International Law and the New World Order: Redefining Sovereignty

This article is excerpted from International Law and the New World Order, Chapter 18: Redefining Sovereignty.

World events since 1648 have reflected the political, social, economic, and military aspirations of people organized into sovereign states. Increasingly, they reflect the influence and authority, both real and perceived, of international law, a development which has become evident since the end of the Cold War, but whose roots go back much further. Recent international interventions in places as diverse as Kuwait, Somalia, East Timor, Haiti, and Kosovo, conducted under the auspices of the United Nations (UN), regional organizations such as the North Atlantic Treaty Organization (NATO), or by ad hoc coalitions, are shaped by a large and growing body of treaties, practice, and custom, collectively referred to as international law.

Americans traditionally respect and support international law and have in fact been instru­mental in its development for more than a century.(1) At the same time, they become frustrated when international law restrains or limits the pursuit of national interests. This was vividly illus­trated in the debates and reactions surrounding American-led efforts to compel disarmament or regime change in Iraq throughout 2002 and 2003. Regardless, its is essential that strategic leaders understand the global environment as it exists today. International law constitutes an important element of the geopolitical environment, one we ignore at our peril.

This article traces the development and evolution of international law, its principal compo­nents and characteristics, and its relative influence on international politics and events over time. It proposes that international law has evolved to a level where it competes with sovereignty as an organizing principal of international relations. Although sovereignty is likely to remain a critical component of the international system, it faces a growing threat from international organizations and institutions that pursue international order and individual rights at the expense of traditional rights enjoyed by sovereign states.

Conventional wisdom would hold that this phenomenon sprung to life after the collapse of the Soviet Union and the end of the Cold War in 1990. To the contrary, as this article will demonstrate, the “recent” ascendancy of international law represents major developments in religion, philoso­phy and law over centuries, and is shaped by the cataclysmic wars and associated excesses of the 20th century. Critical components of today’s international system matured in relative obscurity during the Cold War as groups and nations sought self-determination, peace, democracy, and individual freedoms. While it is easy for scholars and statesmen alike to overlook historical trends, we must examine how developments in international law have subtly but certainly redefined sov­ereignty and how states have adapted, or not adapted, to this reality.

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INTERNATIONAL LAW AND SOVEREIGNTY—AN EVOLUTIONARY RELATIONSHIP

A Marriage of Convenience

International law has never existed in a vacuum. It reflects existing norms and mores, and il­lustrates the difficulty of constructing international order in a disordered world. The Westphalian system has provided the fundamental framework for order for over 3 centuries and has greatly influenced the development of international law. Over time sovereignty has ebbed and flowed, as prevailing practices and international politics shaped the behavior of the leading states. To the ex­tent these practices and politics establish binding precedent, they help to define international law.

This portion of the chapter examines how recognized principles of international law and sov­ereignty developed simultaneously over time. Although sovereignty has provided the dominant basis for international order, it has consistently adapted to accommodate evolving concepts of government, freedom, human rights, and the quest for predictability and stability,(23) the historical attributes of international law.

Sovereignty and the Divine Rights of Kings

Early models of sovereignty were based on the prevailing form of government in 17th century Europe—monarchies ruled by hereditary dynasties of kings or emperors. Consistent with histori­cal political and religious practice, individuals were subordinate to the state, represented by the King. Other precedents existed, going back to classical Greece and its democratic ideals,(24) but pre­vailing norms made Kings absolute rulers of their states, and they exercised their authority with little regard for the sensibilities of their subjects.

