THE SHIELD OF ACHILLES (62 page)

When the Peace of 1990 burst on a world that did not expect it, there had been little thought given to what that world would look like when it was free of an institutionalized universal war. Virtually all our international institutions had been molded by the environment of global conflict, and even persons who did not shoulder a rifle or stand watch on a militarized border had found their expectations and attitudes so shaped by the environment of war that few could have said more than “peace is the absence of war” because war, not peace, was really all they had known.

This way of thinking treats states and their interests in much the same way that welfare economics treats the consumer: the decisions of states are, axiomatically, choices that define the interests of states, and, beginning from the positions of power in which they find themselves, states have the sole objective of maximizing that power.
¹
But it is more than this. This way of thinking, which now seems as confined and airless as one realizes a closed room has felt only when one has left it, reflected a strategic approach to international relations. By “strategic” I do not mean simply “planned” or “economic,” but rather an approach that focuses on the use of force as the principal arbiter of international affairs. Such an approach has been virtually exclusive of all other approaches in the context of a world war in which the very survival of the constitutional form of the State was at stake. One hardly needed to debate a threatened state's vital interests during the Long War; strategic requirements determined these interests.
*
When the war ended, however, this very lack of discussion underscored how ill-suited the methods of strategy are to determining national interests. As Stanley Hoffmann has written:

In war the calculus of strategy takes priority, because those states that ignore strategy cannot expect to prevail in an arena dominated by force. But, as Michael Howard foresaw, “A strategic approach may be necessary to produce conditions of stability which will make possible continuing peace; but other, more positive measures, are needed to create peace itself.”
³

Thus the first strategic consequence of the new peace is that strategy alone must be augmented. But with what? The approach to peace with which we must supplement strategy is that derived from law—the rule of law, as that phrase is understood in the context of constitutional law, but applied in the context of a new international law. We must, that is, develop an international system that treats states according to general, logical principles, regardless of the particular position of power of any state, but these principles must reflect a strategic appreciation of the relative positions of states' wealth and power. This amounts almost to a reversal of the present system of international law as reflected, for example, in the U.N. Charter, which provides the same universal principles for all states but privileges some to suspend those principles through the veto power or the collective action of the Security Council. Before a new, hybrid approach can be successful, however, perhaps before it can even be understood, we will have to change our ideas about international law, and the principles of this new international law will have to reflect the end of the Long War and the Peace of Paris. That is, these principles must reflect the emergence of a society of market-states in which law and strategy have begun to merge—where war often looks like crime and vice versa, where borders have less to do with defining the State than do more intangible perimeters like language and technological compatibility. One might say these new principles will be less about inter
national
law because the basis for the State will be less about nations and more about markets,
*
because these will have a greater role in defining the purpose of the State and its legitimacy.
⁴

Now it is rare that strategic approaches to statecraft are combined, in any but the most cynical way, with those approaches associated with any sort of law. The definitive word on this subject, at least as regards international law, is presumed to have been given by Clausewitz, who dismissed the Grotian Law of Nations as “certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom.”
⁵
To be fair, it must be recalled that Clausewitz was not writing about the conduct of statecraft but rather about the conduct of war. And although he was writing about war, he was living in a period of peace, in fact, a period of immense success for international law—that is, for the constitution of the society of state-nations known as the Concert of Europe.

Since Clausewitz, the disdain of statesmen for international law has come not in periods of peace but in that period I have called the Long War, largely in reaction to the international effort to restrain state behavior through law at the end of the First World War, memorialized in a series of disarmament treaties and the fatuous Kellogg-Briand Pact that was intended to “outlaw” war. The failure of the Wilsonian program, which sought to supplant an almost entirely strategic approach to world affairs with an almost entirely legal perspective, tended to alienate the two completely for the balance of the Long War. Only now can we perhaps see that even though we cannot prudently abandon a strategic approach to international relations, neither can we ignore that approach grounded in law because without it we have no real plans for how to conduct peace. When we lengthen our gaze, we will see more clearly that law and strategy have always been mutually excited switches on the same circuit, and that the State itself, as we have seen in Book I, is the mechanism of feedback.

