>The Hardt/Negri "Empire" exists to contain global development, not
>promote it. Its contemporary (historicized by Hardt/Negri) relation
>to the nation-state may entail smashing it down when it involves
>errant semi-colonial "rogues" such as Serbia or Iraq, but these
>incidents are far, far overshadowed by the enormous and
>ever-continuing fortification of the foundational *nation-states* of
>present-day "Empire" - above all, the keystone/empire nation-state,
>the United States, without which the whole network edifice would
>crumble, taking capitalism with it. Under "Empire" the nation-state
>- in the shape of particular dominant nation-states, generally grows
>stronger, not weaker.
***** 'INTERNATIONAL JUSTICE' AND THE END OF INTERNATIONAL LAW [1]
By Dr David Chandler, Research Fellow, Policy Research Institute, Leeds Metropolitan University
The NATO bombing of Yugoslavia in the spring of 1999 has been saluted as a triumph for 'international justice' over the traditional claims of state sovereignty. The war was in clear breach of international law: waged without UN Security Council authorization, against an elected, civilian government which had not violated any external treaty, justifiable neither as a threat to peace and security, nor in terms of any NATO country's self-defence. It has been welcomed instead as a 'humanitarian' crusade, explicitly setting individual rights above the territorial rights of nation-states. But if the sovereignty of some states -- Yugoslavia, Iraq -- is to be limited, that of others -- the NATO powers -- is to be increased under the new order: they are to be given the right to intervene at will. It is, in other words, not sovereignty itself but sovereign equality -- the recognition of the legal parity of nation-states, regardless of their wealth or power -- which is being targeted by the new interventionists. Yet such equality has been the constitutive principle of the entire framework of existing international law and of all attempts, fragile as they may be, to establish the rule of 'right' over 'might' in regulating inter-state affairs. 'Humanitarian intervention'. This article will examine the implications of such a right to 'humanitarian' military intervention for the future of inter-state regulation and international law....
... Pitted against the concept of international law based on sovereign equality is a new form of global 'justice', formulated in explicit opposition to it. Advocates of this justice herald the emergence of a new, 'human-rights' based order of international relations, arguing that the post-1945 framework -- here, 'international society' -- is being eclipsed by the ethical demands of global 'civil society'. For Martin Shaw, erstwhile International Socialist, the 'crucial issue' is to face up to the necessity which enforcing these principles would impose to breach systematically the principles of sovereignty and non-intervention....The global society perspective, therefore, has an ideological significance which is ultimately opposed to that of international society. [12]
For [British barrister and newspaper pundit Geoffrey] Robertson, too, 'the movement for global justice' is 'a struggle against sovereignty'. [13] Sovereign equality is seen by these ideologues as a legal fiction, a mask for the abuse of power. International law is merely an 'anachronism', a historical hangover, while 'some of its classic doctrines -- sovereign and diplomatic immunity, non-intervention in internal affairs, non-compulsory submission to the ICJ, equality of voting in the General Assembly -- continue to damage the human rights cause.' [14]
The denial of sovereign equality obviously has major consequences for both the form and content of international law. The most prominent is the rise of the idea of a 'duty' of forcible 'humanitarian' intervention-the so-called devoir d'ingerence. [15] Its advocates naturally retain the right to decide on whom this obligation falls. Robertson explains that 'humanitarian intervention cannot be the prerogative of the UN' since it cannot be relied upon to act when necessary. The duty of intervention must therefore stand independently: 'Unanimity cannot be the only test of legitimacy'. [16] For Shaw, 'it is unavoidable that global state action will be undertaken largely by states, ad hoc coalitions of states and more permanent regional groupings of states'. [17] In practice, the prosecution of international justice turns out to be the prerogative of the West.
