THE SHIELD OF ACHILLES (107 page)
Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
Other commentators likened the summit meeting to “the historic Congress of Vienna.”
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In a perhaps unwitting reprise of Woodrow Wilson's remarks about the Versailles Conference,
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President Mitterand emphasized, however, that the Paris “Summit was the ‘anti-Congress of Vienna' because on the previous occasion the victorious powers remodeled the map of Europe without much regard for the aspirations of the peoples while the [Paris] Summit was the exact antithesis of such an approach.”
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Perhaps most interesting for our study, however, is Mrs. Thatcher's characterization of the Charter of Paris as “a new Magna Carta.”
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What the British prime minister had in mind by this description is the Charter's emphasis on the provision of human rights. This observation underscores the role of the Peace of Paris as a constitution. Earlier constitutions, particularly Augsburg and Westphalia, had intertwined human rights—religious freedom in particular, but also the right of immigration—with the powers of states, just as domestic constitutions do. In contrast to the U.S. Bill of Rights, which might be said to describe a structure wherein every power
not granted to the government is retained as a human right by the people, Magna Carta is best described as
granting
rights. In the case of sovereign states, such as those that convened in Paris, their promises to secure human rights are indeed very similar to those of Magna Carta. The Charter of Paris provides that states “affirm that, without discrimination, every individual has the right to freedom of thought, conscience, religion or belief, freedom of expression, freedom of association and peaceful assembly, freedom of movement [and that] no one will be subject to arbitrary arrest or detention, subject to torture or other cruel, inhuman or degrading treatment or punishment…” This language is further evidence of the constitutional nature of the Long War—the struggle to define the source of legitimacy for the State from which the division of rights and powers arises—intertwining the domestic and international, the legal and strategic. “It is clear that states which adopt ideologies incompatible with the new… democratic public order must henceforth be considered in violation of their [legal] commitments.”
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Strikingly the Moscow declaration, the final element in the Peace, states, “the commitments undertaken in the field of the human dimension… are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned.”
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The Peace of Paris provides the source of an overarching constitutional order that sets the standard to which all national legal and political institutions must conform. In Buergenthal's insightful words,
[t]hese constitution[al documents] articulate national political, social, economic and sometimes even moral values; they set various priorities for the nation; they establish or call for the establishment of governmental institutions; and they lay down the framework for the evolution of the political process. In short, they shape and are the ideological and political source of the nation's constitutional order….
The nation's law and legal institutions derive their legitimacy from these constitutions
.
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The Peace of Paris ended the Long War, amended the agreements at Versailles and San Francisco, and completed the process of formally globalizing the European nation-state through a universal international law. The Peace of Paris also, however, has elements of a transitional document about it for it gives a glimpse of the new constitutional order that is emerging and that has yet to suffer
its
epochal war.
These harbingers of the market-state include a change in the definition of sovereignty that allows human rights to become an enforceable part of international law, as was most recently seen in Kosovo, where Serbian sovereignty was abrogated; an effort to give formal recognition to nonstate
institutions, like the media of journalism and the multinational corporation, and to give them a constitutional role in the life of the State according to consumer, not voter, preferences; to ensure for the market-state and its consumers free and open markets (just as Versailles had attempted to ensure free and open democracies for self-determining voters). All of these portentous changes were largely ignored at the time but each is highly controversial and likely to be the source of conflict in the future. Slobodan Milosevic is not the last leader to deny vital human rights to a group of his citizens—as the Dalai Lama might have reminded us. Some twenty states still attempt to censor or strictly control access to the Internet, and Malaysia has been successful—for the time being—in imposing capital flow controls to regain some measure of power over its currency. Most important, there are deep divisions—described in the scenarios in Chapter 25—among the three emerging versions of the market-state and their respective attitudes toward sovereignty and the relationship of sovereignty to human rights.
In 1922 Maxim Litvinov, the Soviet foreign minister, said that “it was necessary to face the fact that there was not one world but two” and “there was no [other] world to arbitrate [between them].” In 1990, however, Gorbachev proposed, in a speech to the United Nations,
to expand the Soviet Union's participation in the controlling mechanisms of human rights under the aegis of the U.N. and within the framework of the European process. We think that the jurisdiction of the International Court in the Hague with regard to the interpretation and application of agreements on human rights must be binding on all states.
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What developments had occurred in international law that reflect this enormous journey?
The international law that led to the Peace of Paris was a reaction to the failure of both Weimar and Versailles: that is, it was a reaction to the domestic consequences of the collapse of a legally constructed state and to the international consequences of the continuation of the Long War precipitated by that collapse. Not simply the laws, but the very state itself of Weimar
*
was purpose-built, and this obvious fabrication was inevitably
contrasted unfavorably with the sentimental, allegedly ancient, customary state of the Wilhelmine Reich (though both were of a very recent consti-tutional order, the nation-state). The Weimar state was discredited by Versailles, which imposed a parliamentary form on Germany; and the failure of Weimar in turn was soon also to discredit Versailles, as it became apparent that the peace settlement had failed and that the war that began in 1914 had persisted beyond 1919.
