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V.J. Chalupa On Post-Modern Politics
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CHAPTER 13 INTERNATIONAL ORDER International Relations Relations between sovereign states are arranged by treaties
which form a complex network of mutual obligations whose observation depends on
the will of the contracting parties and on the traditionally recognized
principle "pacta sunt servanda rebus sic stantibus" (treaties are to
be observed as long as circumstances have remained the same). The assumption is
that at the time of concluding treaties, states are equals as to their
sovereignty and that this relationship of equality remains unchanged during the
treaties' duration, implementation, repudiation or violation. Reality does not correspond to this theory; international
relations are not an unstructured network of treaties woven by equals; actually,
they have a structure, an order determined by the strong states, the great
powers or superpowers, around whom are grouped the small states. Treaties
between superpowers and their contracting partners, especially alliances, have
very frequently the nature of norms imposed by the superpower on its weaker
allies, and the relationships between the superpowers determine the character to
the entire international order. According to the relations between superpowers,
the international order has the nature of a balance of power, allocation of
spheres of influence, hegemony, subsystem integration or international legal
order. Balance
of power is
an order in which the great powers, using domestic and foreign policy,
diplomacy, threat of war or war prevent other great powers or their groups from
acquiring such a preponderance of power that
they can force one of the strong states to act against its own interest. This
type of international relations is by its very nature unstable and requires
unceasing equalizing of power capabilities, because their relationships and
exertion of influence are in constant flux and change as individual power
centers gain or lose strength as consequence of domestic policy, economic
development and other factors. Allocation of spheres
of influence is an
order in which one or several great powers renounce explicitly or tacitly
interference in areas claimed as exclusively reserved for influence by another
great power. This order represents a consolidation of the system of balance of
power, and its change presupposes a radical shift in the power relationships
between the participating great states. Hegemony
is an order in which one of the great powers is so strong that it imposes
foreign policy, economic relations and often even domestic policy on other
states. Such a system is relatively stable as long the predominant power has the
economic strength to fund military forces and a bureaucracy capable of holding
its empire together. As the empire expands and as competing new power centers
appear within or outside the hegemony, costs of preserving the growing empire
increase until they exhaust the hegemon's strength to a degree which permits its
breakup by centrifugal inner forces or an attack from outside. Subsystemic
integration is an
order in which, for reasons of economy or security, states create
voluntarily a joint super-state
and on the basis of shared values seek in an integrated whole a greater measure
of security than they can provide separately, or a higher standard of economic
well-being for their citizens than they can attain from their own resources. A
subsystemic integration is mostly part of one of the preceding orders, and
therefore its extent and nature is limited by a friendly or unfriendly attitude
of any of their dominant great powers. International
legal order is a
system which stabilizes international relations and secures the preponderance of
a superpower or a group of powers by the creation of generally applicable norms
for behavior between states, norms which are generally binding and enforceable.
This entails the creation of a normgiver with a jurisdiction superior to the
sovereignty of states and attributable to a normgiver able to enforce its
observance. In such organizations, formal equality of states is expressed
traditionally by the principle of unanimity which can have two degrees: either
by the right of veto, i.e., the resolutions of the organization are not binding
unless adopted by all members, or by restricting
their validity to those members which voted for them. International Legal Order From
International Organizations to Supranational Organizations Often, international law or international legal order is
identified with the system of treaties between states or with principles
regulating such treaties. This identification is incorrect, because that system
lacks two constitutive principles of law and legal order: a lawgiver superior to
the subjects of duty, and enforceability of laws promulgated by him. As long as
states remain sovereign, they are entitled to renounce concluded treaties and/or
can be induced to observe them only by applications of power described in the
preceding section. This system, in the best case comparable to binding custom,
became the target of growing criticism and since the end of World War I attempts
were made to transform it into a true legal order, i.e., to create a lawgiver
equipped with means of enforcement. The threat of a nuclear war and the Cold War changed the
nature of international relations. The keystone of foreign policy of states is
no more the arrangement of relationships with other states, but takes place
mainly within the framework and through the intermediary of supranational
regional and world organizations. The possibility of a war whose instruments are
capable of destroying not only the contending states, but all other states, too,
proved that the differentiation of humanity expressed by sovereign nation states
exceeded dangerously its integration and reinforced the movements towards
increased integration. It made obvious the desirability of a genuine
international legal order and rendered acceptable some embryonic forms of
institutions which create the supranational will (the legislative function),
which control its observance (judicial power) and which enforce it (executive
power). International (i.e.,interstate) organizations are thus undergoing a
transformation into supranational entities, i.e., entities superior to states,
into super-states. The nature of the legal order of a state is at its beginning
shaped by the power relations between competing political organizations.
