The Pact of Paris was out of the category of a rule
On the question of self-defense, Mr. Kellogg declared that the right of self-defense was not limited to the defense of territory under the sovereignty of the state concerned, and that under the treaty, each state would have the prerogative of judging for itself, what action the right of self-defense covered and when it came into play, subject to the risk that this judgment might not be endorsed by the rest of the world. "The United States must judge…. and it is answerable to the public opinion of the world if it is not an honest defense; that is all." This is Mr. Kellogg's own statement.
This is how the Pact of Paris came into being and what it was intended to convey by its authors.
It indicates that the parties thereto intended to create by this Pact only a contractual obligation. Its originators did not design it for the entire Community of Nations. There were several reservations introduced by the several parties for their respective interests. This is compatible with contractual obligations, but not with law. No doubt it was a multilateral treaty or pact. But though a law can be created only by a multilateral treaty, every multilateral treaty does not create law. A rule of law, once created, must be binding on the states independently of their will, though the creation of the rule was dependent on its voluntary acceptance by them. The obligation of this Pact, however, always remains dependent on the will of the states, in as much as it is left to these states themselves to determine whether their action was or was not in violation of the obligation undertaken by the Pact.
Apart from any other consideration, the single fact that war in self-defense in international life is not only not prohibited, but that it is declared that each state retains "the prerogative of judging for itself what action the right of self-defense covered and when it came into play" is, in my opinion, sufficient to take the Pact out of the category of law. As declared by Mr. Kellogg, the right of self-defense was not limited to the defense of territory under the sovereignty of the state concerned.
Considerations relevant for the determination of the legal character of rules of conduct obtaining in society are:
1. That only through final ascertainment by agencies other than the parties to the dispute can the law be rendered certain; it is not rendered so by the ipse dixit of an interested party. Such certainty is of the essence of law.
2. That it is essential for the rule of law that there should exist agencies bearing evidence of or giving effect to the imperative nature of law.
The law's external nature may express itself either in the fact that it is a precept created independently of the will of the subject of the law, or that no matter how created, it continues to exist in respect of the subjects of the law independently of their will.
The pact of Paris as explained by Mr. Kellogg and as understood and accepted by the parties thereto would not stand these tests. The reservation of the right of self-defense and self-preservation in the form and to the extent explained by Mr. Kellogg would take the Pact out of the category of a rule of law.
The Pact of Paris was out of the category of a rule (Par II)
It must also be remembered that in the present state of the international life this reservation cannot be lightly dealt with. At the present stage of international community, if it can be called a community at all, this right of self-defense or self-preservation is even now a fundamental right and follows from the very nature of international relations. The whole of the duties of states are normally subordinate to this right.
Hall says: "Where law affords inadequate protection to the individual, he must be permitted, if his existence is in question, to protect himself by whatever means may be necessary, and it would be difficult to say that any act not inconsistent with the nature of a moral being is forbidden, so soon as it can be proved that by it, and it only, self-preservation can be secured. The right in this form works by suspending the obligation to act in obedience to other principles…. There are…circumstances falling short of occasions upon which existence is immediately in question, in which, through a sort of extension of the idea of self-preservation to include self-protection against serious hurt, states are allowed to disregard certain of the ordinary rules of law in the same manner as if their existence were involved…"
"When", River says, "a conflict arises between the right of self-preservation of a state and the duty of that state to respect the right of another, the right of self-preservation overrides the duty. Primum vivere. A man may be free to sacrifice himself. It is never permitted to a government to sacrifice the stated of which the destinies are confided to it. The government is then authorized, and even in certain circumstances bound, to violate the right of another country for the safety of its own. That is the excuse of necessity, an application of the reason of state. It is a legitimate excuse."
There are writers who support the view that there is nothing higher than the interest of each of the parties as judged by each party himself. If the other party is unwilling to give in, then only war can decide whose interest is legally stronger. This, according to them, is not the denial of law, but the only legal proof possible in international life.
Westlake, who takes a more restricted view of the right says: "What we take to be pointed out by justice as the true international right of self-preservation is merely that of self-defense. A state may defend itself by preventive means if, in its conscientious judgment necessary, against attack by another state, threat of attack, or preparations or other conduct from which an intention to attack may reasonably be apprehended. In so doing, it will be acting in a manner intrinsically defensive, even though externally aggressive. The conscientious judgment of the state acting on the right thus allowed must necessarily stand in the place of authoritative sanction, so long as the present imperfect organization of the world continues."
These different views of the right of self-defense are not of much consequence to us for our present purposes. What is necessary for us to notice is that the conception of aggression being only the complement of that of self-defense, so long as the question whether a particular war is or is not in self-defense remains unjusticiable, and is made to depend only upon the "conscientious judgment" of the party itself, the Pact fails to add anything to the existing law. It only serves to agitate the opinion of the world, and the risk involved in its violation lies only in rousing an unfavorable world opinion against the offending party. Nothing can be said to be "law" when its obligation is still for all practical purposes dependent on the mere will of the party.
