Wednesday, August 13, 2008

Great Powers and Outlaw States: a Review (amongst other things)

A few weeks ago I finished reading Gerry Simpson’s Great Powers and Outlaw States[1]. This is a book that has gotten a lot of praise from a lot of people but I still think there are a lot of interesting things left to say about it. I also think this book flags up some broader issues with critical international legal theory, which I also want to deal with. Simpson’s book represents a critique of orthodox approaches to sovereignty and sovereign equality; essentially he aims to show ‘how sovereignty undergoes ceaseless modification and re-negotiation in the face of material forces in world politics (e.g. war), institution building, inter-disciplinary struggle and theoretical contestation’[2].

Simpson begins the book proper with an analysis of the concepts he will be deploying throughout. He starts with an examination of the mainstream doctrine of sovereign equality. Simpson argues that the centrality of equality to the international system is down to the linked processes of secularisation and decentralisation – processes which culminated at Westphalia (1648). Here, the old international law – a top down system based on the spiritual and temporal power of the Pope and the Holy Roman Empire – was rejected and in its place was proposed an order of independent states. Westphalia is then seen as providing the relationships that shape international law from then after. Simpson wants to modify this account; he argues that 1815 should be our central date. This was when European supremacy was codified in international law and asserted against the peripheries.

But before engaging tin this claim Simpson first seeks to refine what precisely is meant by sovereign equality. Simpson argues (correctly in many cases) that international lawyers fail to spell out exactly what they mean when they talk about ‘sovereign equality’. Typically (some) liberals have tried to analogise the sovereign states with the sovereign individual but this fails because there is no accepted domestic theory of liberal equality. Simpson supposes that we can only make two concrete suppositions about sovereign equality firstly that only states possess it (and by consequence it is an attribute of statehood) and secondly it operates only juridically (that is to say legally). But this still leaves us with the question as to what type of legal concept it is.

In order to inquire into this question Simpson first asks us to imagine sovereignty without equality. He argues that we can view sovereignty as simply a territorial ideal but not an organising principle. Here states would be communities organised into territorial units who could do whatever they want everywhere else. Simpson sees this as an unequal order of sovereignty (I’m not quite so sure about this myself, one could easily argue that juridically everyone here is equally free (or perhaps equally unbound by the law) any inequality produced would be factual), which has been historically called ‘absolute sovereignty’. This allows us to see what equality might add; a doctrine which emphasises liberty, security and coexistence – a form of sovereignty that is tempered by the sovereignty of others. From this Simpson argues that our conception of sovereign equality can be broken down into three elements – formal equality, legislative equality and existential equality.

Formal equality is where states are treated as equals before the judicial system, viz. equality before the law. This doesn’t say anything about the scope of rights, just that any rights states do enjoy must be ‘enjoyable’ in a judicial setting. Legislative equality has two meanings: firstly, it describes the idea that states should only be bound by those norms to which they consent and secondly it argues that in international law making no state should (in juridical terms) have more influence than another. Finally, there is existential equality which essentially is sovereignty as independence. Essentially, this type of equality argues that all states are equally entitled to choose their internal political, social and economic arrangements.

Counterposed to this equality is the central idea of Simpson’s book, that of legalised hierarchies. Hedley Bull characterised international society anarchical because it lacks a central sovereign, on this reading states exist in anarchy because of their sovereign equality. This problem also preoccupied it legal positivists who had become used to identifying law with identifiable, certain rules backed by centralised violence. Eventually, positivists simply dropped the requirement of a central authority and located violence in the form of self-help. When Simpson talks of legislative hierarchies he is not speaking of centralised law-making bodies, instead what he is talking about is status differentiation of states that doesn’t extend quite so far, as Simpson notes:

One might usefully compare two different legal systems here. The first is a system of non-anarchic hierarchy found in a centralised legal order (e.g. the United Kingdom’s legal system) the second is legalised hierarchy (e.g. the international legal order). These legal orders, in turn, can be contrasted with a political order in which hierarchy and anarchy cohabit the system but in which hierarchy has no legal significance (e.g. the state of nature...).[3]

