Monday, March 06, 2006

The range of idealist positions in international law, and a footnote on how HRW may foreshadow shifts in liberal internationalisma and human rights

Traditionally, when people have talked about idealism in international law, they mean liberal internationalism or, if you prefer, global constitutionalism or global federalism. But in fact we could conceptualize a range of idealist positions in international law - a continuum based around the question of the role of sovereignty in international law. What would the range of positions look like?[1]

1. Sovereignty as its own value, sovereignty for its own sake. The most extreme position toward the sovereignty end of the range is the assertion of sovereignty as its own value. It might seem, especially to some realists and some liberal internationalists, peculiar to claim that sovereignty is actually a value, an ideal position, rather than simply the assertion of power. It can be understood as an actual value, however, by understanding it as the underpinning for any autonomous political community – understood as an ideal, it ascribes a certain value simply to the fact that a political community orders itself without outside interference. In this sense, it is an assertion of value for a democratic sovereign such as the United States, but with respect to the narrow value of sovereignty, just as much an assertion of value for the autocratic, repressive, theocratic, brutal monarchy that is Saudi Arabia. It is, in other words, sovereignty understood as the value of self-determination, even for societies that are cruel, unjust, and autocratic – we do acknowledge that, within some limit gradually evolving as to genocide and massive internal human rights abuses, even wicked societies have a right to self-determination.[2] How much to ascribe to the value of bare sovereignty, sovereignty which is grounded in no virtue or value other than the bare claim of self-determination? Only as much one would ascribe to Saudi Arabia, Zimbabwe, Sudan, and the rest of the world’s worst dictators. It is worth noting that China’s foreign policy and view of international law, to the extent that it has any root at all in ideals and is not simply relentlessly self-interest, is fundamentally simply the assertion of the right and value of sovereignty, for its own sake.

2. Democratic sovereignty. The resurgence of sovereignty as a position among some academics in international law, as well as in the rhetoric of the Bush administration, is not really about the assertion of bare self-determination, sovereignty for its own sake. On the contrary, the ‘new sovereignty’ positions put forward by such writers as Jeremy Rabkin, Julian Ku, Jack Goldsmith, John Yoo, Curtis Bradley, and Jed Rubenfeld, among others – the resurgence of a position that liberal internationalists thought was buried permanently as an assertion of idealism, rather than merely a realist reminder of the inconvenient facts of power – are all fundamentally dependent upon the assertion of some value other than sovereignty. That value is, without exception, democracy, the popular sovereignty of a self-governing people. Sovereignty is essentially the vessel of power that protects within it another value, that of democracy. Self-determination is, on this account, a residual category, essentially subsumed within the value of democracy itself. It is for precisely this reason, of course, that this view of sovereignty is available to the world’s constitutional democratic sovereigns in a way that it is not to the world’s autonomous dictatorships, who at most can reach to the ‘bare’ value of sovereignty. But the fact of democratic self-rule, if it is robust, is that fidelity to ‘internal’ democratic mechanisms makes it difficult to accommodate to ‘external’ mechanisms of global governance, such as those urged by liberal internationalism and global constitutionalism. At bottom, the condition stated by Abraham Lincoln for constitutional sovereign democracy, a “political community, without a political superior,” will in practice, if not absolutely in theory, bar absorption into a larger global federal society. That is even more true if the theory upon which global governance asserts its legitimacy is not popular sovereignty from the bottom-up, the actual votes of people from the bottom up, but instead universal values (as liberal internationalism does with universal human rights) from the top down.

3. Sovereign state multilateralism. Just because states (re)assert the conditions of democratic sovereignty does not deprive them of the ability to work together closely, in active and deep ways. The choice in order to have an international political order is not liberal internationalism or nothing. On the contrary, one needs to go beyond the robust multilateralism available to freely cooperating sovereigns and, particularly, democratic sovereigns only if the aim is to go beyond a merely “international political” order of sovereign states to a genuinely global or transnational society – to transcend the merely political and international in favor of a social and transnational order. If the covert agenda is not this transformation of the international from a political order to a “society,” then strong multilateralism is what a functioning international order would look like as an ideal of sovereign cooperation.

4. Multilateral pooled sovereignty, looking toward global federalism. Multilateralism can be remade as an ideal by introducing to it an aspirational condition – multilateralism today, but looking forward to a future day when multilateralism is replaced by genuinely global institutions that transcend mere states. That aspirational condition is expressed in the present not merely by pious invocations of liberal internationalism, but instead by attempts to ‘pool’ sovereignty in ways that, in practical terms if not absolute legal ones, make backing out difficult for a sovereign state.

