Political Observer offer a selection of quotations.
There can be no doubt that Perry Anderson is the formidable Public Intellectual writing today! No one can match his body of work, he has no equal! Forget cadre of political sycophants, who write for the respectable newspapers, and other publications, Corporate Media and Think Tank Chatterers, the issue of the utterly toxic Herman Kahn, and Walter Lippmann’s deeply anti-democratic worship of the ‘Expert’, the fore-rummer of the whole of the Technocratic Class: that now supplies that endless stream of respectable political commentary, steeped in the current political wisdom.
This long essay is formidable in every way, again Anderson is without peer! Let me focus this collection of long quotations, on the revelatory bad actors, who trade on the the currency of ‘International Law’, and its utter mailability in the hands of political opportunists:
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The principle of hierarchy
At the end of the War, the victor powers England, France, Italy and the United States called the Versailles Conference to dictate terms of peace to Germany, redraw the map of Eastern Europe, divide up the Ottoman empire and—not least—create a new international body devoted to ‘collective security’, to ensure establishment of durable peace and justice between states, in the shape of the League of Nations. At Versailles, the United States not only made sure that Rui Barbosa was excluded from the Brazilian delegation, but that the Monroe doctrine—Washington’s open presumption of dominion over Latin America—was actually incorporated into the Covenant of the League as an instrument of peace. A Permanent Court of International Justice was set up in the Hague, its Article 38 continuing to invoke ‘the general principles of law recognized by civilized nations’. Among those who drafted its Statutes was the author of a 600-page defence of the admirable record of Belgian administration in the Congo.
The us Senate eventually declined American entry into the League, but the design of the new organization faithfully reflected the requirements of the victor powers, since its Executive Council—the predecessor of today’s un Security Council—was controlled by the other four great powers on the winning side of the War, Britain, France, Italy and Japan, who were given exclusive permanent membership of it, on the model of the American scheme at the 1907 Hague Conference. In the face of this blatant imposition of a hierarchical order on the League, Argentina refused to take part in it from the start, and a few years later Brazil—when its demand that a Latin American country be given a permanent seat in the council was rejected—withdrew. By the end of the thirties, no less than eight other Latin American countries, large and small, had pulled out of it. Undeterred, the leading textbook of the period on international law, still widely used today, credited to Lassa Oppenheim and Hersch Lauterpacht, noted with satisfaction that ‘the Great Powers are the leaders of the Family of Nations and every advance of the Law of Nations during the past has been the result of their political hegemony’, which had now finally received, for the first time, in the Council of the League a formal ‘legal basis and expression’.footnote13
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Words and swords
Such was the position in the inter-war period. Out of the Second World War came a new dispensation. With much of the continent in ruins, or in debt, the primacy of Europe was gone. When the United Nations was founded at San Francisco in 1945, the principle of hierarchy inherited from the League was preserved in the new Security Council, whose permanent members were given still greater powers than their predecessors in the Executive Council of old, since they now possessed rights of veto. But Western monopoly of this privilege was broken: the ussr and China were now permanent members, alongside the United States and a diminished Britain and France, and as decolonization accelerated over the next two decades, the General Assembly became a forum for resolutions and demands increasingly uncomfortable to the hegemon and its allies.
Surveying the scene in 1950, in his commanding retrospect The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, Carl Schmitt observed that in the 19th century: ‘The concept of international law was a specifically European international law. This was self-evident on the European continent, especially in Germany. This was also true of such worldwide, universal concepts as humanity, civilization and progress, which determined the general concepts and theory and vocabulary of diplomats. The whole picture remained Eurocentric to the core, since by “humanity” was understood, above all, European humanity, civilization was self-evidently only European civilization, and progress was the linear development of this civilization’. But, Schmitt went on, after 1945 ‘Europe was no longer the sacred centre of the earth’ and belief in ‘civilization and progress had sunk to a mere ideological façade’. ‘Today’, he announced, ‘the former Eurocentric order of international law is perishing. With it the old nomos of the earth, born of the fairytale-like, unexpected discovery of a New World, an unrepeatable historical event, is vanishing.’footnote17 International law had never been truly international. What had claimed to be universal was merely particular. What spoke in the name of humanity was empire.
