THE SHIELD OF ACHILLES

by Bobbitt, Philip

  The U.N., a second generation of the League, has given us a second generation of such failures, that is, a new wave of crimes shielded by sovereignty.3 Perhaps the most notorious is that of the Cambodian class crimes. The Khmer Rouge were the sovereign authority for purposes of international law; indeed the United States (and many states) voted to preserve their U.N. seat even when the Khmer Rouge abandoned Phnom Penh. Atrocities conducted within a state's borders are impervious to an international law built out of absolute sovereignty. Human catastrophes like the war in Mali simply never rise to the consciousness of the U.N., a majority of whose members could be counted on to keep it—as they long kept the Somali civil war4—off the international agenda. The same model of international law that has shaped the League of Nations and the United Nations has also created a certain sort of legal status for the State that actually enfeebles those international institutions with respect to a critical class of conflicts.

  Nor can we say that these institutions have even succeeded in preventing or at least managing war, the goal for which their bargain with the State was struck regarding sovereignty. The story of the League's failure to prevent war, including World War II, is too familiar to recount. The U.N. was designed with precisely this failure in mind, and was given constitutional authority to arm itself and to wage war against aggressors who threatened the peace. It is instructive, however, to look closely at how the U.N. has actually managed to succeed when it has acted to wage war. It may surprise some to learn that its successes have come only because the ideal of a world covenant enforced by a world military force has been quickly, if quietly, abandoned.

  Articles 42 and 43 of the U.N. Charter authorize the Security Council to use armed forces to maintain international peace and security. Article 43 provides for military agreements by which it was thought a U.N. force would be constituted from personnel contributed by the member states. This has never materialized. The temporary absence of the Soviet delegate in June 1950 permitted the Security Council to recommend that members repel the North Korean attack on South Korea and to authorize the U.S.designated commander to use the U.N. flag. All U.S. forces, however, were under U.S. command and, save in name only, there was no significant U.N. force on the peninsula.5 Absent the kinds of agreements envisaged under Article 43, the Security Council has no authority to command member states to commit their armed forces to a U.N. military enforcement action.

  The consequence of this arrangement is that armed forces remain entirely the creatures of states. The recent coalition force arrayed against Iraq provides an example. With more justice, it might be said that this was a NATO force, with contributions from the Gulf region, rather than a U.N. force. There is nothing wrong with this; indeed I have suggested there is much right with such ad hoc coalitional forces. But we should not delude ourselves into thinking that they function as a U.N. enforcement arm. Whatever intentions the drafters in San Francisco may have had for a U.N. defense force, this force has never come into being. And it is notable that in the Fourth Yugoslav War, over Kosovo, the U.N. was bypassed entirely.

  As if in tacit recognition of this fact, Article 2 (4), the heart of the U.N. Charter's security provisions, has been redefined sub silentio. Whereas it was once envisioned that the U.N. would have a monopoly on international violence—in a Wilsonian extrapolation to the global level of the individual state's own monopoly of violence within its domestic jurisdiction—this model has been long since abandoned. Article 2 (4) provides:

  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 other manner inconsistent with the Purposes of the United Nations.

  During the first years of the U.N., there was general agreement on the construction of this provision if not its application. Clearly the Article outlaws aggression by one state against another. Apart from the collective action of the U.N. itself, the only lawful use of force by a state must come within the exception provided in Article 51 for self-defense against an armed attack. In time, however, the language of 2 (4) proved pliable to the realities of a society of states whose reason for being—nationhood—did not apply to the collectivity, but applied only to individual states. The whole, that is, was less than the sum of its parts.

  For example, 2 (4) forbids the use of force against “the territorial integrity” of another state. Does this proscribe any use of force that momentarily penetrates a border or only attacks aimed at compromising the invaded state by occupying its territory and ultimately depriving it of land? Article 2 (4) forbids the use of force against the “political independence” of another state. But what about reprisals that do not seek to alter a regime? Exceptions such as these have sometimes been urged to justify the Entebbe and Tehran rescue missions, or the U.S. air attack on Libyan bases in retaliation for acts of terrorism. But such exceptions are of less help in rationalizing the U.S. intervention in the Dominican Republic, one of the most successful, pro-democracy acts of the period, to say nothing of U.S. intervention in Grenada, Haiti, or Panama.6 Nor can 2 (4) be made to appear consistent with NATO intervention in Kosovo.

  While 2 (4) was shrinking, Article 51 was expanding. This Article provides:

  Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.

