in that theater was henceforth secondary. Most important, a second, so-called Four-Power Treaty among Japan, the United States, Great Britain, and France providing for the peaceful settlement of disputes was to replace the old Anglo-Japanese Alliance of 1902, and to usher in an era of cooperation in the Pacific. But if one of the signatories of the Four-Power Treaty disregarded its provisions, would the others take action against it. "The four-power treaty contains no war commitment ... There is no commitment to armed force, no alliance, no written of moral obligation to join in defense ..." President Harding explained to a skeptical American Senate.

Secretary of State Charles Evans Hughes reinforced the
President's words by putting all of the signatories to the pact
on notice that America would under no circumstances partici-
pate in enforcement measures. But the Senate was still not
satisfied. In ratifying the Four-Power Treaty, the Senate
added reservations stipulating that this would not commit the
United States to using armed force in repelling aggression. In
other words, the agreement stood on its own merit, failure to
observe it would involve no consequence. America would de-
cide each case as it arose, just as if there were no agreement.

In terms of the way diplomacy had been routinely prac-
ticed for centuries, it was indeed an extraordinary proposition
that a solemn treaty conferred no right of enforcement, and

86

that enforcement had to be separately negotiated with the
Congress on a case-by-case basis. It was a foretaste of the de-
bates between the Nixon Administration and the Congress
after the Vietnam Peace agreement of January 1973, wherein
the Congress argued that an agreement for which America
had fought through three administrations of both parties did
not confer any right of enforcement. According to that theory,
agreements with America would reflect Washington's mood
of the moment, whatever consequences grew out of them
would likewise depend on Washington's mood at some other
moment, an attitude not very likely to engender confidence in
America's commitments.

The Senate's reserve had not inhibited President Harding's enthusiasm for the Four-Power Treaty. At the signing ceremony, he praised it because it protected the Philippines and marked 'the beginning of a new and better epoch in human progress.' How was it possible for a treaty without enforcement provisions to protect a prize as rich as the Philippines. Despite his position on the opposite end of the political spectrum, Harding invoked the standard Wilsonian liturgy. The world, he said, would punish violators by proclaiming 'the odiousness of perfidy or infamy.' Harding, however, failed to explain how world public opinion was to be determined, let alone marshaled, and for what cause, so long as America refused to join the league of Nations.

The Kellogg-Briand Pact, the impact of which on Europe
was discussed in my book Diplomacy, turned into another ex-
ample of America's tendency to treat principles as self-im-
plementing. Although American leaders enthusiastically pro-
claimed the historic nature of the treaty because sixty-two na-
tions had renounced war as an instrument of national policy,
they adamantly refused to endorse any machinery for apply-
ing it, much less for enforcing it. President Coolidge, waxing
effusive before the Congress in December 1928, asserted,
'Observance of the Covenant ... promises more for the peace

87

of the world than any other agreement ever negotiated among
the nations.'

Yet how was this utopia to be achieved. Coolidge's passionate defense of the Kellogg-Briand Pact spurred internationalists and supporters of the League to argue, quite reasonably, that, war having been outlawed, the concept of neutrality had lost all meaning. In their view, since the League had been designed to identify aggressors, the international community was obliged to punish them appropriately, 'Does anyone believe,' asked one of the proponents of this view, ' that the aggressive designs of Mussolini could be checked merely by the good faith of the Italian people and the power of public opinion.'

The prescience of this question did not enhance its acceptability. Even while the treaty bearing his name was still in the process of being debated, Secretary of State Kellogg, in an address before the Council on Foreign Relations, stressed that force would never be used to elicit compliance. Reliance on force, he argued, would turn what had been intended as a long stride toward peace into precisely the sort of military alliance that was so in need of being abolished. Nor should the Pact include a definition of aggression, since any definition would omit something and thereby weaken the nobility of the Pact's wording. For Kellogg, the word was not only the beginning, it was the end,

"A nation claiming to act in self-defense must justify itself before the bar of world opinion as well as before the signatories of the treaty. For that reason I declined to place in the treaty a definition of aggressor or of self-defense because I believed that no comprehensive legalistic definition could be framed in advance ... This would make it more difficult rather than less difficult for an aggressor nation to prove its innocence."

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The Senator was no more impressed by Kellogg's explanations than it had been six years earlier by Harding's exegesis of why the Four-Power Treaty did not mean what it said. Now it added three 'understandings' of its own, in the Senate's view, the treaty did not limit either the right of self-defense or of the Monroe Doctrine, nor did it create any obligation to assist victims of aggression, which meant that every foreseeable contingency had been exempted from its provision. The Senate endorsed the Kellogg-Briand Pact as a statement of principle while insisting that the treaty had no practical implications, raising the question whether involving America even in an enunciation of principle was worth the reservations it would inevitably elicit.

If the United States rejected alliances and was casting
doubts on the efficacy of the League, how was the Versailles
system to be safeguarded. Kellogg's answer proved far less
original than his critique, being that old standby, the force of
public opinion,

"... if this treaty all the nations solemnly pronounce against war as an institution for settling international disputes, the world will have taken a forward step, created a public opinion, marshaled the great moral forces of the world for its observance, and entered into a sacred obligation which will make it far more difficult to plunge the world into an-other great conflict."

