THE SHIELD OF ACHILLES

by Bobbitt, Philip

  Three events beyond the Soviet Union, however, combined to change the Soviet position. First, at the Camp David summit in June Gorbachev had stressed his view that an American troop presence in Europe was a factor for stability. “I want you to know that I regard this as in your interest and in our interest,” he is reported to have told Bush, providing one more example of Gorbachev's increasing desire to become a part of a Europe-wide security system (within which, as many realized, Germany would sit uneasily as a nonnuclear power if the Soviet Union and not the United States were part of that system). Gorbachev had to be persuaded that the Soviet goal of a de-Americanized, denuclearized Germany was potentially catastrophic for Soviet interests: so long as Germany did not have nuclear weapons, the Americans would have to be present in Europe to provide a link to extended deterrence; if the Americans left, Germany was likely to acquire nuclear weapons for herself. Not two superpowers, half a globe apart, but the two largest armies in Europe would face each other, separated only by the Polish plain.

  Then the Americans had proposed at the London NATO Council meeting on July 6 that the Soviet Union no longer be treated as an “enemy and that NATO should be transformed from a primarily military alliance to a primarily political institution.” Bush wrote to Gorbachev, “I want you to know that [the London Declaration] was written with you importantly in mind.” Having floated this offer scarcely a week in advance of the Kohl-Gorbachev meeting, the Americans waited anxiously for a reply.29 Finally, on the day before Kohl left for Moscow, the West Germans announced they were sending the Russians food aid worth about $130 million. Against the background of these three events, on July 15 it was announced that Gorbachev and Kohl had agreed to a cut in German armed forces, a German subsidy to Soviet troops during the period of transition, and a Soviet undertaking to renounce all restrictions on the exercise of German sovereignty, including Germany's right to choose its own alliances. Kohl promised a broad program of economic assistance to the Soviet Union. The Soviets had abandoned their long-standing policy of forcing a German choice between unification with neutrality or continued German division with West German membership in NATO.30

  While Gorbachev and Kohl were celebrating their agreement, Ukraine became the seventh Soviet republic to declare its sovereignty. Like the Russian Federation, it chose for the moment to remain within the Union but it revoked the right of Soviet troops to remain on Ukrainian territory. Now the Soviets could hardly refuse to sign the CFE Treaty: in promising to remove troops from forward areas they were only conceding what would soon be forced on them. From the U.S. point of view, however, CFE established a precedent that would subsequently be used to govern agreements with Ukraine, Belarus, and the Russian Federation. There remained only the final piece, the commitment to parliamentarianism itself.

  On September 3 Baker gave a summary of his goals: “to cast our vision beyond the prevention of war… to the actual building of peace. To prevent war, we must continue to deter aggression… To build the peace, however, America's role must go beyond balancing itself against remaining Soviet power.”

  The “first task” on this agenda, he said, was

  fostering legitimacy—or, to put it plainly, government selected by the people and responsible to them. After sweeping away the dictators of the past, the peoples of Central and Eastern Europe are working to build legitimate political orders that can endure. America must continue to stand with them, reassuring them of our commitment to their new democracies.31

  He then proposed free elections as the qualifying standard for every state, and outlined a CSCE (Conference on Security and Cooperation in Europe) process to monitor such elections. This proposal was formalized in the Copenhagen Declaration, which was then ratified by the Charter of Paris and formed one of the crucial documentary elements of the Peace of Paris. When Gorbachev was temporarily overthrown in a coup d‘état, this provision was given such dramatic emphasis that the subsequent Moscow Declaration, the final document in the Peace of Paris suite, explicitly provided that democratic regimes were to be guaranteed by the state system and that the sovereignty of any state was forfeited if it failed to uphold the parliamentary model. The Long War was ending, and a new constitution for the society of states was being put in place.

  In form, the Charter of Paris is more or less explicitly an amendment and extension of the Charter of the United Nations, which is reaffirmed in the text of the Charter of Paris. Indeed the Peace of Paris, which includes the Charter of Paris, can be seen as an amendment to Versailles (and San Francisco, which had promulgated the United Nations Charter). The final amendments to the Versailles/San Francisco system include the series of political agreements made by the participating states of the CSCE, beginning with the Helsinki Final Act in 1975, the Charter of Paris in 1990,* as well as the Copenhagen and Moscow Documents, which bracketed that Charter. These signified the end of the Long War by recognizing Germany, and created the instruments by which Russia was formally admitted to the society of parliamentary nation-states. Taken together, these agreements provide the texts of the constitution of the society of nation-states. As Judge Thomas Buergenthal wrote in 1992, the process I have called the Peace of Paris “has transformed into a new order for the world.”32

  For three days in Paris in late November 1990, the heads of state or government from thirty-four nation-states—including the Soviet Union, the United States, Great Britain, Germany, and France—met for the second time since the signing of the Helsinki Final Act in 1975. The Paris summit was neither one of the follow-up meetings contemplated by the Helsinki Final Act, however, nor one of the minor meetings provided for on specific subjects. Indeed a “summit of this nature was, in fact, not envisaged by previous CSCE decisions.”33 Gorbachev proposed this reconvening of the parties that had first met at Helsinki in order to give the blessing of the society of European states to the “Two-plus-Four” agreements that unified Germany.34 It was also felt that such a forum might encompass the signing of the CFE Treaty among twenty-two of the CSCE members, confirming for the entire European community an arms control agreement to which only some members were parties. Finally, the meeting in Paris would formalize the adoption of free elections in all member countries. The linking of these three subjects is significant for our study. Only when one variant of the nation-state had achieved consensus could the Long War end, unifying Germany and demilitarizing the central front. The commitment to parliamentary forms of election was thus a precondition, not a consequence, of the success of the other two issues to which it was joined in Paris.

