THE SHIELD OF ACHILLES

by Bobbitt, Philip

  Let hist'ry tell where rival kings command,

  And dubious title shakes the madded land,

  When statutes glean the refuse of the sword,

  How much more safe the vassal than the lord,

  Low sculks the hind beneath the rage of pow'r,

  And leaves the wealthy traitor in the Tow'r,

  Untouch'd his cottage, and his slumbers sound,

  Tho' confiscation's vultures hover round.

  —Samuel Johnson

  CHAPTER SEVENTEEN

  Peace and the International Order

  COLONEL HOUSE and Kitty Genovese each lived during a particular era in the constitutional life of the State. House, his dapper appearance and his quiet manner, were made world famous by the Peace Conference at Versailles in 1919 that attempted to ratify—and set the rules for—the dominating constitutional order of the twentieth century, the parliamentary nation-state; Kitty Genovese, her bloody dress and her fruitless cries for help to her agonized neighbors, were symbols of an important political issue for the American nation-state because this particular constitutional order was held responsible for improving the safety and welfare of its people. A moral failure on the part of society was translated into a call for political action on the part of the State.

  The massacre at Srebrenica will also mark an unexpungeable point in modern history, for it is one of the crucial events in the Yugoslav Wars that signify the end of the era of the nation-state. It is important to note that Srebrenica was a mass murder, a killing, and not a battlefield victory, which so often in the past has proved the turning point for a particular constitutional form. It was ethnic cleansing, not conventional warfare, that marked the end of the nation-state, perhaps because this form of the state purchases its political passion and sacrifice in warfare by emphasizing the sovereignty of peoples. Sovereignty that cloaks practices such as ethnic cleansing, however, cannot create borders that must be respected, espe-cially at a time when borders are becoming so permeable for other reasons. The war against Serbia over the treatment of Kosovars in Serbia established this principle, but it would have come sooner or later in East Timor or Burundi or elsewhere.

  In Book I, we have dealt with the relationship between constitutional change and strategic change, as this relationship affected the individual state. It has been argued that the constitutional orders, or archetypes, of the modern state were the product of the interaction between strategic and constitutional innovation: sometimes constitutional change posed a strategic problem for the State that it had to solve if it was to survive. The French Revolution presented Napoleon with just such a problem. The Revolutionary regime could not rely on a highly professionalized army to execute the complex and rigorous maneuvers that Frederick the Great had institutionalized in Prussia and all others had copied. But the Revolution could produce great numbers of enthusiastic if untrained soldiers; the problem was to find a set of tactics that used ignorant but passionate troops effectively in battle.

  Sometimes, however, the causal arrow ran the other way, and strategic innovation itself forced constitutional change on states.1 The strategic challenge posed by the French invasion of Italy in 1494 was not successfully met by the Italian city-states until 1521, with Prospero Colonna's defense of Milan. The introduction of mobile artillery, skillfully employed, affected the entire conduct of campaigns, raising formidable problems of expense and organization. Only a constitutional transformation that augmented a prince with the logistical and taxing apparatus of the princely state would enable the besieged cities to survive. In place of campaigns that emphasized bravery and tactical skill, the prince had to master the art of creating the bastioned trace, the low, thick wall so humbling to cities that wished to retain their proud towers and high stone curtains. This meant that the prince needed money in vertiginous amounts and the organization to raise that money and use it effectively. Thus the constitutional order changed.

  But states not only solve strategic and constitutional problems, they also create them in the first place. Thus the story had a dynamic and unpredictable character: no sooner had one constitutional form of the State been enshrined than a new form began to compete for dominance. Sometimes more than one such form pressed new challenges, and sometimes a form that ultimately failed seemed about to triumph over the others. Human choices determined which military and legal innovations were tried, as states moved through a series of prototypes in search of decisive strategic programs and stable constitutional forms. When one particular choice proved successful, other states were quick to copy it in a process Gibbon called “creative emulation.” Sometimes the genetic inheritance of a state did not permit successful copying because the policies to be copied required material or cultural resources that the state did not possess and could not acquire. In those circumstances, the state was either compelled to innovate or to fall behind, becoming a mere relic of an earlier period. Some states did not survive and simply disappeared, and some constitutional forms never achieved universal legitimacy, their bases having been tried and found wanting in epochal wars that often lasted decades until a final decision was reached. Strategic success certified the constitutional form the winning state had adopted. History provided the legitimating characterization of the new order.

  What provided legitimacy, however, for the society of states? When is a new constitution for the society of states adopted? How can we tell when an epochal war has truly ended and not simply paused, to be renewed when the parties have regained strength?