Four years later, Kellogg's successor, Henry Stimson, as dis-
tinguished and sophisticated a public servant as America had
produced in the entire interwar period, was not able to ad-
vance a better remedy against aggression than the Kellogg-
Briand Pact, backed, of course, by the strength of public opin-
ion,

"The Kellogg-Briand Pact provides for no sanctions of force ... Instead it rests upon the sanction of public opinion which can be made one of the most potent sanctions of the

89

world ... Those critics who scoff at it have not accurately appraised the evolution in world opinion since the Great War."

To a distant island power, as the United States stood vis-à-vis Europe and Asia, the disputes of Europe necessarily appeared abstruse and often irrelevant. Since America possessed a wide margin of safety to insulate it from challenges which threaten European countries without affecting American security, the European countries were in effect functioning as America's safety valves. A similar line of reasoning had led to Great Britain's aloofness from day-to-day European politics during the period of its 'splendid isolation.'

There was, however, a fundamental difference between Great Britain's 'splendid isolation' of the nineteenth century and America's isolationism of the twentieth century, Great Britain, too, had sought to steer clear of Europe's daily squabbles. It recognized, however, that its own safety depended on the balance of power, and it was quite prepared to defend that balance by using the traditional methods of European diplomacy. In contrast, America never accepted the importance of either the balance of power or of the European style of diplomacy. Believing itself blessed by a unique and ultimately superior dispensation, America simply did not engage itself, and if it did, then only for general causes and in accordance with its own particular style of diplomacy, which was vastly more public, more juridical, and ideological than Europe's

The interaction of the European and American styles of diplomacy during the interwar period therefore tended to combine the worst of both approaches. Feeling threatened, the European countries, especially France and the new nations of Eastern Europe, did not accept America's legacy of collective security and international arbitration, or its juridical definitions of war and peace. The nations which had become converts to the American agenda, principally Great Britain, had no experience in conducting policy on that basis. Yet all of these countries were very well aware that Germany could

90

never have been defeated without America's help. Since the end of the war, the balance of power had become even less favorable toward the wartime Allies. In any new war with Germany, American help would be needed more urgently, and probably sooner than it had been the last time, especially since the Soviet Union was no longer a player.

The practical result of this mixture of fear and hope was that European diplomacy continued to drift further away from its traditional moorings and toward greater emotional dependence on America, producing a double veto. France would not act without Great Britain, and Great Britain would not act contrary to views strongly held in Washington, never mind that American leaders never tired of volubly insisting that they would in no circumstance risk war on behalf of European issues.

America's consistent refusal throughout the 1920s to commit itself to safeguarding the Versailles system proved to be terrible psychological preparation for the 1930s, when international tensions began to erupt. A foretastes of what lay ahead came in 1931, when Japan invaded Manchuria, separated it from China, and turned it into a satellite state. The United States condemned Japan's actions but refused to participate in collective enforcement. In censuring Japan, America introduced a sanction of its own, which at the time seemed like an evasion but which, a decade later, would, in Roosevelt's hands, turn into a weapon for forcing a showdown with Japan. This sanction was the policy of refusing to recognize territorial changes brought about by force. Originated by Stimson in 1932, it was invoked by Roosevelt in the fall of 1941 to demand that Japan withdraw from Manchuria and all of its other conquests.

On January 30, 1933, the world crisis began in earnest with Hitler's accession to the position of German Chancellor. Destiny had decreed that Franklin Delano Roosevelt, who did as much as any other individual to lay Hitler low, would take his oath of office a little more than four weeks later. Still, nothing in Roosevelt's first term foreshadowed such an out-

91

come. Roosevelt rarely deviated from the standard rhetoric of the interwar period and repeated the isolationist themes handed down by his predecessors. In a speech before the Woodrow Wilson Foundation on December 28, 1933, Roosevelt addressed the imminent end of the agreed term of the Naval Treaties of the 1920s. He proposed to extend these accords by calling for the abolition of all offensive weapons and, harkening back to Kellogg, by a commitment that no nation permit its military forces to enter the territory of another.

The subject was as familiar as Roosevelt's solution to possible violations of what he was proposing. Once again, the censure of public opinion was invoked as the only available remedy,

"no such general agreement for the elimination of aggression or the elimination of the weapons of offensive warfare would be of any value (without reprisal for noncompliance)."

*The New World Order Reconsidered After Roosevelt*

As the number of states multiplies and their capacity to interact increases, on what principles can a new world order be organized. Given the complexity of the new international system, can Wilsonian concepts like 'enlarging democracy' serve as the principal guides to American foreign policy and as replacement for the Cold War strategy of containment. Clearly, these concepts have been neither an unqualified success nor an unqualified failure. Some of the finest acts of twentieth-century diplomacy had their roots in the idealism of Woodrow Wilson. The Marshall Plan, the commitment to containing communism, defense of the freedom of Western Europe, and even the ill-fated League of Nations and its later incarnation, the United Nations.