According to Simpson there are two forms of legalised hierarchies that operate in international law these as legalised hegemony and anti-pluralism. Simpson describes legalised hegemony as:

[T]he existence within an international society of a powerful elite of states whose superior status is recognised by minor powers as a political fact giving rise to the existence of certain constitutional privileges, rights and duties and whose relations with each other are defined by adherence to a principle of sovereign equality.[4]

Thus, legalised hegemony refers to the fact that certain Great Powers are granted legal pre-eminence in international law. This – of course – tends to militate against legislative equality as described above. The above description discloses the four elements of legalised hegemony, these are a legal/constitutional basis, sovereign equality among the Great Powers, hegemony (in the classic sense) as imposed from above and consent to from below and the Great Powers acting in concert since they have an interest in the international system as a whole. Simpson argues that this was only able to arise around the time of the Vienna Concert system, as prior to that there had not been a multitude of Great Powers, instead there had usually been one hegemonic power, which exercised this power in its interests. Furthermore, he argues that material power is not enough, there needs to be a sphere of influence which is accepted by other states – this means that (as is often the case) cultural ‘power’ may outstrip military power. Finally, it is worth noticing the amount of importance Simpson places on the Powers acting in concert and having interests in the system as a whole. This means that he argues legalised hegemony did not operate during the Cold War (this is something to which I will return later, as I feel it creates a serious weakness in his work):

Legalised hegemony is distinguishable from superpower dominance in that the former requires a commitment to long-term collective action together with a formal constitutional validation of these collective goals and processes. The superpowers were not ‘Great Powers’ according to this definition. They did not exercise legalised hegemony through concert. They were the greatest powers in the system but they did not act responsibly in order to maintain the system through some sort of concert.[5]

The second type of legalised hierarchy that Simpson claims operates in international law is that of anti-pluralism, particularly liberal anti-pluralism. Simpson begins with a taxonomy of liberalism. Simpson argues that liberalism is structured by two very different strands. On the one hand there is liberal pluralism, or classical/modus vivendi liberalism. This position tends to say (internationally) that liberalism means we ought to tolerate – and indeed celebrate – difference in the internal political arrangements of states. This is of course reflected in the UN Charter and orthodox international law, which tends not to question a state’s political or humanitarian credentials (even if there have been trends against this). Contra this is liberal anti-pluralism or ‘the liberalism of certainty’ which can be ‘exclusive and illiberal in its effects’[6]. This form of liberalism takes liberalisms classic requirements equality, the rule of law etc. and insists that these values be universalised within states. Thus, liberal anti-pluralism tends to emphasise individual rights to democracy, with international human rights law serving as its ‘engine’. The debates about membership in the UN are said to reflect this tension. The way in which this is translated into international law is through the creation of criteria of membership (such as civilisation, democracy etc.) in international organisations and bodies. More specifically (and more on this later) Simpson argues that international law has been marked by the creation of ‘outlaw states’ against whom a differing legal regime is deployed. Obviously this form of legalised hierarchy tends to go against existential equality.

Simpson argues that legalised hegemony, liberal anti-pluralism and sovereign equality have been in a complex interaction ever since 1815. Simpson argues that sovereignty can only be understood as the combination and interaction of these elements in what he calls ‘juridical sovereignty’. He then goes on to see how these different types of legalised hierarchy have interacted historically.

The vast majority of Simpson’s work is then concerned with using this framework to interpret certain key moments in legal history. Simpson begins with an analysis of legalised hegemony. Firstly, he examines the 1815 Congress of Vienna. Here following the defeat of Napoleon a directorate of Great Powers sought to manage Europe and reformulate international law. This represented a repudiation of the Westphalian consensus, which although it lasted less than 50 years Simpson argues prefigured all the later developments. In his historical study Simpson shows how the Great Powers met in secret to decide the future of Europe. They set up a Concert which only included a small number of states (the Great Powers) who had ‘interests in wider Europe’. Equality also operated here, however. Firstly, many of the smaller states were expecting to have some kind of public forum in which equality operated. However, whilst these states did argue for equality they also constantly sought to differentiate themselves from other states and sit on the great committees. So there was a veritable ladder of different committees. Secondly, and somewhat paradoxically, the Great Powers realised that the only way to resolve disputes amongst themselves was through the application of formalistic sovereign equality thus:

