-------- Original Message --------
Oggetto: ‘INTERNATIONAL JUSTICE’ AND THE END OF INTERNATIONAL LAW [fwd]
Data: Wed, 24 Jan 2001 19:55:04 +0100
Da: Herman de Tollenaere
PUBLICA.CZ http://www.publica.cz/forum/forum_chandler.htm
‘INTERNATIONAL JUSTICE’ AND THE END OF INTERNATIONAL LAW
By Dr David Chandler, Research Fellow,
Policy Research Institute, Leeds Metropolitan University
shortened version of “International Justice”, in the New Left Review,
No.6,
Nov/Dec 2000
The NATO bombing of Yugoslavia in the spring of 1999 has been saluted as
a triumph for ‘international justice’ over the traditional claims of
state
sovereignty. The war was in clear breach of international law: waged
without
UN Security Council authorization, against an elected, civilian
government
which
had not violated any external treaty, justifiable neither as a threat to
peace and security, nor in terms of any NATO country’s self-defence. It
has
been
welcomed instead as a ‘humanitarian’ crusade, explicitly setting
individual
rights above the territorial rights of nation-states. But if the
sovereignty
of some states—Yugoslavia, Iraq—is to be limited, that of others— the
NATO
powers—is to be increased under the new order: they are to be given the
right
to intervene at will. It is, in other words, not sovereignty itself but
sovereign
equality—the recognition of the legal parity of nation-states,
regardless
of their wealth or power—which is being targeted by the new
interventionists.
Yet such equality has been the constitutive principle of the entire
framework
of existing international law and of all attempts, fragile as they may
be, to
establish the rule of ‘right’ over ‘might’ in regulating inter-state
affairs.
‘Humanitarian intervention’. This article will examine the implications
of
such a right to ‘humanitarian’ military intervention for the future of
inter-state
regulation and international law.
International Law and Sovereign Equality
The concept of sovereign equality is often understood as an integral
part
of the long-standing doctrine of state sovereignty. In fact, it is of
much
more
recent provenance than the classic state system which emerged at the end
of
the
Thirty Years War. The Peace of Westphalia of 1648 famously recognized
the
secular
rights of German princelings above the religious claims of the Papacy,
legitimating no external power beyond that of the sovereign; it was this
formal recognition of the principle of territorial sovereignty which
henceforth
became the basis of relations between states. There was, however, no
international
law in the modern sense: such rights of sovereignty were effectively
restricted
to the major powers and there was no explicit framework of an
international
community which could formally limit their exercise. Without
international
law, the regulation of inter-state relations could not extend beyond
voluntary
agreements between the sovereign states—strategic alliances, aimed at
preserving
local interests and maintaining a relatively stable balance of power.
The epoch of this classic, ‘anarchical’ state-system, with no defined
limits
to the sovereignty of the major powers, was also the era of colonialism.
The
states included within it were those which could defend their own
territory
from
the claims of other states. It was therefore quite consistent to argue
that in
countries which could not demonstrate such ‘empirical statehood’—the
colonies—sovereignty could not apply. Meanwhile, those with sufficient
military
force to intervene in other states’ affairs—in other words, the great
powers—continued to do so. During the colonial era, the major powers
either
regulated their territorial acquisitions directly—as in Africa and
India—or,
as in China, Japan and the Ottoman Empire, insisted that their own
actions
could
not be fettered by local domestic legislation, claiming the right of
extraterritoriality. Under the Westphalian system, then, superior force
was
the guarantor of effective sovereignty.
The Westphalian model came under attack with the modernization and
growing
world importance of the leading non-European states. Challenges to
Western
rule
and increasing international instability led to new attempts to regulate
inter-state
affairs. The Hague Conference of 1899 saw the attendance of China,
Japan,
the Ottoman Empire, Persia and Siam. In 1905 Japan’s defeat of Russia
came as
a powerful shock to European imperial confidence, closely bound up with
assumptions of racial superiority. The second Hague Conference of 1907
was
the first gathering of modern states at which Europeans were outnumbered
by the
representatives of other countries. But it was the watershed of the
First
World War—bringing in its wake the collapse of the Russian,
Austro-Hungarian and
Ottoman empires, the rise of colonial resistance, the establishment of
the
Soviet Union and the threat of new world war—that was decisive in
turning
Western policy makers away from the strength-based Westphalian system
and
towards a more juridical concept of sovereignty and a framework of
international law.
The principle of national self-determination was proclaimed by Woodrow
Wilson
at the 1919 Paris Peace Conference—for the newly created states of
Central
Europe.
The extension of such a right to the rest of the world—ringingly
affirmed
by the Bolsheviks’ Declaration of the Rights of Toiling and Exploited
Peoples in
January 1918—was held at bay. The expansion of the concept of
territorial
sovereignty beyond the principle of ‘might is right’ remained highly
controversial within policy-making circles. Robert Lansing, US Secretary
of State, recalled his doubts:
The more I think about the President’s declaration as to the right of
‘self-determination’, the more convinced I am of the danger of putting
such
ideas into the minds of certain races. It is bound to be the basis of
impossible
demands on the Peace Conference and create trouble in many lands.
