Sunday, June 22, 2008
Red Approaches to Self-Determination
Bill Bowring: The Return of Politics to Self-Determination
Although I have heard this talk before I wasn’t paying very much attention the first time, mainly because I was stressing about my own paper. Basically, Bowring begins by examining the Anghie’s Imperialism, Sovereignty and the Making of International Law and Knop’s Diversity and Self-Determination (an absolutely fantastic book). Bowring argues that whilst these books are both great they have serious gaps in their arguments. Knop’s book is rare, insofar as it addresses an area not much examined in work of self-determination – how it relates to indigeneity and gender (viz. diversity). Anghie’s book, which I have discussed extensively here, is obviously concerned with the way in which certain ideas in international law – democracy, humanitarianism etc. – are tied up in the colonial/imperial project.
Bowring’s notes that although these books are doing different things they share very similar (flawed) conceptions of the world. As a kind of anecdotal aside he points out that both of them share a common figure in their lives – the arch liberal and progressivist Thomas Franck. Although such a connection does not necessarily have much meaning Bowring argues that it is illustrative of a certain trend. Although both Knop and Anghie both seem to be rather radical, it turns out on later examination it turns out that they are in fact liberals. Both of them essentially just call for the law to live up to its stated ideals, they don’t call for anything beyond this.
This liberalism is reflected in the way in which Anghie and Knop conceptualise the role of politics in self-determination and international law more generally. Thus, Knop gives us no explanation of how it was that the inchoate ‘principle’ of self-determination was able to become a right. The same can easily be said of much of Anghie’s work, which seems to ignore the existence of resistance or struggle. For Bowring the most telling example of this is the lack of Lenin in either of the books. Knop doesn’t mention Lenin at all and Anghie only mentions him in relation to (I think) Hobson. But, as Bowring correctly notes, Lenin and the Bolsheviks – in their political theory, debates and practice – made self-determination a central plank in their doctrines. Furthermore, further Soviet practice can only be understood in the light of this (people have often been scared of Bowring invoking ‘Stalinist’ practice, but he usually does a pretty good job of it).
Bowring then moved on to examine Pheng Cheah’s Spectral Nationality. Cheah argues that Lenin was the essential basis for the national liberationists (Fanon, Cesaire etc.), whose opposition to colonialism was based on a reception and embedding of Lenin’s argument. Bowring argues, quite rightly, that Lenin did rather a lot in relation to self-determination, particularly in his struggle against Stalin with regard to Georgian independence. This was followed on by the dreaded Soviet Union who were instrumental in getting self-determination incorporated into the major international instruments and putting it firmly on the international agenda. Although one can’t exclude the amazing struggles undertaken by the national liberation movements, one also shouldn’t ignore how important the Soviet bloc was to these movements.
From these arguments Bowring moved on to a consideration of the current furore over Kosovo and the threats of Russia to push for ‘self-determination’ in the Caucuses. Bowring argued that Russia is being rather devious, but that its actions have no real basis in Lenin’s practice.
Ultimately, I mostly agree with Bowring’s general assessments. That being said, I do think that Bowring underestimates the structural constraints of self-determination and its adoption by national liberation movements. I would also point out the obvious, Lenin’s conception of self-determination was ultimately a limited, non-permanent one, as obviously his final aim was a post-national future.
Scott Newton: The Over-Determination of Self-Determination
Scott Newton’s talk was really interesting, but it is quite hard to summarise (as he was dealing with a huge topic). Basically, he examined Soviet theory as it applied to self-determination in the USSR, emphasising that numerous legal institutions were determined, and in fact over-determined, by self-determination. He begins by looking at today, 90 years on from the Bolshevik experiments. He looks at the region of Akbhazia, where there has been a fight over territory and nationality as defined in Soviet law. The shape of secession, ethnic cleansing etc. are determined by the legacy of the USSR, especially since the legal institutions of the USSR juridified culture. In recent times there has been a move towards ‘internal self-determination’, whereby existing states are subjected to regimes which allow given ‘peoples’ to have some form of political representation. Newton argues that the heterodox-orthodoxy of the USSR pre-figured this moment.
Newton then goes back to the early law. He notes that in the old, Wilsonian vision there was one law for Europe and one law for the west. European self-determination had conditional rights to external self-determination (some nations were given their own states) combined with robust minority obligations. Non-European ‘self-determination’ was avowedly culturalist, it essentially conditioned the level of independence relative to the level of ‘cultural preparedness’ obtaining in the territory. There was no mention of internal self-determination in these areas and no provision for federalism or devolution.
