THE SHIELD OF ACHILLES

by Bobbitt, Philip

  than people could see, an important scene

  acted in stone for little selves

  at the flute end of consequences.

  There was just a continent without much on it

  under a sky that never cared less.

  Ready for a change, the elbows waited.

  The hands gripped hard on the desert.

  —William Stafford

  Plates

  PLATE I: THE CONSTITUTIONAL ORDERS

  PLATE II: THE EPOCHAL WARS

  PLATE III: THE INTERNATIONAL ORDERS

  PLATE IV: BASES FOR LEGITIMACY

  PLATE V: HISTORIC STRATEGIC AND CONSTITUTIONAL INNOVATIONS

  The following charts give a graphic if oversimplified representation of the six successive constitutional conventions of the international society of states. It will be immediately seen that these various periods correspond to those described in Book I: the eras of the princely state (1494 to 1620), the kingly state (1567 to 1702), the territorial state (1688 to 1792), the state-nation (1776 to 1914), the nation-state (1863 to 1991), and the emerging period of the market-state (1989). Each of these eras was defined by the triumph of one constitutional archetype for the State. The third chart shows the moment at which that dominant constitutional archetype was ratified by the society of states as the legitimate constitutional order: for example, this occurred with the Peace of Augsburg in 1555, which ratified the victory of the princely state and the defeat of a “universal” regime for Europe based on the premodern constitutional order of Christendom. It occurred again at Westphalia in 1648, where two peace treaties ended the Thirty Years' War and ratified the legitimacy of the secular, absolutist forms of the kingly state that had superseded the sectarian, dynastically plural forms of the princely state. The Peace of Utrecht in 1713 performed a similar constitutional function for the society of European states by enshrining a new security order in Europe based on the balance of power and recognizing the limited monarchies of the territorial state. The Congress of Vienna in 1815 ratified the success of one state-nation, Great Britain, over another, the revolutionary Napoleonic Empire, and set up an international institutional system of the great powers with periodic congresses, while at the same time embracing the defeated French state-nation and integrating it into the new society. The Peace of Versailles performed the same function for the triumphant nation-state, which replaced the collapsing model of the imperial state-nation of the nineteenth century.

  There have been six distinct constitutional orders of the State since it first emerged during the Renaissance.

  Each epochal war brought a particular constitutional order to primacy.

  The peace treaties that end epochal wars ratify a particular constitutional order for the society of states.

  Each constitutional order asserts a unique basis for legitimacy.

  A constitutional order achieves dominance by best exploiting the strategic and constitutional innovations of its era.

  BOOK II

  STATES OF PEACE

  Peace

  When will you ever, Peace, wild wooddove, shy wings shut,

  Your round me roaming end, and under be my boughs?

  When, when, Peace, will you Peace? I'll not play hypocrite

  To own my heart: I yield you do come sometimes; but

  That piecemeal peace is poor peace. What pure peace allows

  Alarms of wars, the daunting wars, the death of it?

  O surely, reaving Peace, my Lord should leave in lieu

  Some good! And so he does leave Patience exquisite,

  That plumes to Peace thereafter. And when Peace here does house

  He comes with work to do, he does not come to coo,

  He comes to brood and sit.

  —Gerard Manley Hopkins

  Introduction: The Origin of International Law in the Constitutional Order

  1.

  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:

  Especially in a democracy the definition of the national interest is likely to be a matter of debate and to result at least as much from clashing partisan views as from the permanent necessities of geopolitical position or the unavoidable requirements of external conflicts.2

  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 international 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 dis
missed 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.

  II.

  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.

  [To be sure, the] expansion of Europe from the fifteenth century to the nineteenth… gradually brought into being an international system linking the various regional systems together, which by the middle of the nineteenth century was nearly universal. This did not mean, however, that there yet existed a universal international society…. [The states of the world] were not united by a perception of common interests, nor by a structure of generally agreed rules setting out their rights and duties in relation to one another, nor did they co-operate in the working of common international institutions.6

  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

  the complex of rules that were developed by the sovereign states of Europe from the period of the Reformation and Renaissance onwards, which blossomed into… “classic” interna
tional law in the nineteenth century, and which, although challenged and remodeled in the period after 1918, is still discernible in the international law of today.9

  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:

  Power, not only between states, is a matter of great interest to academics. Much of their writing about states' systems has focused on power, and the struggle for power between states in a system, rather than on the working of international society… On the other hand, most practitioners, especially statesmen and professional diplomats [are] more keenly aware of the great limitations to which power in a society of states is now subject and of the opposition to the use of force or even inducement by the threat of it.11