International Law and Its Transformation Through the Outlawry of War

Forthcoming in International Affairs

Yale Law School, Public Law Research Paper No. 660

20 Pages Posted: 27 Dec 2018

See all articles by Oona A. Hathaway

Oona A. Hathaway

Yale University - Law School

Scott J. Shapiro

Yale University - Law School

Date Written: December 10, 2018

Abstract

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.

Keywords: International Law, First World War, Kellogg-Briand Treaty

JEL Classification: K33

Suggested Citation

Hathaway, Oona A. and Shapiro, Scott J., International Law and Its Transformation Through the Outlawry of War (December 10, 2018). Forthcoming in International Affairs; Yale Law School, Public Law Research Paper No. 660. Available at SSRN: https://ssrn.com/abstract=3299076

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

Scott J. Shapiro

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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