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Of Power and Justice

Published online by Cambridge University Press:  06 March 2019

Pål Wrange

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This spring, Florence was cluttered with peace flags, hanging out from private apartments, churches, official buildings, and businesses. One day in the middle of March, I counted as many as 50 bandiere de la pace in a single street crossing in the Oltrarno area, south of the river Arno. On 9 June 31 of them were still hanging there. At the time of my first count, it was obvious that the flags all meant “no” to the military action that was to begin in Iraq. What did they mean two months after the fall of Baghdad?

Type
Special Issue
Information
German Law Journal , Volume 4 , Issue 9: Special Issue , 01 September 2003 , pp. 935 - 962
Copyright
Copyright © 2003 by German Law Journal GbR 

References

1 See, e.g., Richard A.Falk, cited in endnote 15, infra.Google Scholar

2 By that I mean that they look to a future that is less faraway, or is even the present.Google Scholar

3 On neoconservatism, see, i.a. Ehrman, John, The Rise of Neoconservatism: Intellectuals and Foreign Affairs 1945-1994 (1995) [a historical exposé], Elizabeth Drew, The Neocons in Power, L The New York Review of Books, No 10, 20 (2003) [deals foremost with the neoconservatives linked to the administration and their planning for the war and the occupation] and The shadow men The Economist, April 26th, 2003, 37. Neoconservative views are often expressed in The National Interest and in the Weekly Standard. The Project for the New American Century – to a large degree a neo-conservative project – has, among its signatories and supporters, Paul Wolfowitz, Donald Rumsfeld, Richard Cheney, Robert Kagan and Richard Perle. See, <www.fpif.org/papers/02right/index.html> accessed on 10 June 2003.+accessed+on+10+June+2003.>Google Scholar

4 See, <http://www.whitehouse.gov/nsc/nss.html>. Despite all the explicit and implicit criticism that will be leveled against this document in this article, I should, in all honesty, admit that it also contains much that is positive. It takes a broad approach to security, which includes, for instance, environmental problems (20) and poverty (21-22)..+Despite+all+the+explicit+and+implicit+criticism+that+will+be+leveled+against+this+document+in+this+article,+I+should,+in+all+honesty,+admit+that+it+also+contains+much+that+is+positive.+It+takes+a+broad+approach+to+security,+which+includes,+for+instance,+environmental+problems+(20)+and+poverty+(21-22).>Google Scholar

5 What this means is that it is power, which is the ultimate factor that determines how nations behave. This does not mean that values are unimportant, only that the pursuit of values or other goals is, in the last instance, constrained by power rather than by norms or institutional arrangements.Google Scholar

6 One cannot attribute all of these views to the Republican Party as a whole, which encompasses a strong isolationist wing. Cf, James Kitfield, The Folk Who Live on the Hill, The National Interest, No 58, (Winter 1999/2000). The non-isolationists used to be called “internationalists,” but that is, as far as I understand, post-Iraq, a derogatory term.Google Scholar

7 See, i.a., William Pfaff, The Osama bin Laden effect, IHT (6 May 2003).Google Scholar

8 See, e.g., the discussion on Unilateralism in International Law: Its Role and Limits, 11 European Journal of International Law (2000).Google Scholar

9 Return of the Nation State – and the Leviathan, Interhemispheric Resource Center <www.presentdanger.org/papers/leviathan.htm>, Kagan, Robert, Power and Weakness, Policy Review No. 113 (June/July 2002), <www.policyreview.org/JUN02/kagan_print.html>. This is not undisputed in neo-conservative circles, though. Peter W. Rodman argued that it is Europe that has fallen into old balance-of-power thinking in the face of US Wilsonianism. Peter W. Rodman, The World's Resentment, National Interest, No 60 (Summer 2000).,+Kagan,+Robert,+Power+and+Weakness,+Policy+Review+No.+113+(June/July+2002),+.+This+is+not+undisputed+in+neo-conservative+circles,+though.+Peter+W.+Rodman+argued+that+it+is+Europe+that+has+fallen+into+old+balance-of-power+thinking+in+the+face+of+US+Wilsonianism.+Peter+W.+Rodman,+The+World's+Resentment,+National+Interest,+No+60+(Summer+2000).>Google Scholar

10 There are endless arguments regarding whether the action against the FRY was determined by idealism or power-politics. See, Tariq Ali, Masters of the universe?: NATO's Balkan crusade Imprint (2000). At any rate, every decision will have to be rationalised both in terms of what is achievable (realism) and in terms of what is right and just (idealism).Google Scholar

11 I will not bother myself with the question whether these various people are truly Hobbesian or Kantian. The terms are used in a stylized way, and the use of the two terms in this war goes back at least to Hedley Bull's famous trichotomy of Kantians, Grotians and Hobbesians. Perhaps the Europeans are better labeled as Grotians, but I leave that issue for others. For a review that deals with the “real” Kant in relation to Kantianism, see, Patric Crapps, The Kantian Project in International Law, in Fernando R. Tesòn, A philosophy of International Law (1998).Google Scholar

12 I put “re” within parenthesis to indicate that the juxtapositions of writers are my own, and may not necessarily be agreed upon by the subjects of my gentle, discursive force.Google Scholar

