THE SHIELD OF ACHILLES (81 page)

As the nation-state increasingly loses its definition, the sharp cultural borders that, for example, made the Danes different from the Dutch, are losing legal and strategic significance. The nation-state is less able to deploy law (or strategy) on behalf of national cultural values, yet there is no “Euro-identity,” for example, or similar transnational identity either. Instead, as Martin Wolf put it, globalization has undermined the collectivist values represented by the nation-state and turned attention to the benefit of individuals. Governments of nation-states are faced with the prospect of asserting national cultural identities against a fragmenting populace that takes its various identities from associational but largely non-national sensibilities. Indeed the nation-state may come to be seen as a kind of enemy of its people. Nation-states are too rigid, have too many rules for behavior (including economic behavior), have been captured by special interests whose welfare demands higher taxes with larger loopholes and more officious regulations (not limited to economic regulation
but including also, for example, hate-speech laws, smoking bans, and the whole panoply of political correctness, as well as prohibitions against a wide variety of personal behavior).

The State has always depended on getting people to risk their lives for it. Each constitutional order found a way to do this. The nation-state persuaded people that a state whose mission was the improvement of their own welfare provided a valid justification for enduring personal jeopardy. If such a state is no longer able to enforce and sustain national cultural values (“family values” they were called in some states, “basics” in others), its claim on the sacrifice of its citizens weakens. Indeed, the new cultural values, precisely because they are so fragmented and promote such individuation, are not readily suitable to promotion by the State, which is too clumsy and moves too slowly and with too little discernment to shore them up. The popular sense of identity is becoming both too large for the nation-state (as with “Green” movements) and too small (as with breakaways like Catalonia or Lombardy or Guangdong). For nation-state conservatives, this means a nauseating loss of sovereignty to new transnational institutions (like the P8
*
); for nation-state liberals, this development threatens to remove the regulation of capital enterprises from the hands of states and surrender national life to the pitiless imperatives of the globalized market.

The shift to the market-state does not mean that states simply fade away, however. If the acquisition of more territory is less important than before to garnering wealth, the luring of people and capital by the most attractive state policies is absolutely crucial. For China, holding on to Tibet may someday become almost irrelevant, but incorporating Hong Kong increased Chinese GDP by 26 percent at a single stroke. Only a state could have done that. Assuring financial and legal stability, an educated workforce, and tax-friendly havens for investments are all state-governed activities, even when some of these operations are privatized by law. The real shift is simply from public purposes to private purposes, from a state that takes its legitimacy by assuring the common welfare to one that instead relies on providing the broadest possible opportunity for the satisfaction of individual interests.

In the face of such an historic shift in the constitutional order of states, the society of states also had to change. There is some movement—in Brussels, but also elsewhere—for larger, super-nation-states to cope with the challenges described above. In my view, this is a move in the utterly wrong direction. It would recapitulate on a continental or even global scale the transformation of the
Zollverein
(a nineteenth century German economic union) into the German nation-state at a time when the model
itself—the nation-state—is less and less viable. Moreover, a super-nation-state, like the organizations of the society of nation-states, hypothesizes a world made of law that is incompatible with variations in sovereignty. Yet just such variations are the main method by which market-states will develop different forms in order to create a pluralistic society of states by some other means than simply granting states to desiring nations. The society of nation-states attempted to suppress such variations in sovereignty because of that society's basis in the equality of states. Its international law is universal and grows all the weaker because of this essential premise. Perhaps most telling of the impotence of the society of nation-states has been the fate of the United Nations.

The major institutional result of the idea of a world constitution of nation-states was the creation of the League of Nations. Among the most important of the many features of the League was the guarantee by member states of the political independence and territorial integrity of each member against aggression. This guarantee of sovereignty is repeated in the U.N. Charter. The Charter, like the Covenant of the League of Nations, assures states their independence and the undisturbed enjoyment of autonomy within their territory. This goal is built on a premise—the opacity of sovereignty—that will increasingly hobble the society of nation-states as that society attempts to deal with transnational threats to the environment, to its critical information infrastructure, and to its humanitarian ideals. The air war in Kosovo was a decisive step in recognition of this fact, and it was, in its way, just as deadly an event for the society of nation-states, which depends upon the premise of state sovereignty, as were the crimes at Srebrenica.

It is easy to see how the societies enmeshed in the immense agonies of the Long War would want to ensure international tranquility at all costs. Doubtless this desire lay behind the failure of the League to stop Mussolini's aggression against Ethiopia. It is difficult to forget the scene of the small Ethiopian emperor appealing in vain to the great powers for aid. But it seems to be equally difficult to remember the Italian aggression against defenseless Libyan tribes that occurred several years earlier. Then Italian planes strafed and waged, systematically if incompetently, a modern war of ethnic annihilation; this was when the first concentration camps were set up by a European power in the twentieth century.
²
Libya was, however, unlike Ethiopia, governed by Italy and thus these acts of aggression were veiled by the cloak of sovereignty. This failure to act by the society of nation-states was not simply a lapse of will, and so it is seldom associated with the League's other public failures. Rather such a failure was built into the idea of a world community composed of sovereign nation-states. The League was irrelevant to allegedly domestic disputes. Perhaps we should be grateful that Hitler invaded Poland, for otherwise we might have been
treated to the spectacle of the society of states standing by while the Holocaust efficiently proceeded as an “internal matter.”