Such is overtly the substance of NATO's new 'strategic concept', promulgated at the Alliance's fiftieth anniversary summit in Washington in late April 1999, at the height of the Balkan War. As US Deputy Secretary of State Strobe Talbott explained,
We must be careful not to subordinate NATO to any other international body or compromise the integrity of its command structure. We will try to act in concert with other organizations, and with respect for their principles and purposes. But the Alliance must reserve the right and freedom to act when its members, by consensus, deem it necessary. [18]
Similarly, a new study of 'humanitarian intervention' in the wake of the Kosovo war argues explicitly for ad hoc and arbitrary powers to intervene:
A code of rules governing intervention would be likely in the early twenty-first century to limit rather than help effective and responsible action on the part of the international community....Any attempt to get general agreements would be counter-productive....It may be inevitable, possibly even preferable, for responses to international crises to unfold selectively. [19]
Ironically, the new 'global' forms of justice and rights protection will be distinctly less universal than those of the UN-policed international society they set out to replace. David Held argues that, 'in the first instance', at least, cosmopolitan democratic law could be promulgated and defended by those democratic states and civil societies that are able to muster the necessary political judgement and to learn how political practices and institutions must change and adapt in the new regional and global circumstances. [20]
Rather more bluntly, Shaw explains the rationale of all-round NATO intervention:
This perspective can only be centred on a new unity of purpose among Western peoples and governments, since only the West has the economic, political and military resources and the democratic and multinational institutions and culture necessary to undertake it. The West has a historic responsibility to take on this global leadership. [21]
This line of argument is now increasingly official doctrine. The Guardian could hail British military intervention in Sierra Leone as 'the duty owed by a wealthy and powerful nation to, in this case, one of the world's poorest countries'. [22] Here inequality is expressly theorized as the basis of the new world order. Yet the modern system of law (whether international or domestic) depends, both at the basic level of its derivation and in the vital question of its application, on the concept of formal equality between its subjects. All international institutions -- whether the UN, OSCE or even NATO itself -- derive their authority from inter-state agreements. International law derives its legitimacy from the voluntary assent of nation-states. Without such consent, the distinction between law (based on formal equality) and repression (based on material force) disappears. The equal application of the law entails parity between its subjects, without which it ceases to have meaning. In today's climate, the rights of weaker states can be infringed on the grounds that the law does not fully apply to them, while more powerful states can claim immunity from the law on the grounds that it is they who ultimately enforce it.
The extension of 'international justice' is, in short, the abolition of international law. For there can be no international law without equal sovereignty, no system of rights without state-subjects capable of being its bearers. In a world composed of nation-states, rather than a single global power, universal law can only derive from national governments. What the jettisoning of the principle of non-interventionism means is the re-legitimation of the right of the Great Powers to practice what violence they please. Their apologists declare that war is now the 'lesser evil', compared to the new moral crimes of 'indifference' or 'appeasement'.
Liberal interventionists have emerged as the biggest advocates of increased military spending. [23] For these ideologues, the absolute end of 'international justice' can only be compromised by diplomacy or negotiation. The new professors of Human Rights at the UN University's Peace and Governance Programme are happy to condone those 'good international citizens' who are 'tempted to go it alone' waging war for 'justice', with or without international sanction. [24] Robertson likewise insists that 'a human rights offensive admits of no half-measures'; 'crimes against humanity are, by definition, unforgivable'; 'justice, in respect of crimes against humanity, is non-negotiable'. [25] Such war can know no legal bounds. In the Middle East, in Africa and the Balkans, the exercise of 'international justice' signifies a return to the Westphalian system of open great-power domination over states which are too weak to prevent external claims against them.
Dr David Chandler, Research Fellow, Policy Research Institute, Leeds Metropolitan University. His latest book is Bosnia: Faking Democracy After Dayton (Pluto Press, 1999) his next book Human Rights and International Intervention will be published by Verso in Autumn 2001.
[1] This article is a shortened version of "International Justice" which appears in the New Left Review, No.6, Nov/Dec 2000.... [12] Martin Shaw, Global Society and International Relations: Sociological Concepts and Political Perspectives, Cambridge 1994, p. 134-5. [13] Crimes Against Humanity, p. xviii. [14] Crimes Against Humanity, p. 83. [15] M. Bettati and B. Kouchner, Le Devoir d'ingerence, Paris 1987. [16] Crimes Against Humanity, pp. 382, 72. [17] Global Society, p. 186. [18] Cited in B. Simma, 'NATO, the UN and the Use of Force: Legal Aspects', European Journal of International Law, 1999, vol. 10, pp. 1-22. [19] Albrecht Schnabel and Ramesh Thakur, eds, Kosovo and the Challenge of Humanitarian Intervention, New York: forthcoming. See www.unu.edu/p&g/kosovo_full.htm [20] Democracy and the Global Order, p. 232. [21] Global Society and International Relations, pp. 180-1. [22] 'We Are Right To Be There', Guardian, 13 May 2000. [23] For example, John Gray, 'Crushing Hatreds', Guardian, 28 March 2000; John Lloyd, 'Prepare for a Brave New World', New Statesman, 19 April 1999. [24] See, for example, Kosovo and the Challenge of Humanitarian Intervention. [25] Crimes Against Humanity, pp. 73, 260, 268.
[The full article is available at <http://www.publica.cz/forum/forum_chandler.htm>.] *****
Yoshie