Contemporary writers described the nature of this relationship. Jean Bodin wrote in 1576 that law comes from the King, who although not bound by his own laws, was not above the law of nature, an important exception bearing on future developments.(25) Thomas Hobbes wrote in Levia­than: “It appeareth plainly that the sovereign power . . . is as great as possibly men can be imagined to make it."(26) Louis XIV of France, the “Sun King” epitomized the classical sovereign—not merely the head of the state, but its very embodiment, anointed by God to rule. Subjects owed unquestion­ingly loyalty to the King, who might or might not act in their best interests. More precisely, the King’s interests were the state’s interests. Hence the dynastic wars of Louis XIV, waged to expand the glory of France and of Louis XIV, were the business of the King and his advisors, not the people of France. As characterized in popular culture: “It’s good to be the King!".(27)

Not everyone regarded sovereignty this way. Hugo de Groot, also known as Grotius, is referred to as the father of international law for his treatises on international law and the law of war. He was also a proponent of the law of nature and reason. He saw excesses in unbridled sovereignty:

I saw prevailing throughout the Christian world a license in making war of which even barbarous na­tions should be ashamed; men resorting to arms for trivial or for no reasons at all, and . . . no reverence left for divine or human law, exactly as if a single edict had released a madness driving men to all kinds of crime.(28)

As the culminating act of the English Civil War and the Thirty Years’ War, the British throne of Charles I fell to the reformist Protestant armies of Oliver Cromwell. In 1649, 1 year after Westpha­lia, Cromwell had King Charles beheaded. Sovereignty was no longer coexistent with monarchy.(29)

The Enlightenment and Age of Reason.

During the 18th century, philosophers, scholars, and popular writers rediscovered the writings of the ancient Greeks, combining them with Christian philosophy and natural law into a doctrine of Enlightenment. Locke, Rousseau, and Jefferson, among others, emphasized individual rights and the obligations of sovereigns toward their citizens.(30) Their beliefs were incorporated into the Declaration of Independence and the American and French Revolutions. The established order elsewhere did not change, but regime change in America and France, replacing monarchies with democratically-based governments, was a harbinger of things to come. It advanced the idea that sovereignty vested in the people, rather than in the government or the ruler, and demonstrated the efficacy of a higher law, themes that would resurface periodically in the 19th century and erupt in the latter half of the 20th century. International agreements and trea­ties began to recognize that individuals as well as states have rights.(31)

The Concert of Europe, Industrialism, and Colonialism.

Following the 25-year struggle to suppress Revolutionary France and Napoleon Bonaparte, the major powers of Europe in 1815 sought to reestablish order, stability, and a balance of power. In re­sponse to Napoleon’s imperial ambitions, the political leaders who met in Vienna created a system firmly grounded in sovereignty and balanced so as to preclude a return to revolution. Under the leadership of Prince Metternich of Austria and Lord Castlereigh of Great Britain, they succeeded in establishing a framework for peace that would survive essentially intact for 100 years.(32)

Other influences shaped the 19th century. Charles Darwin’s scientific work on evolution stimu­lated development of a social philosophy known as social Darwinism, extrapolating Darwin’s the­ories of natural selection and survival of the fittest species into international relations and politics. Those nations which were strongest were most likely and best suited to survive. Social Darwinism heavily influenced political leaders such as Bismarck and Theodore Roosevelt.(33) Sovereign states exerted a sort of muscular self-interest in their international relations, demonstrating their supe­riority by economic growth and territorial acquisition. The last great era of Colonialism was the result, as France, Great Britain, and Germany competed to acquire overseas colonies. The United States too, succumbed to temptation at the end of the century, acquiring overseas interests in the Hawaii, the Philippines, Cuba, and Panama, among others.(34) The sovereign rights of underdevel­oped, militarily weak states counted for little in this environment.

Facilitating economic expansion in an era of relative peace were the modern technologies of steamships, railroads, and telegraphs. The speed of communication and transportation caused the world to “shrink,” as trade, commerce, and banking connected the continents, creating the first era of “globalization.” The modern unified industrial state came into its own as the United States, Germany, and Italy consolidated their territorial boundaries and joined the ranks of the great powers.(35) In many regards, it was the apogee of sovereignty.

At the same time other, largely unseen, developments reflected the dark side of unbridled sovereignty and hinted at issues that would rise to prominence in the 20th century. The industrial revolution prompted upward mobility and increased the size of the middle class in most Western nations, yet it also created a new urban underclass, with associated problems of disease, family breakup, and child labor. Visible disparity in wealth and power in developed states caused social­ism to flourish, creating revolutionary pressures that threatened the established order. Karl Marx promulgated his economic theories preaching class warfare. Modest political reform helped to defuse tensions and postpone the final accounting for at least another generation.