  It is my premise that there is a constitution of the society of states as a whole; that it is proposed and ratified by the peace conferences that settle the epochal wars previously described, and amended in various peace settlements of lesser scope; 2 and that its function is to institutionalize an international order derived from the triumphant constitutional order of the war-winning state. Thus while violence and war initiate the process of change in the constitutional order, peace and law ratify the ultimate result. As Robert Randle has concluded:

  The settlement regimes established by the peace conference and the settlement documents constitute the new structure of the system. The multi-lateral war might have caused system transformation, but it is the settlement of war that creates a regime for the state system because it represents the signatories' acceptance of the norms or understanding embodied in the settlement documents.3

  If we take this idea—the creation of a constitution for the society of states4 from the settlement of an epochal war—in light of the relation between such wars and the constitutional order of states, then we can infer that international law arises from constitutional law. This is not merely a contemporary phenomenon; the relationship of constitutional law to international law has long been a constitutive one. It was the development of European states from the fifteenth century to the present that concomitantly brought to the world an ever-enlarging society of states formed by the perception of common ways of looking at government, and a structure of generally agreed-upon rules adopted in each century, setting out the rights of states and their duties in relation to one another and providing common international institutions.5

  This society of states has a constitution; indeed, it has had at least five previous constitutions. As I have emphasized, every society has a constitution: to be a society is to be constituted in a particular way. What is distinctive about Europe is that, at the beginning of the sixteenth century, it produced a society of states. It is this society that has grown to encompass the globe. This is the society that the Americans joined in the early nineteenth century and attempted to reform in the twentieth, and to which the Yugoslav Muslims appealed for help in the early 1990s.

  Each new period in the constitutional life of the State commenced with a revolution against an established domestic, constitutional order, though it is only with hindsight that one may say that a particular revolt led to the dominance of a particular constitutional form, because many such revolts have withered, or the forms to which they gave bir
th have contended with and been defeated by other forms that became dominant.6 Each of these periods witnessed the eruption of a grand coalitional conflict that developed into an epochal war. Most important for our present purposes, each period was punctuated by agreements that emerged from the negotiations following an epochal conflict and reflected a constitutional consensus on the part of the participating states. These negotiations established a new constitution for the society of states, defining functions for states or allotting functions differently.7 What war—and what peace—will someday be seen as having accomplished the same sort of fundamental change in the constitution of contemporary international society by legitimizing the market-state?

  In the twentieth century we saw new functions allocated to the State—to enforce compliance with U.N. Security Council resolutions, for example—as well as functions allocated differently—for example, the shifting of state responsibilities to the International Monetary Fund or the International Court of Justice. Such rearrangements are not unique to the twentieth century. In Book II, we will look once again at the six periods we examined in Book I. Here, however, we will be looking at the effects of peace, rather than war, on the creation of the society of states, rather than on state formation per se.

  What are the characteristics of a constitution for the society of states? Like other constitutions, this one sets up a structure for rule following; allocates the jurisdiction, duties, and rights of the institutions it recognizes; determines a method for its own amendment and revision; specifies procedures for coping with disputes arising from its implementation; and above all, legitimates those acts appropriately taken under its authority. Like other constitutions, written and unwritten, the constitution of the society of states relies upon the interpretive means by which it is to be applied. By providing legitimating modalities of interpretation, history enables law to reproduce itself. In the fifteenth century the constitution for the society of states provided rules for the conquest and annexation of territory and the colonization of the New World; it governed how nonstate actors, like the papacy and the Holy Roman Empire, were to interact with the society of states; it determined which territorial polities qualified as legitimate states and what rules governed dynastic succession; and, above all, it specified the relationship between the sectarian allegiance of the princely state and the religious practices of its people. Similarly, the constitution for the society of states in the twentieth century forbade the annexation of territory by conquest; provided for a process of decolonization; determined how the League of Nations and the Permanent International Court of Justice, or their successors, the United Nations and the World Court, are to interact with the society of nation-states; fixed what territorial polities are entitled to recognition within that society; determined what rules govern treaty succession; and, finally and most importantly, set the rules for the self-determination of national peoples. In other words, the constitution of the society of states will be different depending on whether its constituent parties are nation-states or princely states, but the fundamental functions of constitutions generally are largely the same although no two constitutions need share every function. Usually these functions will include the creation of rule-following procedures, and the provision of substantive rules of conduct that transcend single, one-time applications but provide instead frameworks for generating new rules within the constitution's general principles.

  We shall be looking not only at particular strategic and constitutional periods whose international institutions were ratified by a general peace conference, but also at the international law of each period as described by its leading interpreters. These descriptions will give us some sense of the legal context within which these constitutions operated and which they also shaped. For no constitution, least of all one that governs different states, can determine its own interpretive context any more than a law can provide its own legitimacy. The epochal peace conferences and treaties, like the epochal wars they terminated, existed within a complex history that gave them meaning.

