Well, I finished my exams, and now just have the horrible wait for my results – what fun. Anyway, to stave off the ever encroaching threat of boredom here are some ruminations on some recent developments in international law. Over at Splintered Sunrise SS has been looking at the recent discussion – by a bunch of people – on the idea of a ‘League of Democracies’, he argues that:
You see, the point about the UN is its very universality. But that leads to a problem, at least since the great 1960s wave of decolonisation, which is sort of analogous to Britain’s Eurovision problem. That is, the UN is full of uppity Third World countries who believe they have a right to be heard and who have a distressing tendency to go off message and say the most extraordinary things.
I will return to this point a little bit later, as I do think there is something in it, but firstly I want to ask a few questions about the concept itself. My first question is what exactly is a League of Democracies supposed to do? I think it’s quite telling that Norm really doesn’t make much of a mention of this. In strict international law terms it is difficult to see exactly what such a League would do. It couldn’t ‘shape’ customary international law as against the ‘non-democracies’, since custom is (supposedly) made through the state practice and opinio juris of all states. Indeed, owing to international law’s consensual basis, such a League would likely hinder such a purpose, as ‘non-democracies’ would simply become persistent objectors to any norm the League tried to create. Secondly (and perhaps most likely), there is the use of force. Now, again, turning to strict international law, this wouldn’t wash, the UN Charter controls the use of force, subject to the exception of self-defence. Thus, a League of Nations couldn’t go around the Charter. Again, any ‘new’ rules of force that might be created would only be binding upon the members. What about treaty law? Well, I guess the League could decide that it would only include its members in whatever treaties it created. I’m not really sure this would work as a strategy, but in any case, the building of a ‘League’ doesn’t really add anything to such a strategy. Finally, there is the notion of some kind of League of Common Propaganda, again I’m not really sure what the League would add to this.
It thus strikes me that in terms of the existing international law, such a League is comparatively meaningless. However, perhaps what we need to understand is that this is an attempt to transform the law, what McCain says here is interesting:
"It could act where the U.N. fails to act," he said last month, and pressure tyrants "with or without Moscow's and Beijing's approval."
McCain said the League might impose sanctions on Iran, relieve suffering in the Darfur region of Sudan and deal with environmental problems.
Bearing in mind what I have said above – that acting together doesn’t really need a new League – I think we can only really interpret this as an argument that the LoD should start exercising the functions of the UN. More to the point, and bearing in mind the particular US posturing over Iraq, this probably means that they want the LoD to authorise force in the event of a ‘failure’ of the Security Council to secure a resolution to that effect. So what McCain is essentially proposing is that international law should not an enterprise in which formally equal states have some say over its content. Instead, what is argued is that a certain group of (dare I say it) civilised states should have the power to create law, and use force.
Now, for those of you who do not realise it, this bears a striking resemblance to the international law of the 19th century. Here, according to its positivist conception, only civilised states were entitled to the full range of sovereign powers, with the right to make law being central. As a category civilisation was essentially structured around the European model of the nation-state, based on exclusive territorial sovereign and control, in practice this was not always applied fairly and often served as an instrumental device to project European power. But the fact remains that McCain’s vision seems strikingly similar to this form of international law – as against the post-colonial ‘consensus’ which emerged following decolonisation. Although one can question the extent of anti-colonial international law (indeed I will do so later, and this was essentially what my dissertation was all about) it is at least different in form to colonial international law, and this is important.
I think it should be immediately noted that proposals for a League of Democracies shouldn’t surprise us. In many respects it represents the logical conclusion of a number of prominent arguments about the use of force and the war on terror. So, firstly, the ‘Bush doctrine’ of pre-emptive self-defence. The content of this doctrine is well known, essentially the US reserved the right to act pre-emptively against emerging threats. But – as Anghie notes (here) this doctrine cannot operate within the present framework of international law:
All sovereign states are equal. Given that self-defence is arguably the central and most fundamental right of the sovereign, it would follow that the right of pre-emptive self-defence will be enjoyed by all states. Such a doctrine would surely contribute to enormous instability, given the various tensions that exist between states. Equally, it might be argued that if the right to pre-emptive self-defence is a part of existing international law, then both North Korea and Iran have a legal right to attack the United States.[1]
Should this be the case there are only two options. Either, we accept all states could do this in theory, but have limitations on the right in practice – through the maintenance of the balance of power. This itself represents a return to international law’s past – force was only ‘outlawed’ in 1928 following the Kellogg-Briand Pact. Yet there is another option, one can also legally entrench the balance of power. To some degree this was attempted in the Bush doctrine itself, where pre-emptive self-defence was indivisible from the concept of rogue states – who were the target of pre-emptive self-defence, but could not themselves use it. In other words, there is a return to the division between civilised and uncivilised states in the use of force. These problems also make themselves known in relation to a series of other doctrines elaborated by the United States and its groupies. Thus, humanitarian intervention (which actually hasn’t been invoked by the US) and the unilateral ‘enforcement’ of Security Council Resolutions both seem to require this dichotomous approach. I think it can be seen that the LoD represents the culmination of these doctrines, with the second option being taken, the legal entrenchment of the power of ‘civilised states’.