What effect will it have on the Irish, the Indians, the Egyptians, and
the
nationalists among the Boers? Will it not breed discontent, disorder and
rebellion? Will not the Mohammedans of Syria and Palestine and possibly
Morocco
and Tripoli rely on it? [2]
This ‘danger’ was a central concern of the inter-war settlement. The
League
of Nations timidly initiated legal restriction of great-power
sovereignty
through
the introduction of the mandate system, with colonial administrators now
deputed to ‘advance the interests’ of the subject peoples. The
mandates—implying
a recognition that colonial rule could only be temporary—were the first
formal
admission that empire was no longer a legitimate political form. But the
concept of sovereign equality remained confined to a few, the right of
self-determination denied to large sections of the world’s population,
Japan’s
attempt to include a clause on racial equality in the League of Nations
Charter firmly
rejected. The development of a universal legal conception of sovereign
equality
would have to await a further world war.
The 1945 settlement, preserved in the principles of the UN Charter,
reflected
a new international situation, transformed by the emergence of the
Soviet
Union
as a world power and the spread of national liberation struggles in
Asia, the
Middle East and Africa. Ideologies of race and empire, too, seemed
definitively
vanquished with the defeat of the Nazi regime. It was a decisive moment
in
the transformation of the Westphalian system. In this context, the
inter-war
consensus on ‘the non-applicability of the right to self-determination
to
colonial peoples’ could no longer be sustained. United States policy
makers,
as they looked forward to assuming the mantle of the now declining
British
Empire,
realized that updated institutions for the management of international
relations
would have to ‘avoid conventional forms of imperialism’. [3] The
result
was nominal Great-Power acceptance—however hypocritical—of a law-bound
international
system.
Central to this new mechanism of international regulation was the
conception
of sovereign equality. The UN Charter, the first attempt to construct a
law-bound
‘international community’ of states, recognized all its members as
equal.
Article 2(1) explicitly stressed ‘the principle of sovereign equality’,
while
both Article 1(2) and Article 55 emphasized ‘respect for the principle
of
equal rights and self-determination of peoples’. New nations—which would
have failed
Westphalian tests of ‘empirical statehood’, and hence been dismissed as
‘quasi-states’—were granted sovereign rights, [4] while the sovereignty
of
the great powers was now, on paper at least, to be restricted. The UN
system
did not, of course, realize full sovereign equality. In practice, the
Security
Council overwhelmingly predominated, with each of its self-appointed
permanent
members—the United States, Britain, France, Russia and China—retaining
rights
of veto. Still, sovereign equality was given technical recognition in
parity
of representation in the General Assembly and lip-service to principle
of
non-interventionism, setting legal restrictions on the right to wage
war.
Justice and war
Under the Westphalian system, the capacity of the most powerful states
to
use force against the less powerful was a normal feature of the
international
order.
Under the legal framework set up by the Charter, the sovereign’s right
to
go to war (other than by UN agreement or in self-defence) was, for the
first time,
outlawed—a point sometimes missed by those who would argue that the
post-1945
order ‘failed to break’ with Westphalian norms. [5] The principle of
non-intervention was, in fact, a constituting principle of the new
international
community of states. Just as the rule of law in domestic jurisdictions
depends
upon the concentration of legalized force in a single authority, and the
criminalization of the individual exercise of violence, so within the
post-war
system of international regulation, the legal monopoly of the use of
force
resides in the UN. [6] Article 2(4) states:
All members shall refrain in their international relations from the
threat
or use of force against the territorial integrity or political
independence
of any state, or in any manner inconsistent with the purposes of the
United
Nations.
‘We may not appreciate’, writes Louis Henkin, ‘how remarkable that was,
that
transformative development in the middle of the twentieth century:
“sovereign
states” gave up their “sovereign” right to go to war.’ [7] . It marked,
it
seemed, the end of the Westphalian system of legitimating great-power
domination
through the use of force.
The universal recognition of sovereign equality entailed a new
conception
of states, whose legal authority now derived not from wealth or might
but
nationhood. Formally speaking, non-Western states from now on had the
same
standing as Western ones within the international order, despite
continuing
inequalities of economic and military power. [8] In theory, however, a
framework of international law had been created that limited the
exercise
of state sovereignty—including the right to wage war. In legal terms, at
least,
might no longer equalled right.
‘International Justice’ or International Law?