  The core provisions of the Charter of Paris that issued from this congress are contained in its first chapter, “A New Era of Democracy, Peace and Unity.” It declares that

  Europe is liberating itself from the legacy of the past. The courage of men and women, the strength of the will of the peoples and the power of the ideas of the Helsinki Final Act have opened a new era of democracy, peace and unity… We undertake to build, consolidate and strengthen democracy as the only system of government of our nations. In this endeavor, we will abide by the following: Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an over-mighty State… Democratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation, respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person. Democracy, with its representative and pluralist character, entails accountability to the electorate, [and] the obligation of public authorities to comply with the law and justice administered impartially…35

  This charter then affirms the principles of the Helsinki Final Act, welcomes the new CFE Treaty, and concludes with an explicit approval of the Treaty on the Final Settlement with Respect to Germany
signed in Moscow on September 12, 1990, which united Germany. Thus the title of the chapter: “Democracy [the provision for free elections and human rights], Peace [the endorsement of CFE], and Unity [the recognition of Germany].”36

  Other commentators likened the summit meeting to “the historic Congress of Vienna.”37 In a perhaps unwitting reprise of Woodrow Wilson's remarks about the Versailles Conference, 38 President Mitterand emphasized, however, that the Paris “Summit was the ‘anti-Congress of Vienna' because on the previous occasion the victorious powers remodeled the map of Europe without much regard for the aspirations of the peoples while the [Paris] Summit was the exact antithesis of such an approach.”39

  Perhaps most interesting for our study, however, is Mrs. Thatcher's characterization of the Charter of Paris as “a new Magna Carta.”40 What the British prime minister had in mind by this description is the Charter's emphasis on the provision of human rights. This observation underscores the role of the Peace of Paris as a constitution. Earlier constitutions, particularly Augsburg and Westphalia, had intertwined human rights—religious freedom in particular, but also the right of immigration—with the powers of states, just as domestic constitutions do. In contrast to the U.S. Bill of Rights, which might be said to describe a structure wherein every power not granted to the government is retained as a human right by the people, Magna Carta is best described as granting rights. In the case of sovereign states, such as those that convened in Paris, their promises to secure human rights are indeed very similar to those of Magna Carta. The Charter of Paris provides that states “affirm that, without discrimination, every individual has the right to freedom of thought, conscience, religion or belief, freedom of expression, freedom of association and peaceful assembly, freedom of movement [and that] no one will be subject to arbitrary arrest or detention, subject to torture or other cruel, inhuman or degrading treatment or punishment…” This language is further evidence of the constitutional nature of the Long War—the struggle to define the source of legitimacy for the State from which the division of rights and powers arises—intertwining the domestic and international, the legal and strategic. “It is clear that states which adopt ideologies incompatible with the new… democratic public order must henceforth be considered in violation of their [legal] commitments.”41 Strikingly the Moscow declaration, the final element in the Peace, states, “the commitments undertaken in the field of the human dimension… are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned.”42

  The Peace of Paris provides the source of an overarching constitutional order that sets the standard to which all national legal and political institutions must conform. In Buergenthal's insightful words,

  [t]hese constitution[al documents] articulate national political, social, economic and sometimes even moral values; they set various priorities for the nation; they establish or call for the establishment of governmental institutions; and they lay down the framework for the evolution of the political process. In short, they shape and are the ideological and political source of the nation's constitutional order…. The nation's law and legal institutions derive their legitimacy from these constitutions.43

  The Peace of Paris ended the Long War, amended the agreements at Versailles and San Francisco, and completed the process of formally globalizing the European nation-state through a universal international law. The Peace of Paris also, however, has elements of a transitional document about it for it gives a glimpse of the new constitutional order that is emerging and that has yet to suffer its epochal war.

  These harbingers of the market-state include a change in the definition of sovereignty that allows human rights to become an enforceable part of international law, as was most recently seen in Kosovo, where Serbian sovereignty was abrogated; an effort to give formal recognition to nonstate institutions, like the media of journalism and the multinational corporation, and to give them a constitutional role in the life of the State according to consumer, not voter, preferences; to ensure for the market-state and its consumers free and open markets (just as Versailles had attempted to ensure free and open democracies for self-determining voters). All of these portentous changes were largely ignored at the time but each is highly controversial and likely to be the source of conflict in the future. Slobodan Milosevic is not the last leader to deny vital human rights to a group of his citizens—as the Dalai Lama might have reminded us. Some twenty states still attempt to censor or strictly control access to the Internet, and Malaysia has been successful—for the time being—in imposing capital flow controls to regain some measure of power over its currency. Most important, there are deep divisions—described in the scenarios in Chapter 25—among the three emerging versions of the market-state and their respective attitudes toward sovereignty and the relationship of sovereignty to human rights.

