I. Introduction

The 1928 Kellogg–Briand Pact was the first legal treaty to outlaw war. Article I of the Pact stated that the High Contracting Parties ‘solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another’. While the League of Nations Covenant contained procedural limitations on war-making, this was the first time that a multilateral framework prohibited war. By the 1930s, 63 States had ratified the treaty, making it one of the most universal treaties of its time.[1]

In the 1930s and 1940s, the Yale professor Edwin Borchard was one of the most prominent and fervent critics of the Pact and its legal implications.[2] Writing in the American Journal of International Law (AJIL), he criticized that some of his colleagues relied on the Pact to dismiss traditional legal rules of neutrality. While two of the 1907 Hague Conventions codified the law of neutrality prohibiting the transfer of arms to belligerents,[3] several international lawyers argued that the Covenant and the Pact implied that third states could assist the attacked state without becoming a belligerent.[4] For Borchard, such a concept of ‘non-belligerency’ was nothing more than ‘a name used as a modern excuse for violating the laws of neutrality’.[5] More generally, Borchard argued that the debate about the impact of the League of Nations and the Kellogg–Briand Pact on international law should be understood through the binary of ‘realism’ and ‘evangelism’.[6] While the latter school has ‘placed its faith in the “enforcement” of peace by collective sanctions’, the former would be grounded in ‘tried experience’ and rely on negotiation, mediation and arbitration.[7] Borchard clearly saw himself as belonging to the ‘realist’ school.

Accordingly, in historical scholarship Borchard is seen as part of the ‘traditionalist’ camp in US-American international legal scholarship which was opposed to ‘reformists’ such as his University of Chicago colleague Quincy Wright.[8] Moreover, scholars treat Borchard as the ‘isolationist’ antagonist to Anglo-American ‘internationalists’ because Borchard did not believe in the value of outlawing war.[9] However, some scholars now propose a different reading of Borchard. Rather than seeing him as an ‘isolationist’, they argue that he should be understood as a ‘non-interventionist’ who sought to prevent US American military involvement in Europe and elsewhere.[10]

While Borchard’s work has thus received considerable scholarly attention, his connection to German international legal scholarship is less well-known. As a key exception, Jens Steffek and Tobias Heinze emphasize the links between Borchard’s embrace of ‘realism’ as a strand of international relations theory and Germany’s fight against the Versailles Peace Treaty. In this context, they point to the fact that Borchard cultivated a professional relationship with the founding director of the Berlin Kaiser Wilhelm Institute for Comparative Public Law and International Law (KWI) Viktor Bruns and was often quoted by German international lawyers.[11]

Building on this argument, this blogpost shows that Borchard was an important intellectual ally for revisionist German international law scholars attacking the Kellogg–Briand Pact and its prohibition of war-making. Borchard and German lawyers such as Carl Bilfinger and Carl Schmitt sought to reduce the normative implications of the Pact to a minimum. They opposed the treaty because they regarded it as an attempt to perpetuate the territorial status quo in Europe after World War I.

The KWI played a key role in connecting Borchard’s work with German scholarship through its journal the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV, English title: Heidelberg Journal of International Law). By referring to Borchard, German lawyers were able to signal that there was support for their international legal positions abroad – even when they lobbied for revisionist policies on the European continent during National Socialism.

II. The Critique

When the Kellogg–Briand Pact was adopted in the late 1920s many international law scholars hailed it as a major achievement.[13] Only a minority took a critical stance, among them Borchard and Bilfinger. In August 1928, Borchard sharply criticized the treaty in a presentation at the Williamstown Institute of Politics.[14] Borchard argued that ‘reservations’[15] and interpretative declarations given by various states at the time of adoption had significantly watered down the original US-American proposal. France had lobbied for exceptions to the prohibition of war for self-defence as well as for measures adopted in accordance with the League of Nations Covenant, the Locarno Treaty and treaties of alliance. Britain had claimed that it could invoke self-defence if its ‘special and vital interests’ were affected. Borchard suggested: ‘The original American proposal was progressive, pure and simple, to use Mr. Kellogg’s expression. The European amendments transformed the proposal into something entirely different: into a universal sanction for war, into a recognition by us of Europe’s right to wage war, even against the United States, whenever the individual interests of certain nations are deemed to require it and whenever the League, in its uncontrolled discretion, decides upon it’.[16] Accordingly, ‘the present treaties [would] make war extremely easy’.[17]

