THE SHIELD OF ACHILLES

by Bobbitt, Philip

  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 au
gmenting 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.

  The Wilsonian program has long been the subject of criticism by diplomats. George Kennan's American Diplomacy 1900 – 1950 is largely an attack on the “legalistic-moralistic” preoccupations of American statecraft. Henry Kissinger's Diplomacy extends this critique by proposing a managed policy of equilibrium, relying on Realpolitik in the service of a balance of world power. Both writers stress the naïveté of Wilson. “A country that demands moral perfection of itself as a test of its foreign policy,” Kissinger writes, “will achieve neither perfection nor security.” But I wonder who is really the naif here. A politician twice elected president from a minority party, who skillfully took his country from a stubborn isolationism to world leadership, is unlikely to have based his decisions on a childlike view of human nature. Moreover Kennan's and Kissinger's descriptions of the pernicious effects of law usually sound a little off-key to any lawyer; they tend to exaggerate the role of litigation and then substitute that rather limited role of law in resolving disputes before courts for the more pervasive and profound pull of legal grammar in a constitutional society like the United States.

  What Wilson—and Roosevelt—understood quite clearly was the domestic wellspring of a sustainable foreign policy. They sought popular endorsement by playing the U.S. government's strongest card, the American commitment to constitutional ideas as law.* Both men attempted to universalize the American structure (with its three separate branches, its federalism, its separation of church and state) to apply not only to individual states but to the society of states as a whole. This vision is the subject of Part I of Book II, which follows.

  In Part II of Book II, I will present the origins and development of international law according to the periods of the constitutional development of the State described in Part II of Book I. This development has been almost entirely a matter of European history. It is sometimes said, by Hans Kelsen among others, that constitutional law is derived from international law. And commentators today may draw erroneous support for this claim from the fact that international norms of human rights and supranational regional regulation have intruded as never before into state sovereignty. Once we understand, however, that international law derives from consti-tutional law—and thus follows the same periods of stability and revolutionary change charted in Book I—we will be able to appreciate that contemporary developments in limiting sovereignty are a consequence of the change in the constitutional order to a market-state, and are not imposed by international law, however flattering such an image may be to those who administer international institutions.

  In Part III will argue that the great peace conferences that settled the epochal wars created the constitutions for the society of states. These constitutions will be described, and a similar attention given to their legal interpreters—lawyers and statesmen—as was given to the princes and generals of Book I.

  In Part III, I will take up the emerging constitution of the new society of market-states. I will suggest that American principles of limited sovereignty better serve such a society than the European concepts that currently structure international law. I will imagine various constitutional orders of the society of market-states and conclude by arguing that, by varying the degree of sovereignty retained by the people, states will develop different forms of the market-state, yielding a more pluralistic constitution for international society. In some ways that constitution, and its international law, will resemble that of medieval society with its overlapping and complex system of jurisdictions (a society, in other words, that had no modern concept of state sovereignty based on the European model). In medieval Europe, a free city might owe legal duties to an ecclesiastical authority such as the local bishop, to a federal authority, and to a league of such cities, and even share certain legal responsibilities with local squires. The international law of the society of market-states will reflect an analogous complexity where multinational companies, NGOs, governments, and ad hoc coalitions share overlapping authority within a framework of universal commercial law but regionalized political rules.

  Similar observations have led some commentators to suggest that the leading alternative to Wilsonian internationalism is a “new medievalism,” which will follow the end of the nation-state. Power will shift away from the State to nonstate actors, who will replace the formal exercise of power by governments with a world order of nonstate actors. Sometimes this is expressed in the phrase that “global governance is ‘governance without government.”12 This view, however, is more consistent with the conclusion that the State is evaporating than with the argument that the State is merely undergoing one of its periodic shifts in the constitutional order. The revolution in information technology that has so empowered non-governmental actors will change—but not, I think, destroy—the State. On the contrary, at the center of both Books I and II is the conclusion that non-governmental entities will play an important constitutional role in the operation of the market-state, not replace it. The most influential non-governmental groups cannot function in a nonstate environment. Human rights groups depend upon courts; the Red Cross depends upon armies and at least minimal civil order; Morgan Stanley depends upon the Basel Committee of Central Bankers. It is the nation-state that is dying, not the State. With it will go much of the power and influence of the great international institutions of the society of nation-states, institutions like the World Bank, the United Nations, the International Court of Justice. This void will be filled by institutions and rules that reflect the new society of market-states because, as we shall see, international law and its structures arise from the constitutional order of states; when this order changes, as is now happening, the institutions of the society composed of states inevitably change also.

  PART I

  THE SOCIETY OF NATION-STATES

  THESIS: THE SOCIETY OF NATION-STATES DEVELOPED A CONSTITUTION THAT ATTEMPTED TO TREAT STATES AS IF THEY WERE INDIVIDUALS IN A POLITICAL SOCIETY OF EQUAL, AUTONOMOUS, RIGHTS-BEARING CITIZENS.

  In the society of nation-states, the most important right of a nation was the right of self-determination. This, however, posed a conundrum for that society: given the interpenetration of national peoples in multiethnic states, when did a nation get its own state? Was it when a majority of the people of the state agreed, or when a majority of a national group—which was usually a minority of the persons in the state as a whole—demanded it? And when one national group held power, what were the limits on its treatment of other national groups (“minorities” within the nation-state), given that one purpose of the nation-state order was to use law in furtherance of the cultural and moral values of the dominant national group? Confusion arising from this conundrum led to a diffusion of international responsibility, culminating in the Third Yugoslav War in Bosnia, which finally discredited the legitimacy of a society of states built on this constitutional order.

  Departure

  (Southampton Docks: October, 1899)

  While the far farewell music thins and fails,

>   And the broad bottoms rip the bearing brine—

  All smalling slowly to the gray sea-line—

  And each significant red smoke-shaft pales,

  Keen sense of severance everywhere prevails,

  Which shapes the late long tramp of mounting men

  To seeming words that ask and ask again:

  “How long, O striving Teutons, Slavs and Gaels

  Must your wroth reasonings trade on lives like these,

  That are as puppets in a playing hand? —

  When shall the saner softer polities

  Whereof we dream, have sway in each proud land

  And patriotism, grown Godlike, scorn to stand

  Bondslave to realms, but circle earth and seas?”

  —Thomas Hardy

  CHAPTER FOURTEEN

  Colonel House and a World Made of Law

  ONE AFTERNOON in the mild winter of 1991, several trustees of the university sat waiting in a Victorian parlor at Princeton. The parlor was on the second floor of “Prospect,” the Italianate mansion on campus that formerly housed the university's presidents, until in the 1970s proximity to students became more dismaying than endearing.

  In this room there were two paintings: over the fireplace a portrait of Woodrow Wilson, twenty-eighth president of the United States, tenth president of Princeton, the occupant of Prospect at the turn of the century. On the adjacent wall another oil portrait hung, apparently executed at about the same time by the same artist. Its subject had a singular face, quite unlike the handsome Presbyterian features of Wilson. This other man had more delicate, less open features: a carefully clipped white mustache, rather cold gray eyes, a small chin above a high, starched white collar. He wore a broad-brimmed buff-colored hat and a long pale duster. If Wilson's face was idealistic, virile, and Miltonian, this man's face was quiet, unflappable, the face of a rather shrewd baronet.