13 Schmitt, Carl, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum 40, 42 (1950).Google Scholar

14 Hedley Bull The Anarchical Society. A Study of Order in World Politics, 7 and 8 (1977). This should be distinguished from world order, which also encompasses also domestic order. “World order is wider than international order because to give an account of it we have to deal not only with order among states but also with order on a domestic or municipal scale, provided within particular states, and with order within the wider world political system of which the states system is only part.” Ibid at 22. As is well-known, the term “world order” is used by policy oriented jurists, as well as by many international relations scholars associated with radical second generation New Haven lawyers, such as Richard Falk; cf, i.a., the World Order Models Project and its series Studies on a Just World Order. See, Friedrich Kratochwil, Of Law and Human Action: A Jurisprudential Plea for a World Order, in International Law: A Contemporary Perspective 639 (1985) and Richard Falk, A New Paradigm for International Legal Stuies, 84 Yale L. J. 96 (1975), which is reprinted, in International Law: A Contemporary Perspective 651.Google Scholar

15 Nicholas Greenwood Onuf International Legal Order as an Idea 73 American Journal of International Law 244 (1979).Google Scholar

16 Another particular and important element of Schmitt's is spatiality (Nomes = Ordning + Ortung). Nomos is applicable to a certain territory, which is the object of a taking, the Landnahme. That aspect could be used to discuss different kinds of rule, connected in different ways to territoriality. One could, for example, think of the orders established in Western and Eastern Europe after World War II, compare that with the liberal peace-advocates’ notions of zones of peace and zones of war (see texts mentioned in endnotes 22 and 24), and ask what sort of political geography there is in a globalised world.Google Scholar

17 See, Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 480 et sequal (2002).Google Scholar

18 To clarify: This does not suggest that law is not a separate system. Sociologically speaking it makes sense to think of it that way, and normatively speaking, it should so remain. Nomos is therefore, in my reading (which is probably different from Schmitt's), a category of another order than law as legal system. However, in the interest of the relevance of law, one cannot discard the wider implications. I am sure that that can be expressed also in terms of, for instance, systems theory.Google Scholar

19 One could also say that this era was codified in the Warsaw Declaration of the first Community of Democracies meeting in 2000 (www.state.gov/www/global/human_rights/democracy/000627_cdi_warsaw_decl.html>>Google Scholar

20 See, Secretary of State Madeleine Albright, Press Conference on “Kosovo,” 25 March 1999, in The Crisis in Kosovi 1989-1999 – International Documents and Analysis (Vol I) 416, 419 (Marc Weller ed, 1999); United States Senate, NATO's 50th Anniversary Summit, Hearing before the Committee on Foreign Relations, 21 April 1999, in The Crisis in Kosovi 1989-1999 International Documents and Analysis (Vol I) 422 (Marc Weller ed, 1999).Google Scholar

21 See, e.g., the Secretary General's Agenda for Peace: preventive diplomacy and related matters A/RES/47/120 A, 18 December 1992.Google Scholar

22 The seminal article on democratic peace and its connection with the theses advanced by Kant in Zum ewigen Frieden in 1995 was Doyle, Kant, Liberal Legacies and Foreign Affairs 12 Philosophy and Public Affairs 205 (1983). The thesis of a democratic peace was further advanced in Bruce Russett, Grasping the Democratic Peace: Principles for a Post-Cold War ORder (1993). As the legal representative of this school, I have picked Anne-Marie Slaughter. There are other Kantians, like Fernando Teson, and other liberals, like Harold Koh or Thomas Franck. Slaughter is extremely prolific and enjoys a prominent profile, often appearing in the public debate.Google Scholar

23 Kennedy, David, My Talk at the ASIL: What is New Thinking in International Law 94 Proceedings of the Annual Meeting of the American Society of International Law 104, 119-120 (2000).Google Scholar

24 The arguably most consistent expression of this view in international law is: Anne-Marie Slaughter, International Law in a World of Liberal States, 6 European Journal of International Law 503 (1995). For a very astute critique, see, Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000). Other critiques, include, Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 483 et squal (2002), Outi Korhonen, Liberalism and International Law: A Centre projecting a Periphery 65 Nordic Journal of International Law 481 (1996), Euan MacDonald, International Law, Democractic Governance and September the 11th , 3 German Law Journal No 9 (<www.germanlawjournal.com/past_issues:archive>). Though I have great sympathy for the liberal doctrine in practice, I also have some severe principled and theoretical difficulties, which I have expressed, i.a., in Liberalism and the end of international law?, Paper presented at the International Studies Association Conference, Los Angeles 18 March 2000. For a thorough critique of Slaughter's description of the behaviour of liberal states, see, José E. Alvarez, Do Liberal States Behave Better? A Critique of Slaughter's Liberal Theory 12 European Journal of International Law 183 (2001).).+Though+I+have+great+sympathy+for+the+liberal+doctrine+in+practice,+I+also+have+some+severe+principled+and+theoretical+difficulties,+which+I+have+expressed,+i.a.,+in+Liberalism+and+the+end+of+international+law?,+Paper+presented+at+the+International+Studies+Association+Conference,+Los+Angeles+18+March+2000.+For+a+thorough+critique+of+Slaughter's+description+of+the+behaviour+of+liberal+states,+see,+José+E.+Alvarez,+Do+Liberal+States+Behave+Better?+A+Critique+of+Slaughter's+Liberal+Theory+12+European+Journal+of+International+Law+183+(2001).>Google Scholar

25 This should not be taken to imply an idealistic view of power. Power works as law, as well. However, there is a difference between relations in which concrete actions are perceived to be guided by norms and relations overtly determined by political pressure. Rules are general in scope, and may, in different circumstances, work to the advantage of either side. Therefore, in a rule-governed relation, the rule may in many cases supply the weaker party with a means to resist pressure from the stronger.Google Scholar

26 Cf, Koh, Harold Hongju, The Spirit of the Laws, 43 Harvard International Law Journal 23, 29 (2001). That is not unqualified, though, because according to neo-conservative foreign policy thinking, quite prevalent in the US Administration, there are immutable principles of universal justice, as will be discussed below (Andrew Hurrell, There are no Rules’ (George W. Bush): International Order after September 11, 16 International Relations 181, 185 (2002)). Cf, also several such references in the West Point speech (see, endnote 27, infra).Google Scholar

