From: "Miroslav Antic" <[EMAIL PROTECTED]>
Reply-To: "STOP NATO: ¡NO PASARAN!" <[EMAIL PROTECTED]>
Date: Thu, 25 Jan 2001 19:01:38 -0500
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‘INTERNATIONAL JUSTICE’  AND THE END OF INTERNATIONAL LAW   [1]

By Dr David Chandler, Research Fellow, Policy Research Institute, Leeds
Metropolitan University

http://www.publica.cz/forum/forum_chandler.htm


The NATO bombing of Yugoslavia in the spring of 1999 has been saluted as a
triumph for ‘international justice’ over the traditional claims of state
sovereignty. The war was in clear breach of international law: waged without
UN Security Council authorization, against an elected, civilian government
which had not violated any external treaty, justifiable neither as a threat
to peace and security, nor in terms of any NATO country’s self-defence. It
has been welcomed instead as a ‘humanitarian’ crusade, explicitly setting
individual rights above the territorial rights of nation-states. But if the
sovereignty of some states—Yugoslavia, Iraq—is to be limited, that of
others— the NATO powers—is to be increased under the new order: they are to
be given the right to intervene at will. It is, in other words, not
sovereignty itself but sovereign equality—the recognition of the legal
parity of nation-states, regardless of their wealth or power—which is being
targeted by the new interventionists. Yet such equality has been the
constitutive principle of the entire framework of existing international law
and of all attempts, fragile as they may be, to establish the rule of ‘right
’ over ‘might’ in regulating inter-state affairs. ‘Humanitarian intervention
’. This article will examine the implications of such a right to
‘humanitarian’ military intervention for the future of inter-state
regulation and international law.
International Law and Sovereign Equality

The concept of sovereign equality is often understood as an integral part of
the long-standing doctrine of state sovereignty. In fact, it is of much more
recent provenance than the classic state system which emerged at the end of
the Thirty Years War. The Peace of Westphalia of 1648 famously recognized
the secular rights of German princelings above the religious claims of the
Papacy, legitimating no external power beyond that of the sovereign; it was
this formal recognition of the principle of territorial sovereignty which
henceforth became the basis of relations between states. There was, however,
no international law in the modern sense: such rights of sovereignty were
effectively restricted to the major powers and there was no explicit
framework of an international community which could formally limit their
exercise. Without international law, the regulation of inter-state relations
could not extend beyond voluntary agreements between the sovereign
states—strategic alliances, aimed at preserving local interests and
maintaining a relatively stable balance of power.

The epoch of this classic, ‘anarchical’ state-system, with no defined limits
to the sovereignty of the major powers, was also the era of colonialism. The
states included within it were those which could defend their own territory
from the claims of other states. It was therefore quite consistent to argue
that in countries which could not demonstrate such ‘empirical statehood’—the
colonies—sovereignty could not apply. Meanwhile, those with sufficient
military force to intervene in other states’ affairs—in other words, the
great powers—continued to do so. During the colonial era, the major powers
either regulated their territorial acquisitions directly—as in Africa and
India—or, as in China, Japan and the Ottoman Empire, insisted that their own
actions could not be fettered by local domestic legislation, claiming the
right of extraterritoriality. Under the Westphalian system, then, superior
force was the guarantor of effective sovereignty.

The Westphalian model came under attack with the modernization and growing
world importance of the leading non-European states. Challenges to Western
rule and increasing international instability led to new attempts to
regulate inter-state affairs. The Hague Conference of 1899 saw the
attendance of China, Japan, the Ottoman Empire, Persia and Siam. In 1905
Japan’s defeat of Russia came as a powerful shock to European imperial
confidence, closely bound up with assumptions of racial superiority. The
second Hague Conference of 1907 was the first gathering of modern states at
which Europeans were outnumbered by the representatives of other countries.
But it was the watershed of the First World War—bringing in its wake the
collapse of the Russian, Austro-Hungarian and Ottoman empires, the rise of
colonial resistance, the establishment of the Soviet Union and the threat of
new world war—that was decisive in turning Western policy makers away from
the strength-based Westphalian system and towards a more juridical concept
of sovereignty and a framework of international law.

The principle of national self-determination was proclaimed by Woodrow
Wilson at the 1919 Paris Peace Conference—for the newly created states of
Central Europe. The extension of such a right to the rest of the
world—ringingly affirmed by the Bolsheviks’ Declaration of the Rights of
Toiling and Exploited Peoples in January 1918—was held at bay. The expansion
of the concept of territorial sovereignty beyond the principle of ‘might is
right’ remained highly controversial within policy-making circles. Robert
Lansing, US Secretary of State, recalled his doubts:

The more I think about the President’s declaration as to the right of
‘self-determination’, the more convinced I am of the danger of putting such
ideas into the minds of certain races. It is bound to be the basis of
impossible demands on the Peace Conference and create trouble in many lands.