The question arises as to why this solution has suddenly arisen. In this respect I have found Tony Carty’s essay Marxism and International Law: Perspectives for the (American) Twenty-First Century (which is to be found in Susan Marks’ wonderful collection of essays International Law on the Left[2]). Carty notes that the myth of sovereign equality has always been constrained by hegemony. Thus, he notes that generally, the ‘first option’ prevailed:
By the time of the Korean War, the United States had ringed the Soviets and Chinese with an unprecedented number of military bases, which meant that not merely were there only two super-powers, there were, in fact, in the classical (Westphalia) international law sense of the term, only two (maybe three) sovereign states in the world, i.e. states with the power to declare and wage war.[3]
In other words, the US had no need to return to the colonial international law (what Gerry Simpson calls ‘legalised hegemony’) because it had factually curtailed the ability of its rivals to wage war. But – analysing various economic positions – he argues that the United States has now lost this dominance. It is financially and economically dependent on its former ‘protectorates’ and is ‘neither financially nor militarily capable of ensuring the monopoly of the use of force which has to be, since Max Weber, the characteristic of legality in modernity’.[4] Carty argues that this new-found weakness, ‘explains why [international law] is being systematically, or structurally violated’[5], I disagree with the precise nuance of this analysis. Carty forgets that one of the paradoxes of international law is that in order to make new law it is often necessary to break old law. Thus, whereas Carty argues that through the elaboration of its ‘illegal’ doctrines on the use of force the US is attempting to cow its erstwhile allies through a show a force, I would argue that something deeper is going on. Instead, the US is attempting to entrench its hegemonic position by building a legally empowered grouping of ‘civilised states’. In other words, since the US can no longer factually guarantee its hegemony, it is moving back towards the colonial model of excluding certain states and legally entrenching its power – it has taken ‘the second option’. But, since the US can no longer go it entirely alone, this objective is conducted in tandem with the War on Terror (or on ‘Rogue States’ more generally), in this way, the US is able to bring in Europe and its puppet states, as Anghie puts it:
[T]he WAT represents a set of policies and principles that reproduces the structure of the civilizing mission. Further, it is precisely by invoking the primordial, imperial structures latent within international law that this supposedly new initiative seeks to disrupt and transform existing international law. It is a novel initiative that relies for its power on a very ancient set of ideas – regarding self-defence humanitarian intervention and conquest. It is almost as though any attempt to create a new international law must somehow return to and reproduce, the colonial origins of the discipline. What is perhaps distinctive about the dynamic of difference as it is asserted in the WAT, is the belief that, in a globalised world, the transformation of the ‘other’ is essential for the defence, the very survival of the Western self. This could give rise to a uniquely dangerous situation of continuous and self-sustaining violence.[6]
This, I hope, at least helps us understand the structural imperatives behind the re-emergence of an explicitly exclusionary international law. This should be seen in the context of a growing imperial revival movement (the obvious example being Ferguson, but one shouldn’t forget the orientation of governments and newspapers in this regard) and the ‘importance’ of the decent left/neo-conservative movements. Of course, this question doesn’t answer the question of why it is that seemingly ‘decent’ people have gotten caught up in what is essentially a project for securing US hegemony. I’m not really sure (and frankly not that interested), but I guess it would take some kind of sociologist of the academy/intellectuals to offer a proper explanation.
What I think we can take away from this is that far from being a mere flight of fancy the idea of the LoD does represent something interesting and perhaps even fundamental about our current conjuncture, even if it will probably come to nothing.
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