Today's date:
Fall 2002

The New Battle for Global Consensus

Philip Bobbitt is A.W. Walker chair at the University of Texas School of Law, and author of The Shield of Achilles. He spoke with NPQ in August.

NPQ | One argument in your book, The Shield of Achilles, is that a global constitutional consensus has emerged after the long war from 1914 to 1990, in which parliamentary democracy beat out not only the old world empires but also fascism and communism. That consensus is under threat, however, as a result of the unforeseen impact of the very technologies and strategies that won that war. What now?

Philip Bobbitt | I believe that a new competitor to the prevailing order of nation-states will emerge-the "market state"-meaning states whose legitimacy is derived from maximizing the opportunities of its citizens by increased reliance on the market. Within the market state system there will emerge competing forms: the entrepreneurial state typified by the United States which seeks leadership through the production and marketing of collective goods for the world's states (such as international security, healthy environments and stable markets), the managerial state typified by the European Union countries which seek power through their hegemony within a regional economic zone, and the mercantile state, typified by Japan and other Asian countries, which seek market share in order to gain relative dominance in international affairs.

The entrepreneurial model allows for the most plurality and diversity, with the strongest players-including the American superpower-setting the rules. The managerial model looks to international institutions like the EU or the UN to set the rules. The mercantile state tries to set the rules for how its own citizens will interact with the global system.

With respect to sovereignty, the entrepreneurial model is most transparent, the managerial less so, and the mercantile opaque.

These three forms will compete to determine what the new international order of a system of market states will look like. How they negotiate this new order in a world of terrorist, environmental and other challenges will forge a new consensus. That consensus can emerge either as result of successfully resolving a series of smaller conflicts like Bosnia or Rwanda or Afghanistan, or through a conflagration like the world wars of the past, or even through a novel, high-tech conflict between great powers.

NPQ | In this context, don't you think that the outcome of the diplomatic conflicts between the US and Europe over the International Criminal Court, the Kyoto Treaty and now the potential war with Iraq will determine the dominant new concept of sovereignty?

Bobbitt | In part. Market states are not going to agree on everything. And, at the moment, the ability of the US to impose order in a Hobbesian-like environment is a more important component of creating a peaceful environment than an ICC that would prosecute people like Saddam Hussein for war crimes (much as he may deserve it).

When the US withdraws from affairs as we did in the Middle East at the beginning of the Bush administration, we increase the chance of regional confrontations-like that occurring in the Middle East, or between India and Pakistan or in the Korean peninsula.

It is in this context that the potential prosecutions of American soldiers by a politically inspired indictment of the ICC can worsen the problem of world order. The temptation on America's part is to say "All right, fine, who needs this trouble? We have no interests over there. Let's just come home."

On the other hand, when we go it alone, when we take unilateral actions, we tempt a different kind of conflict-not a conflict within regions, but between regions. By taking unilateral action whether on steel tariffs or in hitting Iraq, we harden the walls around the EU-political and defense walls as well as tariff walls.

Few people contemplate the possibility of a complete breakdown in relations between Europe and the US, but this is not impossible.

Most of America's wars have been fought against great powers. The world's most destructive wars have been waged by the great powers. It is reckless to assume that the great powers will never again fall out with each other.

So you really have to steer between these two. You don't want to impose costs in the US that cause us to pull back. But the US doesn't want to act in a way that alienates our allies because in the long-run that serves no one's interest. We can't sustain a situation where US policymakers cede no legitimacy to other interests or jurisdiction, whether the UN or the EU.

We have to be wary of falling into this role as the rejectionist superpower. Any state as powerful as we are has got first to learn the lesson of modesty. We are a target of resentment for the whole world. Unless we can persuade people that our power is benign and we will take their concerns into consideration, we will never be able to exercise the influence we've earned by our past sacrifices.

It is just this combination of events that can lead great powers back into some kind of epochal conflict instead of a consensus among powers. We are not exactly on the wrong path, rather we seem to veer on the path and off the path.