Leninist self-determination was framed with reference to a continental empire. This was because the Romanov empire was like a ‘menagerie’ of colonies, the colonial territories were all physically contiguous the Russian metropole, and were composed of a number of different ‘types’ of colonies. Thus, the Romanov Empire was constantly incorporating new territories into itself, and can be seen as ‘pushing back the European frontier’. This meant that the Bolsheviks were confronted with a situation of unparalleled complexity. They had to try and organise this vast area into a new state, without allowing it to collapse, thus they had to ‘de-imperialise but not dismantle’.
This resulted in a scheme of ethno-cultural autonomy. Essentially the Soviet Union had four levels of autonomy, which was calculated through a complex formula. Newton argues that this formula was ultimately an arbitrary one, which produced a lot of aberrations. But the point was not necessarily to ‘accurately’ represent anything. Instead, the idea was to ‘give everyone a story’, the point was the constitution of a number of ‘selves’ and their juridification. In this way one could also note a continuity between the culturalist assumptions of the Mandate System. However, what Newton notes is that while this did create a series of parallel ethnic worlds, this was all much of a muchness. Ultimately, the selves were all standardised into the ‘Soviet self’, Newton illustrated this through an examination of the architecture of all the regions, which appeared virtually identical.
Whilst I did genuinely find this talk fascinating, it is hard to know what to take from it. There is probably an interested lot of work to be done in examining the more general homogenising tendencies of self-determination, and its role in the constitution of the state. Indeed, there is a good argument that self-determination tends to posit selves in the nation-state form, ultimately one rooted in Europe.
Akbar Rasulov: Post-Soviet Lessons of Self-Determination
For me, this presentation didn’t really get going until the end. Rasulov kind of admits that the project he is engaging was too big for him to summarise in the short time available to him, but nonetheless it felt pregnant with possibility. Self-determination creates a ‘self’ through practice, and this process has been variously described. What Rasulov wanted to consider was the possibility that self-determination might actually be a a grandiose fig-leaf for something else. In this regard he looked at the post-independence legal transformations in post-Soviet territories.
Rasulov notes that the basic pattern of the post-Soviet reform is that there has been very little attempt (or success anyway) in creating a specifically central Asian law. What there is that is new is largely inserted at the behest of foreign legal advisors. Much of the modernising stuff is simply a direct continuation of Soviet law. Rasulov then traced this across a number of different areas of the law, all of which show the same pattern: faithful preservation with perhaps some gradualist development. Essentially there has been very little sign of any development of an ‘indigenous’ tradition of law.
If indeed we can find a general pattern in this respect, then we have to question whether this suggests something interesting about self-determination. States are the subject of self-determination, insofar as peoples are envisaged by it, it is people within states, or people who will become a state. What a people must do in self-determination is to ‘choose their own status’, but the question is whether or not this can work in the absence of external interference. What Rasulov suggests is that self-determination projects a predictive theory about behaviour of states onto the law. For self-determination the law is always your ‘own’ law it is the law of the state. Rasulov sees this as the legacy of the German Historical School, who viewed the law, as the law of a particular people. Furthermore, he argues that this is a way of importing Kantian concerns about individual selves onto state behaviour. Thus, the absence of external compulsion is conceived of as a morally desirable state of autonomy, which is then projected back onto states. But this is projecting the liberal ‘self’ inappropriately onto states in a mythological type of way. But this ignores the fact that there ultimately is no self aside from the Soviet one that has been constructed.
What I thought was interesting about this was Nathaniel Berman’s contribution to the discussion. Adopting a Foucauldian position, Berman asked if perhaps this ‘myth’ was merely one myth amongst many. Thus, Foucault argued that the individual self was merely an effect posited by discourse and power, and so ultimately just as much of a myth as the ‘self’ in the nation state. Rasulov’s response was interesting, he acknowledged that the point could be correct (although he didn’t adopt a concrete position on it), but then argued that what is important with myths is examining their function (this is similar to what Susan Marks says about Marxist analyses of ideology). He argues that this myth of the authentic national ‘self’ sets the standard so high that the newly decolonised nations are incapable of living up to the standard. This allows the former power to assert the pointlessness of decolonisation and the incapability of the ‘natives’ to actually create an authentic form of self-government. This would set the scene for a new recolonisation.
