THE SHIELD OF ACHILLES (152 page)

10
. By the beginning of the twentieth century, the Russian state-nation employed about 160 full-time personnel in its secret police, and a police force of about 10,000. Its successor, the Soviet nation-state's secret police, amounted to 262,400 in 1921, excluding the NKVD. John Gray, “The Politics of Cultural Diversity,” in
Postliberal-ism
(Routledge, 1993), 257.

11
. These can be compared to Mao's Great Leap Forward, and the “Cultural Revolution.”

12
. Fairbanks attributes the first noticing in the West of this recurrence to Walter Laqueur. See Charles Fairbanks, “The Nature of the Beast,”
The National Interest
31 (Spring 1993): 46.

13
. Vladimir Kontorovich, “The Economic Fallacy: Economic Problems and the Collapse of Communism in the Former USSR,”
The National Interest
31 (Spring 1993): 35.

14
. Ibid.

15
. This theory holds, roughly, that economies are so rife with distortions and compensations for them, that interventions will inevitably have unintended, indeed unpredictable consequences.

16
. Kontorovich, 35.

17
. Ibid.

18
. Ibid.

19
. Walter C. Uhler, “The Gorbachev Factor,”
Bulletin of the Atomic Scientists
53 (1997): 65.

20
. Soviet forces crushed popular uprisings in East Germany (1953), Hungary (1956), Poland (1956), and Czechoslovakia (1968). There was a popular joke in Communist Hungary that while Hungarians could get a passport to travel abroad every three years, Russians were only given one every twelve years: 1944, 1956, 1968, and 1980 (Afghanistan).

21
. See Zbigniew Herbert,
Barbarzynca w ogrodzie (Barbarian in the Garden)
, trans. Michael March and Jaros Law Anders (Carcanet, 1985); Václav Havel, “The Memorandum,” trans. Vera Blackwell, in
Selected Plays, 1963 – 83
(Faber and Faber, 1992); Milan Kundera,
Nesnesitelna lehkost byti (The Unbearable Lightness of Being)
, trans. Michael Henry Heim (Harper & Row, 1984); and the Russian glasnost literary journal,
Glas: New Russian Writing
, available both in Russian and in English translation.

22
. See Jacek Kuron's conception of “social self-organization” in
Polityka i odpowiedzialnosc
(“Aneks,” 1984); György Konrád,
Antipolitics: An Essay
, trans. Richard E. Allen (Harcourt, Brace, Jovanovich, 1984); and Václav Havel, “Power of the Powerless,” in
Open Letters: Selected Writings, 1965 – 1990
, ed. Paul Wilson (Knopf, 1991).

23
. Michael R. Beschloss and Strobe Talbott,
At the Highest Levels: The Inside Story of the End of the Cold War
(Boston: Little, Brown, 1993).

24
. Rey Koslowski and Friedrich Kratochwil, “Understanding Change in International Politics: The Soviet Empire's Demise and the International System,”
International Organization
48 (Spring 1994): 215.

25.
Ibid. Compare Raymond Garthoff,
The Great Transition: American-Soviet Relations and the End of the Cold War
(Brookings Institution, 1994), for a contrary view.

26
. Kontorovich, 43.

27
. Pierre Lelloche, “Kohls Apart: Schemes of Reunification,”
The New Republic
, March 19, 1990, 12.

28
. Brian Beedham, “Baker and the Old One-Three-Two,”
The Economist
316 (September 1, 1990): S10.

29
. Philip Zelikow and Condoleezza Rice,
Germany Unified and Europe Transformed: A Study in Statecraft
(Cambridge, Mass.: Harvard University Press, 1995).

30
. Ibid.

31
. James A. Baker, “The Common European Interest: America and the New Politics Among Nations,”
U.S. Department of State Dispatch
, vol. 1, September 3, 1990, 36.

32
. Michael F. Miley, “The CSCE Process and The Question of Sovereignty,”
Southern University Law Review
19 (1992): 123.

33
. S. Roth, “The CSCE ‘Charter of Paris for a New Europe,’”
Human Rights Law Journal
11, no. 3 – 4 (1990): 374.

34
. Note Miley, 116.

35
. “Conference on Security and Cooperation in Europe: Charter of Paris for a New Europe and Supplementary Document to Give Effect to Certain Provisions of the Charter,”
International Legal Materials
30 (January 1991): 1993.

36
. R. W. Apple, Jr., “Summit in Europe: 34 Leaders Adopt Pact Proclaiming a United Europe,”
New York Times,
November 22, 1990, A1.

37
. Roth, 374. In a later article R. W. Apple observed that when “wars turn things upside down, the politicians, craving stability, always start trying to institutionalize the new world order. After Napoleon came the Holy Alliance, after World War I, the League of Nations, after World War II the United Nations. So last week [a congress of states] had a go, around a hexagonal table in Paris, at inventing something to replace the cold war.”