27 Remarks by the President at 2002 Graduation Exercise of the United States Military Academy, 1 June, 2002, <http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html>. See, also, the National Security Strategy, at <http://www.whitehouse.gov/nsc/nss.html>..+See,+also,+the+National+Security+Strategy,+at+.>Google Scholar

28 Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq. <http://www.whitehouse.gov/news/releases/2002/10/print/20021002-2.html>>Google Scholar

29 The policy of the current administration is, in a sense, a continuation of that of the Reagan/Bush administration. Whether the policy of the Clinton years was an aberration, a continuation, a reaction to the circumstances or an expression of a different will, is beyond the scope of this text.Google Scholar

30 In resolution 1422, the Security Council i.a. “1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or commissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise; … 3. Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations.” See, Pal Wrange, The Prince and the Discourse: On Commenting and Advising on International Law, in Nordic Cosmopolitanism: Essays for Martti Koskenniemi (Jarna Petman & Jan Klabbers eds, 2003 forthcoming); and Carsten Stahn, The Ambiguities of Security Council Resolution 1422, 14 European Journal of International Law 85 (2002).Google Scholar

31 www.iccnow.org>..>Google Scholar

32 Other texts often mentioned are Max Boot, The Case for American Empire, Weekly Standard (15 October 2002) (see, endnote 110, infra) and Robert D. Kaplan, Warrior Politics: Why Leadership Demands a Pagan Ethos (2002).Google Scholar

33 Kagan, Robert, Power and Weakness, Policy Review No. 113 (June/July 2002), www.policyreview.org/JUN02/kagan_print.html.Google Scholar

34 Ibid.Google Scholar

35 For a critique, see, Olaf Dilling, Comment: ‘If I had a Hammer’ – A Review of Robert Kagan's ‘Power and Weakness, 3 German Law Journal, No 12, December 2002 <www.germanlawjournal.com/past_issues.php?id=220> accessed on 31 January 2003. Reprinted in this issue of German Law Journal.+accessed+on+31+January+2003.+Reprinted+in+this+issue+of+German+Law+Journal.>Google Scholar

36 Ibid Google Scholar

37 Cf, Donnelly, Jack, Twentieth-century realism, in Traditions of International Ethics 85, 104 et sequal (Terry Nardin & David R. Mapel eds., 1992).Google Scholar

38 Ibid Google Scholar

39 Ibid Google Scholar

40 Ibid Google Scholar

41 Glennon, Michael J., Why the Security Council Failed, 81 Foreign Affairs, May/June, 2003, accessed through www.foreignaffairs.com, 2003-05-10. Glennon's relation to neo-conservatism is not clear to this writer. There is certainly an affinity in the emphasis on power, and Glennon has published on the law of force for the Weekly Standard, which is a leading neo-conservative journal (Michael J. Glennon, Preempting Tererorism: The case for anticipatory self-defence, 7 The Weekly Standard No. 19 (28 January 2002)). Some of Glennon's views might fit much less comfortably with neo-conservatives, such as his refusal to accept eternal truths and values, and his hopes for a binding agreement on the use of force (see, Michael J. Glennon, The New Interventionism: The Search for a Just International Law, 78 Foreign Affairs, No 3, 2 at 7 (1999). Apart from my critical account of Glennon, I must also say that the article contains a number of very acute observations. For instance, he notes that Iraqi compliance with Security Council resolution 1441 was actually predicated on an illegal US threat of force, and he also duly criticizes the Council for supplying a text able to “lend support to both claims. This is not the hallmark of great legislation.”Google Scholar

42 On my count, the 2003 war was the third Gulf War. Two million people – Arabs and Iranians, for sure – died in the 1980-1988 Gulf War, many of them through US arms, supplied to Saddam Hussein. For examples of the denomination of that war as the Gulf War, see, Francis V. Russo, Neutrality at Sea in Transition: State Practice in the Gulf War as Emerging Ingernational Law, 19 Ocean Development 381 (1988); Ronzitti, La Guerre du Golfe, le déminage et la circulation des navires 33 Annuaire Francais de Droit international 247 (1987); Neutrality, the Rights of Shipping and the Use of Force in the Persian Gulf War, Proceedings of the American Society of International Law 147-172, 394-613 (1988); Rainer Lagoni, Gewaltverbot, Seekriegsrecht und Shiffahrtsferiheit im Golfkrieg, in Festschrift fuer Wolfgang Zeidler 1833 (1987).Google Scholar

43 Glennon, Michael J., Why the Security Council Failed, 81 Foreign Affairs, May/June, 2003, accessed through www.foreignaffairs.com, 2003-05-10.Google Scholar

44 Ibid.Google Scholar

45 Ibid.Google Scholar

46 Ibid.Google Scholar

47 Ibid. The full line of reasoning is not as crude as it looks. In Glennon's view, customary law consists mainly of what states actually do, in the limited sense of the verb “do”. There is, thus, a jurisprudential explanation. However, that particular explanation does fit well with the interests of powerful states.Google Scholar

48 He does not believe that international law is or should be irrelevant. He is not an apologist for naked power. He hopes that the world will be able to produce a new treaty regime on the law of force. However, his views on the present state of the law happen to fit very well with some agendas in Washington.Google Scholar

49 As mentioned in endnote 3, supra, Kagan, Pearle and Wolfowitz are all supporters of the Project of a New American Century.Google Scholar

50 To take two more or less random but still very prominent examples: Louis Henkin, International Law: Politics and Values 8, 252 (1995) and Thomas M. Franck, Fairness in International Law and Institutions 3 (1995).Google Scholar