Carl Bilfinger, Professor of Public Law and Public International Law in Halle (1925-1935), suggested in 1929 that the Kellogg–Briand Pact had no normative character.[19] The Pact’s terms would be too vague to be recognized as legal obligations.[20] The many contradictory declarations made by states at the time of ratification would be evidence that essential questions of war and peace could not be meaningfully addressed by international law. The Pact would be ‘a programmatic declaration that does not contain the minimum level of legal bindingness required for political legal norms’.[21]

The two authors were thus united in their critical stance toward the Pact: for Borchard, the Pact became a sanction for war; for Bilfinger, it was devoid of any normative relevance. These arguments would later play a key role in trying to keep the US out of World War II (Borchard) and justifying German aggression against Poland in 1939 (Bilfinger).[22]

III. The Cause

Borchard’s and Bilfinger’s views on the Pact are based on a common perspective on the inter-war system of peace and security: by maintaining the status quo, the League of Nations Covenant and the Kellogg–Briand Pact discriminated against the losers of the First World War. As Borchard emphasized in his Williamstown speech it would be wrong to embrace ‘legal efforts to preserve by force the status quo’.[23] By the mid-1930s, he would criticize the League Covenant ‘as primarily a political device for maintaining the Treaty of Versailles’ enshrining ‘unfortunate and impractical political settlements’.[24] Borchard underscored: ‘The attempt to hold down and impose the status quo and to defend it in the name of law and order makes a mockery both of law and of peace’.[25] The situation would require ‘change’ – taking into account the ‘natural strength of peoples’.[26]

Similarly, Bilfinger took the view that the League Covenant and the Pact discriminated against Germany because they were intended to confirm the existing territorial status quo. Since the mid-1930s, Bilfinger had attacked the League of Nations as an institution that would ‘guarantee […] the status quo through hegemony and sanctions’.[27] The Kellogg–Briand Pact would mean a ‘doubling of the […] status quo safeguards’ to Germany’s detriment.[28] The prohibition of war in the Kellogg–Briand Pact and the prohibition of territorial changes under Art. 10 of the League Covenant would run against the interests of the powers that had lost World War I.[29] The Kellogg–Briand Pact could be activated ‘to the disadvantage of poor nations or nations dependent on the acquisition of territory for settlement and economic expansion due to overpopulation’.[30] It would work ‘automatically against the “have-nots” and for the saturated powers’.[31] From the perspective of the US and German lawyer, the treaties were an obstacle to changing the status quo and therefore needed to be rejected.

IV. The Link

The KWI provided the forum for linking the isolationist Borchard and the revisionist Bilfinger. In 1929, Borchard’s Williamson speech was published in the first issue of the ZaöRV, the Institute’s journal, under the title ‘The Kellogg Treaties Sanction War’.[32] Bilfinger’s Betrachtungen über politisches Recht were also part of this inaugural issue.[33]

It was no coincidence that both articles appeared in the ZaöRV. Viktor Bruns, director of the KWI and editor of the ZaöRV, had a close relationship with both the German and the American lawyer. Bruns was Bilfinger’s cousin and kept him close to the KWI: Bilfinger published regularly in the ZaöRV. In his will, Bruns even successfully recommended his cousin as the first in line of potential successors.[34]

