By K. J. Holsti
The summer of 2002 in North America was one of unusual political torpor. In Canada, the daily headlines reported on an uncivil war within the Opposition party. In the United States, the media had little to report other than a peccadillo involving a Congressman of little note. The presidency was slipping into a mediocrity that even the most ardent critics of George W. Bush could not have predicted at the time of the inauguration.
The attacks of September 11 changed all of this. Symbolic of the humid dog days of summer, the American president on that day was reading a book to a school class, yet another photo opportunity to show his devotion to “compassionate conservatism.” Several days later, the president delivered a speech to the joint houses of Congress, inspiring Americans and many others around the world to mobilize in a war against terrorism. The most common comment in speeches at the highest level and among ordinary folks was that the “world will never be the same,” “everything is now changed,” “we live in a new world,” and “forget everything that has happened before; we are now in a new era.”
Important historical events are often characterized as watersheds, turning points, and markers of a new era. We have seen the phenomenon frequently in the past century. The delegates at the Paris Peace Conference in 1919 mouthed sentiments strikingly similar to those of September 11. The end of World War II led to pronouncements about fundamental change: peace had replaced war; the “nuclear revolution” would render war obsolete, and the United Nations would provide assurances against any repetition of the serial aggressions of the 1930s. The end of the Cold War, finally, brought forth all kinds of prognostications of a “new era.” Optimists and triumphalists proclaimed the “end of history” while pessimists, looking around at the spate of wars within states and the brutal dissolution of Yugoslavia, announced in contrast a “clash of civilizations,” the “new world disorder,” the “tale of two worlds,” and “the coming anarchy.”
The events of September 11 are the most recent manifestation of a common tendency to proclaim important events as the triggers of something entirely new—not just a change, but a new order of things. We might call this a “Big Bang” concept of change. Following the events, everything is supposed to be new: a new beginning, a new order, a new world, and the dawn of a new era and similar hyperbole. It is striking how many political scientists and experts in international affairs jump on to the “Big Bang” conception of change.
There is another common type of change, indicated by trends. The most recent buzzword highlighting a trend-based version of change is globalization. It is not a single event, but a lengthy process involving all sorts of transactions, technological innovations, the compression of space and time, increased interdependence, and the like.
Another concept of change refers to the structures of the international system. These can be either the fundamental principles upon which interactions are based (e.g., anarchy, empire, suzerainty, and the like) or change in the power relations between the main actors. In the first case, change is slow and infrequent and thus does not command much attention in the field. The second version is more common and has led to numerous hypotheses about the consequences of great power rise and decline and of balances and imbalances.
These conceptions of change present numerous problems. In the case of “Big Bang” concepts, great historical events may change matters, particularly the essential characteristics of international politics, only for a short time. Or if they are truly significant they do not represent a vital break from past patterns so much as a launch of processes whose consequences play out only over a long period of time. The “new” world of international politics in 1919 looked much more like 1914 by the time of the Munich crisis. George Bush père’s proclamation of a “New World Order” was soon overtaken by events such as the Gulf War. The nuclear revolution added a new dimension to strategic thought in the form of deterrence doctrines, but it did not eliminate classical wars between states, as the Korean conflict demonstrated only 6 years later. By 1950, the revolution in military affairs was not really a break with the past, but the addition of a new dimension to traditional conceptions of warfare. It added deterrence as a major function of military force. George Bush père’s proclamation of a “New World Order” was soon overtaken by events such as the Gulf War.
In the case of trends, the big problem is identifying consequences. We have a lengthy list of clichés about the consequences of technological innovations in transportation and communications: “spaceship earth,” the “borderless world,” “the global village,” and the like. They all proclaim–prematurely in most cases–that technological changes have altered fundamental practices of the past. One of the difficulties here is that these claims never confront Marx’ dilemma: when do quantitative changes bring about qualitative consequences? It is one thing to present statistics about trends. It is quite another to proclaim that at some point (when?) these changes create a new quality. What are the benchmarks against which we measure trends? These are rarely specified. Some claim that globalization began five millennia ago and others argue with equal conviction that it is a post-Cold War phenomenon. Let me offer one example of the benchmark problem, not because I have any great quarrel with Susan Strange’s insights, but because her book The Retreat of the State (1996) so clearly illustrates the issue.