Even so mild a form of international regulation is now coming under
ferocious
attack. The case for the special treatment of some states, and demotion
of
others, has been put in a variety of registers. British barrister and
newspaper
pundit Geoffrey Robertson offers a rabid rogue-list: ‘The reality is
that
statesare not equal. There can be no “dignity” or “respect” when
statehood
is an
attribute of the governments which presently rule Iraq and Cuba and
Libya
and North Korea and Somalia and Serbia and the Sudan’. [9] Max Boot,
features
editor of the Wall Street Journal, prefers a swaggering cynicism: ‘There
is no compelling reason, other than an unthinking respect for the status
quo, why
the West should feel bound to the boundaries it created in the past.’
[10]
BrianUrquhart, a former UN undersecretary-general, sees sovereign
equality as
the ‘central barrier’ to peace and justice, providing a ‘cloak of
impunity’ for
every kind of abuse. [11]
Pitted against the concept of international law based on sovereign
equality
is a new form of global ‘justice’, formulated in explicit opposition to
it.
Advocates
of this justice herald the emergence of a new, ‘human-rights’ based
order
of international relations, arguing that the post-1945 framework—here,
‘international society’—is being eclipsed by the ethical demands of
global
‘civil society’. For Martin Shaw, erstwhile International Socialist, the
‘crucial issue’ is to face up to the necessity which enforcing these
principles would impose
to breach systematically the principles of sovereignty and
non-intervention…
The global society perspective, therefore, has an ideological
significance
which
is ultimately opposed to that of international society. [12]
For Robertson, too, ‘the movement for global justice’ is ‘a struggle
against
sovereignty’. [13] Sovereign equality is seen by these ideologues as a
legal
fiction, a mask for the abuse of power. International law is merely an
‘anachronism’, a historical hangover, while ‘some of its classic
doctrines—sovereign and diplomatic immunity, non-intervention in
internal
affairs, non-compulsory submission to the ICJ, equality of voting in the
General Assembly—continue to damage the human rights cause.’ [14]
The denial of sovereign equality obviously has major consequences for
both
the form and content of international law. The most prominent is the
rise of
the idea of a ‘duty’ of forcible ‘humanitarian’ intervention—the
so-called
devoir
d’ingerence. [15] Its advocates naturally retain the right to decide
on
whom this obligation falls. Robertson explains that ‘humanitarian
intervention
cannot be the prerogative of the UN’ since it cannot be relied upon to
act when
necessary. The duty of intervention must therefore stand independently:
‘UNanimity cannot be the only test of legitimacy’. [16] For Shaw,
‘it
is unavoidable that global state action will be undertaken largely by
states,
ad hoc coalitions of states and more permanent regional groupings of
states’. [17]
In practice, the prosecution of international justice turns out to be
the
prerogative of the West.
Such is overtly the substance of NATO’s new ‘strategic concept’,
promulgated
at the Alliance’s fiftieth anniversary summit in Washington in late
April
1999,
at the height of the Balkan War. As US Deputy Secretary of State Strobe
Talbott
explained,
We must be careful not to subordinate NATO to any other international
body
or compromise the integrity of its command structure. We will try to act
in
concert with other organizations, and with respect for their principles
and
purposes.
But the Alliance must reserve the right and freedom to act when its
members,
by consensus, deem it necessary. [18]
Similarly, a new study of ‘humanitarian intervention’ in the wake of
the Kosovo
war argues explicitly for ad hoc and arbitrary powers to intervene:
A code of rules governing intervention would be likely in the early
twenty-first
century to limit rather than help effective and responsible action on
the
part of the international community… Any attempt to get general
agreements
would
be counter-productive… It may be inevitable, possibly even preferable,
for
responses to international crises to unfold selectively. [19]
Ironically, the new ‘global’ forms of justice and rights protection will
be distinctly less universal than those of the UN-policed international
society
they set out to replace. David Held argues that, ‘in the first
instance’,
at least,
cosmopolitan democratic law could be promulgated and defended by those
democratic states and civil societies that are able to muster the
necessary
political judgement and to learn how political practices and
institutions
must change and adapt in the new regional and global circumstances. [20]
Rather more bluntly, Shaw explains the rationale of all-round NATO
intervention:
This perspective can only be centred on a new unity of purpose among
Western
peoples and governments, since only the West has the economic, political
and military resources and the democratic and multinational institutions
and
culture necessary to undertake it. The West has a historic
responsibility
to take
on this global leadership. [21]
This line of argument is now increasingly official doctrine. The
Guardian
could hail British military intervention in Sierra Leone as ‘the duty
owed by a
wealthy and powerful nation to, in this case, one of the world’s poorest
countries’. [22] Here inequality is expressly theorized as the basis
of
the new world order. Yet the modern system of law (whether international
or
domestic) depends, both at the basic level of its derivation and in the
vital
question of its application, on the concept of formal equality between
its
subjects. All international institutions—whether the UN, OSCE or even
NATO
itself—derive their authority from inter-state agreements. International
law derives its legitimacy from the voluntary assent of nation-states.