51 Anne-Marie Slaughter, In Memoriam: Abram Chayes 114 Harvard Law Review (2001) 682, 685. See, also, Robert Keohane, Ironies of Sovereignty: the European Union and the United States, 40 JCMS 743, 748-749, 754-755 (2002).Google Scholar

52 Bolton, John, The United States and the International Criminal Court, Remarks to the Federalist Society, Washnington, DC, USA (November 14, 2002) (<www.state.gov/t/us/rm/15158.htm>). See, also, generally – but not in every detail applicable to the writers covered here – P. Spiro, The New Sovereigntists: American Exceptionalism and Its False Prophets, 79 Foreign Affairs, No 6 (2000).).+See,+also,+generally+–+but+not+in+every+detail+applicable+to+the+writers+covered+here+–+P.+Spiro,+The+New+Sovereigntists:+American+Exceptionalism+and+Its+False+Prophets,+79+Foreign+Affairs,+No+6+(2000).>Google Scholar

53 Keohane, Robert, Ironies of Sovereignty: the European Union and the United States, 40 JCMS 743, 758 (2002).Google Scholar

54 Cf, also, Scheffer, David, Don't Forfeit the Global Criminal Court, accessed at <groups.yahoo.com/group/icc-info/message/1166> on 10 June 2003.+on+10+June+2003.>Google Scholar

55 For a full and bold statement of this argument, see, Bishai, Linda S. The exception Proves the Rule: America's Defection from the West, paper for 44th Annual International Studies Association Convention, Portland, Oregon, February 25 – March 1, 2003, on file with the author. See, also, for a similar, but conservative, argument, Ivan Eland, The Empire Strikes Out: The ‘New Imperialism’ and Its Fatal Flaws, Policy Analasis, No 459 (26 November 2002), Cato Institute, Washington, DC, USA, at 13. Cf also Generally, see also Stanley Hoffman, America Goes Backward, L The New York Review of Books, No 10, 74 at 78 (2003)Google Scholar

56 For instance, the National Security Strategy speaks of the prospect of US help to Colombia for its extension of “effective sovereignty over the entire national territory.” From a legal point of view, that expression is near nonsense, since no one has challenged Colombian sovereignty. This gradual, analogical conception of sovereignty is typical for international relations, whereas international law works with a digital (yes/no) conception of sovereignty.Google Scholar

57 Barry, Tom, Return of the Nation State – and the Leviathan, Interhemispheric Resource Center <www.presentdanger.org/papers/leviathan.htm> accessed on 10 June 2003.+accessed+on+10+June+2003.>Google Scholar

58 With that in mind, it is important to note that for the US, it is necessary to “build and maintain our defenses beyond challenge.” (NSS at 29) “Our forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States “(NSS at 30). Other states should not have that right, however. For instance, Chine is advised that “[i]n pursuing advanced military capabilities that can threaten its neighbors in the Asia-Pacific region, China is following an outdated path that, in the end, will hamper its own pursuit of national greatness.” (NSS at 27)Google Scholar

59 Barry, Tom, Return of the Nation State – and the Leviathan, Interhemispheric Resource Center <www.presentdanger.org/papers/leviathan.htm>>Google Scholar

60 <http://www.whitehouse.gov/news/releases/2002/09/print/20020912-1.html>>Google Scholar

61 See, e.g., President Clinton's Address to the Nation, 24 March 1999, in The Crisis in Kosovi 1989-1999, International Documents and Analysis (Vol I) 415 (Marc Weller ed, 1999). There was not much legal justification done, however, except some scant references to the Security Council's resolutions 1160, 1199 and 1203 (Secretary of State Madeleine Albright, Press Conference on “Kosovo,” 25 March 1999, in The Crisis in Kosovi 1989-1999, International Documents and Analysis (Vol I) 416, 419 (Marc Weller ed, 1999)). It was also made clear that there was no need for an authorization. (United States Senate, NATO's 50the Anniversary Summit, Hearing before the Committee on Foreign Relations, 21 April 1999, in The Crisis in Kosovi 1989-1999, International Documents and Analysis (Vol I) 422 (Marc Weller ed, 1999)). The Kosovo action was not about regime change in Belgrade, but it was about change in Kosovo.Google Scholar

62 See, e.g., Boot, Max, The Case for American Empire Weekly Standard (15 October 2002) (see, endnote 110, infra.).Google Scholar

63 While Wolfowitz undoubtedly is an earnest champion of democracy, he writes about it in realist language: “[n]othing could be less realistic than the version of the ‘realist’ view of foreign policy that dismisses human rights as an important tool of American foreign policy.” Remembering the Future, The National Interest, No 59 (Spring 2000). The introduction to the NSS says that the “duty of protecting these values [of freedom] against their enemies is the common calling of freedom-loving people across the globe and across the ages.” However, “[d]efending our Nation against its enemies is the first and fundamental commitment of the Federal Government.” Of course, sometimes those two interests can be claimed to point in the same direction.Google Scholar

64 Introduction to the NSS. Cf, also: “Freedom is the non-negotiable demand of human dignity” and “[t]he United States welcomes our responsibility to lead in this great mission.”Google Scholar

65 NSS at 4 & 9.Google Scholar

66 Remembering the Future, The National Interest, No 59 (Spring 2000). For instance, Wolfowitz wrote that “Kennedy's failure to make good on his pledges to the Cubans at the Bay of Pigs, like Clinton's abandonment of the Iraqi opposition in 1996, was a moral failure that was also costly to American power and credibility.” For Wolfowitz's remarks on Iraq, see, Robin Cook, Britain must not let Iran become the next Iraq, IHT p. 8 (4 June 2003). Neo-conservatives have always been divided on the issue to what extent the US government should work to spread democracy. See, John Ehrman, The Rise of Neoconservatism: Intellectuals and Foreign Affairs 1945-1994 184 (1995).Google Scholar