Her essay argues that authority, defined as the power of the state, is dissipating to non-state actors such as international criminal groups, international organizations, and multinational corporations. This is a zero-sum situation. As the latter non-state actors grow in influence and clout, they do so at the expense of the state.
But what is the benchmark for making such assertions? Is the state today, which typically accounts in its expenditures and productive activities for about 40 percent of Gross Domestic Product of a country, “weaker” than it was in 1910, when the figure was about 10 percent? If the state has weakened so much, why do the vast majority of the world’s peoples habitually turn to the state to solve their problems, including personal ones? Strange did not specify any benchmarks to validate her claims of the dissipation of state strength. That states cannot very effectively control trafficking in drugs says more about setting the bar at unrealistic levels than about state strength. When the United States and the Scandinavian countries attempted to enforce prohibition, they faced even a more daunting problem than drugs since a higher proportion of their national populations drank whisky, beer, wine, brandy, and schnapps than consume heroin today. Prohibition was a massive failure; it led to smuggling, home brew, and backyard stills, not to abstention. Naturally the state will appear weak when it undertakes to regulate every facet of private life. So, trend analysis suffers from two significant problems: (1) lack of benchmarks and (2) failure to identify consequences–and how they matter–from the various trends. Studies of globalization are particularly deficient in these two senses.
Concepts of structural change are important and have enriched the historical dimension of international relations studies. The change from the mediaeval heteronomous to modern anarchical structure has spawned a particularly rich literature. But these systems changes are relatively infrequent and thus do not capture a good deal of other types of change. As for changing power relations, they also form an important part of the field, at least from the realist perspective, but the consequences of this type of change are hotly contested, frequently contradictory, and open to the charge that we no longer know what are the foundations of national power.
International Institutions as Markers of Change
My project employs the concept of international institution as a significant marker of change. While we cannot ignore the other concepts, the problems associated with them hinder systematic and comparative studies. I have chosen to identify significant change in international politics as change in institutions. If the institutions of international politics do not change significantly as a result of some “Big Bang,” sociological or technological trend, or shift in power relations, then I would argue that the texture of diplomatic and other forms of interaction remain essentially the same. You will note the qualifiers of “significant” and “essentially.” To establish them, we would have to employ certain criteria. But before moving into that domain, we need to specify the concept of international institution.
Institutions are fundamental to a characterization of the essential features of international politics in a year, decade, or even century. I follow Hedley Bull’s (1977: 13, 57, 71) use of the term institution which, while not exact, implies the critical importance of ideas, practices, and norms:
A society of states (or international society) exists when a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions…. In international society…the sense of common interests…does not in itself provide precise guidance as to what behaviour is consistent with these goals; to do this is the function of rules. These rules may have the status of international law, of moral rules, of custom or established practice, or they may be merely operational rules or ‘rules of the game,’ worked out without formal agreement or even without verbal communication. It is not uncommon for a rule to emerge first as an operational rule, then to become established practice, then to attain the status of a moral principle and finally to become incorporated in a legal convention… States communicate the rules through their official words…But they also communicate the rules through their actions, when they behave in such a way as to indicate that they accept or do not accept that a particular rule is valid.
I do not adopt the teleological aspects of this definition, because institutional growth, development, and decline are not always accounted for by common purposes.
Institutions have three essential elements: practices, ideas, and norms/rules. They are intertwined in complex ways, so that it is not possible in all instances to see their causal connections. In some international institutions, ideas play a driving role; in others, patterned practices evolve slowly to the point where they give rise to concepts such as sovereignty, the state, or diplomacy. In other cases, rules or norms come first. These then have the effect of standardizing practices. Finally, in some areas such as trade, ideas tend to change practices and rules.
Diplomacy illustrates the connections between the components and how, together, they form an institution. Although there were a few permanent embassies with resident ambassadors, particularly among the Italian city-states, in the rest of sixteenth century Europe the practices of diplomacy were highly varied. Some governments sent groups of individuals as an “embassy” that would go from court to court in a particular region of Europe. Others sent large delegations to one court, but only for a specific mission. There was no profession yet of the “diplomat.” Envoys were usually members of the nobility looking for useful things to do, but since most diplomats had to pay their own expenses, it was not always easy to recruit legates. In fact, many of the envoys sent abroad by the courts knew nothing of foreign societies and were renown, if at all, for pursuits unrelated to diplomacy. Among the list of illustrious figures who took on diplomatic roles during their lifetimes were Peter Paul Rubens, Hugo Grotius, Voltaire, Beaumarchais, and Jean Jacques Rousseau. There were rudimentary rules concerning immunities, but they were commonly contested and frequently violated. A whole host of other issues relating to etiquette—a particular form of rules—remained unresolved: rank, precedence, ceremonies, and the like.
