THE SHIELD OF ACHILLES (82 page)

The original intent behind this provision seems clear: it is an exception to 2 (4), permitting a state that has been attacked to use force to defend itself and enlist others in its defense,
until
the Security Council has effectively acted. Because the Security Council was for a long time prevented from acting by the Soviet veto, however, and in any case cannot actually command member forces to provide assistance, this phrase has been subject to some interpretive pressure. First, the word
until
has acquired a Zeno-esque quality such that the Council's acts can be thought of as approaching but never quite arriving at international peace and security, thereby permitting the continuing use of armed force by the attacked party and its allies regardless of Security Council action. Second, it has been widely agreed that Article 51 merely recognizes but does not create or modify, the pre-existing right of every state to act in its own self-defense, which is an attribute of sovereignty. So it has been argued that the phrase
if an armed attack occurs
does not mean “
only
if an armed attack occurs.” Therefore a state may employ force if it expects or fears an armed attack, as occurred in the Six-Day War. In any case, few influential states now argue that the U.N. has a monopoly on the use of force. As the background code for the law of war prevention, there is little evidence that the Charter has, in this regard, fulfilled the hopes of its framers and stopped aggression by making it unlawful.

Though the Charter, interpreted as a world covenant of superior law, has been of doubtful utility in preventing armed conflict, its most troublesome aspect may lie in peacetime. Very simply, it is not obvious that a universal law-creating system actually based on democratic majoritarianism and self-determination is either acceptable or desirable. Nor is the U.N. wholly consistent with such a system in any event, owing to the privileged role of the permanent, veto-bearing members of the Security Council. Yet a universal system that professes allegiance to the sources of authority of
the parliamentary nation-state but denies them in fact is of doubtful legitimacy.

If the U.N. Charter were a universal superior law—as for example, the U.S. Constitution is superior to Texas laws—then it must take its legitimacy from a universal mandate. No doubt when House and Wilson thought of such a world, they envisioned something like the United States, composed of separate jurisdictions but bound together under one law. Such an institution might be the result of a world federation of states, or even an agglomerate of their populations; the United States Constitution was ratified by popular voting in individual state conventions, while the Charter was ratified by state parliaments and other state regimes. In either case, the reality is that such a world state would resemble Cold War South Africa more than the United States. A small group of ethnic minorities would own most of the valuable property and keep everyone else confined to “homelands.” Surely the time is not far off when the large hostile majorities in the General Assembly that have denounced Israel will be deployed against the developed states, demanding economic concessions and constitutional reform consistent with a universal mandate. Whether the basis for a world sovereign is the majoritarianism of states or of the peoples of the various nations, the current constitutional framework is either contradictory (because it retains a superstructure inherited from the Concert of great powers) or fraught (because vast majorities can lay claim to its lawmaking power). When it is replaced by a constitution for a society of market-states, this problem will disappear because that constitution will resemble those of corporations, which allow for weighted voting based on wealth. But to adopt such a constitution, we will have to abandon the pretense of a world sovereign: corporations, after all, do not make law.

Abandoning the image of a world sovereign that stands behind international law will also help us to move toward the changes in sovereignty that are best suited to a society of market-states. And ridding ourselves of this image will clarify our security institutions. We are not going to have a world army,
⁷
as envisioned by the drafters of Article 42 and 43 of the Charter. Instead we will have a NATO force structure,
⁸
perhaps with forces committed to a defense component within the E.U. that can act in accord with but is not commanded by the Security Council. This, as the Gulf War showed, is both more practicable and more legitimating, using the organs of collective security and collective judgment in cooperation but not with the problematic pretense that one governs the other.

The United States has tabled, and all but one of the permanent members of the Security Council has accepted, a reform proposal for the International Court of Justice (ICJ) that would permit parties to submit to the Court's jurisdiction after electing a particular chamber—that is, after
choosing a panel composed of judges acceptable to both parties. This proposal has stalled—despite the fact that it would bring Russia and China within ICJ jurisdiction for the first time—over whether the ICJ ought to have initial jurisdiction to determine whether exceptions to that jurisdiction on national security grounds are made in good faith. Now if you believe in a world common law—and compliance with ICJ decisions is considered a norm of customary international law—then it is perfectly natural to insist on this. Of course it is within the competence of the court. Its writ is universal. But if you see the ICJ as simply one more consensual method of resolving disputes, this insistence is perverse and counter-productive.