As I say, whilst I thought this started off a little slow, the general sentiment of it was pretty interesting. The ‘high standard’ seems to me to be a particularly interesting form of analysis, and one that might fruitfully be pursued further.
Monday, June 16, 2008
Ho hum. Today I’ll continue with my conference blogging (although for the uninitiated fear not – as I have a big ‘left and war crimes’ post brewing in my head). The summaries for a lot of this are going to be short, because I’m not really in the business of imparting technical legal knowledge through this blog.
Ralph Wilde: The Legitimacy of Trusteeship in the Post-colonial Era of Self-Determination
Surprisingly (given his CV and his book) I have never heard of Ralph Wilde before, this being said the substance of his work seems to be pretty interesting. Essentially Wilde argues that a general concept of ‘trusteeship’ can be traced across the law. The basic meaning of this concept is where an administrator (whether a nation or an international body) controls an area of territory which is not its ‘own’. This is usually owing to a lack of sovereignty in the trust territory, viz. its purported inability to effectively govern itself. Wilde argues that trusteeship is structured by a tension between (what criminal lawyers would call) welfare and autonomy. Thus, on the one hand it is argued that international trusteeship can be beneficial to the territory, but on the other hand it is argued that the value of independence or self-governance is important independent of its consequences.
Historically, such projects represented the actualisation of the civilising mission – as in the case of the League of Nations Mandate System – and illustrated its fundamental logic, that non-European states were too ‘backwards’ to govern themselves. Thus, any instance of international trusteeship must try and distance itself from this anti-colonial/self-determination critique if it is to gain any legitimacy. In connection with this (and in what was to be a recurring move in the conference) Wilde invoked Anghie, who argues that the colonial legacy constantly resurfaces in the law. Obviously, were this to be the case, one can see exactly how trusteeship might represent a continuation in this trend.
International trusteeship attempts to distance itself from this critique (and thus legitimise itself) through the idea that international bodies are selfless and unexploitative because they don’t have any distinctive interests. It is thus necessary to address this argument head on. Ignatieff calls ‘nation-building’ (which is the primary modern form of international trusteeship) ‘empire-lite’ as although it is not concerned with ‘taking over’ the territory it is concerned with creating order in the ‘border-zones’ of great powers. Thus, in this instance humanitarian concerns are mapped onto those of self-interest. Ignatieff argues that this is the defining feature of these missions, and shows their pragmatic nature. But this argument is not a new one, Lord Lugard – theorist (and advocater) of the Mandate System – pioneered the idea of a dual mandate. In this theory it was accepted that whilst the European countries stood to gain much from the Mandate system, so too did the mandated territories, which were civilised through the process.
But – of course – as Wilde argues this would seem to suggest that the United Nations is entrenching global equality. In this respect it is important to understand that nation-building takes place mainly at the behest of the United Nations Security Council. The Security Council is – as we all know – essentially a great powers club, which would seem to explain why this dynamic takes place. But what Wilde then asked us was ‘should we result to essentialism?’ (although I tend to agree with Nate that a strategy of ‘anti-essentialism’ can be self-defeating), instead perhaps the dual mandate theory dismisses both the humanitarian and the imperial argument
Ignatieff argues that democratic empires (of which such trusteeships are an example) are always short lived, this tends to be linked to the universal values that ‘democracy’ promotes. But of course even if we accept the ‘universality’ of these values, once this is combined with the self-motivated nature of these acts then suddenly things tend to resemble the civilising mission. On this reading such missions are simply alibis for domination that allow the transmission of norms from the core to the periphery.
I agree with most of what Wilde said – although I would want it formulated in starker terms. One problem I think I do have is the rigid counterposing of self-determination to trusteeship. Historically, one of the animating purposes of the Mandate System was to secure self-governance for the native populations. Thus – as Ruth Gordon has noted – the only plausible model of ‘self-determination’ of non-European states following WW1 was through the Mandate System. It should also be remembered that this system was essentially carried through into the UN Charter. I would especially emphasise these connections so as to doubt the essentially progressive character of self-determination, which I view (on some levels at least) as itself a way of articulating European norms in the non-European peripheries. Secondly, I would have liked to have seen some analysis of the (sadly overlooked in this conference) excellent work of Balakrishnan Rajagopal. In his International Law from Below one of the really important arguments he advances is that international institutions are systemically thrown up through the ‘instrument effects’ of human rights law. Thus, the resistance of people is transformed into human rights law, which creates an international bureaucracy. But Rajagopal further argues that this bureaucracy develops a distinctive set of its own interests and constantly strives to reproduce its own reality. This would cast interesting light on the particular character of international trusteeship. Thirdly, I didn’t really see the point in criticising essentialism (which I find to be one of the most boring postmodern tropes), when it didn’t really seem to serve much role in the argument. This is especially because ‘essentialism’ can be perfectly warranted if one can find causal mechanisms that explain why something is an ever-present factor or possibility in a given conjuncture.