After 1945, as Schmitt saw, international law ceased to be a creature of Europe. But Europe, of course, did not disappear. It simply became subsumed in another of its own overseas extensions, the United States, leaving open the question: how far has international law since 1945 remained a creature, no longer of Europe, but of the West, with at its head the American superpower? Any answer to this question refers back to another. Setting aside its historical origins, what is the juridical nature of international law as such? For its first theorists in 16th and 17th century Europe, the answer was clear. The law of nations was grounded in natural law, that is a set of decrees ordained by God, not to be questioned by any mortal. In other words, the Christian deity was the guarantee of the objectivity of their legal propositions.
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By the 19th century, the increasing secularization of European culture gradually undermined the credibility of this religious basis for international law. In its place emerged the claim that natural law still held good, but no longer as divine commandments, rather as the expressions of a universal human nature, which all rational human beings could and should acknowledge. This idea, however, was soon made vulnerable in its turn by the development of anthropology and comparative sociology as disciplines, which demonstrated the enormous variety of human customs and beliefs across history and the world, contradicting any such easy universality. But if neither the deity nor human nature could offer any secure basis for international law, how should it then be conceived?
An answer to this question could only be sought in a prior one: what was the nature of law itself? There, the greatest political thinker of the 17th—or perhaps any—century, Thomas Hobbes, had given a clear-cut answer in the Latin version of his masterpiece Leviathan, which appeared in 1668: sed auctoritas non veritas facit legem—not truth, but authority makes the law, or as he put it elsewhere: ‘Covenants, without the Sword, are but Words’.footnote18 This would over time become known as the ‘command theory of law’. That theory was the work, two centuries later, of John Austin, a clear-minded friend and follower of Bentham, who admired Hobbes above all other thinkers, and in concurring that ‘every law is a command’ saw what this meant for international law. His conclusion was: ‘The so-called law of nations consists of opinions or sentiments current among nations generally. It therefore is not law properly so called . . . [for] a law set by general opinion imports the following consequences—that the party who will enforce it against any future transgressor is never determinate and assignable.’footnote19
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Practice
Crucial words: never determinate and assignable. Why was that so? Austin went on: ‘It follows that the law obtaining between nations is not positive law; for every positive law is set by a given sovereign to a person or persons in a state of subjection to the author’—but since in a world of sovereign states ‘no supreme government is in a state of subjection to another’, it followed that the law of nations ‘is not armed with a sanction, and does not impose a duty, in the proper acceptation of these expressions. For a sanction properly so called is an evil annexed to a command’.footnote20 In other words, in the absence of any determinable authority capable of either adjudicating or enforcing it, international law ceases to be law and becomes no more than opinion.
This was, and is, a conclusion deeply shocking to the liberal outlook of the overwhelming majority of today’s international jurists and lawyers. What is often forgotten is that it was shared by the greatest liberal philosopher of the 19th century, John Stuart Mill himself, who reviewed and approved Austin’s lectures on jurisprudence twice. Answering attacks on the foreign policy of the short-lived French Republic in 1849, which had offered assistance to an insurgent Poland, he wrote: ‘What is the law of nations? Something, which to call a law at all, is a misapplication of the term. The law of nations is simply the custom of nations’. Were these, Mill asked, ‘the only kind of customs which, in an age of progress, are to be subject to no improvement? Are they alone to continue fixed, while all around them is changeable?’ On the contrary, he concluded robustly, in a spirit of which Marx would have approved: ‘A legislature can repeal laws, but there is no Congress of nations to set aside international customs, and no common force by which to make the decisions of such a Congress binding. The improvement of international morality can only take place by a series of violations of existing rules . . . [where] there is only a custom, the sole way of altering that is to act in opposition to it.’footnote21
