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This article performs three functions. First, it offers a revisionist interpretation of the 1928 Kellogg-Briand Pact, the much-maligned treaty through which the key powers of the era, led by the United States, undertook to “outlaw” war, renouncing it as a tool of national policy and committing themselves to resort exclusively to pacific means for the resolution of their international disputes. Because of Kellogg-Briand’s inability to prevent the outbreak of World War II, the treaty has been derided for decades as a futile, utopian illusion, but this article argues that it was, in fact, a tremendous success in altering states’ attitudes toward, and concepts about, the initiation of hostilities. The treaty created a watershed in the world’s understanding of the controllability and need for a legal justification for warfare; it constitutes a major alteration in the intellectual history of warfare, even if it has hardly affected the frequency of armed combat.

Second, the article argues that the time has come to extend the concepts and strategy of Kellogg-Briand to confront the contemporary dangers of nuclear weapons, nuclear proliferation, and the specter of nuclear war. In particular, it argues in favor of a “nuclear version” of Kellogg-Briand, through which countries would commit themselves to condemning and refraining from nuclear war – at least any “first use” of nuclear weapons. The article surveys the existing arms control mechanisms that inhibit the reliance upon nuclear weapons and proposes important expansions.

Finally, the article offers a draft of the proposed new treaty, a Nuclear Kellogg-Briand Pact. The proffered instrument echoes the 1928 precedent, but stretches considerably beyond it, to incorporate “operational” provisions that would give meaningful “teeth” to the basic commitment. The draft treaty is accompanied by numerous annotations that explain the drafting choices and alternatives and cite analogous provisions in other treaties.

Overall, the ambition of the article is to build upon the inspiration of the original Kellogg-Briand Pact in prompting fresh thinking about the role of nuclear weapons in contemporary security policy, the “usability” of those armaments in combat, and the possibility of nudging the world closer to their complete elimination. An important step in that campaign is the social-psychological shift away from seeing nuclear weapons as an inevitable, permanent constituent of the global security structure, appreciating them, instead, as instruments that can be controlled, regulated and ultimately abolished.

Publication Citation

42 Syracuse J. Int'l L. & Com. 123 (2014-2015)