Without
such consent, the distinction between law (based on formal equality) and
repression
(based on material force) disappears. The equal application of the law
entails
parity between its subjects, without which it ceases to have meaning. In
today’s climate, the rights of weaker states can be infringed on the
grounds that
the law does not fully apply to them, while more powerful states can
claim
immunity
from the law on the grounds that it is they who ultimately enforce it.
The extension of ‘international justice’ is, in short, the abolition of
international law. For there can be no international law without equal
sovereignty, no system of rights without state-subjects capable of being
its bearers. In a world composed of nation-states, rather than a single
global
power, universal law can only derive from national governments. What the
jettisoning of the principle of non-interventionism means is the
re-legitimation
of the right of the Great Powers to practice what violence they please.
Their
apologists declare that war is now the ‘lesser evil’, compared to the
new
moral crimes of ‘indifference’ or ‘appeasement’.
Liberal interventionists have emerged as the biggest advocates of
increased
military spending. [23] For these ideologues, the absolute end of
‘international justice’ can only be compromised by diplomacy or
negotiation.
The new professors of Human Rights at the UN University’s Peace and
Governance
Programme are happy to condone those ‘good international citizens’ who
are
‘tempted to go it alone’ waging war for ‘justice’, with or without
international
sanction. [24] Robertson likewise insists that ‘a human rights offensive
admits of no half-measures’; ‘crimes against humanity are, by
definition,
unforgivable’
; ‘justice, in respect of crimes against humanity, is non-negotiable’.
[25]
Such war can know no legal bounds. In the Middle East, in Africa and the
Balkans,
the exercise of ‘international justice’ signifies a return to the
Westphalian
system of open great-power domination over states which are too weak to
prevent
external claims against them.
Dr David Chandler, Research Fellow, Policy Research Institute, Leeds
Metropolitan University. His latest book is Bosnia: Faking Democracy
After
Dayton (Pluto Press, 1999) his next book Human Rights and International
Intervention will be published by Verso in Autumn 2001.
--------------------------------------------------------------------------------
[1] This article is a shortened version of “International Justice” which
appears in the New Left Review, No.6, Nov/Dec 2000.
[2] Robert Lansing, The Peace Negotiations: A Personal Narrative, London
1921, p. 87.
[3] Justin Rosenberg, The Empire of Civil Society, London 1994.
[4] R. H. Jackson, Quasi-States: Sovereignty, International Relations
and
the Third World, Cambridge 1990.
[5] David Held, Democracy and the Global Order, Cambridge 1995, p.88.
[6] O. Ramsbotham and T. Woodhouse, Humanitarian Intervention in
Contemporary
Conflict: A Reconceptualization, Cambridge 1996, p. 35.
[7] Louis Henkin, ‘That “S” Word: Sovereignty, and Globalization, and
Human
Rights, etc’, Fordham Law Review, 1999, vol. Lxviii, no. 1, p. 1.
[8] Sovereign equality was confirmed in many subsequent UN resolutions,
notably
the Declaration on the Inadmissibility of Intervention in the Domestic
Affairs
of States and Protection of their Independence and Sovereignty of 21
December
1965 (Resolution 2131 [XX]) and the Declaration on Principles of
International
Law Concerning Friendly Relations and Co-operation among States in
Accordance
with the Charter of the United Nations of 24 October 1970 (Resolution
2625
[XXV]).
[9] Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global
Justice, London 1999, p. 372.
[10] Max Boot, ‘Paving the Road to Hell: The Failure of UN
Peacekeeping’,
Foreign Affairs, 2000, vol. 79, no. 2, pp. 1438.
[11] Brian Urquhart, ‘In the Name of Humanity’, New York Review of
Books,
27 April 2000.
[12] Martin Shaw, Global Society and International Relations:
Sociological
Concepts and Political Perspectives, Cambridge 1994, p. 1345.
[13] Crimes Against Humanity, p. xviii.
[14] Crimes Against Humanity, p. 83.
[15] M. Bettati and B. Kouchner, Le Devoir d’ingerence, Paris 1987.
[16] Crimes Against Humanity, pp. 382, 72.
[17] Global Society, p. 186.
[18] Cited in B. Simma, ‘NATO, the UN and the Use of Force: Legal
Aspects’,
European Journal of International Law, 1999, vol. 10, pp. 122.
[19] Albrecht Schnabel and Ramesh Thakur, eds, Kosovo and the Challenge
of
Humanitarian Intervention, New York: forthcoming. See
www.unu.edu/p&g/kosovo_full.htm
[20] Democracy and the Global Order, p. 232.
[21] Global Society and International Relations, pp. 1801.
[22] ‘We Are Right To Be There’, Guardian, 13 May 2000.
[23] For example, John Gray, ‘Crushing Hatreds’, Guardian, 28 March
2000;
John Lloyd, ‘Prepare for a Brave New World’, New Statesman, 19 April
1999.
[24] See, for example, Kosovo and the Challenge of Humanitarian
Intervention.
[25] Crimes Against Humanity, pp. 73, 260, 268.