5. Global governance through NGOs partnered with public international organizations. As NGOs asserted themselves throughout the 1990s with respect to both sovereign states and international organizations, a new ideal of global governance arose which idealized governance by a partnership of international organizations that would receive legitimacy for their expanded rule from international NGOs – recharacterized for the purpose of legitimation as “global civil society.” The function of NGOs in this ideal is thought to be to supplying the missing democratic predicate that the international political order so conspicuously lacks. Global civil society would “represent” the peoples of the world to international organizations – the UN in particular – and thus provide a ground of legitimacy that aims to bypass sovereign states as the (limiting) source of international organization legitimacy, on the one hand, and overcome the charge of a ‘democracy deficit’, on the other. These theories of global governance and legitimacy are still with us today, but they probably reached their apogee with the Millennium summit of 2000, when Kofi Annan essentially blessed global civil society as a stand-in for the peoples of the world. Since that moment, however, a host of critics have – quite successfully – challenged the bona fides of international NGOs to call themselves representatives of anything other than themselves or to overcome the democracy deficit of international institutions. It continues, however, to be a powerful element defining the dynamic of interaction between the UN and international NGOs – each grants the other the legitimacy it lacks. Moreover, it is a crucial element in the attempt by liberal internationalism to convert an international political order into a global social order, in order to attain the legitimacy that comes with being a society and not merely a politics.[3] The ideal no longer strives quite so hard to suggest that NGOs should actually have a role in governance – while still asserting quite strongly that NGOs play a crucial role in the legitimation of presumed global governance institutions such as the UN. Since it is legitimacy that transforms power into authority and presses forward an upward spiral of power reinforcing authority reinforcing legitimacy, the terms of this essentially ideological debate are highly important and, hence, highly contested.

6. Global governance by global government networks. The difficulties for legitimizing global governance because of the difficulties of the democratic legitimacy of the combination of NGOs and international organizations have not gone unnoticed. Accordingly, within the past few years, another proposal for global governance has emerged, championed by Anne-Marie Slaughter in her quite remarkable book, A New World Order.[4] Her alternative proposal acknowledges from the outset that the problem of democratic legitimacy for NGOs and international organizations is real and cannot be overcome by forms of words that simply attempt to redefine the meaning of democracy to make it conveniently fit a liberal internationalist model.[5] In place of international organizations or NGOs or both, Slaughter proposes networks of national government actors – bureaucrats and judges, principally, using their national authority in networks towards common goals. What makes this more than simply robust multilateralism is her vision that over time, these actors become socialized toward a “horizontal” global orientation, alongside their homologues in other places around the world, along with their “vertical” loyalties within their own societies. It attempts to solve the democratic deficit by using actors who indeed have democratic legitimacy within actual nation states, while still finding a global basis for action by actors who see themselves as having obligations both nationally and globally. My own view is that this careful balancing act must eventually collapse into liberal internationalism – that is, into a set of loyalties that are finally international and global rather than national – but the attempt to solve the dilemma straight on, without definitional fiat, and without denying both that democracy cannot exist on a planetary level and that global government as such would be, for that reason alone, undesirable, is the most intelligent move forward in the global governance debate in at least a decade.

7. Liberal internationalism. Liberal internationalism is characterized by the unapologetic, naked claim that the point is finally not multilateralism exercised however robustly by sovereign states, but the irrevocable ceding of that sovereignty to a higher authority than the nation state or any political community other than the planet as a whole. This condition, as I note further on, requires a further condition, viz., the acceptance of a cosmopolitanism on the part of at least the governing elites of this global order – one that requires that they put their allegiance first to a global order over any merely national or local order and, in keeping with the move from a politics to a society, that they think of themselves as social actors within a global society, which is to say, as cosmopolitans who share a society, values, allegiances, and social relations with others of that global society. These are, of course, very strong conditions, and liberal internationalism acknowledges it as an aspirational ideal. But the fact that it is the central aspiration sets the terms for what multilateralism is supposed to be and supposed to accomplish. It is not, on this conception, enough for multilateralism to succeed at whatever its narrow task might be; it must also and, in some sense, more importantly serve to chip away at the conditions of sovereignty that underlie pure multilateralism. And finally, liberal internationalism is characterized by (and goes beyond aspirational multilateralism because it asserts) a system of values – universal human rights – which, in its view, actually trump even claims of democracy and the natural expression of democracy within a constituted national political community, popular sovereignty. Liberal internationalism looks to the ideology of human rights as a means of overcoming the claims of democracy and popular sovereignty of self-governing political community – it asserts that the universal – understood, in a certain sleight of hand, to be identical with international – values of human rights take precedence even over local democracy. Since ‘universal’ is assumed to be identical with ‘international’, international values must inevitably be accepted over local ones. Liberal internationalists are quite correct in seeing it as global constitutionalism and global federalism. Liberal internationalism is ‘liberal’ insofar as its human rights universals have a ‘liberal’ content (although increasingly, in the emerging conflicts with Islam-as-ideology, human rights are taking on not a liberal content, but a multicultural one that, in effect, blames ‘dominant’ Western culture for any lapses in respect for human rights by Muslims).[6]