Public international law played an important role in international affairs, particularly through treaties regulating trade, communication and finance. Henri Dunant founded the International Red Cross in Geneva, Switzerland, in 1863 to mitigate the destructive effect of modern war.(36) The first Geneva Convention covering treatment of sick and wounded on the battlefield was signed in 1864.(37) Based largely on the Lieber Code of 1863,(38) promulgating laws of war for Union armies in the American Civil War, the Hague Conventions of 1899 and 1907(39) attempted to prescribe means and methods of warfare consistent with existing humanitarian principles. Concerns over certain acts in the recent war with Iraq—use of civilian hostages, fighting from protected places such as hospitals or mosques, combatants not wearing military uniforms—can be traced directly to the Hague Conventions.(40)

The 20th Century—Age of Conflict and Ideology

The 20th century was marked by tremendous highs and abysmal lows. The best and the worst of human nature were on public display, often at the same time. The era was marked by three major world wars, two hot and one cold, and the clash of powerful ideologies. Socialism, commu­nism, nazism, and fascism emerged fully-grown on the world stage, competing with democracy for primacy in the hearts and minds of nations. Tentative steps to form world government were taken. Natural law resurfaced in the guise of anti-colonialism, self-determination of peoples, the human rights movement, and demands for equality by the non-Western world. Change acceler­ated development, redefining political and cultural priorities. The second great era of globaliza­tion and progress brought the world closer, yet left others even farther behind. The similarities between 1903 and 2003 are striking, as are the differences. The maturation of international law and sovereignty’s accommodation to change is one major highlight of the century that we will examine more closely.

The Great War—Changing of the Guard

The period immediately following World War I is essential to understanding the rest of the 20th century. The issues facing the Allied powers in Versailles, France, and the choices made then and over the next decade dictated the course of events for the remainder of the century. Interna­tional law emerged as a critical component of international order and would play a major role in international politics.

World War I, The Great War, caused tremendous upheaval in the established order. The vic­torious Allies attempted to address these problems at Versailles in 1919. First was the unexpected scope of violence and destruction, prompting calls for vengeance—war reparations to be paid by the losers and trials of those responsible for the conflict. Second was the collapse of major empires—the German, Austrian-Hungarian, and Ottoman Empires on the losing side, and the Russian Empire in 1917 on the Allied side—and the emergence of the United States as the pre­dominant military and economic power.(41) The third problem was the creation of new nation-states out of the former empires. Lastly, lack of consensus concerning the goals of the war and what the allies had won plagued the peace and designs for international order.

Revolutionary efforts to create a world government fell short—the League of Nations was a start, but not a sufficient one. President Wilson’s visions for the postwar order clashed with the national interests of the allies and frustrated effective, unified action. The Versailles Treaty became a compromise. Complicating matters, Wilson failed to persuade the American public or the U.S. Senate to ratify the treaty creating the League of Nations, and without American participation the League proved too weak to enforce Wilson’s vision of collective security—peace through the rule of law supported by military force when necessary.(42) Wilson’s vision would be revived in 1945 and again in 1990 with relatively greater success.

Attempts to try the Kaiser and others for War Crimes encountered similar problems. The Allies could not agree, and the Germans would not cooperate. Ambitious plans drawn up at the Paris Peace Conference in 1920 called for some 900 war criminals to be tried, but Allied disunity and German recalcitrance prevailed. As a compromise, 12 German soldiers ranging in rank from pri­vate to lieutenant general were tried in German courts; six were convicted, with the most severe sentence being 4 years.(43) One encouraging development at Versailles was public debate over rule of law and ethics su­perseding national interests and international politics. The conflict between these poles of interna­tional order would continue throughout the 20th century and still exists. As Kissinger character­izes it:

At the end of the First World War, the age-old debate about the relative roles of morality and interest in international affairs seemed to have been resolved in favor of the dominance of law and ethics. Under the shock of the cataclysm, many hoped for a better world as free as possible from the kind of Realpolitik which, in their view, had decimated the youth of a generation.(44)

Efforts to enforce peace through rule of law continued for over a decade following Versailles. Arms control agreements took the place of serious collective security enforcement. Examples in­clude the Naval Conferences at Washington in 1922 and London in 1930, regulating the number and size of battleships, cruisers, destroyers, and submarines, then considered the major strategic weapons of the great powers.(45) In the Kellogg-Briand Pact of 1928, the signatory parties agreed to renounce war as an instrument of national policy.(46)

In the end, sovereignty and national interests proved too strong for the Wilsonians. Interna­tional law became just another diplomatic tool as the great states rearmed themselves for World War II. Former President Theodore Roosevelt, still a keen observer of world events, captured the essence of power politics when he said: “As yet there is no likelihood of establishing any kind of international power . . . which can effectively check wrong-doing . . . I regard . . . trusting to fan­tastic peace treaties, to impossible promises, to all kinds of scraps of paper without any backing in efficient force, as abhorrent."(47)

SOVEREIGNTY IN THE NUCLEAR AGE

World War II and the Search for International Order

The world got a second chance in 1945 to recreate international order. The unprecedented destruction of the second major war in a generation dwarfed that of 1914-18 and brought modern war to the home front with a vengeance. Millions of noncombatants became casualties of war. The discovery of nuclear fission at the end of the war threatened even greater destruction in any future conflict. Sovereignty had to be checked, and international law was applied to the task. The problem was neatly defined by one study:

A sovereign state at the present time claims the power to judge its own controversies, to enforce its own conception of its rights, to increase its armaments without limit, to treat its own nationals as it sees fit, and to regulate its economic life without regard to the effect of such regulations upon its neighbors. These attributes of sovereignty must be limited.(48)

The creation of the United Nations in 1945 and the proceedings of the Nuremberg Tribunal immediately following were watershed events that permanently altered the nature of the debate regarding a state’s right to wage war and its treatment of its citizens. Together they announced to the world that aggressive war would no longer be tolerated and that individuals who commit aggression and crimes against humanity will be held criminally responsible for their acts. It was a sincere effort and a good start, enjoying almost universal support.

One of the early UN proclamations, the Universal Declaration of Human Rights,(49) outlined fundamental human rights in terms reminiscent of the Declaration of Independence and the Bill of Rights. It was intended as common standard for “all peoples and all nations."(50) Although as-pirational in tone and lacking an enforcement mechanism, it has served for more than 50 years as a beacon for people in search of freedom and justice. Over the following decades, International agreements outlawing genocide, recognizing the rights of minorities, and emphasizing humani­tarian concerns consistently advanced individual rights at the expense of state sovereignty.(51)

Collective security acquired new life after World War II with the creation of the UN, NATO, the Organization of American States (OAS), and other international and regional organizations. Although the Cold War provided the initial impetus for NATO, it survives as a viable, productive organization. With expanded membership and new missions, NATO today provides collective se­curity while extending democracy and prosperity to the nations of Eastern Europe, a development unimagined a generation ago.

The Rule of Law and Human Rights Center Stage

The rule of law in international affairs is manifest in many ways: by actions of the United Na­tions Security Council (UNSC) and other UN organizations;(52) by nongovernmental organizations’ (NGOs) advancing collective Western values and international humanitarian law; by treaties regu­lating strategic nuclear weapons, conventional weapons, and chemical/biological weapons;(53) by international agreement on global warming; by creation of an international criminal court (ICC);(54) and by the number of “coalitions of the willing” contributing forces to intervene in intrastate con­flicts.