A standard international relations account of hegemony suggests that equality is a fiction and hegemony is the expression of some underlying reality in the international order. In fact, hegemony appears to require the fiction of equality (albeit extended only to the hegemons themselves), in order to sustain it.[7]

International lawyers responded to this system in a number of different ways; fidelity, repudiation and equivocation. Thus, some erected a rigid divide between the legal and political sphere and argued that the Great Powers were only politically superior. This meant that Oppenheim had to characterise hierarchy as purely ritualistic, whereas others argued it was simply a breach of law. Others decided to abandon sovereign equality altogether, arguing that legalised hegemony was the only feasible way of building international organisations. Others tried to equivocate, usually making an argument like consent had rendered what was illegal legal.

Of course throughout this period there were counter-tendencies towards equality. Thus the Second Hague Peace Conference (1907) failed to create a Permanent Court for Arbitral Justice because the ‘smaller’ states (who were granted equal voting rights) refused to have any form of hegemony that wasn’t based on population. Of course this meant that when the world arrived at the Versailles Peace Treaty no one believed in ‘extreme equality’. Thus the peace negotiations tended to centre around the big three.

Again a similar process was repeated in the formation of the UN Charter. Here, some form of legalised hegemony seemed inevitable – and numerous justifications were advanced for it. Indeed the real question was not whether or not to entrench Great Power status but rather who would be classed as a Great Power. Simpson quite cleverly notes that whilst people call the Security Council ‘anachronistic’ today it was anachronistic right from the start. France and Great Britain could not really be equated to the US, the USSR or China in terms of raw power. Furthermore, as previously noted:

The Great Powers wanted privilege to follow power but only to a certain extent. They did not wish to have the enjoyment of these privileges subject to the continued possession of commensurate power. A norm of sovereign equality, then, created a level of artificial parity between the Great Powers themselves in the Security Council just as legalised hegemony ordered relations between the core and the peripheral states.[8]

Everyone knows however that equality also remained central to the United Nations Charter. The Great Powers felt it necessary to assuage the concerns of smaller states. These smaller states also attempted to weaken the power of the Security Council by attenuating the veto, modifying the membership, constraining the Council and enhancing the power of the General Assembly. However, it was only really the final strategy that was successful and even this was not particularly so.

The next part of the book addresses anti-pluralism and outlaw states. He begins by examining what is – to scholars of the relationship between colonialism and international law – familiar ground. Prior to 1815 Europe dealt with non-Europeans on the basis of legal and moral equality (I’d say this assertion is extremely problematic, especially following Anghie’s work) but after 1815 ideas of European superiority were entrenched into international law. Throughout the 19th century sovereign equality was challenged by the idea that the European core should be differentiated from the non-European periphery – this was achieved firstly through the technique of Christianity and then through the technique of civilisation. The rationale of this was dual, firstly, Europe would be a full member of the family of nations and so would be entitled to a range of rights and privileges, secondly, the aim was to spread the European form of social order to the peripheries. Civilisation was a ‘usefully elusive’ standard to impose on the peripheries, the general idea was that a state would be civilised if it granted certain (classically European) rights to foreigners. Often this meant these states had to submit to a humiliating array of extra-territorial jurisdiction, unequal treaties and possibly intervention.