What effect will it have on the Irish, the Indians, the Egyptians, and the
nationalists among the Boers? Will it not breed discontent, disorder and
rebellion? Will not the Mohammedans of Syria and Palestine and possibly
Morocco and Tripoli rely on it? [2]

This ‘danger’ was a central concern of the inter-war settlement. The League
of Nations timidly initiated legal restriction of great-power sovereignty
through the introduction of the mandate system, with colonial administrators
now deputed to ‘advance the interests’ of the subject peoples. The
mandates—implying a recognition that colonial rule could only be
temporary—were the first formal admission that empire was no longer a
legitimate political form. But the concept of sovereign equality remained
confined to a few, the right of self-determination denied to large sections
of the world’s population, Japan’s attempt to include a clause on racial
equality in the League of Charter firmly rejected. The development of a
universal legal conception of sovereign equality would have to await a
further world war.

The 1945 settlement, preserved in the principles of the UN Charter,
reflected a new international situation, transformed by the emergence of the
Soviet Union as a world power and the spread of national liberation
struggles in Asia, the Middle East and Africa.  Ideologies of race and
empire, too, seemed definitively vanquished with the defeat of the Nazi
regime. It was a decisive moment in the transformation of the Westphalian
system. In this context, the inter-war consensus on ‘the non-applicability
of the right to self-determination to colonial peoples’ could no longer be
sustained. United States policy makers, as they looked forward to assuming
the mantle of the now declining British Empire, realized that updated
institutions for the management of international relations would have to
‘avoid conventional forms of imperialism’.   The result was nominal
Great-Power acceptance—however hypocritical—of a law-bound international
system.

Central to this new mechanism of international regulation was the conception
of sovereign equality. The UN Charter, the first attempt to construct a
law-bound ‘international community’ of states, recognized all its members as
equal. Article 2(1) explicitly stressed ‘the principle of sovereign equality
’, while both Article 1(2) and Article 55 emphasized ‘respect for the
principle of equal rights and self-determination of peoples’. New
nations—which would have failed Westphalian tests of ‘empirical statehood’,
and hence been dismissed as ‘quasi-states’—were granted sovereign rights,
[4] while the sovereignty of the great powers was now, on paper at least, to
be restricted. The UN system did not, of course, realize full sovereign
equality. In practice, the Security Council overwhelmingly predominated,
with each of its self-appointed permanent members—the United States,
Britain, France, Russia and China—retaining rights of veto.  Still,
sovereign equality was given technical recognition in parity of
representation in the General Assembly and lip-service to principle of
non-interventionism, setting legal restrictions on the right to wage war.

Justice and war

Under the Westphalian system, the capacity of the most powerful states to
use force against the less powerful was a normal feature of the
international order.  Under the legal framework set up by the Charter, the
sovereign’s right to go to war (other than by UN agreement or in
self-defence) was, for the first time, outlawed—a point sometimes missed by
those who would argue that the post-1945 order ‘failed to break’ with
Westphalian norms. [5] The principle of non-intervention was, in fact, a
constituting principle of the new international community of states. Just as
the rule of law in domestic jurisdictions depends upon the concentration of
legalized force in a single authority, and the criminalization of the
individual exercise of violence, so within the post-war system of
international regulation, the legal monopoly of the use of force resides in
the UN. [6] Article 2(4) states:

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 manner inconsistent with the purposes of the United
Nations.

‘We may not appreciate’, writes Louis Henkin, ‘how remarkable that was, that
transformative development in the middle of the twentieth century:
“sovereign states” gave up their “sovereign” right to go to war.’ [7] . It
marked, it seemed, the end of the Westphalian system of legitimating
great-power domination through the use of force.

The universal recognition of sovereign equality entailed a new conception of
states, whose legal authority now derived not from wealth or might but
nationhood. Formally speaking, non-Western states from now on had the same
standing as Western ones within the international order, despite continuing
inequalities of economic and military power.  [8]  In theory, however, a
framework of international law had been created that limited the exercise of
state sovereignty—including the right to wage war. In legal terms, at least,
might no longer equalled right.

‘International Justice’ or International Law?