At the same time, Wilsonian idealism has produced a plethora of problems. As embodied in the Fourteen Points, the uncritical espousal of ethnic self-determination failed to

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take account of power relationships and the destabilizing
effects of ethnic groups single-mindedly pursuing their
accumulated rivalries and ancient hatreds. The failure to give
the League of Nations a military enforcement mechanism
underlined the problems inherent in Wilson's notion of
collective security. The ineffectual Kellogg-Briand Pact of
1928, by which nations renounced war as a means of policy,
showed the limits of exclusively legal restraints. As Hitler
was to demonstrate, in the world of diplomacy, a loaded gun
is often more potent than a legal brief. Wilson's appeal to
America to go forth in the pursuit of democracy produced
acts of great creativity. It also led it to such disastrous
crusades as Vietnam.

The end of the Cold War has made it far more difficult to
implement the Wilsonian dream of universal collective secu-
rity. In the absence of a potentially dominating power, the
principal nations do not view threats to the peace in the same
way, nor are they willing to run the same risks in overcoming
those threats they do recognize. The world community is
willing enough to cooperate in 'peacekeeping,' that is, in
policing an existing agreement not challenged by any of the
parties, but it has been skittish about peacemaking, the sup-
pression of actual challenges to world order. This is not sur-
prising, since not even the United States has as yet developed
a clear concept of what it will resist unilaterally in the post-
Cold War world.

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come. Roosevelt rarely deviated from the standard rhetoric of
the interwar period and repeated the isolationist themes
handed down by his predecessors. In a speech before the
Woodrow Wilson Foundation on December 28, 1933,
Roosevelt addressed the imminent end of the agreed term of
the Naval Treaties of the 1920s. He proposed to extend these
accords by calling for the abolition of all offensive weapons
and, harkening back to Kellogg, by a commitment that no na-
tion permit its military forces to enter the territory of another.

no such general agreement for the elimination of aggres-
sion or the elimination of the weapons of offensive warfare
would be of any value [without reprisal for noncompli-
ance]

As the number of states multiplies and their capacity to inter-
act increases, on what principles can a new world order be or-
ganized. Given the complexity of the new international sys-
tem, can Wilsonian concepts like 'enlarging democracy' serve
as the principal guides to American foreign policy and as re-
placement for the Cold War strategy of containment. Clearly,
these concepts have been neither an unqualified success nor
an unqualified failure. Some of the finest acts of twentieth-
century diplomacy had their roots in the idealism of
Woodrow Wilson. The Marshall Plan, the commitment to
containing communism, defense of the freedom of Western
Europe, and even the ill-fated League of Nations and its later
incarnation, the United Nations.

92

> "... if this treaty all the nations solemnly pronounce against war as an institution for settling international disputes, the world will have taken a forward step, created a public opinion, marshaled the great moral forces of the world for its observance, and entered into a sacred obligation which will make it far more difficult to plunge the world into another great conflict."

Four years later, Kellogg's successor, Henry Stimson, as distinguished and sophisticated a public servant as America had produced in the entire interwar period, was not able to advance a better remedy against aggression than the Kellogg-Briand Pact, backed, of course, by the strength of public opinion,

> "The Kellogg-Briand Pact provides for no sanctions of force ... Instead it rests upon the sanction of public opinion which can be made one of the most potent sanctions of the

89

HAK:

This Professor at the Univ. of Paris asks if you would be interested in allowing your references to the Kellogg-Briand Pact from Diplomacy to be reproduced in a festschrift for Hans Kelsen on the 25th anniversary of his death.

If you, you are invited to add new framing or introductory comments.

(He mentions your references to Kelsen in *Diplomacy*, but I can find none in the index.)

OK (with new framing) ✓ No

DEC 17 1997

December 9th, 1996

Dear Dr. Kissinger:

Last week, I had tried to telephone regarding this current project and was able to obtain your address at that time. Recently, a copy of your book on *Dimplomacy* had come to my review, with a good deal of interest.

It is a pleasure to invite you to participate in the 25-Year Commemoration of the life of Hans Kelsen, the noted Austrian jurist and social philosopher to take place next year. The effort is to include a collection of essays in his honor and recalling your references to him in your *Dimplomacy* text, I thought the project might be of interest to you. Kelsen had an especial interest in the Kellogg-Briand pact in his concern regarding treaties constructed in the absence of effective corrective norms which he saw as lacking in realism. For this it would be of interest to include the segments from your book *Dimplomacy*, dealing with the Kellogg-Briand pact (pp 280-281ff, pp 374-376ff). Along possibly with any framing or introductory statement to might want to add, this latter at your option.

The date of the Commemorative year itself is in 1998, with the date for essays and papers planned for the summer. My address during the compilation of the volume shall be in England for the year at: Dr. G.O. Mazur, Oxford University, 14 Fox Crescent, Oxford OX1 4UX, England. If possible for you to confirm permission to reprint sometime during the coming weeks.