A few examples will suffice. At the very foundation of the highest official embodiment of international law, namely the United Nations, whose Charter enshrines the sovereignty and integrity of its members, the United States was engaged in their systematic violation. In an Army base in the old Spanish fort a few miles from the inaugural conference that created the United Nations in San Francisco in 1945, a special team of us military intelligence was intercepting all cable traffic by delegates to their home countries; the decoded messages landed on the breakfast table of American Secretary of State Stettinius the next morning. The officer in charge of this round-the-clock operation of surveillance reported that ‘the feeling in the Branch is that the success of the Conference may owe a great deal to its contribution’.footnote26 What did success mean here? The American historian who describes this systematic espionage exults that ‘Stettinius was presiding over an enterprise his nation was already dominating and moulding’—for the un was ‘from the beginning a project of the United States, devised by the State Department, expertly guided by two hands-on Presidents, and propelled by us power . . . For a nation rightly proud of its innumerable accomplishments’—the most recent, the dropping of atomic bombs on Japan—‘this unique achievement should always be at the top of its illustrious roster’.footnote27
Matters were no different sixty years later. The 1946 un Convention states that ‘The premises of the un shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.’ In 2010 it was revealed that Clinton’s wife, then Secretary of State, had directed the cia, fbi and Secret Service to break the communication systems, appropriating passwords and encryption keys, of the Secretary-General of the un, together with the ambassadors of all four other permanent members of the Security Council, and to secure the biometric data, credit-card numbers, email addresses and even frequent-flyer numbers of ‘key un officials, to include undersecretaries, heads of specialized agencies and chief advisers, top secretary-general aides, heads of peace operations and political field missions’.footnote28 Naturally, neither Mrs Clinton nor the American state paid any price for their brazen violation of an international law supposedly protecting the un itself, the official seat of such law.
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What of the international justice that international law purports to uphold? The Tokyo Tribunal of 1946–48, organized by the United States to try military leaders of Japan for war crimes, excluded the Showa Emperor from the trial in order to lubricate American occupation of the country, and treated evidence with such disregard for due process that the Indian judge on the Tribunal, in a blistering 1,000-page condemnation of it, observed that the Tokyo trials amounted to little more than ‘an opportunity for the victors to retaliate’, declaring ‘only a lost war is a crime’.footnote29 The Dutch judge on the Tribunal admitted candidly: ‘Of course, in Japan we were all aware of the bombings and the burnings of Tokyo and Yokohama and other big cities. It was horrible that we went there for the purpose of vindicating the laws of war, and yet saw every day how the Allies had violated them dreadfully’footnote30—Schmitt’s discriminatory conception of law to the letter. The successive American wars that followed in East Asia, first in Korea and then in Vietnam, were then littered, as American historians have shown, with atrocities of every kind. Naturally, no tribunal has ever held them to account.
Has anything much changed since then? In 1993 the un Security Council set up an International Criminal Tribunal on Yugoslavia, to prosecute those guilty of war crimes in the break-up of the country. Working closely with nato, the Canadian Chief Prosecutor made sure successful indictments for ethnic cleansing fell on Serbs, the target for us and eu hostility, but not on Croats, armed and trained by the us for their own operations of ethnic cleansing; and when nato launched its war on Serbia in 1999, excluded any of its actions—the bombing of the Chinese Embassy in Belgrade and the rest—from her investigation of war crimes. This was perfectly logical, since as the press officer for nato explained at the time: ‘It was the nato countries who established the Tribunal, who fund and support it on a daily basis.’footnote31 In short, once again, the us and its allies used trials to criminalize their defeated opponents, while their own conduct remained above judicial scrutiny.
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Discriminations
As for the un Security Council, the nominal guardian of international law, its record speaks for itself. Iraqi occupation of Kuwait in 1990 brought immediate sanctions, and a million-strong counter-invasion of Iraq. Israeli occupation of the West Bank has lasted half a century without the Security Council lifting a finger. When the us and its allies could not secure a resolution authorizing them to attack Yugoslavia in 1998–99, they used nato instead, in patent violation of the un Charter forbidding wars of aggression, whereupon the un Secretary-General Kofi Annan, appointed by Washington, calmly told the world that though nato’s action might not be legal, it was legitimate—as if Schmitt had scripted his words to illustrate what he meant by the constitutive indeterminacy of international law. When, four years later, the United States and Britain launched their attack on Iraq, having had to bypass the un Security Council under threat of a veto from France, the same Secretary-General once again blessed the operation ex post facto, making sure that by a unanimous vote the Security Council gave back-dated cover to Bush and Blair by voting un assistance to their occupation of Iraq with Resolution 1483. International law may be dispensed with in launching a war; but it can always come in handy to ratify such a war after the event.