Even so mild a form of international regulation is now coming under
ferocious attack. The case for the special treatment of some states, and
demotion of others, has been put in a variety of registers. British
barrister and newspaper pundit Geoffrey Robertson offers a rabid rogue-list:
‘The reality is that states are not equal. There can be no “dignity” or
“respect” when statehood is an attribute of the governments which presently
rule Iraq and Cuba and Libya and North Korea and Somalia and Serbia and the
Sudan’.  [9]  Max Boot, features editor of the Wall Street Journal, prefers
a swaggering cynicism: ‘There is no compelling reason, other than an
unthinking respect for the status quo, why the West should feel bound to the
boundaries it created in the past.’  [10]    Brian Urquhart, a former UN
undersecretary-general, sees sovereign equality as the ‘central barrier’ to
peace and justice, providing a ‘cloak of impunity’ for every kind of abuse.
[11]

Pitted against the concept of international law based on sovereign equality
is a new form of global ‘justice’, formulated in explicit opposition to it.
Advocates of this justice herald  the emergence of a new, ‘human-rights’
based order of international relations, arguing that the post-1945
framework—here, ‘international society’—is being eclipsed by the ethical
demands of global ‘civil society’. For Martin Shaw, erstwhile International
Socialist, the ‘crucial issue’

is to face up to the necessity which enforcing these principles would impose
to breach systematically the principles of sovereignty and non-intervention…
The global society perspective, therefore, has an ideological significance
which is ultimately opposed to that of international society. [12]

For Robertson, too, ‘the movement for global justice’ is ‘a struggle against
sovereignty’. [13] Sovereign equality is seen by these ideologues as a legal
fiction, a mask for the abuse of power. International law is merely an
‘anachronism’, a historical hangover, while ‘some of its classic
doctrines—sovereign and diplomatic immunity, non-intervention in internal
affairs, non-compulsory submission to the ICJ, equality of voting in the
General Assembly—continue to damage the human rights cause.’ [14]

The denial of sovereign equality obviously has major consequences for both
the form and content of international law.  The most prominent is the rise
of the idea of a ‘duty’ of forcible ‘humanitarian’ intervention—the
so-called devoir d’ingerence.  [15]    Its advocates naturally retain the
right to decide on whom this obligation falls. Robertson explains that
‘humanitarian intervention cannot be the prerogative of the UN’ since it
cannot be relied upon to act when necessary.  The duty of intervention must
therefore stand independently: ‘UNanimity cannot be the only test of
legitimacy’.  [16]    For Shaw, ‘it is unavoidable that global state action
will be undertaken largely by states, ad hoc coalitions of states and more
permanent regional groupings of states’.  [17]  In practice, the prosecution
of international justice turns out to be the prerogative of the West.

Such is overtly the substance of NATO’s new ‘strategic concept’, promulgated
at the Alliance’s fiftieth anniversary summit in Washington in late April
1999, at the height of the Balkan War. As US Deputy Secretary of State
Strobe Talbott explained,

We must be careful not to subordinate NATO to any other international body
or compromise the integrity of its command structure. We will try to act in
concert with other organizations, and with respect for their principles and
purposes. But the Alliance must reserve the right and freedom to act when
its members, by consensus, deem it necessary. [18]

Similarly, a new study of ‘humanitarian intervention’ in the wake of the
Kosovo war argues explicitly for ad hoc and arbitrary powers to intervene:

A code of rules governing intervention would be likely in the early
twenty-first century to limit rather than help effective and responsible
action on the part of the international community… Any attempt to get
general agreements would be counter-productive… It may be inevitable,
possibly even preferable, for responses to international crises to unfold
selectively. [19]

Ironically, the new ‘global’ forms of justice and rights protection will be
distinctly less universal than those of the UN-policed international society
they set out to replace. David Held argues that, ‘in the first instance’, at
least,

cosmopolitan democratic law could be promulgated and defended by those
democratic states and civil societies that are able to muster the necessary
political judgement and to learn how political practices and institutions
must change and adapt in the new regional and global circumstances. [20]

Rather more bluntly, Shaw explains the rationale of all-round NATO
intervention:

This perspective can only be centred on a new unity of purpose among Western
peoples and governments, since only the West has the economic, political and
military resources and the democratic and multinational institutions and
culture necessary to undertake it. The West has a historic responsibility to
take on this global leadership. [21]

This line of argument is now increasingly official doctrine. The Guardian
could hail British military intervention in Sierra Leone as ‘the duty owed
by a wealthy and powerful nation to, in this case, one of the world’s
poorest countries’. [22]   Here inequality is expressly theorized as the
basis of the new world order. Yet the modern system of law (whether
international or domestic) depends, both at the basic level of its
derivation and in the vital question of its application, on the concept of
formal equality between its subjects. All international institutions—whether
the UN, OSCE or even NATO itself—derive their authority from inter-state
agreements. International law derives its legitimacy from the voluntary
assent of nation-states. Without such consent, the distinction between law
(based on formal equality) and repression (based on material force)
disappears.  The equal application of the law entails parity between its
subjects, without which it ceases to have meaning. In today’s climate, the
rights of weaker states can be infringed on the grounds that the law does
not fully apply to them, while more powerful states can claim immunity from
the law on the grounds that it is they who ultimately enforce it.