Complicating this resort to law, however, is the fact that international law is itself in flux. Changes in the strategic environment inevitably produce changes in law, not simply because law tends to reflect the positions of power in a society—international society in this instance—but because law itself is composed of the practices of parties who will necessarily adjust their ambitions, their actions, and their doctrines to take account of changes in the strategic context. Had there been no Roman victory in the Punic Wars, can there have been a Roman law,
urbi et ubique
that lapped the Mediterranean as if it were a Roman lake? Without the American vic-tory in the Revolutionary War, it is difficult to imagine a Monroe Doctrine, and without the Napoleonic challenge, it is difficult to imagine the British fleet enforcing the doctrine in the aftermath of that challenge. The international legal environment reflects the strategic environment, much as commercial law reflects the market, or the legislation of governments reflects events in politics.

This is not a one-way relationship, however. Suppose there had been no
Allied victory in Europe; would the doctrines of Nuremberg that are now a part of international law have come into being? It is a tempting irony to conclude simply that such trials would have been conducted in Manchester and London if the Nazis had won; this identifies law with power, a view that has many adherents. But why would the Nazis, of all people, have bothered with trials? And why did the Allies—at least one of whom had conducted a war crime of historic atrocity in the Katyn Forest three years before the tribunal met—feel the need to set a standard that might later embarrass them? The Allies not only sought to justify themselves by writing and applying these new rules; they sought to put into place practices that they could later rely upon to reinforce their own legitimacy as world leaders. By this means strategy and law were mediated by history.

Strategic outcomes affect international law, but international law—the rules of legitimate behavior for states—can affect the strategic, because it shapes the political goals that strategy is meant to serve. International law is thus among the first resources consulted in a crisis, and its treaties and treatises are among the last resources deployed when violence has ended and its consequences must be healed. This is not simply a matter of the victor enforcing his will; that too equates law with power alone in a kind of gross category mistake. Rather the will of the victor—what Saddam Hussein thought it reasonable to carry off from Kuwait (mainly German-made cars), and what Margaret Thatcher thought it reasonable to require of a defeated Argentina (mainly a dignified evacuation)—is formed by a particular view of law, and what law ought to be, and how it ought to be enforced. Every leadership of every state has such a view—self-interested, culturally idiosyncratic, haunted by historic threats, excited by historic visions—that is its own view of international law. The law thus viewed is an amalgam of the common practices of other states in an international context that reflects the collectivity of state views.

The coming of peace to the society of states has brought changes in international law, just as the war brought changes in constitutional law to the individual participants. These changes form the environment that has ultimately resulted from the end of the Long War. We eventually will have an international law that is based on the unwritten constitution of the new society of market-states.

The international society we have today, manifested in the General Assem-bbly of the United Nations and the various conferences of which virtually all states are members, has been shaped by the Long War. The U.N., like the League of Nations before it, was a product of one of the campaigns of
that war, but this institution became universal only with the end of the Long War. The resignation of Germany from the league and the exclusion of the People's Republic of China from the U.N. were tacit concessions to the fact that universal rights and duties were not accepted by all states. Might we say, however, that a universal society nevertheless preceded the Long War (and was perhaps shattered by it) ?

Hedley Bull concluded otherwise.

It is not thus mere ethnocentrism that leads the historian of the international system to focus, at least initially, on Europe. But if the predecessor of the international society of today was the European society of the nineteenth century (which had yet to be universalized), what was
its
predecessor? And what determines such a genealogy? We have to specify the trait we are tracing: in this case, it is the “perception of common interests [within] a structure of generally agreed rules setting out… rights and duties.” It is the conceit of international lawyers and law professors that the fundamentals of international law have largely been the same for many centuries and that these arise from ancient Roman ideas of the interaction of foreign peoples with the empire. Thus there are almost no histories of international law, only historic claims of classical origin.

The Romans had a kind of international law—the
jus gentium
—that applied to matters between themselves and foreign entities. But this was not a reciprocal structure, that is, one that foreign entities also applied to Romans; it was simply the Roman assessment of what rules applied in dealing with others. “All nations,” wrote Montesquieu in a famous, Gallic remark, “have a
droit des gens
; even the Iroquois, who eat their prisoners, have one.”
⁷
But this sense of “otherness” is precisely what is not characteristic of a society and its law
among
its members; rather, it characterizes the law for
barbarians
, for those outside the society.
⁸
International law could have developed this way, from the outside in, as it were. We could have a law of nations that is constructed out of the accumulated and overlapping sums of how each state chooses to treat foreigners. But it did not happen that way. Instead, the law among nations developed from
the inside out, that is, from within a society that gradually enlarged to encompass the world. This is what is meant by the definition of international law as

This author is referring to “a specific kind of practice that emerged in history amongst a particular species of body politic,”
¹⁰
and he correctly dates its incidence as late as the Renaissance when the modern State first emerged, as described in Book I. The ideas that form the basis of international law today derive from European concepts of identity that were manifested when individual princes became the subjects of legal relations after the collapse of the Roman Empire. Understanding this origin is one important way of understanding international law because it focuses on the development of legal ideas rather than simply political events. As Adam Watson has wisely remarked:

These limitations derive from the constitutional order of the international society of states. We shall be looking at the history of international society from a legal perspective much as we analyzed the history of the individual State from a strategic point of view. Of course, the strategic, the legal, and the historical are closely intertwined. In the pages that now follow we shall explore the legal concepts that frame the exercise of political power, as these have been manifested and shaped throughout the history of the once small society of political entities that has become, so recently, the universal bearer of international law.

We will determine the content of the constitution of the international society of states by looking at the interplay between a changing constitutional order and the imperatives of international security. There have been many competing visions of that constitutional order that have risen, periodically,
to a temporary ascendancy. One of these is the Wilsonian vision, within which much of the world has lived for most of this century.

This vision derives directly from an extrapolation from U.S. constitutional law—with its emphasis on national identity and constituency—to universal, international law. Once its origins in this extrapolation are appreciated, the idea of a universal international law can be better judged. In my view, this concept, which animates the U.N. Charter just as it did the League of Nations, is fundamentally destructive of both the society of states and of their security and for this reason will continue to frustrate the development of international law because statesmen, whatever their rhetoric, will always be unwilling to commit their fate to its dominion.

The Wilsonian idea arose out of the interplay between Wilson's consti-tutional ideas—self-determination and an idealistic, altruistic egalitarianism among nations—and the strategic ideas of his friend and adviser, Colonel E. M. House. This interplay resulted in the vision of universal law that is associated with Wilson's name.

Wilson's ultimate ideas, once this interaction had brought his views to maturity, can be easily described. First, they depend on constituency, the constitutional idea that the jurisdictional scope of a legal act is coextensive with the electoral franchise of its origin. Thus in the United States municipal law applies to the inhabitants of a city, county law to a somewhat larger domain, state law to all the counties within a state, federal law to all the states. Each legal jurisdiction deals with a certain subject matter, and where there is overlap it defers to the larger constituency within which it nests. One state cannot make law for another state, but the U.S. Congress can make law for all the people of the union of states. A universal constituency would give rise to a world law. It would be limited in subject matter to that which concerned all member states as states—that is, it would not deal with private civil matters, or crimes, but would confine itself to issues of maintaining peace, arbitrating trade and commercial disputes, and admitting new members to the society of states. Second, Wilson's concepts depend on national identity, by which is meant no more than the freely given decision of citizens to associate with one another. This, too, is a constitutional idea, and it also derives from the American experience, specifically the attempt at secession by the South. This idea, however, ignores the conundrum of minorities, for the self-determination of one group almost always isolates within the new state groups who might prefer a larger association or a state of their own. It goes almost without saying that this was the situation for many African-Americans in the South, and it is hardly surprising that Wilson's constitutional understanding of the Civil War virtually omitted the issue of slavery, just as the South after Reconstruction omitted African-Americans from its political society.