Weapons of mass destruction? The Nuclear Non-Proliferation Treaty is the starkest of all illustrations of the discriminatory character of the world order that has taken shape since the Cold War, reserving for just five powers the right to possess and deploy hydrogen bombs, and forbidding their possession to all others, who might need them more for their defence. Formally, the Treaty is not a binding rule of international law, but a voluntary agreement from which any signatory is free to withdraw. Factually, not only is a perfectly legal withdrawal from the Treaty treated as if it were a breach of international law, to be punished with the utmost severity, as in the case of North Korea, but even observance of the Treaty is open to restrictive interpretation, and if insufficiently monitored, subject to retribution, as in the case of draconian sanctions against Iran—indeterminacy and discrimination elegantly combined. That Israel has ignored the Treaty and has long possessed abundant nuclear weapons cannot be so much as mentioned. The powers punishing North Korea and Iran pretend the massive Israeli nuclear arsenal does not exist—perhaps the best commentary of all on the alchemies of international law.
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The force of opinion
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Modern international law is thus, as Koskenniemi observes, intrinsically threaded with contestation, and as its contemporary instrumentation for the will of today’s hegemon and its satellites has grown ever more brazen, so the number of critical legal minds not only questioning but seeking to reverse its imperial use has grown too. The most lucid do so without attributing more strength to its claims than they can bear. In the mot of a distinguished French jurist, international law is ‘performative’. That is, such pronouncements in its name seek to bring into being what they invoke, rather than refer to any existent reality, however laudable.footnote43
The same dialectic, of course, has more famously been true of municipal law, invoked in Europe at least since the 17th century in defence of the weak against the strong, who created it. But there Austin’s axiom makes the difference. Within the nation-states, as they became, of Europe, there was always a determinable sovereign authorized to enforce the law, and as this authority passed from crowns to peoples, not coincidentally came also the legitimate power to change it. In relations between states, unlike relations among citizens, neither condition holds. So while hegemony functions in both national and international arenas, and by definition always combines coercion and consent, on the international plane coercion is for the most part legibus solutus and what consent is secured inevitably weaker and more precarious. International law operates to hide that gap. Koskenniemi began his career with a brilliant demonstration of the two poles between which the structure of international legal argument had historically moved, entitled From Apology to Utopia: either international law supplied servile pretexts for whatever actions states wished to take, or it purveyed a lofty moral vision of itself as, in Hooker’s words, ‘her voice the harmony of the world’, with no relation to any empirical reality. What Koskenniemi failed to see was the interlocking of the two: not utopia or apology, but utopia as apology: responsibility to protect as charter for the destruction of Libya, preservation of peace for the strangulation of Iran, and the rest.
Still, defenders of international law can argue that its existence, however often it is abused by states in practice, is at least better than would be its absence, invoking in their aid La Rochefoucauld’s well-known maxim: L’hypocrisie est un hommage que le vice rend à la vertu. Yet critics can equally reply that here it should be reversed. Ought it not rather to read: hypocrisy is the counterfeit of virtue by vice, the better to conceal vicious ends: the arbitrary exercise of power by the strong over the weak, the ruthless prosecution or provocation of war in the philanthropic name of peace?
https://newleftreview.org/issues/ii143/articles/perry-anderson-the-standard-of-civilization
I have offered a collections of quotations from Perry Anderson’s invaluable essay, that places History in the forefront, that identifies the toxic actors, by name and by their actions in Historical Time. We live in the Age of the ‘Public Relations’, the book Propaganda, written by Edward Bernays in 1928 is an invaluable tool. As is Anderson’s invaluable, revelatory History!
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