Memorandum by the Department of External Affairs on the proposed International Pact for the Outlawry of War (The Kellogg-Briand Pact)
(E.A. 14/20)

The origin of the proposed International Pact for the Outlawry of War was a public message to the United States of America by Monsieur Briand in which he declared the readiness of the French Government to sign with that country a treaty 'outlawing war'. The declaration was received with great enthusiasm in the United States of America and, in order to meet persistent requests from America, Monsieur Briand drafted a short treaty which he communicated to the American Government.

In the draft treaty it was proposed that France and the United States should agree to 'condemn recourse to war and renounce it respectively as an instrument of their national policy towards each other'.

The United States administration received Monsieur Briand's proposal very coolly at first. They were unwilling to conclude a treaty which, so far as the United States of America is concerned, might give France a free hand to pursue in Europe policies appearing aggressive in American eyes. In December last, finding opinion in America still in favour of the Briand proposal, Mr. Kellogg addressed a note to the French Government stating that his Government were ready to accept Monsieur Briand's proposal, provided it was turned from a bilateral into a multilateral treaty to be signed by 'the principal powers of the World' and to be 'open to signature by all nations'. He further suggested that the United States of America and France should submit a treaty to the 'other nations of the World'.

The French accepted the proposal that the treaty should be multilateral but suggested (a) that it should first be signed by France and the United States of America before being submitted to the other powers, and (b) that the renunciation should apply to a 'war of aggression' only. The American Government disagreed with the view that the treaty should be first signed by the United States of America and France and further that its scope should be limited to 'wars of aggression'. Mr. Kellogg proposed that the original Briand draft and subsequent correspondence should be communicated to the Governments of Great Britain, Germany, Italy and Japan for their consideration and comments.

The French Government agreed to the proposal to submit the draft treaty to the principal powers. They pointed out that certain powers had duties imposed on them by the League of Nations and the Agreement at Locarno. They invited the American Government to suggest a procedure of reconciling the absolute condemnation of war with the engagements and obligations already assumed by various nations. The American Government replied to the French note that, if the obligations referred to could be interpreted to permit France to conclude a treaty such as originally proposed by Monsieur Briand (bilateral treaty), it would not be unreasonable to suppose that this interpretation could be stretched to cover an equivalent multilateral treaty with other powers.

It was finally agreed between the United States of America and France that the Briand original proposal and subsequent correspondence should be communicated to the Governments already mentioned as a basis for 'preliminary discussion looking to the conclusion of an appropriate multilateral treaty proscribing recourse to war'.

The French Government have informed the other governments that they have agreed to the submission on the understanding, so far as France is concerned:

It might be well at this point to emphasize the differences between the French and American attitude on the pact.

FRANCE:

(a) Obligations and duties under Covenant of League and Locarno Treaty to remain unaffected by Pact.

(b) Scope of pact to be limited to 'Aggressive War'.

(c) Pact not to become operative until it has received general acceptance.

AMERICA:

(a) No limitation in scope of pact.

(b) Pact to become operative when ratified by the six great powers.

In a telegram of the 6th May addressed to all the Dominions, the British state that they were anxious that the proposals should first be examined at an informal meeting of Jurists to be followed by a meeting of Ministers of the countries concerned, at which they hoped Mr. Kellogg would attend. Mr. Kellogg however intimated that he thought such a meeting unnecessary and that in view of the simple nature of the treaty there should be no difficulty in the way of direct acceptance. As a result of Mr. Kellogg's attitude the British consider that the wisest course is to accept the proposed treaty as it stands. In intimating their acceptance they intend to set out the sense in which the treaty is understood and to indicate that they have special responsibilities and commitments analogous to those of the Monroe Doctrine which is presumably covered by the draft treaty. They will telegraph their reply in a few days. They also state in the telegram that they consider the question of such a kind that it is essential that acceptance should be expressed in a way that will make it clear that acceptance is with the concurrence of all His Majesty's Governments and implies their readiness to subsequently participate in the treaty.

The British consider that the treaty should be concluded by all His Majesty's Governments in accordance with the procedure agreed at the Imperial Conference. This would mean that all the Governments of the Commonwealth would participate in the treaty between the Six Great Powers through Plenipotentiaries holding full powers territorially limited.

On the assumption that the Saorstát is not opposed to the conclusions of such a treaty, the British suggestion appears to be in accord with the paragraph of the Imperial Conference report dealing with the negotiation of treaties which reads as follows:-

In view of the fact that the proposals were not communicated to the Dominion Governments by the United States of America it might be held that this procedure merely brings them in as appendages of Great Britain and that the proper procedure for the Dominions would be to adhere in the same way as other minor powers. In this connection it is interesting to note the following conversation between the British Ambassador at Washington¹ and Mr. Kellogg on the question of the British Government's attitude to the proposed treaty:-

If the American view - that the Treaty is to become operative when ratified by the Six Great Powers - is accepted, it is difficult to see how in face of the statement in the Imperial Conference report mentioned above the British suggestion for Dominions participation can be objected to.

The German Government have already replied to the American Government that they are ready to conclude a Pact as proposed by the United States, and to engage with the interested Governments in the negotiations necessary for this purpose. They have pointed out, however, that respect for the obligations arising out of the Covenant of the League and the Rhine Pact of Locarno must in their view stand immutable. The German Government are convinced that these obligations contain nothing that could in any way conflict with the obligations implied in the draft Treaty of the United States of America. The German Government take it for granted that a Pact of the kind proposed by the United States of America would not place in doubt the sovereign right of each State to defend itself. The German Government also assume that if any State breaks the Pact the other contracting States recover their freedom of action in regard to that State. It does not appear necessary to the German Government in a Pact of this kind to provide expressly for the case of its infringement. Replies from the other Powers will in all probability be received in the course of the next week, and it is accordingly necessary that the question of the Saorstát's participation should be considered as soon as possible in order that the British may be in possession of our views before their reply is transmitted to the United States of America.