67 NSS at 15. See, also, ibid: “The United States of America is fighting a war against terrorists of global reach” (p 5), and “we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country” (p 6).Google Scholar

68 Remarks by W. Michael Reismann, in the debate at the Association of the Bar of the City of New York Preemptive Force: When can it be used?, 13 January, 2003, www.fpa.org/topics_info2414/topics_info_show.htm?doc_id=142893> accessed on 10 June 2003.+accessed+on+10+June+2003.>Google Scholar

69 What international law has said “for centuries” should be irrelevant to any state party to the United Nations Charter, a treaty which changed the law of force fundamentally. For sure, the word “inherent” in Article 51 implies that old international law comes in through the back-door, but the law that reigned “centuries” ago did not specifically allow war for purposes of self-defence, since there was no prohibition of war whatsoever. Further, the invocation of what “[l]egal scholars and international jurists often” do is misleading, because most often, they do not allow anticipatory self-defence at all.Google Scholar

70 Remarks by William Howard Taft IV, in the debate at the Association of the Bar of the City of New York, Preemptive Force: When can it be used?, 13 January, 2003, www.fpa.org/topics_info2414/topics_info_show.htm?doc_id=142893>, accessed on 10 June 2003.,+accessed+on+10+June+2003.>Google Scholar

71 Taft, Ibid., The letter to the President of the Security Council of 20 March did portray the action as a sort of defence, but that was not explicitly made as a legal argument (www.un.international/usa/03iraqltr0320.htm accessed on 10 June 2003). (The actions “are necessary stepts to defend the Untied States and the internation community from the threat posed by Iraq…”) What sort of discussions had occurred between the lawyers of the Pentagon and State Department is anybody's guess.Google Scholar

72 Glennon, Michael J., Why the Security Council Failed, 81 Foreign Affairs, May/June, 2003, accessed through www.foreignaffairs.com, 2003-05-10.Google Scholar

73 Ibid.Google Scholar

74 Ibid. Glennon bypasses the simplest explanation of this extensive use of force, namely that the actions were just illegal and were usually held to be such by the great majority of states. Cf, Anna-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 Harvard International law Journal 1 (2002). Glennon continues: “In effect, however, it makes no practical difference which analytic framework is applied. The default position of international law has long been that when no restriction can be authoritatively established, a country is considered free to act. Whatever doctrinal formula is chosen to describe the current crisis, therefore, the conclusion is the same. ‘If you want to know whether a man is religious,’ Wittgenstein said, ‘don't ask him, observe him.’ And so it is if you want to know what law a state accepts. If countries had ever truly intended to make the UN's use-of-force rules binding, they would have made the costs of violation greater than the costs of compliance.” Ibid. For a fuller, and hence more convincing treatment of the issue, see, Michael J. Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 Harvard Journal of Law and Public Policy 539 (2002).Google Scholar

75 Even in the speech to the General Assembly on 12 September 2002, the unilateralist resolve was spelt out, though in somewhat veiled language: “But the purposes of the United States should not be doubted. The Security Council resolutions will be enforced … or action will be unavoidable.” <http://www.whitehouse.gov/news/releases/2002/09/print/20020912-1.html>>Google Scholar

76 President Says Saddam Hussein Must Leave Iraq Within 48 Hours, Remarks by the President in Address to the Nation, accesed from <www.whitehouse.gov/news/releases/2003/03/print/20030317-7.htm> on 18 March 2003.+on+18+March+2003.>Google Scholar

77 The best and most succinct justification for the Iraq war set out in the UK Attorney-General's brief (www.parliament.the-stationary-office.co.uk/pa/ld199900/ldhansrd/pdvn/lds03/text/30317w01.htm>, accessed on 10 June 2003). My view on these matters conforms with those of a number of (other) teachers of international law in a letter to the Guardian on 7 March 2003. My own analysis is presented, i.a., in The American and British Bombings of Iraq and International Law, 39 Scandinavian Studies in Law 491-514 (2000). My article was written after the December bombings of 1998, but the only intervening circumstance since then – resolution 1441 – does not change the legal situation significantly, even if it does make the US and the UK arguments a bit stronger. See, also, the works cited in my article, in particular the excellent Serge Sur, La résolution 687 (3 avril 1991) du conseil de sécurity dans l'affaire du Golfe: Problèmes de rétablissement et de garantie de la paix, 37 Annuaire francais de droit international 25 (1991) as well as Jean-Marc Thouvenin, Le jour le plus triste pour les Nations Unies, les frappes anglo-américains de décembre sur l'Iraq, 44 Annuaire français de droit international 209 (1998)).,+accessed+on+10+June+2003).+My+view+on+these+matters+conforms+with+those+of+a+number+of+(other)+teachers+of+international+law+in+a+letter+to+the+Guardian+on+7+March+2003.+My+own+analysis+is+presented,+i.a.,+in+The+American+and+British+Bombings+of+Iraq+and+International+Law,+39+Scandinavian+Studies+in+Law+491-514+(2000).+My+article+was+written+after+the+December+bombings+of+1998,+but+the+only+intervening+circumstance+since+then+–+resolution+1441+–+does+not+change+the+legal+situation+significantly,+even+if+it+does+make+the+US+and+the+UK+arguments+a+bit+stronger.+See,+also,+the+works+cited+in+my+article,+in+particular+the+excellent+Serge+Sur,+La+résolution+687+(3+avril+1991)+du+conseil+de+sécurity+dans+l'affaire+du+Golfe:+Problèmes+de+rétablissement+et+de+garantie+de+la+paix,+37+Annuaire+francais+de+droit+international+25+(1991)+as+well+as+Jean-Marc+Thouvenin,+Le+jour+le+plus+triste+pour+les+Nations+Unies,+les+frappes+anglo-américains+de+décembre+sur+l'Iraq,+44+Annuaire+français+de+droit+international+209+(1998)).>Google Scholar