  The original intent behind this provision seems clear: it is an exception to 2 (4), permitting a state that has been attacked to use force to defend itself and enlist others in its defense, until the Security Council has effectively acted. Because the Security Council was for a long time prevented from acting by the Soviet veto, however, and in any case cannot actually command member forces to provide assistance, this phrase has been subject to some interpretive pressure. First, the word until has acquired a Zeno-esque quality such that the Council's acts can be thought of as approaching but never quite arriving at international peace and security, thereby permitting the continuing use of armed force by the attacked party and its allies regardless of Security Council action. Second, it has been widely agreed that Article 51 merely recognizes but does not create or modify, the pre-existing right of every state to act in its own self-defense, which is an attribute of sovereignty. So it has been argued that the phrase if an armed attack occurs does not mean “only if an armed attack occurs.” Therefore a state may employ force if it expects or fears an armed attack, as occurred in the Six-Day War. In any case, few influential states now argue that the U.N. has a monopoly on the use of force. As the background code for the law of war prevention, there is little evidence that the Charter has, in this regard, fulfilled the hopes of its framers and stopped aggression by making it unlawful.

  Though the Charter, interpreted as a world covenant of superior law, has been of doubtful utility in preventing armed conflict, its most troublesome aspect may lie in peacetime. Very simply, it is not obvious that a universal law-creating system actually based on democratic majoritarianism and self-determination is either acceptable or desirable. Nor is the U.N. wholly consistent with such a system in any event, owing to the privileged role of the permanent, veto-bearing members of the Security Council. Yet a universal system that professes allegiance to the sources of authority of the parliamentary nation-state but denies them in fact is of doubtful legitimacy.

  If the U.N. Charter were a universal superior law—as for example, the U.S. Constitution is superior to Texas laws—then it must take its legitimacy from a universal mandate. No doubt when House and Wilson thought of such a world, they envisioned something like the United States, composed of separate jurisdictions but bound together under one law. Such an institution might be the result of a world federation of states, or even an agglomerate of their populations; the United States Constitution was ratified by popular voting in individual state conventions, wh
ile the Charter was ratified by state parliaments and other state regimes. In either case, the reality is that such a world state would resemble Cold War South Africa more than the United States. A small group of ethnic minorities would own most of the valuable property and keep everyone else confined to “homelands.” Surely the time is not far off when the large hostile majorities in the General Assembly that have denounced Israel will be deployed against the developed states, demanding economic concessions and constitutional reform consistent with a universal mandate. Whether the basis for a world sovereign is the majoritarianism of states or of the peoples of the various nations, the current constitutional framework is either contradictory (because it retains a superstructure inherited from the Concert of great powers) or fraught (because vast majorities can lay claim to its lawmaking power). When it is replaced by a constitution for a society of market-states, this problem will disappear because that constitution will resemble those of corporations, which allow for weighted voting based on wealth. But to adopt such a constitution, we will have to abandon the pretense of a world sovereign: corporations, after all, do not make law.

  Abandoning the image of a world sovereign that stands behind international law will also help us to move toward the changes in sovereignty that are best suited to a society of market-states. And ridding ourselves of this image will clarify our security institutions. We are not going to have a world army, 7 as envisioned by the drafters of Article 42 and 43 of the Charter. Instead we will have a NATO force structure, 8 perhaps with forces committed to a defense component within the E.U. that can act in accord with but is not commanded by the Security Council. This, as the Gulf War showed, is both more practicable and more legitimating, using the organs of collective security and collective judgment in cooperation but not with the problematic pretense that one governs the other.

  The United States has tabled, and all but one of the permanent members of the Security Council has accepted, a reform proposal for the International Court of Justice (ICJ) that would permit parties to submit to the Court's jurisdiction after electing a particular chamber—that is, after choosing a panel composed of judges acceptable to both parties. This proposal has stalled—despite the fact that it would bring Russia and China within ICJ jurisdiction for the first time—over whether the ICJ ought to have initial jurisdiction to determine whether exceptions to that jurisdiction on national security grounds are made in good faith. Now if you believe in a world common law—and compliance with ICJ decisions is considered a norm of customary international law—then it is perfectly natural to insist on this. Of course it is within the competence of the court. Its writ is universal. But if you see the ICJ as simply one more consensual method of resolving disputes, this insistence is perverse and counter-productive.

  For these and other reasons I am inclined to conclude that the project of international law envisioned by House and Wilson and most commentators on the subject today can be regarded as a failure. Is the failure of this project a bad thing?

  Former senator Daniel Patrick Moynihan has warned that the United States has commenced a general challenge to international law—a challenge, that is, to the project of a universal law—and he cites the U.S. invasion in Panama as Exhibit A. Former judge Robert Bork, on the other hand, has recently proposed that we frankly acknowledge the impracticality of the very idea of an international law and be done with it. What these thoughtful persons share is the idea that a binding world covenant is the basis for international law and vice versa. But as I suggested earlier and intend to show in the chapters to come, this has not always been so, and I will further claim it is not going to be so presently, either. The attitude that international law must be an overarching body of substantive, superior law is usually behind the criticism both of those who lament recent American practice and of U.S. officials, who deplore and resent the implicit reproaches of this ghostly law. But it may be that this widespread assumption is itself an error and that the “failure” of international law is neither good nor bad but only a way station in the process of change that the society of states is now undergoing.