These two constitutional notions—nested constituencies, bounded by a freely chosen national sovereignty—were given universal scope when they encountered the idea of collective security propounded by House.
Collective security
along with the
balance of power
has for this century competed to provide a model for American leadership in foreign policy. Roughly speaking, collective security requires a state to pledge its national forces to defend the peace of an international (though not usually a universal) order; the
balance of power
requires a state to intervene only to maintain the equilibrium of an international order. Putting it this way shows that these two ideas are not incompatible, although the American debate tends to treat them as such. For example, the Congress of Vienna was a system of collective security devoted to maintaining the equilibrium of Europe. What has made the two concepts appear to be opposites has been the deployment of collective security on behalf of a universal order based on Wilson's constitutional conceptions (which are transcendently hostile to maintaining a balance of power, per se).

To this marriage of constitutional and strategic ideas we owe the League of Nations, and also the United Nations. House himself was a cold realist in foreign affairs and had no difficulty anchoring his policies in calculations of power and national self-interest. By contrast, Wilson did not believe that such motives could justify force; only altruism and the protection of the rights of the weak, only universalism (the very opposite of self-interest, which is necessarily particular) could permanently endow American foreign policy. As a result, the American debate over the U.S. role in international security has long been frozen in a fundamental disagreement about American purpose. This is often misleadingly characterized as arising from a difference of views about American exceptionalism, the idea that the United States has a unique historical role among states. In fact the proponent of U.S. self-interest may do so precisely because he believes it is American mission to provide an example to the world (the early isolationists were such men), and the internationalist who strives for peace through world law may do so precisely because he does not believe the American purchase on virtue to be any greater than that of any other state. What really divides these two camps is the Wilsonian universalist proposition that actions based on self-interest alone cannot serve as a durable basis for policy because without a moral foundation for policy domestic support will inevitably erode.

Woodrow Wilson's views were taken up by Franklin Roosevelt. To appreciate this we have only to compare the structure of Wilson's League of Nations with Roosevelt's United Nations (although there are many other instances of this choice, for instance, FDR's hostility to European colonialism, his refusal to isolate the Soviet Union, and his insistence on unconditional surrender as a war aim). We are inclined to forget that the
structure of the League mirrored that set up for the federal government by the U.S. Constitution and was faithfully replicated by the structure established by the U.N. Charter. The League of Nations was dominated by a Council of great powers whose acts required unanimity. There was also a General Assembly in which all countries were represented; a Secretariat was provided for, with an institutional residence, and a permanent court of international justice was set up. FDR's words in 1941—“our country must continue to play its great part… for the good of humanity… We believe that any nationality no matter how small, has the inherent right to its nationhood”—might have been spoken by Wilson in 1919. If anything, the measures in the Charter for U.N. military forces and the binding nature of Security Council decisions are even more universalistic than Wilson's proposals for the League.

The universal view of international law is flawed in two important respects (neither having much to do, however, with the common criticism that such universal scope must await a universal morality). First, it mixes the equality of states, a legal concept, with the decision to use force, a strategic concept, in a way that is fatal to both, and thus eerily recapitulates the early prehistory of the State, which was first constituted out of the separation of these two concepts. Thus it treats the society of states as if it were a society of individuals.

If all states are equal before the law, then every state can call upon the whole community for security assistance, just as the police protect every citizen. But the security interests of those states providing forces are not the same for all regions, much less for all states, even augmenting those interests with some concern for world stability. Bloodshed in Rwanda is just as terrible as bloodshed in Yugoslavia, but one is a humanitarian problem for the West, and the other a geostrategic crisis. Second, the universalist view assumes an all-encompassing jurisdiction that does not in fact derive from the constitutive nature of its institutions. Hitler, it will be recalled, took Germany out of the League of Nations (and Mussolini took Italy out). True, the U.N. Charter makes no concession to resignation. The decisions of the Security Council are everywhere binding. But the Council does not enfranchise all states. It can only be a matter of time before both these eventualities occur: resignation by some states who then dispute the legitimacy of U.N. jurisdiction; and calls for expanding the Security Council to include members elected by the General Assembly. The logic of universal law based on a constitutional extrapolation predicts, perhaps requires, this, but the contemporary reality is that of a world with an inceasing number of centers of power after the end of the alliance systems of the Long War.