Now move fast forward to the mid-nineteenth century. Diplomatic practices, at least within Europe, had become standardized and patterned. Embassies were permanent establishments, enjoying immunities, staffed by a resident ambassador and his or her secretaries. The idea of diplomacy was firmly entrenched in the vocabulary and discourses surrounding foreign policy and international politics. It included a large lexicon of commonly understood terms such as precedence, courtesy, despatches, conferences, congresses, and the like. There was a large literature on the essential qualities of a “good” diplomat and on negotiating techniques. Diplomacy was now a profession characterized by its own recruitment rules, training protocols, pay, pensions, language instruction, and promotion criteria. The rules surrounding the institution were well articulated and understood by all. They included the requirement of agrément prior to a posting, articulation of the circumstances when a diplomat could be declared persona non grata, the roles and obligations of the doyen in a particular capital, the ordering of precedence, diplomatic ranks, the rules of diplomatic immunities, and numerous elements of etiquette that allowed communication and negotiation to proceed smoothly. We cannot say definitely at what point diplomacy became institutionalized. It did not happen overnight, but many requirements of instutionalization had been met by the mid-eighteenth century. These include (1) patterned and regularized activities; (2) rules, norms, and etiquette surrounding them; (3) a discourse or set of ideas defining tasks, functions, qualities, and the like, and (4) in some cases, a “profession” of experts who undertake the tasks and functions and who articulate the norms, ideas, customs, and etiquette.
Types of Change
If we employ institutions rather than historic events, trends, or structures as markers of change, then there are at least five theoretical possibilities. Institutions can arise. They are new. Diplomacy was a new institution in Europe by the late eighteenth century, approximately.
Second, institutions can change in terms of complexity. The essential practices, ideas, norms, rules and etiquette remain, but activities and agents expand in numbers and tasks, rules become more elaborate, new formats (such as multilateral conferences in the case of diplomacy) emerge, and the scope of activity may expand. But the essential functions remain unchanged. A mechanical analogy of growing complexity is the automobile. The automobile is constituted of several essential elements: four wheels, a frame and chassis, the source of power, gearing device, a steering mechanism, and brakes. A driver of a 2002 model car can easily drive a 1930 Model “A” Ford. But the contemporary typical automobile is a much more complex machine, decked out as it is in computers, audio systems, navigation devices, and a whole host of electronic gadgetry that defies fixing by the amateur. Advertisers may suggest that the latest model is “a new world of driving pleasure,” but in fact the driver today is doing mostly what his or her predecessor did seventy years ago. In the case of diplomacy, the institution has grown much more complex, but its essential functions, norms, rules, and ideas have not altered to the point of non-recognition.
Third, institutions can transform. This implies that they retain some of their essential characteristics, but their main functions, activities, and rules may change. A good example is monarchy. Today it retains many of its earlier trappings and a few of its antecedent tasks and norms, but its main functions have changed. It is no longer the active agent of rule, but is a symbol of sovereignty, state continuity, and cultural tradition. The tasks of the monarch are many and varied, but they are symbolic rather than legislative (the comments do not apply to some monarchies today, where old patterns prevail).
Fourth, change can take the form of reversion. This is the case where new practices, norms, rules, and ideas revert back to more “primitive” forms. This would include a process of de-institutionalization. In colloquial language, this is backsliding.
Finally, change can take the form of obsolescence. An international institution may be in the process of disappearing, or has already become obsolete. Colonialism in its institutional form has become obsolete.
There may be other forms of institutional change, or at least other ways to conceptualize it. Adaptation is one possibility, although I believe complexity should adequately cover it. Dialectical change is another, where a synthesis emerges out of the clash of incompatible or opposite tendencies. There are no doubt subtle differences between dialectical change and my notion of transformation, but for the purposes of this paper we need not delve into them. Replacement may be a subcategory of transformation. Most of the old disappears, but tasks, roles, and functions remain albeit under new norms, regulations, and ideas.