  I do not wish to claim that the ideas of these historic figures in international law were unvaryingly decisive or even influential in their day, but rather that they reflect the changing international order that we seek to understand. They did not bring this order about (except in rare cases through their influence on a diplomat who was unlikely to have been moved by a reverence for international law but rather sought arguments and authority to bolster his case). To claim such influence on political developments is vain and, in any case, beside the point. We study these figures to understand their subject—international law—and not to exaggerate their roles. Though they did not bring the international order into being, they can help us understand it by understanding their responses to it.

  CHAPTER EIGHTEEN

  The Treaty of Augsburg

  Medieval treatises on government dealt with what kings should do in order to be good. Commynes in his Memoires (finished by 1498, first published 1524) and Machiavelli in his Prince (written in 1513, published 1532) tried to deal with something different, what kings found it most advantageous to do in order to be effective rulers. 1

  THIS CHANGE in attitude on the part of monarchs and their counselors reflected the constitutional changes underway at the end of the fifteenth century.

  The Hundred Years' War with the Lancastrian kings of England had required reforms in the Valois administration of France that greatly strengthened the French state. In particular, changes in finance and the organization of the army that had been introduced by Charles VII2 to compete militarily with England had prepared the dynasty to make the transition from princes to princely state. Such reforms enabled France to organize the invasion of Italy in order to vindicate French claims to Naples and Milan. These dynastic claims assumed a greater importance under Charles VIII, when the imposition of permanent taxes in areas without provincial estates and the establishment of something like a standing army provided the foundation for the French attack at the end of the century. It is estimated that by 1494 the king of France had the largest army and the greatest annual revenue of any European monarch.3 Moreover, political stability achieved through the strengthening of the apparatus of provincial government provided the conditions for civil peace necessary for agricultural improvement, the engine of economic prosperity. A generation of civil peace thus made possible the armed intervention in Italy, beginning the struggle that ended with the Peace of Augsburg.

  THE CONSTITUTION OF 1555:

  THE PEACE OF AUGSBURG

  It was not the Treaty of Cateau-Cambrésis in 1559 that ended the Valois-Habsburg struggle, but rather the Peace of Augsburg four years earlier, which set the constitutional terms of the new society of states that emerged from this epochal war. Charles V's campaign for a single Christendom foundered not so much on French victories as on the advent and growing strength of the new princely states.

  Indeed at first sight, the phenomenon appears to be universal in Europe. One finds it spreading to Scandinavia, where the Reformation provided Danish and Swedish kings with the means of establishing strong rule; even in Russia, Ivan III and Ivan IV seem almost to duplicate the work of England's Henry VII and Henry VIII, of France's Louis XI and Francis I.4

  What is sometimes less appreciated is that the principle that was the basis of Augsburg—the famous cuius regio eius religio—transformed this multilateral treaty into a constitution for the new society of princely states. This principle may be roughly translated as “he who rules, his is the religion”; it provides that the religion of a state is determined by the choice of the sovereign, with free immigration to all his subjects. It was an imaginative concept, although it had its roots in the prior practices of princes attempting to keep outside interference from complicating their relations with their subjects. Most significantly, cuius regio eius religio implied a “theory of sovereignty by the states of Europe that permitted no distinction in law between a Catholic and a Protestant country.”5 Thus the basis for a comprehen
sive society of states was formed.

  The defeat of the Habsburg bid for empire6 had destroyed Charles's hopes for a Respublica Christiana; the Peace of Augsburg ratified this failure and introduced instead the notion of individual state supremacy. Implicit in the principle of cuius regio eius religio is the territorial delimiting of sovereignty and the notion of state supremacy within that sovereignty. “There was thenceforth [after the Peace of Augsburg] to be no lord of the world, imperial or otherwise, for the simple reason that there was no single world. There were England, France, and Spain. The life of each was to be centralized within its ultimate sovereign.”7

  Medieval Christendom had known no society of politically distinct states.8 After princely states first appeared in Italy, 9 they gradually spread throughout Europe, replacing the universal, overlapping structures of ecclesiastical, feudal society10 with a discrete, territorial pattern of states. Latin, once learned by everyone in the learned classes, was replaced as the bureaucratic language of officials by increasingly standardized vernaculars. Adam Watson has observed that although at the time of the Peace of Augsburg, “the principle of cuius regio eius religio applied formally only to the Holy Roman Empire,… the practice quickly extended throughout the Christian commonwealth of Europe. It carried, as a corollary, another principle which rulers readily acknowledged and proclaimed though they did not always scrupulously observe it: non-interference by one state in the affairs of another.”11

  This doctrine of the essential separateness of the new states into which Christendom was now divided was indeed the result of the principle of Augsburg. This principle, which enshrined the legitimacy of state sovereignty, and denied the universal order of the Respublica Christiana, replaced that order with the society of princely states whose horizontal relationship indicated their mutual sovereignty. Thus the principle of Augsburg not only excluded the imperial state sought by Charles, but gave a constitutional foundation to the society of princely states.12