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Oggetto: ‘INTERNATIONAL JUSTICE’ AND THE END OF INTERNATIONAL LAW [fwd]
Data: Wed, 24 Jan 2001 19:55:04 +0100
Da: Herman de Tollenaere
PUBLICA.CZ http://www.publica.cz/forum/forum_chandler.htm
‘INTERNATIONAL JUSTICE’ AND THE END OF INTERNATIONAL LAW
By Dr David Chandler, Research Fellow,
Policy Research Institute, Leeds Metropolitan University
shortened version of “International Justice”, in the New Left Review,
No.6,
Nov/Dec 2000
The NATO bombing of Yugoslavia in the spring of 1999 has been saluted as
a triumph for ‘international justice’ over the traditional claims of
state
sovereignty. The war was in clear breach of international law: waged
without
UN Security Council authorization, against an elected, civilian
government
which
had not violated any external treaty, justifiable neither as a threat to
peace and security, nor in terms of any NATO country’s self-defence. It
has
been
welcomed instead as a ‘humanitarian’ crusade, explicitly setting
individual
rights above the territorial rights of nation-states. But if the
sovereignty
of some states—Yugoslavia, Iraq—is to be limited, that of others— the
NATO
powers—is to be increased under the new order: they are to be given the
right
to intervene at will. It is, in other words, not sovereignty itself but
sovereign
equality—the recognition of the legal parity of nation-states,
regardless
of their wealth or power—which is being targeted by the new
interventionists.
Yet such equality has been the constitutive principle of the entire
framework
of existing international law and of all attempts, fragile as they may
be, to
establish the rule of ‘right’ over ‘might’ in regulating inter-state
affairs.
‘Humanitarian intervention’. This article will examine the implications
of
such a right to ‘humanitarian’ military intervention for the future of
inter-state
regulation and international law.
International Law and Sovereign Equality
The concept of sovereign equality is often understood as an integral
part
of the long-standing doctrine of state sovereignty. In fact, it is of
much
more
recent provenance than the classic state system which emerged at the end
of
the
Thirty Years War. The Peace of Westphalia of 1648 famously recognized
the
secular
rights of German princelings above the religious claims of the Papacy,
legitimating no external power beyond that of the sovereign; it was this
formal recognition of the principle of territorial sovereignty which
henceforth
became the basis of relations between states. There was, however, no
international
law in the modern sense: such rights of sovereignty were effectively
restricted
to the major powers and there was no explicit framework of an
international
community which could formally limit their exercise. Without
international
law, the regulation of inter-state relations could not extend beyond
voluntary
agreements between the sovereign states—strategic alliances, aimed at
preserving
local interests and maintaining a relatively stable balance of power.
The epoch of this classic, ‘anarchical’ state-system, with no defined
limits
to the sovereignty of the major powers, was also the era of colonialism.
The
states included within it were those which could defend their own
territory
from
the claims of other states. It was therefore quite consistent to argue
that in
countries which could not demonstrate such ‘empirical statehood’—the
colonies—sovereignty could not apply. Meanwhile, those with sufficient
military
force to intervene in other states’ affairs—in other words, the great
powers—continued to do so. During the colonial era, the major powers
either
regulated their territorial acquisitions directly—as in Africa and
India—or,
as in China, Japan and the Ottoman Empire, insisted that their own
actions
could
not be fettered by local domestic legislation, claiming the right of
extraterritoriality. Under the Westphalian system, then, superior force
was
the guarantor of effective sovereignty.
The Westphalian model came under attack with the modernization and
growing
world importance of the leading non-European states. Challenges to
Western
rule
and increasing international instability led to new attempts to regulate
inter-state
affairs. The Hague Conference of 1899 saw the attendance of China,
Japan,
the Ottoman Empire, Persia and Siam. In 1905 Japan’s defeat of Russia
came as
a powerful shock to European imperial confidence, closely bound up with
assumptions of racial superiority. The second Hague Conference of 1907
was
the first gathering of modern states at which Europeans were outnumbered
by the
representatives of other countries. But it was the watershed of the
First
World War—bringing in its wake the collapse of the Russian,
Austro-Hungarian and
Ottoman empires, the rise of colonial resistance, the establishment of
the
Soviet Union and the threat of new world war—that was decisive in
turning
Western policy makers away from the strength-based Westphalian system
and
towards a more juridical concept of sovereignty and a framework of
international law.
The principle of national self-determination was proclaimed by Woodrow
Wilson
at the 1919 Paris Peace Conference—for the newly created states of
Central
Europe.
The extension of such a right to the rest of the world—ringingly
affirmed
by the Bolsheviks’ Declaration of the Rights of Toiling and Exploited
Peoples in
January 1918—was held at bay. The expansion of the concept of
territorial
sovereignty beyond the principle of ‘might is right’ remained highly
controversial within policy-making circles. Robert Lansing, US Secretary
of State, recalled his doubts:
The more I think about the President’s declaration as to the right of
‘self-determination’, the more convinced I am of the danger of putting
such
ideas into the minds of certain races. It is bound to be the basis of
impossible
demands on the Peace Conference and create trouble in many lands.