The extension of ‘international justice’ is, in short, the abolition of
international law. For there can be no international law without equal
sovereignty, no system of rights without state-subjects capable of being its
bearers. In a world composed of nation-states, rather than a single global
power, universal law can only derive from national governments. What the
jettisoning of the principle of non-interventionism means is the
re-legitimation of the right of the Great Powers to practice what violence
they please. Their apologists declare that war is now the ‘lesser evil’,
compared to the new moral crimes of ‘indifference’ or ‘appeasement’.

Liberal interventionists have emerged as the biggest advocates of increased
military spending. [23]   For these ideologues, the absolute end of
‘international justice’ can only be compromised by diplomacy or negotiation.
The new professors of Human Rights at the UN University’s Peace and
Governance Programme are happy to condone those ‘good international citizens
’ who are ‘tempted to go it alone’ waging war for ‘justice’, with or without
international sanction. [24] Robertson likewise insists that ‘a human rights
offensive admits of no half-measures’; ‘crimes against humanity are, by
definition, unforgivable’; ‘justice, in respect of crimes against humanity,
is non-negotiable’. [25] Such war can know no legal bounds. In the Middle
East, in Africa and the Balkans, the exercise of ‘international justice’
signifies a return to the Westphalian system of open great-power domination
over states which are too weak to prevent external claims against them.



Dr David Chandler, Research Fellow, Policy Research Institute, Leeds
Metropolitan University. His latest book is Bosnia: Faking Democracy After
Dayton (Pluto Press, 1999) his next book Human Rights and International
Intervention will be published by Verso in Autumn 2001.







----------------------------------------------------------------------------
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[1] This article is a shortened version of “International Justice” which
appears in the New Left Review, No.6, Nov/Dec 2000.
[2] Robert Lansing, The Peace Negotiations: A Personal Narrative, London
1921, p. 87.
[3] Justin Rosenberg, The Empire of Civil Society, London 1994.
[4] R. H. Jackson, Quasi-States: Sovereignty, International Relations and
the Third World, Cambridge 1990.
[5] David Held, Democracy and the Global Order, Cambridge 1995, p.88.
[6] O. Ramsbotham and T. Woodhouse, Humanitarian Intervention in
Contemporary Conflict: A Reconceptualization, Cambridge 1996, p. 35.
[7] Louis Henkin, ‘That “S” Word: Sovereignty, and Globalization, and Human
Rights,  etc’, Fordham Law Review, 1999, vol. Lxviii, no. 1, p. 1.
[8] Sovereign equality was confirmed in many subsequent UN resolutions,
notably the Declaration on the Inadmissibility of Intervention in the
Domestic Affairs of States and Protection of their Independence and
Sovereignty of 21 December 1965 (Resolution 2131 [XX]) and the Declaration
on Principles of International Law Concerning Friendly Relations and
Co-operation among States in Accordance with the Charter of the United
Nations of 24 October 1970 (Resolution 2625 [XXV]).
[9] Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global
Justice, London 1999, p. 372.
[10] Max Boot, ‘Paving the Road to Hell: The Failure of UN Peacekeeping’,
Foreign Affairs, 2000, vol. 79, no. 2, pp. 143–8.
[11] Brian Urquhart, ‘In the Name of Humanity’, New York Review of Books, 27
April 2000.
[12] Martin Shaw, Global Society and International Relations: Sociological
Concepts and Political Perspectives, Cambridge 1994, p. 134–5.
[13] Crimes Against Humanity, p. xviii.
[14] Crimes Against Humanity, p. 83.
[15] M. Bettati and B. Kouchner, Le Devoir d’ingerence, Paris 1987.
[16] Crimes Against Humanity, pp. 382, 72.
[17] Global Society, p. 186.
[18] Cited in B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’,
European Journal of International Law, 1999, vol. 10, pp. 1–22.
[19] Albrecht Schnabel and Ramesh Thakur, eds, Kosovo and the Challenge of
Humanitarian Intervention, New York: forthcoming. See
www.unu.edu/p&g/kosovo_full.htm
[20] Democracy and the Global Order, p. 232.
[21] Global Society and International Relations, pp. 180–1.
[22] ‘We Are Right To Be There’, Guardian, 13 May 2000.
[23] For example, John Gray, ‘Crushing Hatreds’, Guardian, 28 March 2000;
John Lloyd, ‘Prepare for a Brave New World’, New Statesman, 19 April 1999.
[24] See, for example, Kosovo and the Challenge of Humanitarian
Intervention.
[25] Crimes Against Humanity, pp. 73, 260, 268.

Miroslav Antic,
http://www.antic.org/SNN/


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