A common misperception is that these developments emerged all at once in 1990 with the col­lapse of the Soviet Union and the end of the Cold War.(55) The incorporation of international law and human rights into international relations since 1945 stems from historical trends and events. It re­flects timeless values, classical and modern philosophy, and the common experiences of mankind over centuries. Although it is true that the bipolar system and threat of great power veto limited the ability of the UNSC to take effective action throughout the Cold War, the quest for interna­tional order based on rule of law consistently influenced political developments and discourse.

The struggle to end colonialism and promote self-determination of peoples following World War II is illustrative. The UN Charter, firmly rooted in sovereignty, contemplated the end of West­ern colonialism.(56) The United States advocated renunciation of overseas imperial holdings and supported self-determination.(57) During World War II, in fact, our stance on this issue periodically created rifts within the Anglo-French-U.S. partnership.(58) After the war, at the same time we were developing a Containment Policy against Communism, we were calling for an end to British and French rule in Africa and Asia. When newly independent colonial states lapsed into communism, as happened in Vietnam, we suddenly found ourselves with a new problem on our hands, one as much political as military in nature.(59) The search for order, justice, and democracy stumbled on the rock of great power politics. International law alone could not preserve the peace.

Cold War arms control agreements(60) reflected not so much American and Soviet optimism as they did global public opinion, uneasy over the prospect of annihilation at the hands of the two superpowers. With the advent of intercontinental ballistic missiles, mutual assured destruction be­came a fact. With satellite technology, the United States and the Union of Soviet Socialist Republics (USSR) acquired the capacity to place nuclear weapons in earth orbit.(61) Many states became fervent practitioners of international law for purely parochial reasons, but the success of the international community, particularly nonaligned states, in framing global debate demonstrated the force of western values and the rule of law. These trends emerged in the 1950s, and acquired prominence in the 1960s and 1970s. Neither the UN nor the international community could force the great powers to take specific actions against their interests, but this does not mean that the great powers, including the United States and the USSR, were free to do as they pleased. Pressures to comply with world opinion were subtle and often invisible, but real nonetheless.

Contributing to the force of international law was the proliferation of nongovernmental organi­zations, or NGOs, in the decades following World War II. NGOs pursued their own special inter­ests, but most had an underlying humanitarian agenda, advancing the cause of human rights and promoting “International Humanitarian Law."(62) The International Committee of the Red Cross is the oldest and best-known of the NGOs.(63) Human Rights Watch, Doctors without Border, CARE, and thousands of others effectively precipitated international intervention in what had been con­sidered previously the internal affairs of sovereign states.(64)

Two examples illustrate the power and influence NGO’s have acquired. The first is the UN intervention in Somalia in 1992, under American leadership, to ensure delivery of relief supplies and avert a humanitarian disaster forecast by NGOs and highlighted on television screens around the world. UN intervention alleviated the immediate problem, but failed to address the underly­ing problem of stability. When it did, too little and too late, it led to the battle of Mogadishu and eventual withdrawal of U.S. forces.

The second example of NGO influence is the Ottawa Treaty banning landmines.(65) The pre­amble to the Treaty states in part:

Stressing the role of public conscience in furthering the principles of humanity as evidenced by the call for a total ban of anti-personnel mines and recognizing the efforts to that end undertaken by the Inter­national Red Cross and Red Crescent Movement, the International Campaign to Ban landmines, and numerous other non-governmental organizations around the world, Basing themselves on the principle of international humanitarian law that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited . . .(66)

NGOs and international celebrities like Princess Diana of Britain actively participated in the Conference process, dismissing security concerns raised by the United States. Humanitarian con­cerns over civilians killed or maimed by abandoned land mines preoccupied the Conference and carried the day. While not a party to the treaty, the United States has conceded substantial compli­ance by policy.(67)

THE STATE OF THE STATE—SOVEREIGNTY IN THE NEW MILLENNIUM

Trends and Developments

Trends evident in 2003 reflect the foregoing discussion. In advanced states, post-industrial society has replaced basic industry and manufacturing, which has migrated to less-developed countries with lower labor costs. Globalization draws nations and peoples closer, despite recent economic setbacks. The World Trade Organization is a powerful international force that influ­ences decisions of the leading economic powers, including the United States.(68) International labor organizations demand basic standards and benefits for workers and workplaces. These trends undermine sovereignty and reflect a tightly structured international environment that constrains even the strongest states to behave in ways promoting international order.