What effect will it have on the Irish, the Indians, the Egyptians, and
the
nationalists among the Boers? Will it not breed discontent, disorder and
rebellion? Will not the Mohammedans of Syria and Palestine and possibly
Morocco
and Tripoli rely on it? [2]
This ‘danger’ was a central concern of the inter-war settlement. The
League
of Nations timidly initiated legal restriction of great-power
sovereignty
through
the introduction of the mandate system, with colonial administrators now
deputed to ‘advance the interests’ of the subject peoples. The
mandates—implying
a recognition that colonial rule could only be temporary—were the first
formal
admission that empire was no longer a legitimate political form. But the
concept of sovereign equality remained confined to a few, the right of
self-determination denied to large sections of the world’s population,
Japan’s
attempt to include a clause on racial equality in the League of Nations
Charter firmly
rejected. The development of a universal legal conception of sovereign
equality
would have to await a further world war.
The 1945 settlement, preserved in the principles of the UN Charter,
reflected
a new international situation, transformed by the emergence of the
Soviet
Union
as a world power and the spread of national liberation struggles in
Asia, the
Middle East and Africa. Ideologies of race and empire, too, seemed
definitively
vanquished with the defeat of the Nazi regime. It was a decisive moment
in
the transformation of the Westphalian system. In this context, the
inter-war
consensus on ‘the non-applicability of the right to self-determination
to
colonial peoples’ could no longer be sustained. United States policy
makers,
as they looked forward to assuming the mantle of the now declining
British
Empire,
realized that updated institutions for the management of international
relations
would have to ‘avoid conventional forms of imperialism’. [3] The
result
was nominal Great-Power acceptance—however hypocritical—of a law-bound
international
system.
Central to this new mechanism of international regulation was the
conception
of sovereign equality. The UN Charter, the first attempt to construct a
law-bound
‘international community’ of states, recognized all its members as
equal.
Article 2(1) explicitly stressed ‘the principle of sovereign equality’,
while
both Article 1(2) and Article 55 emphasized ‘respect for the principle
of
equal rights and self-determination of peoples’. New nations—which would
have failed
Westphalian tests of ‘empirical statehood’, and hence been dismissed as
‘quasi-states’—were granted sovereign rights, [4] while the sovereignty
of
the great powers was now, on paper at least, to be restricted. The UN
system
did not, of course, realize full sovereign equality. In practice, the
Security
Council overwhelmingly predominated, with each of its self-appointed
permanent
members—the United States, Britain, France, Russia and China—retaining
rights
of veto. Still, sovereign equality was given technical recognition in
parity
of representation in the General Assembly and lip-service to principle
of
non-interventionism, setting legal restrictions on the right to wage
war.
Justice and war
Under the Westphalian system, the capacity of the most powerful states
to
use force against the less powerful was a normal feature of the
international
order.
Under the legal framework set up by the Charter, the sovereign’s right
to
go to war (other than by UN agreement or in self-defence) was, for the
first time,
outlawed—a point sometimes missed by those who would argue that the
post-1945
order ‘failed to break’ with Westphalian norms. [5] The principle of
non-intervention was, in fact, a constituting principle of the new
international
community of states. Just as the rule of law in domestic jurisdictions
depends
upon the concentration of legalized force in a single authority, and the
criminalization of the individual exercise of violence, so within the
post-war
system of international regulation, the legal monopoly of the use of
force
resides in the UN. [6] Article 2(4) states:
All members shall refrain in their international relations from the
threat
or use of force against the territorial integrity or political
independence
of any state, or in any manner inconsistent with the purposes of the
United
Nations.
‘We may not appreciate’, writes Louis Henkin, ‘how remarkable that was,
that
transformative development in the middle of the twentieth century:
“sovereign
states” gave up their “sovereign” right to go to war.’ [7] . It marked,
it
seemed, the end of the Westphalian system of legitimating great-power
domination
through the use of force.
The universal recognition of sovereign equality entailed a new
conception
of states, whose legal authority now derived not from wealth or might
but
nationhood. Formally speaking, non-Western states from now on had the
same
standing as Western ones within the international order, despite
continuing
inequalities of economic and military power. [8] In theory, however, a
framework of international law had been created that limited the
exercise
of state sovereignty—including the right to wage war. In legal terms, at
least,
might no longer equalled right.
‘International Justice’ or International Law?