I won't bother going through Colin Warbrick's and Anna Lacourt's stuff, as they were both quite technical-legal (if interesting) discussions of Kosovo.
Saturday, June 14, 2008
I thought have posted more this week but apparently (and perhaps fortunately) I have more of a social life than I think. Anyway, on Thursday I went to a conference hosted by SOAS’ Centre for Colonialism, Empire and International Law (which is an absolutely fantastic idea for an academic centre) on New Approaches to Self-Determination. In my opinion it was a pretty awesome conference, so I thought I may as well write up my notes here.
Professor Christine Bell: The New Law of Hybrid Self-Determination
Bell essentially focuses on the relationship between self-determination and what she calls ‘peace agreements’. By peace agreements she is essentially referring to those which deal with intra-state conflicts, for example, civil wars, wars of national liberation etc., more than half the states in the world have these agreements, and she thinks she has discovered common ways in which these agreements deal with self-determination.
Classically, self-determination has been structured by an antinomy or a contradiction. Essentially, it has pitted territorial integrity (the right for historically constituted nations to remain unitary) and representative government (the right for certain ‘peoples’ to be represented by this government). This contradiction has often been thought of as exacerbating conflict – as it raises the stakes of conflicts. She argues that ‘hybrid’ self-determination is marked by three conceptual developments; these are:
- Redefinition of the nature of the state
- Disaggregation of power
- Dislocation of power
Peace treaties tend to redefine the state in a way that it is possible to incorporate its dissenters. This is not just a symbolic manoeuvre, it is also performative, since it legitimates the dissenters and represents an formal/institutional incorporation of their vision of the state. This can be seen in the Belfast agreement, which talks about respect and esteem for all of the identities in Northern Ireland, or the Burundi agreement, which negotiates an official history of the state and the conflict. The general features of this redefinition are a new state identity, constitutional recognition and substantial provisions for the participation of dissenters in the government of the territory.
The second feature of the hybrid law of self-determination is the disaggregation of power. Whilst sovereignty has traditionally been seen of as indivisible and unitary (as in Hobbes, Rousseau etc.), hybrid self-determination sees state power as divisible and fluid. This is instantiated in a number of different ways, thus peace agreements make provision for power sharing, regionalism, minority and human rights. Basically, this gives effect to the redefinition of the state and connects sovereign power with this redefinition.
Dislocation of power (‘fuzzy sovereignty’)
The sum total of this dual movement is that sovereignty – as it has been traditionally conceived – has been blurred and attenuated. This can obviously seen in the existence of bi and multinational states and the role of international supervision.
Bell argued that these agreements are cunning because they set up four hybrid ‘tricks’.
The first of these it that the old distinction between internal and external self-determination is blurred. Although the agreements would like to portray themselves as being solely concerned with internal self-determination, this simply cannot be the case. The language used in the agreements has elements of both and remains inconsistent with statehood as normally conceived. Furthermore, international actors are almost of necessity involved in these processes (which again is not a mark of internal self-determination). Basically, the agreements remain deliberately ambiguous, as it allows ‘everybody’ to win (and nobody).
The second of these hybrids is the hybrid between process and substance. Most of the agreements only agree on the processes to be used. These processes are then constitutionally or institutionally incorporated, but what they processes essentially do is to institutionalise ‘agreement to disagree’ and build it into the foundations of the state. At first sight this seems to allow us to set aside substance but on closer examination this doesn’t hold water. This is because in agreeing that the state can incorporate such processes one must be holding a substantive conception of the state as process.
The third of these hybrids is between representation and participation in democracy. Thus, these agreements emphasise representative democracy but also bring in a lot of participatory elements. In some ways this is a pragmatic role, as those who are concluding peace agreements are often unelected and without any democratic legitimacy. This meant it was necessary to continually invoke participation and ‘the people’. Thus, the agreement appears to have multiple authors.
New law or new practice?