The New York born Borchard came from a German-Jewish family and had a professional interest in Germany.[35] Borchard had visited Germany already before World War I and became a member of the Internationale Vereinigung für Vergleichende Rechtswissenschaft und Volkswirtschaftslehre zu Berlin (“International Association for Comparative Law and Economics of Berlin”).[36] It is not clear when he first met Bruns, but the relationship was close: from 1923 Borchard and Bruns regularly exchanged books for university libraries in the US and Germany.[37] In 1925, Borchard became visiting professor at the Berlin Friedrich Wilhelms Universität  – on invitation by Bruns.[38] He even received an honorary doctorate from the law faculty. The faculty cited his excellent reputation and knowledge of German law as reasons for the honorary doctorate. The professors also emphasized that ‘three years ago Professor Borchard was the first and only foreigner to make an effort to restore the scientific relations between the United States and Germany that have been severed during the war’.[39]

Borchard returned the favour by making the KWI known in the US-American academic world. In an editorial for the AJIL in 1930, he celebrated the establishment of the KWI as a role model for similar institutions. Its creation would be ‘one of the most important events marking the progress of the science of international law in the post-war period’ and despite being in existence for only four years it would have ‘no comparable rival’.[40] For its director Viktor Bruns, Borchard had nothing but warm praise: ‘A gifted scholar, endowed with youth, energy, executive ability, and extraordinarily vision, it may be said that the eminence attained by the Institute is primarily due to his exceptional competence […]’.[41]

Borchard continued to show public admiration for his friend even after Germany had started World War II in Europe. In a 1943 obituary for Bruns in the AJIL, Borchard hailed him as ‘probably the leading German authority on international law’ and one of the world’s ‘most constructive thinkers and doers’.[42] When it came to links to National Socialism, Borchard was apologetic: ‘Although never a member of the “Party” and revolted by much that offended his own elevated principles, he thought it best to carry on, keeping the Institute out of Party control and maintaining its high standards’.[43] Although Bruns did not formulate Großtraumtheories like Carl Schmitt, he was by no means politically innocent. He provided legal cover for violations of the Versailles Treaty during National Socialism. For example, Bruns defended the introduction of conscription despite the limits on the size of the German army imposed by the Versailles Treaty.[44] Bruns also attacked the system of automatic economic sanctions against aggressors under the League Covenant as a ‘codification of the British practice of trade war’ in 1940.[45]

Borchard’s close ties to Germany were recognized by some observers in Germany and the US. When Viktor Bruns approached the Foreign Office in 1932 with a request for archival access for a research project by Borchard, the Foreign Office signalled support since Borchard would be known as a ‘Germanophile academic’.[46] In 1937, a critical book review of Borchard’s and William P. Lage’s ‘Neutrality for the United States’ appeared in a US journal questioning the scholarly value of the ‘polemical’ work.[47] The reviewer emphasized: ‘there seem clearly to emerge in the treatment certain political preferences on the part of the author which simply cannot be overlooked or passed over in silence. Those consist of marked sympathy for Germany and Austria and something approaching strong antipathy toward Britain and France, in connection with the War and the peace settlement.’[48]

V. The Authority

Borchard became a key authority for German revisionist international lawyers in the 1930s and 1940s. Notorious figures of German legal science embraced Borchard’s claims. In the 1932 2^nd edition of Concept of the Political, Carl Schmitt highlighted that the Kellogg–Briand Pact did not undermine his friend-enemy distinction. The ‘reservations’ to the Kellogg–Briand Pact would not only be ‘peripheral’ but would shape the content of its legal obligations.[49] As authority for the claim ‘that the Kellogg Pact does not prohibit war, but sanctions it’, Schmitt referred to Borchard’s ZaöRV article.[50] Accordingly, the Pact would leave it to each ‘politically existing people’ to distinguish between friend and enemy and to decide against whom war needs to be waged. In Schmitt’s words: ‘the solemn ‘outlawing of war’ does not abolish the friend-enemy distinction, but gives it new content and new life through new possibilities of an international hostis declaration’.[51] In his 1934 article on Nationalsozialismus und Völkerrecht (“National Socialism and International Law”), Schmitt criticized the Pact for replacing legal order with ‘legal fictions’.[52] Once again, Borchard was an important point of reference. As evidence Schmitt highlighted: ‘On the occasion of the ‘outlawing’ of war by the Kellogg Pact of 1928, a well-known American international lawyer, Borchard, asked the question whether this pact was an outlawing of war or merely a legalisation of ‘reserved’ wars’.[53]