Even so mild a form of international regulation is now coming under
ferocious
attack. The case for the special treatment of some states, and demotion
of
others, has been put in a variety of registers. British barrister and
newspaper
pundit Geoffrey Robertson offers a rabid rogue-list: ‘The reality is
that
statesare not equal. There can be no “dignity” or “respect” when
statehood
is an
attribute of the governments which presently rule Iraq and Cuba and
Libya
and North Korea and Somalia and Serbia and the Sudan’. [9] Max Boot,
features
editor of the Wall Street Journal, prefers a swaggering cynicism: ‘There
is no compelling reason, other than an unthinking respect for the status
quo, why
the West should feel bound to the boundaries it created in the past.’
[10]
BrianUrquhart, a former UN undersecretary-general, sees sovereign
equality as
the ‘central barrier’ to peace and justice, providing a ‘cloak of
impunity’ for
every kind of abuse. [11]
Pitted against the concept of international law based on sovereign
equality
is a new form of global ‘justice’, formulated in explicit opposition to
it.
Advocates
of this justice herald the emergence of a new, ‘human-rights’ based
order
of international relations, arguing that the post-1945 framework—here,
‘international society’—is being eclipsed by the ethical demands of
global
‘civil society’. For Martin Shaw, erstwhile International Socialist, the
‘crucial issue’ is to face up to the necessity which enforcing these
principles would impose
to breach systematically the principles of sovereignty and
non-intervention…
The global society perspective, therefore, has an ideological
significance
which
is ultimately opposed to that of international society. [12]
For Robertson, too, ‘the movement for global justice’ is ‘a struggle
against
sovereignty’. [13] Sovereign equality is seen by these ideologues as a
legal
fiction, a mask for the abuse of power. International law is merely an
‘anachronism’, a historical hangover, while ‘some of its classic
doctrines—sovereign and diplomatic immunity, non-intervention in
internal
affairs, non-compulsory submission to the ICJ, equality of voting in the
General Assembly—continue to damage the human rights cause.’ [14]
The denial of sovereign equality obviously has major consequences for
both
the form and content of international law. The most prominent is the
rise of
the idea of a ‘duty’ of forcible ‘humanitarian’ intervention—the
so-called
devoir
d’ingerence. [15] Its advocates naturally retain the right to decide
on
whom this obligation falls. Robertson explains that ‘humanitarian
intervention
cannot be the prerogative of the UN’ since it cannot be relied upon to
act when
necessary. The duty of intervention must therefore stand independently:
‘UNanimity cannot be the only test of legitimacy’. [16] For Shaw,
‘it
is unavoidable that global state action will be undertaken largely by
states,
ad hoc coalitions of states and more permanent regional groupings of
states’. [17]
In practice, the prosecution of international justice turns out to be
the
prerogative of the West.
Such is overtly the substance of NATO’s new ‘strategic concept’,
promulgated
at the Alliance’s fiftieth anniversary summit in Washington in late
April
1999,
at the height of the Balkan War. As US Deputy Secretary of State Strobe
Talbott
explained,
We must be careful not to subordinate NATO to any other international
body
or compromise the integrity of its command structure. We will try to act
in
concert with other organizations, and with respect for their principles
and
purposes.
But the Alliance must reserve the right and freedom to act when its
members,
by consensus, deem it necessary. [18]
Similarly, a new study of ‘humanitarian intervention’ in the wake of
the Kosovo
war argues explicitly for ad hoc and arbitrary powers to intervene:
A code of rules governing intervention would be likely in the early
twenty-first
century to limit rather than help effective and responsible action on
the
part of the international community… Any attempt to get general
agreements
would
be counter-productive… It may be inevitable, possibly even preferable,
for
responses to international crises to unfold selectively. [19]
Ironically, the new ‘global’ forms of justice and rights protection will
be distinctly less universal than those of the UN-policed international
society
they set out to replace. David Held argues that, ‘in the first
instance’,
at least,
cosmopolitan democratic law could be promulgated and defended by those
democratic states and civil societies that are able to muster the
necessary
political judgement and to learn how political practices and
institutions
must change and adapt in the new regional and global circumstances. [20]
Rather more bluntly, Shaw explains the rationale of all-round NATO
intervention:
This perspective can only be centred on a new unity of purpose among
Western
peoples and governments, since only the West has the economic, political
and military resources and the democratic and multinational institutions
and
culture necessary to undertake it. The West has a historic
responsibility
to take
on this global leadership. [21]
This line of argument is now increasingly official doctrine. The
Guardian
could hail British military intervention in Sierra Leone as ‘the duty
owed by a
wealthy and powerful nation to, in this case, one of the world’s poorest
countries’. [22] Here inequality is expressly theorized as the basis
of
the new world order. Yet the modern system of law (whether international
or
domestic) depends, both at the basic level of its derivation and in the
vital
question of its application, on the concept of formal equality between
its
subjects. All international institutions—whether the UN, OSCE or even
NATO
itself—derive their authority from inter-state agreements. International
law derives its legitimacy from the voluntary assent of nation-states.