Human rights influence international agendas and domestic actions. International humanitar­ian intervention, evident in Kosovo, East Timor, and possibly Iraq, is an emerging precedent that demands attention. It is not yet customary international law, but lively debate on the subject tends to redefine how we view sovereignty.(69) This represents, ironically, the triumph of values advanced by Woodrow Wilson at Versailles almost a century ago. The principles of the American and French revolutions have become universal, though not all states concede that individual rights supersede the welfare of the state, most notably China, the world’s most populous state.

Themes for the 21st Century

International law will play an important role in addressing issues and trends likely to persist for decades to come. The most important of these include: a globalized economy; urbanization; intrastate conflict; clash of cultures; unequal distribution of wealth; environmental degradation; transnational crime; collective security; multilateralism; and humanitarian intervention. Global problems require global solutions; sovereign states cannot solve them, although they can address symptoms within their borders. Most, eventually, will require international cooperation.

Implications for Strategic Leaders

International law challenges strategic leaders to think globally, not nationally. The positivist approach to international law expressed in the S.S. Lotus case: “Restrictions upon the indepen­dence of States cannot therefore be presumed,"(70) is threatened by a new paradigm: “a law more readily seen as the reflection of a collective juridical conscience and as a response to the social necessities of States organized as a community.”(71) UN Secretary General Kofi Annan articulated this new paradigm as follows:

State sovereignty, in its most basic sense, is being redefined—not least by the forces of globalization and international cooperation. States are now widely understood to be instruments at the service of their peoples, and not vice versa.(72)

The implications of this principle are staggering. Yet Kofi Annan is no revolutionary; his lan­guage is reminiscent of Thomas Jefferson’s in the Declaration of Independence: “That to secure these rights, Governments are instituted among Men, deriving their just power from the consent of the governed.” States exist to promote and protect individual rights and freedoms. The challenge for international leaders is what action the international community should take in those cases where states deliberately and systematically violate the human rights of their citizens.(73) 

None of this implies that sovereign states cannot guarantee, promote and advance human rights. To the contrary, the American experience teaches us that individual rights and rule of law are mutually supportive and thrive in a strongly nationalistic, democratic environment. Ironi­cally, the American experience also encourages internationalism in the promotion of democratic values. As President Bush has stated in his National Security Strategy: “We will defend the peace by fighting terrorists and tyrants. We will preserve the peace by building good relations among the great powers. We will extend the peace by encouraging free and open societies on every continent."(74) This sentiment resembles Woodrow Wilson’s and, indeed, those of most presidents since 1918. Kissinger portrays this as an essential element of American altruism motivating our actions abroad: “Wilson put forward the unprecedented doctrine that the security of America was insepa­rable from the security of all the rest of mankind. This implied that it was henceforth America’s duty to oppose aggression everywhere. . . ."(75)

The current world situation encourages debate over the scope and authority of international law. Recent American actions in Iraq, taken contrary to international public opinion, without the endorsement of the UNSC, and against the wishes of longstanding allies such as France, Germany, and Turkey, support Mersheimer’s proposition that great powers behave as their interests dic-tate.(76) Perhaps sovereignty is alive and well after all.

Unilateral action can, at least in certain cases, achieve the same results as multilateral efforts. Proponents of international order and rule of law argue that lasting order cannot be imposed uni­laterally. The Congress of Vienna in 1815, which created the “Concert of Europe,” was a collective, multilateral effort, albeit predicated on sovereignty. But it took enormous cooperation to maintain international order for 100 years. Even the British Empire at its height in the 19th century realized its limitations and attempted to construct a favorable balance of power. John Ikenberry, in After Victory, analyzes the rebuilding of international order after major wars. He says the diplomats of 1815 created a “constitutional order,” which are “political orders organized around agreed-upon legal and political institutions that operate to allocate rights and limit the exercise of power."(77)