Borchard’s writings on neutrality also were highly popular among German international lawyers. He became a key authority for the claim that the traditional rules on neutrality still applied. Borchard would have shown that the law of neutrality lives on under the Pact and that novel concepts like ‘non-belligerency’ would have no legal status.[54] This allowed German lawyers to criticize US support for Western powers in World War II for violating the two Hague Conventions.[55] Given the close ties between Borchard and the KWI, it is no coincidence that such arguments were published in the ZaöRV.

In a 1944 ZaöRV article, the new KWI director Bilfinger then suggested that World War II should be understood as a Streit um das Völkerrecht (“Struggle over International Law”).[56] The war would be ‘about whether or not the principle of the sovereignty of states, the legal reflection of their existence, can assert itself as the foundation of international law against the attacks’ of the Allied powers.[57] These ‘attacks’ saw Bilfinger in the post-war plans of the Allied powers about the establishment of an international organisation for ‘peace-loving states’. The distinction between ‘peace-loving’ and other states would ‘surpass the form of discrimination of the Versailles Dictate and the Geneva system’.[58] But, according to Bilfinger, because of their sovereignty, states ‘cannot legally be subject to the coercive power of a higher authority.’[59] In this context he referred to Borchard who had criticized the post-war plans in the AJIL in 1944.[60] Bilfinger provided a direct quote from Borchard as authority for his assertions: ‘Sovereign nations cannot have, or be coerced by, any centralized superior because they are legally equal, and no nation […] is the custos morum or the policeman of the others’.[61]

VI. Conclusion

After World War II, the link between Borchard and the Max-Planck-Institute (MPI) as the successor to the KWI continued. While Bruns had died, Bilfinger was surprisingly reinstated as the new director in 1949, despite his support for National Socialism.[62] In an exchange of letters between Bilfinger and Borchard, Borchard offered to send a considerable number of academic books to the MPI to help rebuild its library. In passing, Borchard explained that he was on Bilfinger’s side: ‘I am dissatisfied with the American policy in the matter of the second war, as I was in the first.’[63] Bilfinger replied that he was deeply moved by these words and would hope that the ‘cause of reason and justice’ would now prevail.[64] The connection between the KWI/MPI and Borchard thus survived World War II. Borchard’s reassurance allowed Bilfinger to tell himself that he had been on the right side all along. One may thus conclude: the ‘isolationist’ Borchard permitted revisionist German international law scholars not to feel isolated.

***

[1] On the Pact: Bernhard Roscher, Der Briand–Kellogg-Pakt von 1928. Der “Verzicht auf den Krieg als Mittel nationaler Politik“ im völkerrechtlichen Denken der Zwischenkriegszeit, Baden-Baden: Nomos 2004; Stephen Neff, War and the Law of Nations. A General History, Cambridge: Cambridge University Press 2005, 293–313.

[2] See: Hatsue Shinohara, US International Lawyers in the Interwar Years: A Forgotten Crusade, Cambridge: Cambridge University Press 2012, 123–148.

[3] Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907; Hague Convention (XIII) Respecting the Rights and Duties of Neutral Powers in Naval War, 18 October 1907.

[4] Manley O. Hudson, The Budapest Resolutions of 1934 on the Briand–Kellogg Pact of Paris, AJIL 29 (1935), 92–94.

[5] Edwin Borchard, War, Neutrality and Non-belligerency, AJIL 35 (1941), 618–625, 624.

[6] Edwin Borchard, Realism v. Evangelism, AJIL 28 (1934), 108–117.

[7] Borchard, Realism (fn. 6), 108–109.

[8] Shinohara (fn. 2), 123–148.