78 President Says Saddam Hussein Must Leave Iraq Within 48 Hours“, Remarks by the President in Address to the Nation, accesed from www.whitehouse.gov/news/releases/2003/03/print/20030317-7.htm on 18 March 2003.Google Scholar

79 The Fourth Hague Convention gives authority to an occupying power to do certain things, but not to change government. Another question is whether an occupying force is not obliged to change domestic legislation and practices which contravene human rights. I tend to believe that they should.Google Scholar

80 Perle, Richard, The Guardian (21 March 2003).Google Scholar

81 Glennon, Michael J., Why the Security Council Failed, 81 Foreign Affairs, May/June, 2003, accessed through www.foreignaffairs.com, 2003-05-10.Google Scholar

82 The word “irrelevant” was used in President Bush's speech at the UN General Assembly on 12 September 2002. <http://www.whitehouse.gov/news/releases/2002/09/print/20020912-1.html>>Google Scholar

83 See supra, end note 80Google Scholar

84 For constitutionalism in European international law, see, i.e., Verdross & Bruno Simma, Universelles Völkerrecht. Theorie und Praxis 58 et sequal (3 ed, 1984). See, also, Andreas Fischer-Lescano, Emergenz der Globalverfassung, Heidelberg Journal of International Law (2003, forthcoming) and Andreas Fischer-Lescano, Themis sapiens, in Constitutionalism and Transnational Governance (Christian Joerges, Inger-Johanne Sand, Günther Teubner eds., 2003; forthcoming). Critically, on the idea of the United Nations Charter as a constitution, see, Prosper Weil, 44 International and Comparative Law Quarterly. Among the many recent texts on a constitution of and constitutional discourse in the European Union, see, i.a., Joseph H.H. Weiler, The Constitution of Europe (1999). For a general perspective, see, Neil Walker, Postnational Constitutionalism and the Problem of Translation, in The European Constitution: A Festschrift (J. Weiler & M. Winder, eds; forthcoming); Neil Walker, The Idea of Constitutional Pluralism, 65 Modern Law Review 317 (2002).Google Scholar

85 NSS, in the Introduction and at 1, respectively.Google Scholar

86 See, e.g., NSS, at 7.Google Scholar

87 Not even in the President's speech to the UN General Assembly on 12 September are there any such reverences. <www.whitehouse.gov/news/releases/2002/09/print/20020912-1.html> Generally, see also Stanley Hoffman, America Goes Backward, L The New York Review of Books, No 10, 74 at 77 (2003)+Generally,+see+also+Stanley+Hoffman,+America+Goes+Backward,+L+The+New+York+Review+of+Books,+No+10,+74+at+77+(2003)>Google Scholar

88 Bolton, John R., The Global Prosecutors: Hunting War Criminals in the Name of Utopia, 78 Foreign Affairs, No 1, 157, 158-159 (1999).Google Scholar

89 Barry, Tom, Return of the Nation State – and the Leviathan, Interhemispheric Resource Center <www.presentdanger.org/papers/leviathan.htm>>Google Scholar

90 Kagan, Robert, Multilateralism, American Style, The Washington Post (13 September 2002), accessed from <www.newamericancentury.org/global-091302.htm> on 29 May 2003. Barry confirms this tactical view of multilateralism, but accredits it to “conservative internationalists”. Tom Barry, Return of the Nation State – and the Leviathan, Interhemispheric Resource Center <www.presentdanger.org/papers/leviathan.htm>+on+29+May+2003.+Barry+confirms+this+tactical+view+of+multilateralism,+but+accredits+it+to+“conservative+internationalists”.+Tom+Barry,+Return+of+the+Nation+State+–+and+the+Leviathan,+Interhemispheric+Resource+Center+>Google Scholar

91 Kosovo was never seriously justified under international law, but even in this case, there were legal arguments presented.Google Scholar

92 Bolton, John, Summary of Statement Before the Senate Foreign Relations Committee“, from Gary Schmitt, Memorandum to opinion leaders: International Criminal Court, accessed from <www.newamericancentury.org/global-0201.htm> on 2003-05-29.+on+2003-05-29.>Google Scholar

93 Glennon, Michael J., Why the Security Council Failed, 81 Foreign Affairs, May/June, 2003, accessed through www.foreignaffairs.com, 2003-05-10.Google Scholar

94 NSS, at 18.Google Scholar

95 “America must stand firmly for the nonnegotiable demands of human dignity: the rule of law; limits on the absolute power of the state; free speech; freedom of worship; equal justice; respect for women; religious and ethnic tolerance; and respect for private property.” (NSS at 3).Google Scholar

96 “America will encourage the advancement of democracy and economic openness in both nations [Russia and China], because these are the best foundations for domestic stability and international order.” NSS, introduction. Neo-conservatives are a bit more nuanced than some Kantians, though: “Even though democracies are not as irenic as the extreme proponents of ‘democratic peace’ like to argue, a China that governs its own peoples by force is more likely to try to impose its will on its neighbors.” Paul Wolfowitz, Remembering the Future, The National Interest, No 59 (Spring 2000).Google Scholar