Likewise, the international legal order and its institutions bear evident
characteristics of the political alliances which were victorious in both world
wars and in the Cold War: of the Western Powers and among them of the United
States of America in the first place. The decisive role of the victors is
reflected by international organizations ideologically in their principles and
organizationally in their constitutions which prescribe that their members
abide, in their domestic as well as foreign policies, by principles in harmony
with the ideology of the founding states. The power relationship is even more
obvious in the enforcement of international norms: without the participation of
the strongest members no boycott nor any other forms of economic pressure, and
no military might exists which would be capable of an effective intervention
again violators. Worldwide
Integration The creation of an international legal order parallels the
development of the domestic legal order. The stronger group of political
organizations, in the given case of states, endeavored after World War I to
transform its common political objectives into an internationally binding norm.
Its content was self-determination of nations, preservation of peace and
collective security, its source of will was the League of Nations constituted by
and anchored in peace treaties. The weakness of this endeavor laid in the inner
contradiction of its concept: the victorious Allies attempted to create an
institution superior to states and on the other hand preserved the principle of
state sovereignty. The judicial function was performed by the General Assembly
through majority decisions in which all states, strong and weak had the same
voice. The enforcement medium was sanctions. The power of the League of Nations
was undermined by the absence of the United States and experience showed that
sanctions were ineffective. Even small states, if summoning sufficient
determination, could withstand them, and the discord among the great powers made
stronger sanctions impossible. Therefore, this first attempt at creating a
universal, binding and enforceable international law failed. More realistic was the organization of the United Nations
created by the victorious coalition at the conclusion of World War II. It was
founded on the recognition that it needs a common purpose, and this purpose was
decreed by the winners in the form of a Charter whose function paralleled that
of a constitution in a state. The founders recognized also that the United
Nations organization must take into consideration real circumstances and not to
rely simply on the formal principle of equality of all sovereign states without
regard to their power; this recognition was expressed by the creation of the
Security Council and its permanent members not subject to majority decisions of
the General Assembly. The need of a way to enforce the organization's decisions
was embodied in the provision of unanimity of the five permanent members of the
Security Council whose combined power was (at the time of the creation of UN)
such that no state or combination of states could successfully oppose it. UNO
did not jettison the principle of sovereignty of nations, but in its structure,
it applied the recognition that there are degrees of sovereignty among its
members -- fully sovereign were only the five states which had the veto power,
i.e., the five permanent members of the Security Council. The United Nations failed for two reasons. Right at the
beginning, some members professed the principles of the Charter only by words
and contradicted them by deeds. Originally, these were only the states of the
Soviet bloc, later their numbers were increased by states newly formed on the
ruins of colonial empires; these new states had no tradition of democratic
self-government and changed very quickly into various dictatorships imitating
the Soviet model of economy. The combination of these two groups gradually
attained the majority in the General Assembly. Simultaneously, there developed a
lasting split among the permanent members of the Security Council. By using its
sovereignty, i.e., its right of veto, the Soviet Union systematically sabotaged
the creation of an international legal order based on the principles of the UN
Charter, and continued to construct a sphere governed by an order based on the
principles of Marx-Leninism in the belief that its philosophical, social and
power system would become the international legal system which the Soviet Union
would protect and enforce (cf. the Brezhnev doctrine). In the conflict of the
western and Soviet ideas of an international legal order, the original concept
of the Charter finally prevailed, but resolutions and decisions of the UN have
not the character of a norm hierarchically higher than the sovereignty of member
states. Regional
Integration A more promising attempt at the creation of a true
international law was the establishment of the Conference on Security and
Cooperation in Europe (CSCE). Under American leadership, it began to
differentiate its functions in the direction of a state's division of powers.