[9] Mark Janis, America and the Law of Nations 1776–1939, Oxford: Oxford University Press 2010, 218–219; in this sense also: Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World, New York: Simon & Schuster 2017, 170–171.

[10] Stephen Wertheim, Tomorrow the World. The Birth of US Global Supremacy, Cambridge: Harvard University Press 2020, 15–17; 31–33; 87.

[11] For his connection, when it comes to realism: Jens Steffek/Tobias Heinze, Germany’s fight against Versailles and the rise of American realism: Edwin Borchard between New Haven and Berlin, in: Jens Steffek/Leonie Holthaus (eds), Prussians, Nazis and Peaceniks, Manchester: Manchester University Press 2020, 100–122.

[12] Photo: Library of Congress via Wikimedia.

[13] Roscher (fn. 1), 105–139.

[14] Edwin Borchard, The Multilateral Pact. “Renunciation of War”, An address delivered at the Williamstown Institute of Politics, 22 August 1928, published via: Yale Law School, The Avalon Project.

[15] Not only Borchard but also others treated the declarations made in the context of the Kellogg-Pact negotiations as ‘reservations’ in the legal sense: Hans Wehberg, Die Ächtung des Krieges, Munich: Vahlen 1930, 106–107. The character as legal ‘reservations’ is, however, not obvious, since the declarations were not formally made by each state upon ratification, on this see: Robert Le Gall, Le Pacte de Paris du 27 Août 1928, Paris: Receuil Sirey, 1930, 83–85.

[16] Borchard, The Multilateral Pact (fn. 14).

[17] Borchard, The Multilateral Pact (fn. 14).

[18] Photo: Viktor Bruns, Bad Homburg.

[19] Carl Bilfinger, Betrachtungen über politisches Recht, HJIL 1 (1929), 57–76, 72.

[20] Carl Bilfinger, Betrachtungen (fn. 19), 70.

[21] Carl Bilfinger, Betrachtungen (fn. 19), 72, translated by the author.

[22] See: Carl Bilfinger, Die Kriegserklärungen der Westmächte und der Kelloggpakt, HJIL 10 (1940), 1–23.

[23] Borchard, The Multilateral Pact (fn. 14).

[24] Borchard, Realism v. Evangelism (fn. 6), 109.

[25] Edwin Borchard, The Various Meanings of International Cooperation, Annals of the American Academy of Political and Social Science 186 (1936), 114–123, 119.

[26] Borchard, The Various Meanings (fn. 25), 116; 119.

[27] Carl Bilfinger, Völkerbundsrecht gegen Völkerrecht, Berlin: Duncker & Humblot 1938, 35, translated by the author.

[28] Bilfinger, Kriegserklärungen (fn. 22), 11, translated by the author.

[29] Bilfinger, Kriegserklärungen (fn. 22), 11, translated by the author.

[30] Bilfinger, Kriegserklärungen (fn. 22), 15, translated by the author.

[31] Bilfinger, Kriegserklärungen (fn. 22), 15, translated by the author.

[32] Edwin Borchard, The Kellogg Treaties Sanction War, HJIL 1 (1929), 126–131.

[33] Bilfinger, Betrachtungen (fn. 19), 57.

[34] Testamentary Letter [Testamentarisches Schreiben] by Viktor Bruns, dated 2.5.1942, in: Philipp Glahé/ Reinhard Mehring/ Rolf Rieß (eds.), Der Staats- und Völkerrechtler Carl Bilfinger (1879–1958). Dokumentation seiner politischen Biographie, 313–314; on this: Reinhard Mehring, Vom Berliner Schloss zur Heidelberger „Zweigstelle“. Carl Bilfingers politische Biographie und seine strategischen Entscheidungen von 1944, MPIL100.de.

[35] On this: Steffek/Heinze (fn. 11), 102.

[36] Letter by Karl von Lewinski to Edwin Borchard, dated 29.3.1911; Letter by Edwin Borchard to Karl von Lewinski, dated 14.4.1911, Borchard Papers.