97 For an example of the use of the term “outlaw”, see, Bolton, John, The International Aspects of Terrorism and Weapons of Mass destruction, Remarks to the second Global Conference on Nuclear, Bio/Chem Terrorism: Mitigation and Response, The Hudson Institute, Washington, DC, USA (1 November 2002), accessed from www.state.gov/t/us/rm/14848.htm> on 10 June 2003.+on+10+June+2003.>Google Scholar

98 Slaughter, Anne-Marie, International Law in a World of Liberal States, 6 European Journal of International Law 503, 506 (1995). Cf, also, ibid at 536. (The fact that Kantians and Hobbesians explain the peace between the members states of the European Union differently – the structures of the domestic societies of the member states or the order provided by the United States – is less important for the present discussion.). In an interesting and creative recent article, Slaughter and William Burke-White argue for a new formulation of article 2(4) of the United Nations Charter, which would forbid the use of force between states and against civilians. Anna-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 Harvard International law Journal 1 (2002). The argument is too important – and partly problematic – to deal with in this context.Google Scholar

99 Slaughter, Anne-Marie, International Law and International Relations 285 Receuil des Cours 13 at 55 et sequal, in particular 89-93 (2000).Google Scholar

100 Slaughter, Anne-Marie, Good Reasons for Going Around the UN, New York Times (18 March 2003).Google Scholar

101 This of course, ignored the fact that the US could not muster even a simple majority, like it ignored the rules of the Charter.Google Scholar

102 Ibid.Google Scholar

103 Ibid.Google Scholar

104 Glennon, Michael J., Why the Security Council Failed, 81 Foreign Affairs, May/June, 2003, accessed through www.foreignaffairs.com, 2003-05-10.Google Scholar

105 It is of course not difficult to find differences between the Kosovo debates of 1999 in the respective European and American Journals of International Law. The point is, though, that not even Europeans are afraid of thinking in policy terms. Cf, European Journal of International Law, Vol. 10, No. 1 and 4 (1999) and Vol. 12, No. 3 (2001); the American Journal of International Law, vol. 93 no. 4 (1999); the Revue internationale de la Croix-Rouge, March 2000, no. 837; the Revue général du droit international public, Vol. 104, No. 1 (2000); the NATO Review, Vol. 47, No. 3 (1999);Google Scholar

106 The liberal vision captured something essential, namely the possibility of ordered relations in a world were military conflict seemed impossible. However, it often erred on the factual side, by not taking account of the factor of power within the liberal community (most of all as exercised by the US), and it therefore presented a too rosy picture, which seemed to assume a liberal harmony of interests (that often happened to coincide with those of the US). The Hobbesian vision is equally one-sided – reminding us of military power, but exaggerating its importance.Google Scholar

107 Cf, Donnelly, Jack, Twentieth-Century Realism, in Traditions of International Ethics 85, 113 (Terry Nardin & David R. Mapel eds, 1992) and Jack Donnelly, Realism and the Academic Study of International Relations, in Political Sience in History: Research Programs and Political Traditions, 175, 185 (James Farr, John S. Dyzek and Stephen T. Leonard eds, 1995). Donnelly portrays Robert W. Tucker – one of the spiritual grandfathers of neo-conservativsm – as a realist; ibid at 187. He also explains Reagan – who employed several neo-conservatives – as a President who both emphasized power (like realists) and was ideological, and thus “antithetical to classical realism” (ibid at 192).Google Scholar

Cf, also, Max Boot on “the exigencies of the Cold War”; see, Boot, endnote 110, infra.Google Scholar

108 Eland discusses the two driving forces of the “neo-imperialists”: “an imperial imperative” and “imperial virtue.” Ivan Eland, The Empire Strikes Out: The ‘New Imperialism’ and Its Fatal Flaws, Policy Analasis, No 459 (26 November 2002), Cato Institute, Washington, DC, USA, at 3.Google Scholar

109 Asmus, Ronald D. & Kagan, Robert, Commit for the Long Run, Washington Post (29 January 2002), quoted from Ivan Eland, The Empire Strikes Out: The ‘New Imperialism’ and Its Fatal Flaws, Policy Analasis, No 459 (26 November 2002), Cato Institute, Washington, DC, USA, at 19.Google Scholar

110 Max Boot, The Case for American Empire Weekly Standard (15 October 2002), <www.weeklystandard.com/Content/Public/Articles/000/000/000/318qpvmc.asp>. Cf, also, Sebastian Mallaby, The Reluctant Imperialist: Terrorism, Failed States and the Case for American Empire, Foreign Affairs (March/April 2002), www.foreignaffairs.org/20020301facomment7967/sebastian-mallaby/the-reluctant-imperialist-terrorism-failed-states-and-the-case-for-american-empire.html?mode=print>..+Cf,+also,+Sebastian+Mallaby,+The+Reluctant+Imperialist:+Terrorism,+Failed+States+and+the+Case+for+American+Empire,+Foreign+Affairs+(March/April+2002),+www.foreignaffairs.org/20020301facomment7967/sebastian-mallaby/the-reluctant-imperialist-terrorism-failed-states-and-the-case-for-american-empire.html?mode=print>.>Google Scholar

111 This term is a citation from current political discourse. It is widely taken to denote the US, but I do not claim that it is appropriate. A quick search at ‘www.google.com&rsquo; gave more than 78.100 returns for ‘empire’ and ‘United States'. A sample indicated that roughly 25% concerned suggestions that the US is an Empire. The term is not used only as a derogatory word, but also in a positive sense, by neoconservative writers like Charles Krauthammer and in the Weekly Standard (Emily Eakin, It Takes an Empire, IHT (2 April 2002)). Cf, also, Max Boot, The Case for American Empire Weekly Standard (15 October 2002), endnote 110, supra. The term has been most famously used in Michael Hardt & Antonio Negro, Empire (2000), in a quite peculiar way. For a discussion focusing on Hardt's and Negro's work, see, Tarak Barkawi & Mark Laffey, Retrieving the Imperial: Empire and International Relations, 31 Millenium 109-127 (2002).Google Scholar