Ikenberry’s concept of “constitutional order” helps to explain how the current international system evolved after World War II, and how it operates today. At its heart was the sharing of power by the United States, by far the most powerful state in the world in 1945. The framework was an extensive system of multilateral institutions, including alliances, which bound the United States and its primary partners in Europe together.(78) The Cold War may have accelerated this pro­cess, but it did not create it.(79)

If this theory is correct, then the primacy of international law and institutions is no accident, but instead the direct and expected result of efforts to create a framework of mutually supporting and binding ties. As we have seen, these international institutions have performed as designed. It should come as no surprise, viewing the international system in this way, that international orga­nizations and politics restrain the choices and actions of sovereign states. From this perspective, international order displays many of the characteristics of municipal order.(80) Ikenberry explains this: “if institutions—wielded by democracies—play a restraining role . . . it is possible to argue that international orders under particular circumstances can indeed exhibit constitutional charac-teristics."(81)

THE NEW WORLD ORDER AND AMERICAN HEGEMONY

Who Owns International Law?

What is America’s role as the sole superpower in the current environment? How will the inter­national system respond to the threat of global terrorism? Can it maintain the security and pros­perity created by American leadership since 1945? Can the rule of law accommodate the national interests of the great powers and protect the interests of weaker states threatened by demagogues, genocide, civil war and internal armed conflict? The remainder of this article will attempt to sug­gest answers to these questions.

Dynamic, disparate forces challenge the international order. Globalization promises prosper­ity and freedom, but failed states, disease, pollution, and rising birthrates hold large segments of the world’s population hostage. Furthering individual rights and enforcing collective security requires international cooperation, but depends at present upon the good will and determination of powerful sovereign states.

A brief look at two recent developments illustrates the nature of the challenge and provides insights as to possible courses of action. The first of these is the creation of the ICC; the second is the American-led war on terrorism.

The ICC is an idea whose time has come. It fulfills the hopes and aspirations of a majority of the world’s nations. Eighty years in the making, from Versailles in 1919 to the Rome Statute in 1997, it reflects a new consensus on international justice and the rule of law. Recognizing that sovereignty protected rulers and their agents from accountability for crimes ranging from aggressive war to democide,(82) the ICC provides a permanent forum for prosecution when state courts cannot or will not act. As of this writing 139 nations have signed the treaty, and 89 have ratified it. The Court commenced operations on July 1, 2002, and, according to its charter, enjoys almost universal juris-diction.(83) Its potential impact is enormous, even without U.S. participation.(84)

At the same time, the United States leads international efforts to locate, isolate, and destroy in­ternational terrorist groups with global reach. These groups threaten international order and pros­perity. They promote extremist views and promise false hopes to states and individuals left behind on the road of progress. While most states support and encourage American efforts to eradicate this plague, the international system is not well-suited for the struggle. There is no international agreement on terrorism, and none that even attempts to define the term. Several treaties address individual terrorist acts—hijacking, murder, money laundering, illegal crossing of borders, etc., but their solutions require state action—apprehension, extradition, and prosecution of individual terrorists.(85)

To date, therefore, the international response to terrorism depends upon American leadership, moral and physical. Coalitions are formed to fight terrorism, but they form and reform constantly depending on where American efforts are focused. In Afghanistan a multilateral effort enjoyed broad international support;(86) in Iraq, another theater in this global war, the coalition fell short of expectations, and the intervention remains controversial.(87) The search for order and the rule of law means different things to different states. America may lead, but others need not follow.

These events are closely related. They represent opposite poles of debate over how we are to pursue Ikenberry’s “constitutional order” on a global scale. While most states agree in theory with multilateral institutions, the utility of the UN, and the need for rule of law within and among states, international law must contend with the “friction” of sovereignty. (88) This uneasy relation­ship is likely to continue. Ironically, some states and prominent individuals have called for the ICC to investigate American intervention in Iraq as an “illegal” use of force in violation of treaty law and customary law.(89)

Unilateralism: What Price Sovereignty?