[37] Letters by Edwin Borchard to Viktor Bruns, dated 21.11.1923 and 28.6.1924, Borchard Papers, Box 15, File 1999.

[38] Steffek/Heinze (fn. 11), 103.

[39] HUB, UA, Juristische Fakultät, Nr. 481, Bl. 216–218, translated by the author.

[40] Edwin Borchard, Institut für Ausländisches Öffentliches Recht und Völkerrecht, AJIL 24 (1930), 587–591, 587; on this: Gabriela Frei, “An epoch-making event”? The Foundation of the Kaiser-Wilhelm-Institute and the Anglo-American Research Community, 1912–1933, MPIL100.de.

[41] Borchard, Institut (fn. 40), 158.

[42] Edwin Borchard, Death of Dr. Viktor Bruns, AJIL 37 (1943), 658–660.

[43] Borchard, Death of Dr. Viktor Bruns (fn. 42), 659.

[44] Viktor Bruns, Der Beschluß des Völkerbundsrats vom 17. April 1935, HJIL 5 (1935), 310–332.

[45] Viktor Bruns, Der britische Wirtschaftskrieg und das geltende Seekriegsrecht, HJIL 10 (1940), 24–109, 27–30.

[46] Record [Aufzeichnung], 7.9.1932, Politisches Archiv Auswärtiges Amt (PAAA), R 54245.

[47] Pitman B. Potter, Review of Neutrality for the United States by Edwin M. Borchard and William P. Lage, University of Chicago Law Review 5 (1937), 164–167, 164.

[48] Potter, Review (fn. 47), 165.

[49] Carl Schmitt, Der Begriff des Politischen, in: Marco Walter (ed.), Carl Schmitt: Der Begriff des Politischen – Synoptische Darstellung der Texte, Berlin: Duncker & Humblot 2018, 158, translated by the author.

[50] Carl Schmitt, Begriff des Politischen (fn. 49), 158, translated by the author.

[51] Carl Schmitt, Begriff des Politischen (fn. 49), 160, translated by the author.

[52] Carl Schmitt, Nationalsozialismus und Völkerrecht in: Günter Maschke (ed.), Carl Schmitt: Frieden oder Pazifismus? Arbeiten zum Völkerrecht und zur internationalen Politik 1924–1978, Berlin: Duncker & Humblot 2019, 402, translated by the author.

[53] Carl Schmitt, Nationalsozialismus und Völkerrecht (fn. 52), 402, translated by the author.

[54] Ferdinand Schlüter, Kelloggpakt und Neutralitätsrecht, HJIL 11 (1942/43), 24–32, 30–31; similar: Fritz Berber, Die Amerikanische Neutralität im Kriege 1939/1941, HJIL 11 (1942/1943), 445–476, 448.

[55] Schlüter, Kelloggpakt (fn. 54); Berber, Neutralität (fn. 54); on this see: Steffek/Heinze (fn. 11), 111–112.

[56] Carl Bilfinger, Streit um das Völkerrecht, HJIL 12 (1944), 1–33.

[57] Bilfinger, Streit (fn. 56), 6, translated by the author.

[58] Bilfinger, Streit (fn. 56), 7, translated by the author.

[59] Bilfinger, Streit (fn. 56), 9, translated by the author.

[60] Edwin Borchard, Flaws in the Post-War Peace Plans, AJIL 38 (1944), 284–289.

[61] Borchard, Flaws (fn. 60), 285.

[62] Felix Lange, Carl Bilfingers Entnazifizierung und die Entscheidung für Heidelberg Die Gründungsgeschichte des völkerrechtlichen Max-Planck-Instituts nach dem Zweiten Weltkrieg, HJIL 74 (2014), 697–732.

[63] Letter by Edwin Borchard to Carl Bilfinger, dated 4.4.1949, Archive of the Max Planck Society.

[64] Letter by Carl Bilfinger to Edwin Borchard, dated 7.5.1949, Archive of the Max Planck Society.