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A fractured planet needs pragmatismMichael J. GlennonWednesday, April 23, 2003 Reprinted from International Herald Tribune |
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"The first requirement of a sound body of law," wrote Oliver Wendell Holmes, "is that it should correspond with the actual feelings and demands of the community, whether right or wrong." This insight will be anathema to continuing believers in natural law, the armchair philosophers who "know" what principles must control states, whether states accept those principles or not. But these idealists might remind themselves that the international legal system is voluntarist. For better or worse, its rules are based upon state consent. States are not bound to rules to which they do not agree. Like it or not, that is the Westphalian system, and that system is still very much with us. Pretending that the system is based upon abstract notions of morality will not make it so. "There is danger," Senator Henry Cabot Lodge said, "in an unshared idealism." Architects of an authentic new world order must therefore move beyond castles in the air, such as, for example, just war theory, and the notion of the sovereign equality of states. These and other stale dogmas rest upon archaic notions of universal truth, justice and morality. The planet today is fractured as seldom before by competing ideas of transcendent truth, by true believers on all continents who think, with Bernard Shaw's Caesar, "that the customs of his tribe and island are the laws of nature." Antiquated ideas about natural law and natural rights do little more than provide convenient labels for enculturated preferences, yet serve as rallying cries for belligerents everywhere. As the world moves into a new, transitional era, the old moralist vocabulary is best cleared away so that decision-makers can focus pragmatically on what's really at stake. The real issues in achieving international peace and security are clear-cut: What are our objectives? What means have we chosen to meet those objectives? Are those means working? If not, why not? Are better alternatives available? If so, what tradeoffs are required? Are we willing to make those tradeoffs? What are the costs and benefits of competing alternatives? What support would they command? Answering those questions does not require an overarching legalist metaphysic. There is no need for grand theory and no place for self-righteousness. The life of the law, Holmes said, is not logic but experience. Humanity need not achieve an ultimate consensus on good and evil. The task before it is empirical. Reaching consensus will be accelerated by dropping abstractions, moving beyond the rhetoric of "right" and "wrong," and focusing pragmatically upon the actual needs and preferences of real people who suffer. Policymakers may not yet be able to answer these questions. The forces that brought down the United Nations - the "deeper sources of instability," in the words of the Cold War historian George Kennan - will not go away. But at least policymakers can get the questions right. One particularly pernicious outgrowth of natural law is the idea that states are sovereign equals. As Kennan pointed out, the notion of sovereign equality is a myth; disparities among states "make a mockery" of the concept. Applied to states, the proposition that all are equal is belied by evidence everywhere that they are not - not in their power, or their wealth, or in their respect for international order or for human rights. Yet the principle of sovereign equality animates the entire structure of the United Nations - and disables it from effectively addressing emerging crises, such as access to weapons of mass destruction, that derive precisely from the presupposition of sovereign equality. Treating states as equals prevents treating individuals as equals. If Yugoslavia enjoyed a right to nonintervention equal to that of every other state, its citizens must be denied human rights equal to those of individuals in other states, because their human rights could be vindicated only by intervention. This year, the irrationality of treating states as equals was brought home as never before when it emerged that the will of the United Nations could be determined by Angola, Guinea or Cameroon - whose representatives sat side by side, and exercised an equal voice and vote, with those of Spain, Pakistan and Germany. (India, Indonesia and numerous other major states were not represented at all.) Hence another lesson of last winter: Institutions cannot be expected to correct distortions that are embedded in their own structures. The writer is professor of international law at the Fletcher School of Law and Diplomacy, Tufts University. This comment is excerpted from an article in the May/June issue of Foreign Affairs magazine. |
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2002 The Fletcher School, Tufts
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