In the 20th century, this standard underwent something of a transformation. Certainly, by the beginning of the period the standard of civilisation was becoming increasingly unstable, many of the peripheries had claimed to reach the standard. Whilst the colonies were dependent territories they were not in fact states; so there was an increasing equality for states even while some ‘people’ or ‘nations’ remained excluded. The two liberalisms clashed at both the Versailles Conference (for the League of Nations) and the San Francisco Conference (for the United Nations), essentially there were arguments as to whether or not to admit certain states. Ultimately, particularly in the case of the UN, what was chosen was the universal, pluralist option and the idea of standards for membership were rejected. UN membership became functional and agnostic. In terms of ‘criminalising’ state conduct and their internal social life it was another set of institutions:

At the end of the Second World War, the Versailles model was rejected in favour of a regime of individual responsibility. The Nuremberg Trials, then, were important as a method of punishing the major Nazi war criminals but they served another function by deflecting attention away from the criminal conduct of the state of Germany. So Kellog-Briand and the Covenant were used at Nuremberg to show that the Nazi High Command had committed crimes against peace but their application to Germany as a whole was thereby avoided.[9]

However, according to Simpson, this phase was to last less than half a century. Simpson then skips forward to the 1990s. Firstly, he examines the International Law Commission’s Draft Articles on State Responsibility. Here the idea of a ‘state crime’ was floated. Simpson argues that although this idea was formally rejected it has in fact been actualised in the practice of the Security Council. His particular focus is Iraq, which was subject (as we all know) to a rather harsh sanctions regime. Simpson notes that the sanctions regime was a quasi-penal one, which compromised Iraq’s status as a sovereign state. He further notes that such sanctions regimes become coextensive with the war on terror, so that any terrorist – outlaw – state could have its sovereign rights extremely curtailed. Simpson concludes that this created a ‘bifurcated legal order’:

The effect of all this is that a thin and fragile system of universal law applicable to all (liberal pluralism) is replaced by two highly developed legal domains. In one domain, the sphere of liberal transgovernmentalism or democratic peace, international law is more pervasive and has more bite than in the classical model. In the other domain, an incipient international criminal law is the mark of what will be a highly regulated sphere of intervention and intrusion. The ‘criminal’ outlaw state’s fate is much more likely to resemble that of the criminal or deviant in the contemporary state (subject to constant monitoring and occasionally arbitrary violence) than the traditional image of the outlaw cut loose from society. In the case of undemocratic states, engagement and exclusion (or a withdrawal of some benefits of the law) will tend to alternate.[10]

Of course this overview (although I admit it is rather a long ‘overview’ has only touched upon the debates. Simpson also considers Kosovo and the Holy Alliance and also has a pretty stimulating chapter on Afghanistan, where he brings together the threads of legalised hegemony and liberal anti-pluralism. However, if I go into this, my ‘overview’ could extend even further and I don’t think anyone wants that.

Although I did like this book I have some real problems with it. I first want to consider my specific problems with the book, before going to consider how I think it exemplifies a certain trend in critical legal theory. So firstly, I want to look at Simpson’s definition of legalised hegemony, particularly his focus on ‘concert’. Thus, as noted above, Simpson emphasises the need for Great Powers to act ‘together’ and ‘in concert’, contrasting this to the system in the Cold War. As an immediate historical concern such a position seems a bit odd to me, Simpson constructs a timeline:

Legalised hegemony formalised (1945) --> Political hegemony (1946-87) --> Legalised hegemony realised (1987-98)

When you combine this with Simpson’s admission that the Vienna Concert system lasted for such a short time it does start to seem like he may have slightly overblown the importance of legalised hegemony. This is because legalised hegemony doesn’t really seem to have operated as Simpson envisaged very much in history at all. This point becomes even more worthy of consideration when it’s placed in the context of Marxist debates about imperialism and Empire. Simpson’s work does seem to align somewhat with the Kautsky-ite super-imperialism/Hardt-Negri Empire line of argument. I’ve always had my doubt about this type of analysis. Take for example the recent period of ‘legalised hegemony realised’, I assume that the starting point for this sort of analysis would always be Iraq (1991). Here, the Security Council was able to use its special security prerogatives to set up an invasion and sanctions regime. At the time it was argued that this represented a New World Order of cooperation between the Great Powers. Such an interpretation really seems to miss the point. At the time the USSR happened to be going through rather a painful time (and as I recall was bought off in some way) which meant that it couldn’t assert its might. Likewise Afghanistan, although it certainly took on the aura of unanimity, it seems obvious that no state at that particular time was going to object to the US doing something. Finally, there is Kosovo to consider. On one level Kosovo can be read as quite compelling evidence for the idea of legalised hegemony – insofar as humanitarian intervention is necessarily a right that accrues only the Great Powers. However, and Simpson acknowledges this, devoting a few chapters to it, Kosovo can’t simply be read in this way. Indeed Kosovo seems to have been either an attempt to articulate a new collective security system or simply a breach of the law.