The five possibilities outlined above—new institutions, change as complexity, institutional transformation, reversion, and obsolescence–do not take place simultaneously or in one direction. Each institution has its own historical profile. While some like diplomacy were emerging into full institutional status in the eighteenth century, trade remained essentially a Hobbesian states of nature, where activities were unpatterned, intermittent, often punctuated by war and private violence, and largely devoid of effective norms and rules. International trade was becoming fully institutionalized only after World War II, at almost exactly the same time that colonialism was becoming obsolete.
We can distinguish foundational institutions of the states system from procedural institutions such as diplomacy. Foundational institutions have allowed analysts of virtually all persuasions—from realists to liberal institutionalists and constructivists—to claim or assume that there is an international states system (or society of states, to use Bull’s term) that is markedly distinguishable from empires, migrant clans and lineages, the complex mediaeval system of overlapping jurisdictions, leagues of cities, suzerainty systems, and other formats for organizing distinct political communities. Without these foundational institutions, political space would be organized on different principles and would feature very different forms of behavior. Foundational institutions define and give privileged status to certain actors. They also define the fundamental principles, rules, and norms upon which their mutual relations are based. Finally, they lead to highly patterned forms of action. The foundational institutions of the Westphalian international system include sovereignty, states, territoriality, and the fundamental rules of international law.
Procedural institutions are those repetitive practices, ideas, and norms that underlie and regulate interactions and transactions between the separate actors. These institutions refer not to questions of “who are we?” and “how do we claim status and legitimacy?” but to more instrumental issues of how we behave towards one another in the conduct of both conflict and normal intercourse. They are important in helping us describe the essential characteristics of an international system, but they are of secondary significance compared to the foundational institutions. A procedural institution such as war could disappear without fundamentally altering the foundational institutions.
Below I offer sketches of the main foundational institutions and a selection of procedural institutions. Each sketch has three main purposes: to (1) highlight the interplay of practices, ideas, and norms/rules, and etiquette; to (2) identify the kind of change (of the five outlined above) that is or has taken place, and (3) in very rudimentary fashion, to outline some of the sources of those changes.
Sovereignty
In 1302, Philippe Le Bel in front of the Estates General in the territory known as Gaul declared “The king is emperor in his domain” (Badie, 2000: 5). This was a statement of aspiration, not a description of the actual state of affairs in France. Sovereignty, or the final authority within a defined realm or territory, was an ideal for those weak rulers who faced challenges to their authority both from within their realms–barons with armies, free cities, ostensible fiefs, but in fact powerful local warlords–and externally from the church. In the seventeenth century era of civil wars (the fronde in France, for example) and the Thirty Years War, the search for effective authority became a major task for all who proclaimed themselves sovereigns. Many proclaimed it, but few effectively wielded final authority.
The Idea of Sovereignty
The concept of sovereignty has caused substantial debate among political scientists, lawyers, and diplomats. It has led to all sorts of confusion and loose talk, leading many to claim that it is a “myth,” an example of “organized hypocrisy,” a “chimera,” an “insoluble problem,” a “babble,” and worse. One of the reasons for the confusion is that analysts typically confuse it with autonomy, power, and influence.[1] To them, it is a variable. When authority enters into the discussion–less often–it is inappropriately labeled exclusive. Bodin and most analysts of the legal profession have always argued that the idea of sovereignty involves final, not exclusive, authority. In international relationships, it is a particular status accorded to certain types of political agents. As in pregnancy, an agent cannot be more or less sovereign.
Sovereignty was not defined in the treaties making up the Westphalia settlements, although something very close to it was spelled out in Article 65 that prohibited the Holy Roman Emperor from “molesting” or meddling in the constitutional affairs of members of the Empire.[1] From the perspective of later international relationships, sovereignty was a legal status accorded by members of the club of states (self-selected initially) to others that wanted to join it. Many claimed the status–one thinks of the lengthy struggles of the rulers of Savoy in the eighteenth century to obtain international recognition of its sovereignty–but not all received it. But the idea remained the foundation for innumerable actions and practices to achieve the exalted status. The search continues today for many polities, including Somaliland, Kashmir, Palestine, Northern Cyprus, Abhkhazia, Chechnya, and others.