Without
such consent, the distinction between law (based on formal equality) and
repression
(based on material force) disappears. The equal application of the law
entails
parity between its subjects, without which it ceases to have meaning. In
today’s climate, the rights of weaker states can be infringed on the
grounds that
the law does not fully apply to them, while more powerful states can
claim
immunity
from the law on the grounds that it is they who ultimately enforce it.
The extension of ‘international justice’ is, in short, the abolition of
international law. For there can be no international law without equal
sovereignty, no system of rights without state-subjects capable of being
its bearers. In a world composed of nation-states, rather than a single
global
power, universal law can only derive from national governments. What the
jettisoning of the principle of non-interventionism means is the
re-legitimation
of the right of the Great Powers to practice what violence they please.
Their
apologists declare that war is now the ‘lesser evil’, compared to the
new
moral crimes of ‘indifference’ or ‘appeasement’.
Liberal interventionists have emerged as the biggest advocates of
increased
military spending. [23] For these ideologues, the absolute end of
‘international justice’ can only be compromised by diplomacy or
negotiation.
The new professors of Human Rights at the UN University’s Peace and
Governance
Programme are happy to condone those ‘good international citizens’ who
are
‘tempted to go it alone’ waging war for ‘justice’, with or without
international
sanction. [24] Robertson likewise insists that ‘a human rights offensive
admits of no half-measures’; ‘crimes against humanity are, by
definition,
unforgivable’
; ‘justice, in respect of crimes against humanity, is non-negotiable’.
[25]
Such war can know no legal bounds. In the Middle East, in Africa and the
Balkans,
the exercise of ‘international justice’ signifies a return to the
Westphalian
system of open great-power domination over states which are too weak to
prevent
external claims against them.
Dr David Chandler, Research Fellow, Policy Research Institute, Leeds
Metropolitan University. His latest book is Bosnia: Faking Democracy
After
Dayton (Pluto Press, 1999) his next book Human Rights and International
Intervention will be published by Verso in Autumn 2001.
--------------------------------------------------------------------------------
[1] This article is a shortened version of “International Justice” which
appears in the New Left Review, No.6, Nov/Dec 2000.
[2] Robert Lansing, The Peace Negotiations: A Personal Narrative, London
1921, p. 87.
[3] Justin Rosenberg, The Empire of Civil Society, London 1994.
[4] R. H. Jackson, Quasi-States: Sovereignty, International Relations
and
the Third World, Cambridge 1990.
[5] David Held, Democracy and the Global Order, Cambridge 1995, p.88.
[6] O. Ramsbotham and T. Woodhouse, Humanitarian Intervention in
Contemporary
Conflict: A Reconceptualization, Cambridge 1996, p. 35.
[7] Louis Henkin, ‘That “S” Word: Sovereignty, and Globalization, and
Human
Rights, etc’, Fordham Law Review, 1999, vol. Lxviii, no. 1, p. 1.
[8] Sovereign equality was confirmed in many subsequent UN resolutions,
notably
the Declaration on the Inadmissibility of Intervention in the Domestic
Affairs
of States and Protection of their Independence and Sovereignty of 21
December
1965 (Resolution 2131 [XX]) and the Declaration on Principles of
International
Law Concerning Friendly Relations and Co-operation among States in
Accordance
with the Charter of the United Nations of 24 October 1970 (Resolution
2625
[XXV]).
[9] Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global
Justice, London 1999, p. 372.
[10] Max Boot, ‘Paving the Road to Hell: The Failure of UN
Peacekeeping’,
Foreign Affairs, 2000, vol. 79, no. 2, pp. 1438.
[11] Brian Urquhart, ‘In the Name of Humanity’, New York Review of
Books,
27 April 2000.
[12] Martin Shaw, Global Society and International Relations:
Sociological
Concepts and Political Perspectives, Cambridge 1994, p. 1345.
[13] Crimes Against Humanity, p. xviii.
[14] Crimes Against Humanity, p. 83.
[15] M. Bettati and B. Kouchner, Le Devoir d’ingerence, Paris 1987.
[16] Crimes Against Humanity, pp. 382, 72.
[17] Global Society, p. 186.
[18] Cited in B. Simma, ‘NATO, the UN and the Use of Force: Legal
Aspects’,
European Journal of International Law, 1999, vol. 10, pp. 122.
[19] Albrecht Schnabel and Ramesh Thakur, eds, Kosovo and the Challenge
of
Humanitarian Intervention, New York: forthcoming. See
www.unu.edu/p&g/kosovo_full.htm
[20] Democracy and the Global Order, p. 232.
[21] Global Society and International Relations, pp. 1801.
[22] ‘We Are Right To Be There’, Guardian, 13 May 2000.
[23] For example, John Gray, ‘Crushing Hatreds’, Guardian, 28 March
2000;
John Lloyd, ‘Prepare for a Brave New World’, New Statesman, 19 April
1999.
[24] See, for example, Kosovo and the Challenge of Humanitarian
Intervention.
[25] Crimes Against Humanity, pp. 73, 260, 268.
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