Its regular follow-up conferences served as embryonic judicial and legislative
organs which investigated and made judgments on violations of the Helsinki
Agreements, especially its "Third Basket" (human rights and civil
liberties), by member states, and on the basis of such findings issued
(legislated) norms (the Final Acts) completing and enlarging the initial
provisions of the Agreement. Both decisions were based on the principle of
unanimity, but this unanimity was to a large extent founded on actual power
relationships and lately by acceptance of a rule which invalidated the vote of
the state whose violations of the Helsinki Agreement provisions was being
discussed. For a long time, the effectiveness of this organization was
undermined by the existence of two conflicting blocs: NATO and the Warsaw Pact
countries, but the demise of the eastern bloc resulted in the acceptance of the
ideology of the western bloc (individualism, practical materialism, human
rights, democracy, market economy). Thus arose an ideologically quite
homogeneous concentration of power which had the potential to establish a world
order according to its principles and enforce its validity even against
non-member states during a period of a power vacuum in the rest of the world. The evolution went in another direction by the growing
integration of the European Community (EC). This formation arose from the
Marshall Plan which made economic assistance of the United States contingent
upon the creation by recipient states of a common plan and a common organ for
its utilization. Thus each participant had to relinquish a part of its
sovereignty in favor of such common organs which were created pragmatically,
first to coordinate production of
coal and steel. The resulting international bureaucracy became the nucleus of
efforts to dismantle additional areas of national sovereignty and transfer them
to the supranational institutions. This process culminated in the Maastrich
Treaty whose acceptance created a European Union (EU) and abolished national
sovereignty over such fundamental issues like citizenship, immigration,
penetration by foreign capital, taxes and custom duties, definition of human
rights and civil liberties, minority rights and domestic legislation on use of
national languages. The Maastrich Treaty is an equivalent of a constitution in a
national legal order, various organs (the Council of Foreign Ministers, the
European Parliament and various EC and EU Commissions) resemble legislature, the
International Court in the Hague performs like a Supreme Court and the emerging
European army is reminiscent of the enforcement branch of an executive power. The movement towards a world legal order (and a world
lawgiver) takes place on several levels: globally
through the United Nations, regionally through NATO which, widened to the
Partnership for Peace by participation of industrialized countries of the
Pacific, represents basically the association of (industrially developed) states
of the North against the so-called South (underdeveloped countries with reserves
of raw materials). Inside the "North" there are several centers: the
United States, Western Europe aiming at exclusion of the United States on one
side and of Russia on the other side and organized around a Franco-German
nucleus, and the Commonwealth of Independent Nations around Russia which resists
the merger of its former sphere of influence with the super-state of Western
Europe. Dismantling
of National (State) Independence The integration of Europe initiated the entry into
international relations of a new factor: of individuals. Until the elections to
the European Parliament, the creation of the will of international organizations
was the exclusive domain of states, i.e., their governments. Although the
European Parliament has still only a consultative power, the monopoly of
international normgiving reserved to states as subjects of political will, has
been disrupted and the direct influence of individuals as "citizens"
of superstates is bound to grow. The issues of formal and material equality, of
individual and group equality, of elimination of power elements except numbers
is bound to complicate and slow down the creation of a legal world order. An important intrusion on state sovereignty is the right of
citizens of EU member states to appeal decision of state organs to corresponding
international organs via judiciary process. The first breach of state
sovereignty in this regard was the admission to CSCE (Conference on Security and
Cooperation in Europe) follow-up
conferences of representatives of private organizations (called
"non-governmental organizations") whose function was to observe
violation of human rights provisions by their own states and to bring them to
the attention of the conferences. Originally this process respected the
principle of state's exclusive international subjectivity by reserving to states
only the right to put such complaints on the conference's agenda, but any state,
not the state whose citizens the complainants were, could and did do so. Since
then the right of individuals to appeal to international organs was formally
accepted by EU as well as CSCE. In the opposite direction, a precedent was
created by the Nuremberg court which proceeded against citizens of defeated
states because they obeyed the laws of their respective states and orders of
their superiors. By acting thus, an international entity arrogated to itself the
right to violate (the defeated) state's sovereignty by judging their citizens by
norms not existing in their respective constitutions, i.e., placed its own norms
above the laws of the affected states. The same principle was revived in the