Sovereignty as an idea served several key functions. First, it identified the essential legal actors in the international system. Second, it was and remains a protective device that blunts claims of authority both from within and from the outside. It helps to protect independence (but not autonomy). Third, it helps to guarantee the continuity of the state. Kings and queens come and die, but the state continues because sovereignty is not embedded in an individual. Fourth, it defines certain rights and responsibilities of states toward each other. The list is not exhaustive, but even in short form suggests why the idea of sovereignty is the bedrock for all other international institutions.
Practices
Sovereignty practices constantly redefine the specific content of the idea, and vice versa. Every time we show our passports when travelling abroad, we implicitly reinforce the idea and norms of sovereignty. We are practicing sovereignty. Every time a government refuses to sign an international treaty or accord, it is exercising (practicing) sovereignty. Contrariwise, almost every time it signs a treaty, it is also demonstrating its sovereignty, for by an act of free will it accepts certain specified rights and obligations. Many confuse the issue by arguing that by signing, for example, a free trade agreement, a country “cedes” (or some other term) its sovereignty. This is incorrect. Through the norm of consent, the act of signing a treaty is an expression of sovereignty. Every time a government votes in an international forum or conference, it is expressing its sovereignty.
Sovereignty norms
The norms associated with sovereignty are well known and need little analysis here. They are spelled out in dozens of watershed diplomatic documents, including the United Nations Charter, the charters of regional organizations, the Charter of Paris (1990), and the Helsinki Final Act (1975) and even most documents relating to human rights. As an increasing number of analysts are concluding, sovereignty and human rights are not antithetical. The state is sovereign precisely because it has the final authority to make law within a defined territory, and it cannot enjoy that authority (the “right to rule”) except in so far as it rules in the name of some common good or public interest (Cf., International Commission on Intervention and State Sovereignty, 2001). Reus-Smit (2001: 52) argues, for example, that,
“The principle of sovereignty and human rights norms are best conceived as two normative elements of a single distinctly modern discourse about legitimate statehood and rightful state action. The protection of basic human rights is integral to the moral purpose of the modern state, to the dominant rationale that licenses the organization of power and authority into territorially defined sovereign units.”
These norms do not determine behaviour, but they are powerful statements of the limits of state action towards others. Most states observe them most of the time, but that is not to overlook numerous violations. But the fact that they are commonly defined as violations actually enhances their authority (Malmvig, 2001).
What about changes in the foundational institution of sovereignty? Sovereignty as an idea is old. As a fact–that is, a condition where ideas, practices, and norms are both consistent and generally observed–it is relatively new, dating approximately from the early eighteenth century. Westphalia is usually cited as the watershed separating the mediaeval and modern eras of statehood. The provisions in the two treaties undermined, indeed deleted, the authority of both the church and lesser polities (duchies, free cities, and the like) to claim rights either as international actors (e.g., the right to enter into treaty relations [except for constituent units of the Holy Roman Empire]) or for authority within royal realms. But it took about one century for the state of affairs in most of Europe to approximate those terms.
Many claim today that the institution of sovereignty is “withering,” “eroding,” or “fragmenting.” It is also supposedly “shared,” “reduced,” “diluted,” “lost,” “truncated,” “superseded,” and most extremely, “superceded.”[1] This is so for a number of reasons, including the weakening of the state vis-à-vis the onward march of global market forces, the ineffectiveness of national borders, the declining psychological identification of citizens with their homeland, the development of other types of loyalties, growing volumes of transactions of people, ideas, goods, investment, the European Union, and other sociological phenomena (Cf., Ohmae, 1995, Strange, 1996; Rosenau, 1997). Unfortunately, many of these analyses confuse sovereignty with autonomy, power, and influence, so they do not effectively challenge the ideas, practices, and norms of sovereignty.
One searches with difficulty to identify truly significant changes implying reversion or obsolescence in the main ideas and norms of sovereignty in the last two hundred years approximately. If anything, they have grown in scope and definition. For example, the contemporary norm against non-interference was never firmly established after Westphalia. Vattel condemned the practice, but even his influence was not sufficient to establish it as a customary norm of international law. Interference in the nineteenth century occurred with a frequency that we would find intolerable today (Cf., Krasner, 1999). There is no counterpart to Article 2, par. 7 in the League of Nations Covenant. Blatant violations of sovereignty, such as in the Roosevelt Corollary (1906), went almost unnoticed at the time (except of course in Latin America). It was because interference was a fairly common practice in the nineteenth and early twentieth centuries, and particularly in the 1930s, that the norm had to be spelled out in detail in numerous subsequent international charters. But even in its modern guise, the norm was never absolute.
To be sure, there are numerous exceptions to some of the main ideas and norms of sovereignty. Non-sovereign entities like Hong Kong belong to the World Trade Organization. No-fly zones in Iraq are a contravention of sovereignty. The veto of the permanent members of the Security Council violates the norm of legal equality. Many of the provisions of the Organization for Security and Cooperation in Europe have established an international right to monitor compliance with human rights codes and to take action where those have been contravened. These go far beyond the provisions of the United Nations, where no one has yet claimed a right to intervene, particularly with the use of military forces.
The greatest doubt about the robustness of sovereignty arises from the condition of some “weak” and “collapsing” states, where authority has disappeared and where numerous local and external actors fill the void. Somalia is the prime example, but there are others. This is a difficult issue and cannot be resolved here. I would comment only that of the more than 190 states in the contemporary system, the truly weak and collapsing states represent a very small proportion and they are certainly not the wave of the future.
Despite some anomalies and cases of “organized hypocrisy,” my judgement is that sovereignty, rather than “eroding” or “withering,” is actually becoming increasingly institutionalized. As a set of norms, it is strengthening, not weakening. As in the case of all norms, rules, and laws, interpretations change with the times; some become second nature to us and serve as the foundation for millions of daily transactions. Most diplomatic actions in fact represent the viability of the institution. Others, such as non-intervention, become highly contested and may change with circumstances. We can expect in these areas inconsistencies and highly politicized debates about appropriate actions and practices. While certain elements of the European Union–always with the consent of its members–represent a “pooling” or delegation of sovereignty in specific issue areas, those steps do not serve as a model for most other countries in the world.[1] In sum, the institution of sovereignty is becoming more clearly defined, it has deep roots in the ideas people cherish and even lose their lives for, and it underlies literally millions of human transactions daily. It provides protection against international predation, and forms much of the normative framework within which states conduct their mutual relations. For many small or weak states, it is their first line of defense. But it is much more than that. Sovereignty is also recognition of the equal worth of political communities, their dignity, and the basis of their unique identities. It is, as the Report of the International Commission on Intervention and State Sovereignty (2001: 7) claims, “…an affirmation of [the polities'] right to shape and determine their own destiny.”
In terms of the types of change, then, I see parallels with the automobile metophor: the institution of sovereignty is more complex and comprehensive than it was two centuries ago, but there is little evidence of transformation, reversion, or obsolescence.
The State
Sovereignty defines the main agents of political action in the international system. It provides a unique legal status that other types of political organizations do not enjoy. In contemporary parlance, sovereignty provides a particular “identity” to political collectivities. For the past one-half millennium, approximately, those collectivities have been termed states. If formally recognized by others, states have a legal status, rights, and responsibilities that no other types of polities, whether tribes, provinces, capital districts, river basin communities, nomadic groups, “liberation movements,” or others possess or are likely to obtain. States are nominal entities characterized by a defined territory, final (if not always effective) authority within it, and a capacity to meet treaty obligations. They are also unique realms of law. States continue regardless of the fortunes of their governors. They can only disappear through formal annexation or extreme partition by outside powers. That they have a particular legal status says nothing about the quality of their governance or economic life. They can be disasters such as Liberia or Somalia, barely having any form of legitimate rule, but their identity as states has not disappeared.
The long and bloody story of the emergence of states has been told effectively and in detail elsewhere (Cf., Poggi, 1975; Tilly, 1976, 1990; Ertman, 1997). We cannot repeat that tale in this brief sketch. We can point out however that we have seen a steady progression from a heteronomous political landscape in the sixteenth century to one of political homogeneity represented by the state. In the earlier period, intermittent forms of diplomatic relations were conducted between kingdoms, principalities, empires, estates, emirates, caliphates, leagues of cities (the Hansa), free cities, republics, papal territories, duchies, provinces, and other types of political entities. Many made claims to sovereignty; few actually possessed the status as recognized by others.[1] Today, in the bewildering world of transnational associations, non-governmental organizations, virtual communities, criminal networks, and cyber groups, only states have the status of sovereignty. Many decry the representation of contemporary international politics as being state-centric. But they miss the point: we study the actions and interactions of states because they are unique. They are unique because they have authority both within and externally. Common sense supports the point: only state authorities can arrest and jail me. Toyota Corporation, the church, and the International Olympic Committee cannot. They can be powerful, influential, and autonomous, but they are unifunctional associations with no legal authority even among their own members.