NPQ | Let me take the issue of the ICC. Carlos Fuentes, the Latin American novelist, writes in Empire of Law vs. the United States that "Paradox of paradoxes: In an era of globalization when the death of national sovereignty is celebrated or lamented, the maximum world power affirms its own sovereignty to a degree without precedence at least since the era of the Roman Empire." He goes on to comment, by the way, that as with Kyoto, the US is engaging in unilateralist "treatycide."

What his wrong with his argument? After all, isn't the ICC a natural evolution of international law out of the consensus of the Paris Treaty?

Bobbitt | Not necessarily. And furthermore the refusal to enforce a treaty that has not been ratified is hardly "treatycide." I will just make a general historigraphical point that it is a very common, but erroneous, characterization of international law as having had a continuous life over the last 10 centuries by which the rule of law has gradually spread from Europe to encompass the entire globe.

Many international lawyers and professors think of it that way. But in fact, the development of international law has been characterized by a kind of punctuated equilibrium-periods of rule-based stability broken by periods of dramatic change, typically correlated with epochal, large-scale warfare.

What Fuentes is doing is identifying the legal regime we have had roughly since the Versailles Peace Conference with the "rule of law" and assuming that any break from it is a dramatic break from international law itself, indeed that it is a defiance of the rule of law. That is a mischaracterization which leads to all sorts of misunderstanding on both sides of the Atlantic.

The second point I would make is that the ICC is, yes, one variation of the codification of the Paris Treaty consensus. It is a globalized, sort of super-state because it does not have the oversight of the UN Security Council or any other body responsive to elected officials. It is not overseen by any particular set of states. It is its own institution. That puts it in contrast to the quite specific criminal courts that we have set up to try war crimes arising out of Rwanda and Yugoslavia and at some point in time, I suspect, Cambodia. That doesn't mean it is better or worse than other possible codifications. It just means it is not the only game, historically or legally.

Thus, it is hardly fair to think of America as a rogue state that rejects the use of war-crimes trials by non-American tribunals. That is not true. What is true is that we want some representative body to be at the apex as it is in our system and as it is to a greater degree in France or in Britain. We don't want a court that is just out there on its own, and its rules and its procedures are governed by its own singular interpretation of its mandate and not by some body representing states.

In effect, the ICC is a judicial branch attached to neither a legislative or executive branch.

This is a "managerial" idea. Fine. There seem to be a lot of people in Brussels who conceive of international relations as in need of a super-state that could rein in the US.

I really don't think this is the way forward. Remember the Americans are not the only ones who have rejected this treaty. The Chinese, the Russians and the Indians have refused to agree to this.

In this light, the ICC is a recapitulation of one unfortunate aspect of the Versailles Treaty experience-a regime in which elites decide for everybody else whether or not a consensus has in fact been achieved.

Finally, a practical point. The US fear is not only that innocent Americans whom we have dispatched around the world to keep peace, or personnel from other friendly states-the first country to be in the ICC dock would surely be Israel-would be tried and convicted by procedures to which they have not consented. There is even more reason to worry before any trial. Prosecution is a process of investigation, of indictment, arraignment, trial and conviction. A lot happens before you put somebody on trial. And it is that part that, I think, we are a little dubious about. If you want to find out what happened in a particular action, you have got to go to the intelligence reports, you have to go to the military reports and interview people that were involved.

If you are a state like most of the states that signed that treaty, that is probably not a problem. If you are a state maintaining a million men under arms, in all sorts of places in the world, doing principally peacekeeping functions, you have to ask yourself to what degree this imposes greater cost on our missions.

It is not because the US is afraid of a cover up, another My Lai, the Vietnam-era massacre by American troops. We don't want to cover up such atrocities. It is in our interest to have such behavior correctly and expeditiously prosecuted. It is because, instead, you find prosecutors rummaging around in your intelligence, diplomatic and military bureaucracies trying to see what kind of evidence they can dig up. I would offer Kenneth Starr, the Clinton special prosecutor, as exhibit A, because he too was outside the process of elected responsibility.