It has rightly been observed that the international law of the period before the Long War
[saw] intergovernmental and non-governmental organizations playing relatively a minor role on the global stage. Customary law and state practice formed the primary sources of international law which served a largely interstitial
laissez-faire
function, reflecting vested national interests and leaving large realms of unregulated state activity.
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The Long War, however, introduced a new era, which has been characterized as that of international
institutions
rather than international
law
.
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The customary practices of the great state-nations gave way to the codifications of the nation-state, which created the League of Nations and the Permanent International Court of Justice. These products of Versailles reflected the nation-state's characteristic reliance on law. In the most public and historic way possible, however, the League and the PICJ soon proved to be failures.
The San Francisco replay of Versailles had intensified the move toward institutionalizing international law, with not much better results. Harold Koh puts this well:
Following World War II, the architects of the postwar… system posited [a] complex positive law framework of charters, treaties, and formal agreements, [an] intensely regulatory, global framework…. Almost immediately, however, the Cold War era and the intense bipolarity and political realism it fostered rendered this positivistic vision a Potemkin Village.
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The irrelevance of international law to the global, epochal conflict then raging was compounded by changing attitudes toward law itself. Dean Acheson wrote dryly that “[t]hose who devote themselves to international relations… are understandably reticent about the role of law.” They knew, Acheson said, that law was what government officials said it was—no more—and that the study of law was the assessment of what, in fact, authoritative legal decision makers would do when law was invoked as a
basis for decision making.
*
This was hardly welcome news to those international lawyers who hoped to restrain power through law; if law was only what the powerful said it was, how could international law compel a state to do anything that was not in that state's interest? And if that was the limit of the law, what did it contribute beyond the rational assessment of self-interest that would take place anyway?
Out of this intellectual and moral abyss, a half dozen schools of thought emerged, each trying to establish a justifiable yet realistic basis for international law. They began with the classic approaches that had originated with Vitoria and Suarez at the birth of the modern state, but these schools transmuted those inherited approaches in light of the challenge of the Long War and the death of the idea of a jurisprudence that was distinguishable from politics, a jurisprudence that could be
found
, rather than made (up).
The fundamental approaches that divided thinkers about international law before the twentieth century can be roughly characterized as formalism and naturalism. Formalism focuses on the extent to which legal truths are the result of following arbitrary rules, that is, rules that have no necessary relation to any particular content. The formalist in international law, like Suarez
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or Austin (or Leibniz), derives the truth or falsity of a legal proposition from a fact unrelated to its content. The international law governing, for example, the extraction of minerals from the sea may change its content over time but so long as it is generally recognized by the society of states, it has the status of law. Any particular proposition of law (e.g., states are entitled to the minerals in their littoral waters) is true if the test of general recognition is met. By contrast, the naturalist in international law, like Grotius
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or Bluntschli (or Hume), holds that the relationship between the content of legal rules and the world accounts for their truth or falsity. Legal rules must be in accord with the nature of man, which is part of the nature of the universe. For example, one of the doctrines of
jus cogens
†
holds that slavery is a violation of international law. If a state were to deny this was the case—indeed if two states were to deny this proposition in a treaty between them—the proposition that slavery is against the law would still be true, because it is in accord with the most fundamental human rights that arise from man's capacity for free will. In the case of both naturalism and formalism, the truth of a legal rule is tied to something in the world, but in one case (naturalism) that
something
has to do with the content of the legal rule, and in the other (formalism)
that something
has to do with the status of the rule as law, irrespective of its content.
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In the early twentieth century, principally in the United States, the foundations of these two traditions were shaken by a new movement, Legal Realism. One of its founders, Karl Llewellyn, had written in 1930, “What these officials [judges, sheriffs, clerks, lawyers, presidents] do about disputes is, to my mind, law itself.”
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Llewellyn and others then set about showing that it was virtually impossible to account for past decisions by reference to the body of legal rules alone, let alone to predict what officials would in fact do in actual cases in the future. When the move to a society of nation-states took international law away from a small coterie of sophisticated specialists and put it in the hands of mass propagandists seeking justifications for their foreign policies, international law became vulnerable to the disenchantment that arose from the Realist critique of law generally. It was obvious that international law was manipulated to rationalize rules rather than to determine them, that sometimes it was ignored in deference to powerful interests, and that it even appeared indeterminate, leaving its commands to be decided by the changing needs of foreign policy.
Formalism and Naturalism in international law played out in various different attempts to meet the challenge of Legal Realism. Formalism became the source of three schools of thought: Legal Process, Nominalism, and Consensualism. Naturalism served as the source of the New Haven School, Neo-Realism, and what might be called
Perspectivism
. These families of thought about the basis for international law have, as families do, overlapping memberships, black sheep, father figures, deeply held prejudices about each other, relationships deriving from birth order, inherited traits, exaggerated genealogies, and so on. The distinctions among them have to do with their answers to the two shattering twentieth century questions about international law: if the body of international legal rules cannot uniquely determine the legality of a particular act by the parties it is supposed to govern, how can it be law? And if international law is law, why doesn't it seem to have any effect? Indeed these two challenges, arising from developments in law (the claims of Legal Realism) and strategy (the persistence of the Long War), might be put in a single question: would the history of the twentieth century have been any different if there had been no international law?