States had become institutionalized roughly by the early eighteenth century. They were based on the combination of the idea of the state, the practices of statehood such as exchanging ambassadors or declaring war and making peace, and the norms and rules of statehood, expressed through the doctrine of sovereignty.
Ideas
The early modern European concept of the state was based on Roman precedents. One key component was the separation of the public realm from the private realm, a distinction that was relatively rare among polities. Even in some contemporary polities, the distinction is not recognized. The public realm is a realm of law/command, obedience, and consent. The private realm is one of negotiation which, however, may be translated into law. A second component was the distinction between the state and its rulers. The state has continuity; rulers as mortals do not. Changes of government, including constitutions, do not alter the idea of the state. The third was a defined territory. This was an innovation of the seventeenth century, as technological innovations made possible the identification and demarcation of borders (see below). Finally, the populations comprising the state constitute some type of moral community. Either they are the subjects of a crown, or the citizens of a constitutional polity. This is technically a closed community in the sense that not anyone can claim to have legal status within it. It can be granted only with consent.
Practices
The practices of statehood are numerous, although by today’s standards, in the early eighteenth century they were minimal. They included, among others, the right to tax, to mint money, to wage war, to police the society, to regulate/administer borders, to impose tariffs on imports, and to legislate on any number of domestic problems or issues, from marriage to death ceremonies. The major states of Europe in the eighteenth century also promoted the arts and sciences at a level that would make most people envious today. This list of practices and functions has expanded rapidly, particularly since the 1930s. We would add items such as employment, education, morality (e.g., laws and regulations on drinking, public displays, sexual relationships, gambling, drugs, religious practices, and the like), welfare, medicine, public health, research and development, and the regulation of almost every facet of private economic activity and the practices of the professions. The state is also a major economic player, although this role has diminished during the past decade. Nevertheless, for most of the developed countries, state activities and practices account for about 40 percent of the Gross Domestic Product (GDP). The average citizen also contributes about the same figure–forty percent–of his or her earnings to pay for the various services provided by the state.
In international relationships it is still the activities and practices of states that matter most. Non-state actors do many things, but with the notable exception of al-Qaeda and some drug rings, few of them have the impact, reach, and capabilities of states. Most obviously, they do not have authority. States remain the essential agent and actor in international relations because they have this unique quality of authority. In terms of the degree of institutionalization, the practices of states are highly patterned, roughly similar, based on ideas, indeed an ideology of statehood, and suffused with norms. States duplicate themselves and there is almost no evidence of other types of polities searching for the status of sovereignty. And even if they were, they would not gain recognition.
Norms
The norms associated with statehood are well known and need no further analysis here. They include independence, territorial integrity, limited legal jurisdiction (no extraterritoriality), legal responsibility, and the like.
The Changing State
The type of change in statehood is complexity. The tasks and functions of states have vastly expanded over the past century or so, and for the most part states rest on a basis of legitimacy and strength that the monarchs of early modern Europe would envy. Plenty of states lack both capabilities and their regimes operate in environments of weak legitimacy, but their statehood is more or less guaranteed by the international system (Jackson, 1990). I see little evidence of the transformation of states, and certainly not of reversion or obsolescence that has been proclaimed by so many.
Space limitations preclude anything but the sketchiest account for the growing complexity of the state as an institution. We would have to mention among many other factors, changes in the realm of ideas (the development of the concept of popular sovereignty and national self-determination), increasing demands for the provision of various state services (due among other things to the development of national economies, widespread literacy and national vernaculars, the extension of democratic rights, and the like), and the actions the state itself has taken to root its legitimacy and continuity deeply in the psyche of national populations. The state is the greatest agent for developing and promoting national identity and patriotism. It does it through education, military service, subsidies to the arts, culture, and sports, and wars.