Indeed the U.N. Charter under Article 2 (7) specifically precludes the organization from intervening “in matters which are essentially within the domestic jurisdiction of any state.” Similarly, the Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States and the Protection of Their Independence and Sovereignty provides that “[n]o State has the right to intervene, directly or indirectly for any reason whatever, in the internal or external affairs of any other State.”

The U.N., a second generation of the League, has given us a second generation of such failures, that is, a new wave of crimes shielded by sovereignty.
³
Perhaps the most notorious is that of the Cambodian class crimes. The Khmer Rouge were the sovereign authority for purposes of international law; indeed the United States (and many states) voted to preserve their U.N. seat even when the Khmer Rouge abandoned Phnom Penh. Atrocities conducted within a state's borders are impervious to an international law built out of absolute sovereignty. Human catastrophes like the war in Mali simply never rise to the consciousness of the U.N., a majority of whose members could be counted on to keep it—as they long kept the Somali civil war
⁴
—off the international agenda. The same model of international law that has shaped the League of Nations and the United Nations has also created a certain sort of legal status for the State that actually enfeebles those international institutions with respect to a critical class of conflicts.

Nor can we say that these institutions have even succeeded in preventing or at least managing war, the goal for which their bargain with the State was struck regarding sovereignty. The story of the League's failure to prevent war, including World War II, is too familiar to recount. The U.N. was designed with precisely this failure in mind, and was given constitutional authority to arm itself and to wage war against aggressors who threatened the peace. It is instructive, however, to look closely at how the U.N. has actually managed to succeed when it has acted to wage war. It may surprise some to learn that its successes have come only because the ideal of a world covenant enforced by a world military force has been quickly, if quietly, abandoned.

Articles 42 and 43 of the U.N. Charter authorize the Security Council to use armed forces to maintain international peace and security. Article 43 provides for military agreements by which it was thought a U.N. force would be constituted from personnel contributed by the member states. This has never materialized. The temporary absence of the Soviet delegate in June 1950 permitted the Security Council to recommend that members repel the North Korean attack on South Korea and to authorize the U.S.designated commander to use the U.N. flag. All U.S. forces, however, were
under U.S. command and, save in name only, there was no significant U.N. force on the peninsula.
⁵
Absent the kinds of agreements envisaged under Article 43, the Security Council has no authority to command member states to commit their armed forces to a U.N. military enforcement action.

The consequence of this arrangement is that armed forces remain entirely the creatures of states. The recent coalition force arrayed against Iraq provides an example. With more justice, it might be said that this was a NATO force, with contributions from the Gulf region, rather than a U.N. force. There is nothing wrong with this; indeed I have suggested there is much right with such ad hoc coalitional forces. But we should not delude ourselves into thinking that they function as a U.N. enforcement arm. Whatever intentions the drafters in San Francisco may have had for a U.N. defense force, this force has never come into being. And it is notable that in the Fourth Yugoslav War, over Kosovo, the U.N. was bypassed entirely.

As if in tacit recognition of this fact, Article 2 (4), the heart of the U.N. Charter's security provisions, has been redefined
sub silentio
. Whereas it was once envisioned that the U.N. would have a monopoly on international violence—in a Wilsonian extrapolation to the global level of the individual state's own monopoly of violence within its domestic jurisdiction—this model has been long since abandoned. Article 2 (4) provides:

During the first years of the U.N., there was general agreement on the construction of this provision if not its application. Clearly the Article outlaws aggression by one state against another. Apart from the collective action of the U.N. itself, the only lawful use of force by a state must come within the exception provided in Article 51 for self-defense against an armed attack. In time, however, the language of 2 (4) proved pliable to the realities of a society of states whose reason for being—nationhood—did not apply to the collectivity, but applied only to individual states. The whole, that is, was less than the sum of its parts.

For example, 2 (4) forbids the use of force against “the territorial integrity” of another state. Does this proscribe any use of force that momentarily penetrates a border or only attacks aimed at compromising the invaded state by occupying its territory and ultimately depriving it of land? Article 2 (4) forbids the use of force against the “political independence” of another state. But what about reprisals that do not seek to alter a regime? Exceptions such as these have sometimes been urged to justify the Entebbe and Tehran rescue missions, or the U.S. air attack on Libyan bases
in retaliation for acts of terrorism. But such exceptions are of less help in rationalizing the U.S. intervention in the Dominican Republic, one of the most successful, pro-democracy acts of the period, to say nothing of U.S. intervention in Grenada, Haiti, or Panama.
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Nor can 2 (4) be made to appear consistent with NATO intervention in Kosovo.

While 2 (4) was shrinking, Article 51 was expanding. This Article provides: