Hegemonic techniques, constitutionalism, and international law

Through a careful historical reconstruction, Krasner radically demystifies Westphalian sovereignty. He points out, to begin with, that this conception essentially boils down to the “rule of nonintervention in the internal affairs of other states” (Krasner 1999, 20), but that this rule—though it may be associated with the 1648 Peace of Westphalia—“was not clearly articulated until the end of the eighteenth century” (ibid.). Quite accurately, Krasner traces the first statements of the nonintervention principle to the works of Christian Wolff and Emcr de Vattcl, but he compellingly shows that the grounds of nonintervention have in reality been systematically ignored.

Wolff invoked the natural liberty of nations as a basis on which to exclude all violations of sovereignty. At the foundation of Wolff’s conception was certainly his normative idea of a civitas maxima, within which peoples would be recognized as enjoying the same rights and as bound by the same duties. But Wolff

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Writes Wolff in this regard: “Sese immiscere regimini alieno, quomodocumquetandem fiat, libertati natural! Gentium adversatur, vi cujus prorsus independens est a volúntate aliarum gentium in agendo” (Wolff [1749] 1934, vol. I, cap. II, § 256, p. 92. In translation: “To interfere in the government of another, in whatever way indeed that may be done, is opposed to the natural liberty of nations, by virtue of which one is altogether independent of the will of other nations in its action” (Wolff [1749] 1934, vol. II, chap. II, § 256, p. 131).

himself thought that all peoples belonging to the civitas maxima should be able to intervene coercively against any people who might disavow the central aim of this international society, namely, “to promote the common good” (Wolff [1749] 1934, vol. II, Prolegomena, p. 14, § 13; cf. vol. I, Prolegomena, p. 5, § 13).

Vattel was likewise emphatic in asserting the nonintervention principle as a guarantee of the liberty and independence of nations.[1] Equally central to Vattel’s conception, however, was the idea of the balance politique, “the political balance, or the equilibrium of power; by which is understood such a disposition of things, as that no one potentate be able absolutely to predominate, and prescribe laws to the others” (Vattel [1797] 2008, bk. Ill, chap. Ill, § 47, p. 496; cf. Vattel [1758] 1916, vol. II, liv. Ill, chap. Ill, § 47, p. 40). And the need to preserve this equilibrium—especially in a legal-positivist world that had already moved beyond the ideal of natural law—meant that when a state acted to upset the balance of power among sovereign states, there was no way to escape the obligation to intervene against that state. As Vattel put it: “The safest plan, therefore, is to seize the first favourable opportunity when we can, consistently with justice, weaken that potentate who destroys the equilibrium (§ 45)—or to employ every honourable means to prevent his acquiring too formidable a degree of power” (Vattel [1797] 2008, bk. Ill, chap. Ill, § 49, p. 498). So, even as Vattel gave pride of place to the nonintervention principle, he set a limit to it in the interest of preserving the balance of power: whenever that balance came under threat, in other words, it became legitimate to intervene. This balance-of-powcr conception would later be developed by Ludwig Dchio, who reframed it through the dialectic between balance and hegemony: Dehio showed that in the period spanning from the end of the fifteenth century to World War II, all attempts at hegemony within the European states-system were met with a counter-response from the other powers, in such a way that a balance could be restored (Dchio [1948] 1962).

As should be clear from the foregoing reconstruction, at the same time that nonintervention doctrines have constructed this concept as a principle, they have also unfailingly ended up carving out an exception to it on one basis or another. As Ann Van Wynen Thomas and A. J. Thomas have commented, “if one turns to history and views the practices of states it becomes difficult to escape the conclusion that intervention is the rule and non-intervention is the exception” (Thomas and Thomas 1956, 3).

Historically, intervention has taken on different meanings reflected in the different ways in which its basis of legitimacy has been construed in different geopolitical contexts, and here a contrast can be highlighted between two main contexts, namely, that of relations among European states and that of relations between Western and non-Western states: whereas intervention within the European system found its justification in the need to guarantee the principle of equality among states (Wolff) or to preserve the balance of power (Vattel), when it came to non-European peoples its basis became that of the system of Western values, with the simultaneous repudiation of non-Western normative systems. And so it was that the Spaniards appointed themselves as judges of the Inca emperor Atahualpa and sentenced him to capital punishment on the basis of Spanish law.

It clearly emerges, then, that over the course of history the nonintervention principle has been bent to serve the interests of the most powerful states; and, conversely, as Krasner (1999, 21) observes, “weaker states have always been the strongest supporters of the rule of nonintervention.” We can thus say, with Krasner (1999, 24), that even though Westphalian sovereignty is supposed to exclude foreign interference in a state’s domestic affairs, “the principles associated with [it] have always been violated.”

Humanitarian intervention and the RtoP doctrine are only the contemporary development of the continuing effort to legitimize foreign intervention, and they are only compounding the crisis of Westphalian sovereignty, once more revealing its nature as a form of “organized hypocrisy” (ibid., 25).

To be sure, the ambivalences embedded in the RtoP principle are undeniable, so much so that, as Noam Chomsky has argued with his realist sense of analysis, we should be led to think that the principle only works to the advantage of a “favored list of the powerful.” Even so, the principle “can be a valuable tool, much as the Universal Declaration of Human Rights has been,” for it “serves as an ideal that activists can appeal to in educational and organizing efforts, often effectively.” In finding cause for such optimism, he points to “the civilizing effect of popular movements,” as a result of which “the maxims that largely guide international affairs [...] have become considerably less harsh over the years” (Chomsky 2011, 16).

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This historical event is reported by Vattel (quoted in Krasner 1999, 21), commenting that by their action “the Spaniards violated all rules” (Vattel [1797] 2008, bk. II, chap. IV, § 55, p. 290).

We have seen, then, that RtoP is essentially a hegemonic technique. But as Martti Koskennicmi (2004b, 214) points out, “although international law [...] is a hegemonic politics,” its language and vocabulary nonetheless points in the opposite direction: the ideas expressed through it—“‘self-determination,’ ‘fundamental rights,’ ‘division and the accountability of power,’ and so forth”—“contest the structural biases of present institutions and politicize what otherwise appears as routine administration” (Koskennicmi 2007, 34). In other words, the concepts that international law has acquired from the constitutionalist tradition make it possible to “express a fundamental critique of present politics” (ibid., 35). Inherent in law, then, is a normative force that sustains the formation of a critical public opinion and frames expectations of change with the potential to unhinge the organization of political power, as happened with the French Revolution at the end of the eighteenth century.

In short, the language of international law can challenge the governance conducted by the hegemonic powers. It can do so by serving as the form through which “groups whose interests are not well represented in governance bodies receive a voice” (Koskennicmi 2004a, 253). In this way, the pure form of law—its “empty form”—provides a platform for “constructing a public space” or a legal “community, a Rechtsgemeinschaft" (ibid.) through which ^particular grievances may be articulated as universal ones” (ibid., 254; italics added), thereby breaking the scheme of the governance model built on the Schmittian opposition between “friend” and “enemy.”

This brings to light the paradox of contemporary international law, with the two contrary strains that coexist within it: the realist one of power struggle, and the Kantian one that looks to the ideal of a cosmopolitan society. For if international law is undoubtedly the legal form through which the powerful states dominate and exploit the weaker ones, it also provides a space in which to work towards cooperation, solidarity, and emancipation (Jouannct 2007, 406-7).

  • [1] Wrote Vattel: “It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another” (Vattel, Emer de. [1797] 2008, bk. II, chap. IV, § 53, p. 289). And he concluded that any interference in another state’s internal affairs was tantamount to an injustice: “If any intrude into the domestic concerns of another nation, and attempt to put a constraint on its deliberations, they do it an injury” (ibid., bk. I, chap. Ill, § 37, p. 96). The two passages in the French original: “C’est une consequence de la Liberte & de l’indépendance des Nations, que toutes sont en droit de se gouverner comme elles le jugent à propos, & qu’aucune n’a le moindre droit de se mêler du Gouvernement d’une autre” (Vattel [1758] 1916, vol. I, liv. II, chap. IV, § 54, p. 297). “Si quelqu’une s’ingère dans les affaires domestiques d’une autre, si elle entreprend de la contraindre dans ses délibérations, elle lui fait injure” (ibid., vol. I, liv. I, chap. Ill, § 37, p. 38). For a reconstruction of the nonintervention principle outlined in this section, see Thomas and Thomas (1956, 5ff.). 2 The French original: “Le plus sûr est donc d’affoiblir celui qui rompt l’équilibre, aussi-tôt qu’on en trouve l’occasion favorable, & qu’on peut le faire avec justice (§ 45); ou d’empêcher par toute forte de moyens honnêtes, qu’il ne s’élève à un degré de puissance trop formidable” (Vattel [1758] 1916, vol. Il, liv. Ill, chap. Ill, § 49, p. 41).
 
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