You may recall that the US Supreme Court once said, in a 9-0 decision, that having an Independent Counsel would not impose any additional cost, time or diversion of energies on the executive branch. And I think we all now say that that was a deplorable misreading of the practicalities.

If peacekeeping operations are subjected to this legal environment, one has to ask whether this really advances the cause of a safer international order, which is the point of a criminal court. Criminal courts are only one-half of a protective environment. They are post-facto. Peacekeepers are the other half. They try to prevent wars and war crimes at the outset.

To those states who have that responsibility, things look a little different.

NPQ | Will intervention in Iraq be another issue that threatens conflict between the managerial states and the entrepreneurial superpower? Or can that gap be bridged?

Bobbitt | I think it will be possible to build a coalition of states around intervention in Iraq. But to do so, we are going to have to make the case. Quite justifiably, European leaders ask, "Tell me how 19 lightly armed Arabs who crashed airliners in the World Trade Towers are related to the North Korea regime? Tell me why you would be afraid if Iraq had nuclear weapons when you deterred the Soviet Union for 40 years. If you deterred Russia, why can't you deter Iraq?" Now there are answers to these questions. I think they are good answers but thus far Europe has not been hearing them from the administration.

NPQ | The answer, isn't it, that, after being hit by terrorists, the US is not about to wait for North Korea, Iraq or Iran-hostile states all-to develop weapons of mass destruction that can fall into the hands of terrorists who will use them.

Instead of waiting until these weapons are operational, it is in the US national interest to preempt any such possibility. What the administration calls it is what Donald Rumsfeld calls that "forward deterrence." That is legitimate, isn't it?

Bobbitt | I think it is quite legitimate. Deterrence worked against the Soviet Union because we knew who they were and where they lived. If a missile was launched from a Soviet silo, we saw it instantly. We are entering a period where weapons of mass destruction can be used against us by groups against whom we cannot retaliate. We still don't know where Bin Laden is. If you can't retaliate against a target, you can't deter, and then you have got to move to something like preemption.

Our fear is not that Saddam Hussein is going to attack New York or even attack Tel Aviv. My worry can be encapsulated in a simple question: Is it more or less likely that non-state actors will get weapons of mass destruction if Saddam Hussein and North Korea have them? I don't think any sane person would say, "It is less likely." Then the issue becomes: How costly is it to stop that?

If we attempted preemption in the case of North Korea without bringing along Japan, it could be very costly indeed. You might alienate the Japanese and end up building a whole new nuclear power in North Asia-something the governor of Tokyo, Shintaro Isihara, actually openly suggests. If forward deterrence is done hamfistedly, the solution can prove worse than the initial problem.

How forward deterrence is done is more important to building the new consensus than any particular object of deterrence. But the same point must be made to our allies. They too have an interest in building consensus and preserving the Alliance. Suppose they resist preemption against Iraq and stop us from going forward. Suppose they were wrong. What if this opposition costs us an American city, or at the very least makes Iraq immune to conventional warfare like Desert Storm? What do they think would happen to the Alliance then?

We have a successful record of coalition-building in Bosnia and Kosovo, earlier, as well as in the early wake of September 11, we made a very promising start. Relations between the Russians and the Americans, for example, are better after September 11 than they have ever been in my lifetime. Yet, with Europe, they are becoming worse.

NPQ | Where do the mercantile states of Asia fit into all this?

Bobbitt | There is no higher priority in American foreign policy than to build a Northern Pacific security framework, including the US, Russia, Japan and South Korea and China. We must resist the regionalization of security and trade, not by abolishing regional groupings, but by insisting on open, multiple memberships. The same principles should apply to other Asian or even South Asian states.

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