prosecution of war criminals guilty of atrocities during the war in Bosnia. Traditional political theory and constitutional theory are
founded on the assumption of the sovereignty of states. A state is sovereign
internally, i.e., with regard to its citizens and its population, and
externally, i.e., with regard to other states. In the second half of the 20th
century, political practice in the sphere of western culture has increasingly
deviated from this concept. The starting point of this shift is the theory of
inalienable human rights which erodes state sovereignty so-to-speak from below:
inalienable human rights are a sphere on which the state must not infringe and
in which he must not give preference to its subjects who belong to groups whose
source of cohesion is one of the proscribed characteristics: race, nationality,
religion, gender. The loss of sovereignty in this direction does not cause the
state power over its subjects to decrease, on the contrary. The expansion of the
sphere of human rights (16)
subverts the sovereignty of states, but expands
their jurisdiction by protecting such rights against the majority whose members
find themselves being coerced in areas where they used to be free. The selection
of rights is moreover arbitrary and irrational; for instance, homosexual
behavior is protected, smoking is prosecuted. Expansion of rights of specific
minorities causes inevitably the shrinkage of rights of the majority, expands
the power of the state and its bureaucracy, and at the same time diminishes the
state's sovereignty. Inalienable rights are also the basis of limiting the
sovereignty of the state so-to-say from above, by international organizations
which change gradually into organizations superior to states. So far, the movement towards a global legal order tends to
weaken all institutions mediating between the individual and the emerging
super-state, and its prime target is the sovereign nation state which has the
potential of being its main opponent. Most effective in that respect used to be
CSCE (Conference on Security and Cooperation in Europe) building gradually its
legislative, judicial and executive power over member states. It was overtaken
in this regard by EC, respectively EU. The Maastricht treaty transfers
considerable areas of the jurisdiction of states to supranational European
institutions and subjects them to
majority, rather than unanimous, decisions. Foreign policy, defense, currency,
European citizenship and European army, economic planning including adjustment
of production to structural changes produced by such planning, coordination of
production, creation of a special fund for states to offset harmful effects of
adjustments decreed by European institutions, in practice by their
bureaucracies, all replace member states' independence. Nor does this limitation
of states' sovereignty add to the freedom of their citizens: the state's
jurisdiction is only transferred to another, higher bureaucratic level less
accessible and less controllable than the bureaucracies of individual states.
States are becoming simply territorial administrative units of a European
super-state. The progress towards a world legal order does not take place
only in the area of formal law. It is propelled by international bureaucracies
and prepared, supported and utilized by extra-political centralizing tendencies
which precede legal integration, stabilize it and aid the shrinkage of state's
sovereignty. So far, it is obvious mainly in economy: introduction of the market
and free enterprise, removal of custom barriers and prohibition of
discrimination against foreign investors enable financially strong multinational
corporations to penetrate anywhere without regard for borders. Other
antidiscrimination rules inhibit measures protecting the native population from
a massive invasion of members of other nationalities which threaten to deform
the national, religious and cultural character of the respective country. The accumulation of these influences diminish the usefulness
of the state as an instrument for protection of national identity and defender
of national interests. For powerful European nations, namely France and Germany
-- or rather: Germany and France -- it means removal of obstacles erected by
small nations against their domination, while they shift to the European
super-state the defense of their own interests against mightier states, at
present primarily against the United States, through customs duties, directing
and planning overall European economy, common currency, common foreign policy,
army, preferences for member states, and
so forth. The small nations are in a different situation: they will miss the
protection afforded to them by national independence and state sovereignty. To be viable, the legal order of a state as the result of power relations between competing political organizations must allow for their shifts. The same applies to the viability of an international legal order and its source -- the super-state. A state can become a source of heteronomy and thus an instrument of oppression; the same can happen in a global or regional super-state. Here, the opportunity for oppression of individuals and small nations is even greater; due to the super-states' size the tendency towards centralization, managerization and bureaucratization is stronger than in national states. In such a case, an international, or rather supranational organization could become an instrument of domination of certain states or international ideological movements and organizations over large parts or the whole of humanity.
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