There is a question as to whether this is really new law? Although she has found a number of agreements it really doesn’t follow that this is law. What she does note is that peace agreements articulate themselves with constant reference to self-determination. In this way they represent an attempt to mediate the central contradiction of self-determination. They represent a ‘law of the centre’. Furthermore, peace agreements seem related to developments in the ‘democratic rights’ human rights law and are linked to some recent tribunal judgments, such as the Wall Advisory Opinion and the Badinter Commission’s Opinion on Yugoslavia.
The most interesting part of this talk (and Professor Bell agreed with this) was the way in which these developments can be viewed from different angles. On the one hand, one can read them in an optimistic way. The developments can be interpreted in a heady, post-sovereign way whereby identity is fluid and transformative, it results – as Bell excellently put it – in an ‘internationalised, permanently transitional constitution’. This of course finds support with a certain kind of optimistic, liberal constitutionalist.
On the other hand, it seems like this can all be viewed as ‘simply a con trick’. Rather than seeing these developments positively a dual case can be mounted against them. Firstly, it is argued that these developments are not the beginning of some new, permanent flux, instead they are the mark of a society in transition. On this view what seems like a new development is simply an aberration that results from the process of reconciliation and state-building. In other words these ‘new’ features are just about building a new liberal democracy, peace agreements are shaped by the ‘invisible pull of the Westphalian state’. On the other hand, it is argued that this is essentially a type of informal imperialism. Just as the disempowered are about to achieve statehood (and therefore be on equal terms with the powerful), it is yanked away from them (one might cross reference this with the problem of the League of Democracies and Phil’s comments). They no longer have the straightforward buffer to the expansive power of hegemon, instead what they have is this ‘state in flux’. These arguments are complementary (rather than contradictory) because international intervention is generated by the state-building project.
Bell notes that there isn’t necessarily a right answer to these questions. Both sides of the argument are persuasive, but this is partially because these arrangements are designed to please everyone. She essentially returns to the idea that hybrid self-determination is trying to recreate a middle way (between the antinomies of self-determination) that doesn’t exist. Thus, there is a centre that constantly ‘falls apart’. Bell argues that she doesn’t need to choose because all she is doing to capture what is going on in the ‘new battleground’, as people miss both the dark side and the transcendent side. She does however admit that some people clearly ‘lose out’.
I really enjoyed this paper, and agreed with it in a lot of ways. However, I have some severe reservations about it. In some ways I feel like my observations would be best illustrated by putting up my dissertation here, and I may well do that, but I feel like I’d at least like to know its mark first of all. However, I think my basic problem is that I am not entirely sure how ‘new’ these developments are. Self-determination has always had a problematic relationship with the concept of the state. In a lot of ways it has always problematised its legitimacy and foundations (by trying to root it in consent and linking it to a conception of ‘the people’). Furthermore, by rooting sovereignty is the ‘consent’ of the people it necessarily renders it somewhat fluid. I would also argue that the divergent approaches Bell notes to ‘hybrid’ self-determination have also always structured self-determination itself. Traditionally, self-determination has been seen as a ‘free choice’ that is brought about by the resistance of national liberation movements or as a way of imposing a certain model of social organisation upon the Third World.
This is the antimony which I think structures self-determination, and I think Bell’s vision is only a variant of it. However, and this is where I am no post-whatever-ist, whenever I see an antimony I demand its dialectical resolution – as opposed to just leaving things open. So, what my basic intuition is that it is true to say that the hybrid self-determination is both liberatory and constraining. What it can be seen as doing (and this is especially true in terms of the ‘institutionalisation of disagreement) is finding a way of constructively incorporating the resistance of the peripheries into the international order, in a way that does not destroy its fundamental material coordinates. In this way it is a genuine product of resistance and it is (relatively) liberating but it also buttresses the (exploitative) international order. In reference to this I would note that Bell notes the connection between the postmodern times and the shifting character of sovereignty. But I would deepen this, perhaps through an engagement with Laclau of Mouffe. This is because it strikes me that a lot of the post- stuff is interesting insofar as while it recognises (and celebrates) difference, disagreement etc., it doesn’t really seek to transcend it – and indeed condemns wholesale, transformative projects. Something like the radical democracy of post-Marxists, which sees antagonism as constitutive of politics and central to it, seeks only to manage antagonism not resolve it. And perhaps this is the ultimate role of self-determination, to manage antagonism (between classes and nations) without questioning the exploitative regime which gives rise to it.
I'll post more notes over the week
Sunday, June 08, 2008
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.
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). 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.
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’. Carty argues that this new-found weakness, ‘explains why [international law] is being systematically, or structurally violated’, 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.
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.