8. Parliamentary world government. Parliamentary world government is frequently ridiculed as an ideal in global governance, not only by sovereigntists hostile to the whole idea of global governance, but frequently by liberal internationalists eager to show that there is something still further “out there” that is not liberal internationalism and presumably makes it seem less radical. The ridicule is misplaced, however, for a very important reason. The call for parliamentary world democracy – a new chamber in the UN, for example, is sometimes suggested, one that might consist of parliamentarians elected from countries in the manner of the European Parliament – has the profound virtue of acknowledging, without evasion or cant, that democracy matters. It acknowledges that no form of global governance can legitimately exist, at least with strong authority, without democratic structures in their ordinary sense – raising hands and voting. It attempts no definitional end-runs around the meaning of democracy and for that it should be admired and respected. You may believe, as I do, that parliamentary democracy cannot exist meaningfully at the level of the whole planet – democracy does not “scale up” forever, and what we call the world’s largest democracies, such as the United States or India, are only partially democratic precisely because of their size. But the forthrightness of the parliamentary world government ideal must be celebrated, not scorned.

It bears noting that this continuum is one of idealisms. It is not about a continuum from idealism to realism. Instead, it aims to show that the old realist-idealist divide is less important today than the debates among those who are all idealists. Once upon a time, idealism simply meant liberal internationalism, tempered by the brute facts of realism, of real power. Today, the debates are among different views of idealism.

(This is drawn from a section of a review of Jack Goldsmith and Eric Posner's The Limits of International Law, appearing shortly in the University of Georgia Journal of International and Comparative Law. I will post it to SSRN once it is done. Take a look at footnote 6, below, on the question of whether "liberal internationalism" will remain liberal, or instead morph into something more like "multicultural internationalism." That's where I discuss Human Rights Watch and its slide from liberal human rights into multiculturalism. I will expand that footnote into a longer article or else wrap it into the book I am completing on global governance and NGOs and the UN.)

[1] I am drawing much of this discussion in an abbreviated fashion from Kenneth Anderson, “Squaring the Circle,” 118 Harvard Law Review 1255, at 1260-1266 (February 2005).

[2] This is essentially Walzer’s argument in Michael Walzer, Just and Unjust Wars. The account of self-determination was possibly overly influenced by the experience of the Vietnam War; Walzer’s more recent writings, in Dissent and elsewhere, suggest that he has come to accept more external restrictions on “bare” sovereignty than he did in the 1970s.

[3] The point here is essentially a Weberian one. In Weber’s conception, institutions can have legitimacy, but institutional legitimacy is less a matter of politics than being institutions of a larger and broader legitimate social order - sharing as institutions in the legitimacy that really matters for Weber, the legitimacy that attaches to a larger legitimate social order. The task for liberal internationalism or global constitutionalism, however one styles it, then, is not essentially political. It is, far more importantly, social – the transformation of what is now essentially a political order into a social order. That is, at bottom, what is meant when senior UN officials, for example, talk wistfully – as Mark Malloch Brown does on occasion – of modernizing the UN to make it less a creature of member states. At one level, the issue is member states and their demands. At a deeper level, the desire is to move beyond the political order implied by ‘states’ to a society that is populated by states, yes, but also by individual actors such as diplomats and international bureaucrats, and above all, by NGOs that can serve as a kind of proxy for the “peoples of the world” necessary to claim that the international order is not merely a politics but a society – to claim the legitimacy that, for Weber, obtains for a social order. For those seeking an easier point of entry into this literature than launching directly into Max Weber, Economy and Society: An Outline of Interpretive Sociology, Guenther Roth and Claus Wittich, eds. (University of California 1978), 2 vols., and the famous discussion of the condition of a legitimate social order in volume 1, I recommend Wolfgang J. Mommsen, The Political and Social Theory of Max Weber (University of Chicago 1989), chapter 3, “Max Weber’s Theory of Legitimacy Today,” at 44.

[4] Anne-Marie Slaughter, A New World Order (Princeton UP 1994); see my review at Kenneth Anderson, “Squaring the Circle,” 118 Harvard Law Review 1255 (February 2005); see also Peter Berkowitz, “Laws of Nations,” Policy Review, April-May 2005, reviewing the Slaughter book along with The Limits of International Law and Jeremy Rabkin, Law Without Nations? Why Constitutional Government Requires Sovereign States (Princeton UP 2005).

[5] The theorist most prone to “solving” the democracy problem by mere definitional fiat is surely David Held. See, among many similar works, David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford UP 1995).