112 This is, of course, an allusion – but no more - to Carl Schmitt's formula “Sovereign is he who decides on the exception.” See, Carl Schmitt, Political Theology 5 (first published 1934) (2 ed, translated by George Schwab, 1985). Political theology is, by the way, not a completely unjustified term in this context.Google Scholar

113 This is a citation from the West-Point speech: “Moral truth is the same in every culture, in every time, and in every place. Targeting innocent civilians for murder is always and everywhere wrong. (Applause.) Brutality against women is always and everywhere wrong.” (Applause.) See, endnote 27, supra.Google Scholar

114 Is this anti-American? No, for three reasons. A) In this “unipolar moment”, it is necessary to deal with the position of the world's lone superpower. As a related matter, while I have much greater faith in the US than in most of its actual or potential protagonists, none of them can alter the structure of international relations the way the US can. This fact is a very good deal of the real basis of all the concern, which has been showed by governments and public and popular opinion around the world. B) I am not anti-American. In fact, I cherish much about the US, and that applies also to its political traditions. That is true also for a great number of the many people who are worried about the present situation. C) While there is certainly a propensity to be critical about the US for many who came of age during the Vietnam war (like I did), such sentiments are not an uneradicable disease. They depend upon what the United States of America actually does. And however such sentiments actually work, in public and academic discourse, judgments of the behaviour or goals of the United States or any other country have to be justified in reasoned, commonly accessible terms. Yet another reason, of a different kind, is that by and large the same explicit and implicit criticisms turn up often in US writing, including conservative circles. See, e.g., Ivan Eland, The Empire Strikes Out: The ‘New Imperialism’ and Its Fatal Flaws, Policy Analasis, No 459 (26 November 2002), Cato Institute, Washington, DC, USA.Google Scholar

115 I, by and large, accept the argument to that effect by John Lewis Gaddis, We Now Know: Rethinking Cold War History (1997).Google Scholar

116 At West-Point, President Bush said that “[m]oral truth is the same in every culture, in every time, and in every place” (“Remarks by the President at 2002 Graduation Exercise of the United States Military Academy', 1 June, 2002, <http://www.whitehouse.gov/news/releases/2002/06/20020601-3.html>), This is echoed in the NSS.),+This+is+echoed+in+the+NSS.>Google Scholar

117 Die Zeit, No 16, 1999.Google Scholar

118 See, Marks, endnote 24, supra, at 50 et sequal and passim. For the conclusion that Europe has a “thicker” view, see, Steven Wheatly, Democracy in International Law: A European Perspective“, 51 International and Comparative Law Quarterly 225 (2002).Google Scholar

119 “Defending our Nation against its enemies is the first and fundamental commitment of the Federal Government” (NSS, Introduction). Richard Perle, explained that ‘if I have to choose between some abstract concept of the international community and protecting the citizens of this country, there's no question what comes first.’ (Striking first, A Jim Lehrer NewsHour, 1 July, 2002, <http://www.tni.org/archives/bennis/newshour.htm>). The background is that on the one hand, “[w]ith the collapse of the Soviet Union and the end of the Cold War, our security environment has undergone profound transformation”, but on the other hand “new deadly challenges have emerged from rogue states and terrorists.” (NSS at 13)).+The+background+is+that+on+the+one+hand,+“[w]ith+the+collapse+of+the+Soviet+Union+and+the+end+of+the+Cold+War,+our+security+environment+has+undergone+profound+transformation”,+but+on+the+other+hand+“new+deadly+challenges+have+emerged+from+rogue+states+and+terrorists.”+(NSS+at+13)>Google Scholar

120 Cox, Michael, Meanings of Victory: American Power after the Towers, in Worlds in Collision: Terror and the Future of Global Order 152, 159 (Ken Booth and Tim Dunne eds, 2002).Google Scholar

121 The word is used in NSS, in the introduction and at p 29.Google Scholar

122 This is a point of Michel Foucault's. See, for example, Foucault, Power/Knowledge 142 (1980).Google Scholar

123 On Kosovo, see, the works cited in endnotes 20 and 61, and the Dutch Humanitarian intervention by the Advisory Council on International Affairs and the Advisory Committee on Issues of Public International Law (AIV report; no. 13, the Hague: AIV, 2000), the International Commission on Intervention and State Sovereignty (ICISS), mainly sponsored by Canada (http://www.ciise-iciss.gc.ca/menu-e.asp) and Humanitarian Intervention by the Danish Institute of International Affairs, K⊘benhavn: DUPI (1999).Google Scholar

124 Cf, the instructive – and necessarily inconclusive – discussion in Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, 480 et sequal(2002).Google Scholar

125 A notable exception, a North-American, is Michael Byers; see Michael Byers, Custom, Power and the Power of Rules (1999).Google Scholar

126 Cf, Glennon, Michael J., The New Interventionism: The Search for a Just International Law, 78 Foreign Affairs, No 3, 2 at 4 (1999). I have no regrets, but I do have reasons to ponder. For an exemplary concerns about the systemic effects of Kosovo, see, Pierre-Marie Dupuy, The Place and Role of Unilateralism in Contemporary International Law 11 European Journal of International Law 19 at 28 (2000).Google Scholar

127 See, endnotes 20 and 61, supra.Google Scholar

128 No Peace Without Justice has been very active in the promotion of the International Criminal Court.Google Scholar