This situation is unhealthy for international order. The new world order described in preced­ing sections of this chapter is real, and it is here to stay. The ties that bind the international com­munity are strong and enduring, and international institutions enjoy unprecedented support and influence. Perhaps the most amazing point of all is that American values and leadership were instrumental in creating this environment. We are reminded once again that we have to be careful what we wish for.

American actions are well-intended, although many people sympathetic to American interests do not accept this proposition at face value. To the extent that American national interests must be served, we can continue to make unpopular decisions and execute American grand strategy with­out broad international support. But we cannot do so indefinitely. America may act unilaterally on a case-by-case basis, weighing costs and benefits. We need to be honest with ourselves when we do so, however. Others may perceive our actions as excessive and bullying.

The cost of military intervention can be high: proponents must establish a legal basis, a jus ad bellum, for action; they must apply force consistent with the laws of armed conflict and possible mandates of the UNSC; the fighting must be controlled both in time and in space; fallout and political reactions must be anticipated; and, lastly, those advocating intervention must expect the unexpected. Murphy’s Law applies to all human endeavors. Given the national interest in defeat­ing terrorism and preserving international order, some degree of risk is normal and expected.

The Road Ahead: Surviving in the New World Order

We do not operate in a vacuum. The international environment outlined in this chapter de­mands our attention, if not our cooperation. It provides several useful lessons to guide our conduct in the 21st century.

First, multilateral action is preferred in most cases. America lacks the political and military strength to go it alone in every instance. U.S. economic and military power provides the mobility and ability to go anywhere, but coalitions provide additional resources, political support, and le­gal justification and legitimacy for international operations. If international relations theorists are correct, states that pursue hegemonic order motivate other powers to combine to frustrate their efforts. Although such a backlash against American hegemony is not evident at present, no one can guarantee that further unilateral adventures will not produce one.

Second, the United States has tremendous capabilities at its disposal without employing the military element of power. Diplomatic, economic, and informational tools provide enormous flex­ibility in formulating strategy and handling complicated problems as they arise. Infrequent dem­onstration of American military power will suffice to remind opponents of military capabilities while diplomats pursue peaceful resolution of disputes by other means. This approach will also reassure friends, allies and critics alike of American intentions and demonstrates a willingness to exhaust all reasonable alternatives before applying force. It will preserve valuable goodwill.

Third, every crisis does not require international intervention or the use of military forces. Acknowledging the threat posed by global terrorist networks, most international crises are local and have little impact on terrorism or global security. Many of them, we need to remind ourselves, may be safely ignored and left to others to solve. Unless international stability is seriously threat­ened, mobilizing the international community and its resources might prove counterproductive. We have learned, since the heady days of 1991, of the great Gulf War Coalition forged by President Bush, that the new world order promised by the collapse of the Soviet Union and the end of the Cold War has not come to pass, at least not in the way we imagined it. But there is a new world order and states have to live in it.

The fourth and final lesson we can draw from this analysis of international law and sovereignty is that the international system as it exists (and as it was designed) reflects American values and American visions for the future. It is a legitimate part of our heritage. When we presume that all institutions oppose our interests because some do, or presume that all treaties are suspect because some are, we deny that heritage. More often than not, international institutions and agreements further American interests.

It is important to remember that democracies tolerate differences, and in fact thrive on them. If the core of “constitutional order” in the world is Western democracy, then we must expect that there will be disagreements and heated debate among states. We will not always agree on every­thing. But in a constitutional system everyone must play; the rules do not allow a state to simply take its ball and go home whenever it does not get its way. True, no referee will step in, blow a whistle, and impose a penalty, but true international order, just like domestic order, depends upon mutual respect and cooperation and responsible behavior. Those who claim global leadership within the system have the greatest responsibility to ensure the system works. It is time to reassess America’s role and reclaim our rightful position as the leader of the world community. Struggling against the ties that bind us, like a modern Gulliver, is counterproductive.

See the original for the full list of endnotes.