For these and other reasons I am inclined to conclude that the project of international law envisioned by House and Wilson and most commentators on the subject today can be regarded as a failure. Is the failure of this project a bad thing?

Former senator Daniel Patrick Moynihan has warned that the United States has commenced a general challenge to international law—a challenge, that is, to the project of a universal law—and he cites the U.S. invasion in Panama as Exhibit A. Former judge Robert Bork, on the other hand, has recently proposed that we frankly acknowledge the impracticality of the very idea of an international law and be done with it. What these thoughtful persons share is the idea that a binding world covenant is the basis for international law and vice versa. But as I suggested earlier and intend to show in the chapters to come, this has not always been so, and I will further claim it is not going to be so presently, either. The attitude that international law must be an overarching body of substantive, superior law is usually behind the criticism both of those who lament recent American practice and of U.S. officials, who deplore and resent the implicit reproaches of this ghostly law. But it may be that this widespread assumption is itself an error and that the “failure” of international law is neither good nor bad but only a way station in the process of change that the society of states is now undergoing.

In the months before war broke out in 1914, Colonel House went to each of the capitals of the great powers of Europe trying to persuade them to avoid war. His mission failed. The cataclysm came and, in one form or another, erupted, subsided, then erupted again and again throughout the suffering-saturated twentieth century.

House prepared the West to fight this Long War. As early as 1913 he was urging American engagement and rearmament, arguing that without these measures we could not persuade Europe to avoid war and that without our armies, even our successful persuasion would not survive the first
recalculation of odds by the first General Staff or Cabinet meeting in a European chancellery. House urged a system of collective security that differed from previous alliance systems in these important respects: anyone could join, it was arrayed against no one in particular, and the United States was pledged to assist any state that was attacked. Most recently this pledge was redeemed in the Gulf War. That system ultimately triumphed after many failed attempts. Now the world's greatest powers are called on to fashion a new system of international security and respect for the rule of law that will withstand the stresses that are already pounding the barriers that House and his heirs built over a century of war.

In this, House cannot help us. We must put aside his vision of a world covenant of law, for this picture, which is so widely and tenaciously held, is actually destructive of international law as a legitimating force. To begin this effort, we must free ourselves from the assumption that international law is universal and that it must be the law of a society of nation-states. And we must see clearly what role violence and war have played, and will continue to play, in shaping that system.

Now that a revolution is really needed, those who once were fervent are quite cool.

While a country murdered and raped calls for help from the Europe which it had trusted, they yawn
.

While statesmen choose villainy and no voice is raised to call it by name.

The rebellion of the young who called for a new earth was a sham, and that generation has written the verdict on itself,

Listening with indifference to the cries of those who perish because they are after all just barbarians killing each other

And the lives of the well-fed are worth more than the lives of the starving.

It is revealed now that their Europe since the beginning has been a deception, for its faith and its foundation is nothingness.

And nothingness, as the prophets keep saying, brings forth only nothingness, and they will be led once again like cattle to slaughter
.

Let them tremble and at the last moment comprehend that the word Sarajevo will from now on mean the destruction of their sons and the debasement of their daughters
.

They prepare it by repeating: “We at least are safe,” unaware that what will strike them ripens in themselves.

——Czesław Miłosz

THESIS: MUCH AS EPOCHAL WARS HAVE SHAPED THE CONSTITUTIONAL ORDER OF INDIVIDUAL STATES, THE GREAT PEACE SETTLEMENTS OF THESE WARS HAVE SHAPED THE CONSTITUTIONAL ORDER OF THE SOCIETY OF STATES.

The international congresses that concluded peace treaties ending epochal wars produced the constitutions of the society of states for their respective eras. This process, beginning in Europe with the birth of a small society of states during the Renaissance, eventually expanded to encompass the globe. International law can be understood in terms of these constitutions and thus as having developed in several distinct periods. The study of this development provides a foundation for understanding the next constitutional era for the society of states.