What is particularly useful about the Kosovo example is that it gives us a gateway into the crux of my objections – namely that the Great Powers typically have divergent interests on particular issues and often have divergent interests about whether or not the present system is one of which they approve (on this point Nathaniel Berman has an excellent article[11]). This becomes especially relevant when we consider that Russia and China are on the Security Council. Russia and China are both countries that sit on the border between state and outlaw state – so they are accused of being reckless, rights-violators, undemocratic etc. and anti-pluralists consistently call for their exclusion from international legal life. This dynamic – the strife between Great Powers (or inter-imperialist rivalry as it used to be known) undermines Simpson’s claims somewhat and also represents an interesting avenue of exploration not taken.

Occasionally reading the book I was struck by a certain distaste for Simpson’s depiction of legalised hegemony. Whilst Simpson claims to make no normative assessment of legalised hegemony the words he sometimes uses do sometimes seem to approve of legalised hegemony. Thus, he often derides defenders of sovereign equality as ‘legalists’ or ‘idealists’, whereas advocates of legalised hegemony are called ‘pragmatists’ or ‘realists’. In some instances I think this loaded language misses the point. Whilst, it is true that some of the defenders of sovereign equality may have been legalists or idealists it is surely the case that a pragmatist can appeal to sovereign equality for good old-fashioned realist reasons. Thus, a Third World jurist (or any jurist from the peripheries) might appeal to sovereign equality not in the name of ‘the law’ but in the interests of his state, or as a particular strategy for progressive(?) purposes; Susan Marks has a great quote on formalism in this regard:

How can we find a language that can hold together both formal legal arguments and arguments that criticize legal formalism? How can we express things in a way that makes it clear that determinacy and indeterminacy are not properties of international law, but are themselves arguments which we use in different contexts for different ends?[12]

It would also be interesting to know what special role Simpson thinks legality plays in this process. If a state possesses political and cultural power, as well as consent from its allies and like-minded states, it is surely capable of projecting power and securing its interests informally or extra-legally. One wonders what precisely is the need for ‘legality’ here, why legalised hegemony is pursued instead of political hegemony, is this simply a matter of increasing legitimacy? Previously, I have tried to link a desire for legalised hegemony with declining hegemonic power, this would – I assume – be valid for some members of the Security Council. Equally, perhaps, we can argue that weaker powers seek to bind rising or stronger powers to them by coming together with them in a legalised alliance.

These considerations dovetail nicely into my broader critique of Simpson’s work. Before reading the book I discussed it with one of my lecturers, she described the book as ‘philosophically confused’. At the time I disagreed with this comment, I knew something of the conceptual apparatus Simpson deployed, and it seemed to me to be philosophically sound (indeed his deconstruction of liberalism I found to be quite philosophically astute). Having read the book I am forced to agree. Simpson argues that juridical sovereignty represents ‘a permanent tension within the present system; one that is unlikely to be resolved by anything less than a revolutionary change in international human relations.’[13] The problem with this statement is that Simpson has no basis on which to take such a position. Simpson has quite persuasively argued that juridical sovereignty recurs at numerous instances in international law but he hasn’t shown us why this is the case. The quote seems to suggest that Simpson thinks that the tension is one systematically thrown up by ‘international human relations’ but nowhere is this theme explored in the book. Personally, I am tempted to map this tension onto the Marxist vision of imperialism and international law. Thus, Marxists – like Miéville and Pashukanis – argue that international capitalism (viz. imperialism) throws up the legal form, which is a form of social regulation that deals with abstract formally equal (that is to say possessed of sovereign equality) subjects. However, simultaneously with this capitalism tends to concentrate wealth and military power into the hands of a few small nations. These nations are also compelled, by the internal logic of capitalism to struggle for new markets in the peripheries, secure resources (and to constitute some areas as the periphery). But this relationship leads to a struggle among these different nations, be it an anti-imperialist struggle, an inter-imperialist rivalry etc. In this way, the Marxist theory of imperialism throws up all the elements of juridical sovereignty – Great Powers, outlaw states and formal equality – and shows how they are combined in the legal form – through which these actors all engage in material struggle.