38
. At Paris, President Bush proclaimed that the “Cold War is over. In signing the Charter of Paris we have closed a chapter of history.” The
New York Times
commented that the Charter of Paris marked “the final denouement of the global conflict that began a half century ago.” See Apple, “Summit in Europe.”

39
.
Le Monde
, November 21, 1990. The summit at Paris spoke on behalf of the society of nation-states, it should be noted, in contrast to the Congress of Vienna, which spoke for the society of state-nations.

40
. Roth, 375.

41
. Thomas Buergenthal, “CSCE Rights,”
George Washington Journal of International Law and Economics
25, no. 2 (1991): 361.

42
. “Conference on Security and Cooperation in Europe: Document of the Moscow Meeting on the Human Dimension, Emphasizing Respect for Human Rights, Pluralistic Democracy, the Rule of Law and Procedures for Fact Finding,”
International Legal Materials
, 30 (October 3, 1991): 1672.

43
. Buergenthal, 380 – 381 (emphasis supplied).

44
. Quoted in Daniel Patrick Moynihan, “The Time and Place for International Law,”
Washington Post
, April 1, 1990, C7.

45
. Harold Hongju Koh, “A World Transformed,”
Yale Journal of International Law
20 (Summer 1995): ix.

46
. See David Kennedy, “The Move to Institutions,”
Cardozo Law Review
8 (1987): 844; and Nathaniel Berman, “But the Alternative Is Despair: European Nationalism and the Modernist Renewal of International Law,”
Harvard Law Review
106 (1993): 1792.

47
. Koh, 1045.

48
. Daniel Westberg, “The Relations between Positive and Natural Law in Aquinas,”
Journal of Law & Religion
11 (1994 – 95): 1.

49
. Martin van Gelderen, “The Challenge of Colonialism: Grotius and Vitoria on Natural Law and International Relations,”
Grotiana
14/5 (1993 – 94): 3 – 37.

50
. See Dennis Patterson,
Law and Truth
(Oxford: Oxford University Press, 1996).

51
. Karl N. Llewellyn,
The Bramble Bush: On Our Law and Its Study
(Oceana Publica-tions, 1951; first published 1930). This shocking remark was an extension of Holmes's celebrated observation that “Law is nothing more pretentious than the prediction of what courts will in fact do,” perhaps via Cook, who had suggested, regarding this passage, that “[t]he word ‘courts' should include some other more or less similar
officials.” W. W. Cook, “The Logical and Legal Bases of the Conflict of Laws,”
Yale Law Journal
33 (1924): 457.

52
. Abram Chayes, et al.,
International Legal Process
1 (1968): xi (emphasis supplied); see also William N. Eskridge, Jr., and Philip P. Frickey, “An Historical and Critical Introduction to Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process,”
The Legal Process: Basic Problems in the Making and Application of Law
(Foundation Press, 1994); ciii, note 232, dxiv, note 286, cxxxii, note 346, describing the origin of Chayes and Ehrlich's work in the legal process materials, cited in Koh, n. 94.

53
. See Roger Fisher, “Bringing Law to Bear on National Governments,”
Harvard Law Review
74(1961): 1130.

54
. Akehurst, Michael,
A Modern Introduction to International Law
, 7th ed. (rev. ed., Peter Malanczuk) (Routledge, 1997), 6.

55
. Ibid.

56
. Akehurst, 2; see also Akehurst, “Custom as a Source of International Law,”
British Year Book of International Law
47 (1974 – 75): 1.

57
. Tom J. Farer, “Human Rights in Law's Empire: The Jurisprudence War,”
American Journal of International Law
85 (1991): 117.

58
. Ibid., 118.

59
. François, Duc de La Rochefoucauld,
Maxims
, trans. Leonard Tancock (Penguin Books, 1959), 65.

60
. Despite the fact that Europe, and especially Germany, were early contributors to legal realism, note the German
Interessenjurisprudenz
and
Freie Rechtslehre
, acknowledged by Llewellyn, as well as Geny's
Libre recherche scientifique
.

61
. “An examination of the Collected Courses of the Hague Academy of International Law… reveals that European scholarship in international law… [has] continued largely in the traditional, non-theoretical, doctrinal vein. International legal scholarship in other countries followed this doctrinal, Eurocentric pattern.” Cf. Yasuaki Onuma, “Japanese International Law in the Postwar Period—Perspectives on the Teaching and Research of International Law in Postwar Japan,”
Japanese Annual of International Law
33 (1990): 25, 44.

62
. Farer, 117.

63.
Some say the earliest known writing is a treaty.

64
. Oscar Schachter,
International Law in Theory and Practice: General Course in Public International Law
(Academic Publishers, 1982), 24.

65
. Ibid., 25.

66.
Cf. Thomas Franck, “The Case of the Vanishing Treaties,”
American Journal of International Law
81 (1987): 763.

67
. Schachter,
International Law in Theory and Practice
, 44.

68
. Oscar Schachter, “The Legality of Pro-Democratic Invasion,”
American Journal of International Law
78 (1984): 645, 649.