  CONSTITUTIONAL INTERPRETATION: THE LEGAL SCHOOLS

  In 1922 Maxim Litvinov, the Soviet foreign minister, said that “it was necessary to face the fact that there was not one world but two” and “there was no [other] world to arbitrate [between them].” In 1990, however, Gorbachev proposed, in a speech to the United Nations,

  to expand the Soviet Union's participation in the controlling mechanisms of human rights under the aegis of the U.N. and within the framework of the European process. We think that the jurisdiction of the International Court in the Hague with regard to the interpretation and application of agreements on human rights must be binding on all states.44

  What developments had occurred in international law that reflect this enormous journey?

  The international law that led to the Peace of Paris was a reaction to the failure of both Weimar and Versailles: that is, it was a reaction to the domestic consequences of the collapse of a legally constructed state and to the international consequences of the continuation of the Long War precipitated by that collapse. Not simply the laws, but the very state itself of Weimar* was purpose-built, and this obvious fabrication was inevitably contrasted unfavorably with the sentimental, allegedly ancient, customary state of the Wilhelmine Reich (though both were of a very recent consti-tutional order, the nation-state). The Weimar state was discredited by Versailles, which imposed a parliamentary form on Germany; and the failure of Weimar in turn was soon also to discredit Versailles, as it became apparent that the peace settlement had failed and that the war that began in 1914 had persisted beyond 1919.

  It has rightly been observed that the international law of the period before the Long War

  [saw] intergovernmental and non-governmental organizations playing relatively a minor role on the global stage. Customary law and state practice formed the primary sources of international law which served a largely interstitial laissez-faire function, reflecting vested national interests and leaving large realms of unregulated state activity.45

  The Long War, however, introduced a new era, which has been characterized as that of international institutions rather than international law.46 The customary practices of the great state-nations gave way to the codifications of the nation-state, which created the League of Nations and the Permanent International Court of Justice. These products of Versailles reflected the nation-state's characteristic reliance on law. In the most public and historic way possible, however, the League and the PICJ soon proved to be failures.

  The San Francisco replay of Versailles had intensified the move toward institutionalizing international law, with not much better results. Harold Koh puts this well:

  Following World War II, the architects of the postwar… system posited [a] complex positive law framework of charters, treaties, and formal agreements, [an] intensely regulatory, global framework…. Almost immediately, however, the Cold War era and the intense bipolarity and political realism it fostered rendered this positivistic vision a Potemkin Village.47

  The irrelevance of international law to the global, epochal conflict then raging was compounded by changing att
itudes toward law itself. Dean Acheson wrote dryly that “[t]hose who devote themselves to international relations… are understandably reticent about the role of law.” They knew, Acheson said, that law was what government officials said it was—no more—and that the study of law was the assessment of what, in fact, authoritative legal decision makers would do when law was invoked as a basis for decision making.* This was hardly welcome news to those international lawyers who hoped to restrain power through law; if law was only what the powerful said it was, how could international law compel a state to do anything that was not in that state's interest? And if that was the limit of the law, what did it contribute beyond the rational assessment of self-interest that would take place anyway?

  Out of this intellectual and moral abyss, a half dozen schools of thought emerged, each trying to establish a justifiable yet realistic basis for international law. They began with the classic approaches that had originated with Vitoria and Suarez at the birth of the modern state, but these schools transmuted those inherited approaches in light of the challenge of the Long War and the death of the idea of a jurisprudence that was distinguishable from politics, a jurisprudence that could be found, rather than made (up).

  The fundamental approaches that divided thinkers about international law before the twentieth century can be roughly characterized as formalism and naturalism. Formalism focuses on the extent to which legal truths are the result of following arbitrary rules, that is, rules that have no necessary relation to any particular content. The formalist in international law, like Suarez48 or Austin (or Leibniz), derives the truth or falsity of a legal proposition from a fact unrelated to its content. The international law governing, for example, the extraction of minerals from the sea may change its content over time but so long as it is generally recognized by the society of states, it has the status of law. Any particular proposition of law (e.g., states are entitled to the minerals in their littoral waters) is true if the test of general recognition is met. By contrast, the naturalist in international law, like Grotius49 or Bluntschli (or Hume), holds that the relationship between the content of legal rules and the world accounts for their truth or falsity. Legal rules must be in accord with the nature of man, which is part of the nature of the universe. For example, one of the doctrines of jus cogens† holds that slavery is a violation of international law. If a state were to deny this was the case—indeed if two states were to deny this proposition in a treaty between them—the proposition that slavery is against the law would still be true, because it is in accord with the most fundamental human rights that arise from man's capacity for free will. In the case of both naturalism and formalism, the truth of a legal rule is tied to something in the world, but in one case (naturalism) that something has to do with the content of the legal rule, and in the other (formalism) that something has to do with the status of the rule as law, irrespective of its content.50