[6] See, e.g., the remarkable briefing statement by Human Rights Watch regarding the publication of the Mohammed cartoons in Denmark. For an organization devoted presumably to human rights with a ‘liberal’ content, it has shown itself strikingly less and less comfortable with the most ‘liberal’ value of all – at least Voltaire would have thought so – free expression. The storm over the cartoons broke open in violence and rioting in January 2006; Human Rights Watch, so impressively quick to comment on nearly everything else, did not manage to express any view at all for weeks, finally posting a briefing statement in the form of questions and answers on February 15, 2006. One wonders, frankly, what internal debates went on that required weeks for an organization ordinarily so swift to put statements in the hands of the press finally to issue a statement on a matter that a liberal, as distinguished from a multiculturalist, would have thought quite easy. See “Questions and Answers on the Danish Cartoons and Freedom of Expression: When Speech Offends,” at The background statement manages – with significant multiculturalist hedging – finally to reach a conclusion that the publication of the cartoons could not be banned.

In reaching that final conclusion, however, HRW begins by essentially casting blame, in an exercise of multiculturalist responsibility-shifting, off of rioting and violent mobs and onto discriminatory European states: “The cartoon controversy should be understood,” says HRW, “against a backdrop of rising Western prejudice and suspicion directed against Muslims, and an associated sense of persecution among Muslims in many parts of the world. In Europe, rapidly growing Muslim communities have become the continent’s largest religious minority but also among its most economically disadvantaged communities and the target of discriminatory and anti-immigration measures.”

Is that really how it should be understood – against a backdrop of rising Western prejudice and suspicion of Muslims? Is that really how a liberal, not a multiculturalist, would understand it? Surely a real liberal would write, instead, as Christopher Hitchens does:

“The incredible thing about the ongoing Kristallnacht against Denmark (and in some places, against the embassies and citizens of any Scandinavian or even European Union nation) is that it has resulted in, not opprobrium for the religion that perpetrates and excuses it, but increased respectability! A small democratic country with an open society, a system of confessional pluralism, and a free press has been subjected to a fantastic, incredible, organized campaign of lies and hatred and violence, extending to one of the gravest imaginable breaches of international law and civility: the violation of diplomatic immunity. And nobody in authority can be found to state the obvious and the necessary—that we stand with the Danes against this defamation and blackmail and sabotage. Instead, all compassion and concern is apparently to be expended upon those who lit the powder trail, and who yell and scream for joy as the embassies of democracies are put to the torch in the capital cities of miserable, fly-blown dictatorships. Let's be sure we haven't hurt the vandals' feelings. You wish to say that it was instead a small newspaper in Copenhagen that lit the trail? What abject masochism and nonsense. It was the arrogant Danish mullahs who patiently hawked those cartoons around the world (yes, don't worry, they are allowed to exhibit them as much as they like) until they finally provoked a vicious response against the economy and society of their host country.” Christopher Hitchens, “Stand Up for Denmark: Why Are We Not Defending Our Ally?” Slate, February 21, 2006, at

At some point, the break between a certain form of liberalism, as found in supposedly universal human rights values, and a form of liberalism rewritten by multiculturalism, seems inevitable. At that point, too, however, the evidence provided by HRW suggests that the “international community” is likely to incline toward multicultural, rather than liberal, content for the supposedly universal values of human rights, as these international elites attempt to ride the tiger of managing civilizational discord through assertions of universality whose terms they purport to control. But one of the many disasters of multiculturalism is that, as an essentially managerial discourse from above, it seeks to placate various threatening constituencies by excusing their extra-legitimate exercises of power, often through violence or threats of violence – but then it turns out not to be able to ‘manage’ them anyway, losing both the struggle over universals and substantive liberal values all at the same time.

If this be thought far afield from the definition of liberal internationalism, it is not. On the contrary, it points out what might, over time, turn out to be one of defining characteristics of liberal internationalism – that it turns out not to be ‘liberal’ internationalism but, instead, ‘multicultural’ internationalism. It might turn out that the values that underpin liberal internationalism – the content of its assertedly trumping human rights discourse – turn out not to be liberal in content after all, but gradually shift away from liberal values, Enlightenment values, to something quite different. All the more reason, therefore, to be skeptical of international human rights, as determined by international bodies and the managerial, top down culture of the “international community,” as being identical with “universal” values. Global constitutionalism, that is, might turn out to be not about a liberal constitution at all.

The consequence of all this? Well, it might turn out that the most vehement supporters of democratic sovereignty in the future turn out to be not Americans, but Western Europeans seeking to defend a liberal secular order not merely from religious attack by religionists who have no use for modernity except as a vehicle to technology, but additionally from religious attack buttressed by a form of international human rights that has moved from liberalism to multiculturalism. It might well be those Europeans, not Americans, most eager to find an ideological ground on which to defend the social space of a substantive liberalism.

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