  In the months before war broke out in 1914, Colonel House went to each of the capitals of the great powers of Europe trying to persuade them to avoid war. His mission failed. The cataclysm came and, in one form or another, erupted, subsided, then erupted again and again throughout the suffering-saturated twentieth century.

  House prepared the West to fight this Long War. As early as 1913 he was urging American engagement and rearmament, arguing that without these measures we could not persuade Europe to avoid war and that without our armies, even our successful persuasion would not survive the first recalculation of odds by the first General Staff or Cabinet meeting in a European chancellery. House urged a system of collective security that differed from previous alliance systems in these important respects: anyone could join, it was arrayed against no one in particular, and the United States was pledged to assist any state that was attacked. Most recently this pledge was redeemed in the Gulf War. That system ultimately triumphed after many failed attempts. Now the world's greatest powers are called on to fashion a new system of international security and respect for the rule of law that will withstand the stresses that are already pounding the barriers that House and his heirs built over a century of war.

  In this, House cannot help us. We must put aside his vision of a world covenant of law, for this picture, which is so widely and tenaciously held, is actually destructive of international law as a legitimating force. To begin this effort, we must free ourselves from the assumption that international law is universal and that it must be the law of a society of nation-states. And we must see clearly what role violence and war have played, and will continue to play, in shaping that system.

  Sarajevo

  Now that a revolution is really needed, those who once were fervent are quite cool.

  While a country murdered and raped calls for help from the Europe which it had trusted, they yawn.

  While statesmen choose villainy and no voice is raised to call it by name.

  The rebellion of the young who called for a new earth was a sham, and that generation has written the verdict on itself,

  Listening with indifference to the cries of those who perish because they are after all just barbarians killing each other

  And the lives of the well-fed are worth more than the lives of the starving.

  It is revealed now that their Europe since the beginning has been a deception, for its faith and its foundation is nothingness.

  And nothingness, as the prophets keep saying, brings forth only nothingness, and they will be led once again like cattle to slaughter.

  Let them tremble and at the last moment comprehend that the word Sarajevo will from now on mean the destruction of their sons and the debasement of their daughters.

  They prepare it by repeating: “We at least are safe,” unaware that what will strike them ripens in themselves.

  ——Czesław Miłosz

  PART II

  A BRIEF HISTORY OF THE SOCIETY OF STATES AND THE INTERNATIONAL ORDER

  THESIS: MUCH AS EPOCHAL WARS HAVE SHAPED THE CONSTITUTIONAL ORDER OF INDIVIDUAL STATES, THE GREAT PEACE SETTLEMENTS OF THESE WARS HAVE SHAPED THE CONSTITUTIONAL ORDER OF THE SOCIETY OF STATES.

  The international congresses that concluded peace treaties ending epochal wars produced the constitutions of the society of states for their respective eras. This process, beginning in Europe with the birth of a small society of states during the Renaissance, eventually expanded to encompass the globe. International law can be understood in terms of these constitutions and thus as having developed in several distinct periods. The study of this development provides a foundation for understanding the next constitutional era for the society of states.

  The Tenth Satire of Juvenal, Imitated

  (excerpt from The Vanity of Human Wishes)

  Let observation with extensive view,

  Survey mankind, from China to Peru;
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br />   Remark each anxious toil, each eager strife

  And watch the busy scenes of crowded life;

  Then say hope and fear, desire and hate,

  O'erspread with snares the clouded maze of fate,

  Where wav'ring man, betray'd by vent'rous pride

  To tread the dreary paths without a guide,

  As treach'rous phantoms in the mist delude,

  Shuns fancied ills, or chases airy good.

  How rarely reason guides the stubborn choice,

  Rules the bold hand, or prompts the suppliant voice,

  How nations sink, by darling schemes oppress ‘d,

  When vengeance listens to the fool's request.

  Fate wings with ev'ry wish th' afflictive dart,

  Each gift of nature, and each grace of art,

  With fatal heat impetuous courage glows,

  With fatal sweetness elocution flows,

  Impeachment stops the speaker's pow'rful breath,

  And restless fire precipitates on death.

  But scarce observ'd the knowing and the bold,

  Fall in the gen'ral massacre of gold;

  Wide-wasting pest! That rages unconfin'd,

  And crowds with crimes the records of mankind,

  For gold his sword the hireling ruffian draws,

  For gold the hireling judge distorts the laws;

  Wealth heap ‘d on wealth, nor truth nor safety buys,

  The dangers gather as the treasures rise.