This keep of deep theoretical analysis, or materialism as I would call it, doesn’t really find a place in Simpson’s book. Instead what we see if an interesting conceptual apparatus, combined with in-depth description of a series of events. This particular form of investigation has become very popular with critical legal theorists in recent years. Thus, much of the work of TWAIL scholars consists of a conceptually informed historical study and Koskenniemi’s most-loved (Gentler Civilisations) is a historical work. In some ways this historical turn is to be appreciated, it has long been a weakness of Critical Legal Studies (particularly its US variant) that concrete historical study was abandoned for what Chase calls ‘literary theory’, this was a weakness which left them vastly over-estimating the role of the judiciary in social change:

Nothing is more striking about the literary criticism approach than the unwillingness or inability of its practitioners to provide concrete historical or sociological studies of instances where the “self-confidence” or “self-activity” of radical social movements (whether in the Americas, Europe, Africa, Asia or the Middle East) have actually been “crushed,” not by arduous working conditions or impoverization, not by the inability of civil society to impose civil rights and liberties against state power, not by police surveillance or death squads, not by famine or inadequate public health services, not by the dull necessity of economic reproduction, not by armed invasion, prison and torture cells, or “surgical air strikes” against villages and cities, but, rather extraordinarily, by the central target of the CLS critique: appellate judicial reasoning in the liberal mode.[14]

Whilst historical studies are very important, it is also necessary to ground these historical studies materially, so as to understand the material processes which shape history and lead to the recurrence of certain features. There are many reasons why I think such study is important. Firstly, from a purely intellectual standpoint, I think theoretical studies are more satisfactory. This is because they are able to explain things (insofar as they can be explained) rather than just ‘state’ them, or ‘arrange’ a series of facts. Secondly, many critical theorists have aspirations (although perhaps they are better described as delusions) of providing intellectual and practical resources for activists, subaltern groups etc. Thus, it is a consistent aim of TWAIL scholars to help reclaim the law, or articulate the demands of the third world in the law and so on. However, these demands tend to be coupled with a rather devastating depiction of the historical complicity of law and colonialism. Surely then, it is necessary for these scholars to spell out the precise nature of the relationship between law and colonialism and explore how it is that colonial themes constantly recur in international law. If it is the case that there is some structural connection between the two (as I would contend there is) then activists have to be very careful as to how they use international law. Indeed a structural critique of the law may preclude law’s use by progressive groups. Conversely, if it is shown that law and colonialism merely coexist, and it is simply the case that the powerful ‘force’ colonialism into the law, then it may be that activists should take up international law and contest it with all their might. But the point is that unless the theoretical dimension is taken up again critical scholarship can provide no accurate guide to those who would seek to use the law.

I should say that I really enjoyed this work, and think it is a very valuable piece of scholarship. But whilst I think historical study is important, I think such study needs to be coupled with deep theoretical reflection that is able to explain why it is that certain patterns recur in history. This is why I think the resurgence of Marxist, Marxian and Marxisant theories of international law is so vital, so interesting and so important.

[1] 2004 Cambridge University Press

[2] p.11

[3] P.66

[4] P.68

[5] P.75

[6] P.78

[7] P.110

[8] P.174

[9] P.273

[10] P.314

[11] Nathaniel Berman, “Legitimacy Through Defiance,” (2005) 23 Wisconsin International Law Journal 93

[12] Susan Marks “International Judicial Activism and the Commodity-Form Theory of International Law,” (2007) 18 European Journal of International Law 199, at 209

[13] P.86

[14] ‘The Aporia’s of Critical Constitutionalism’, Anthony Chase, (1987) 36 Buffalo Law Review 403

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