Territoriality
Ancient and historical polities had very crude, and often diverse, conceptions of territory and its value. In the Chinese empire of the Chou dynasty and the succeeding Spring and Autumn and Warring States periods (roughly 771 BC to 220 BC) polities were defined primarily in terms of centres and peripheries. Identity was based on culture and language, not on location. Many Greek city-states used stone markers to indicate the limits of their territory, but these had a habit of being moved by farmers. The Romans could define the limits of their empire only in the most general terms. Authority just petered out in the forests and desserts.
Practices
If we look at maps of Europe in the 1500s, we note that there are no lines. Realms and regions are specified as “Italia,” “Germania,” “Gallica,” and so on, but there are no borders. Between the great variety of polities lay swamps, forests, and wilderness that was really under no one’s effective control. Most monarchs literally could not “see” the peripheries of their realms because they did not possess the technology to identify them.
Modern borders are a creation of the seventeenth century. With new surveying techniques and a host of instruments of measurement, as well as the emerging agreement on establishing the concepts of longitude and latitude (originally a Greek invention), some states began the arduous and expensive task of mapping their realms. Many could not afford to do so and had to await the development of cheaper means. Others were deterred by “a mass of traditional rights, claims to exercise jurisdiction or to collect dues and taxes of various kinds that made the drawing of lines impossible” (Anderson, 1993: 97). When territories were exchanged, ceded, joined through marriage, or conquered, they went as entire local administrative divisions or patrimonies, not as pieces of territory defined by lines drawn on a map.
The first modern prototype of a border was a set of stone markers distinguishing Swedish Pomerania from Brandenburg. This was a provision of the Westphalia settlement. The Treaty of the Pyrenées (1659) ending yet another Spanish-French war established a commission to demarcate a boundary between the two kingdoms. Some villages were exchanged as a result, but the actual lineal boundary between France and Spain was not drawn until the mid-nineteenth century.
The “bordering” of Europe did not begin in earnest until the late seventeenth century. The Treaty of Ryswick (1697) ending another of Louis XIV’s wars was the earliest occasion in which a line replaced legal rights in the terms of a treaty. In 1718 the Hapsburg emperor Charles VI and the Dutch Republic negotiated a territorial settlement over their contiguous territories in the southern Netherlands. It not only defined lineal borders in the text of the treaty but also identified them with an attached map (Barber, 1997: 82). Borders were changing meaning, from a frontier area into a demarcated line (Clark, 1947: 143). Other border practices came later: they included controls, check points, and ultimately, passports. The technologies of surveillance and identification that are ubiquitous in the world today were unknown until the late nineteenth century.
Many territorial practices suggest a low degree of institutionalization until at least the early nineteenth century. The main practices of note were territorial change, brought through conquest, marriage, partitions, exchanges, and sales. The territorial map of Europe until after World War II changed almost annually. The changes wrought by Napoleon in just a few years ran in the dozens. In his rampage through Europe, he annexed, extinguished, partitioned, and moved borders with amazing abandon.
Ideas
The reasons for constant territorial change lay primarily in the social construction of land. Although it is an exaggeration to claim that territory in the late seventeenth and early eighteenth centuries was treated as a commodity, the comparison is appropriate. Many realms were in fact personal possessions (the “Estates”) more than public spaces. Their owners could do with them what they wished, including sales and exchanges, so long as new owners observed ancient “rights”. Land in the colonies was truly a commodity. The Spaniards sold Florida to the French, who turned around and sold it, along with the Louisiana Territories, to the Americans. The Russians sold Alaska, also to the Americans (who at the time vigorously condemned the American Secretary of State for wasting $7 million). Territory was also used as a form of payment to maintain the balance of power. If one state achieved major territorial gains through conquest, the other major or affected powers were expected to be compensated through other territorial transfers. This was the practice and norm of compensatio.
The French revolution marked the changing meaning ascribed to territory and borders. The 1793 French constitution debarred the state from ever making peace with a foreign power that occupied any part of French territory. This implied that borders were not merely a line separating legal jurisdictions, but also a symbol of the national homeland (Taylor, 1994: 155). This new idea did not become widespread throughout Europe for almost another century. The differences between pre-revolutionary concepts of territory and what was to come under the influence of Romanticism and nationalism are illustrated by the reception to the major territorial settlements of the Napoleonic and Franco-Prussian wars. The Vienna settlement symbolized pre-revolutionary territorial ideas, norms, and practices. Saxony was downsized, France lost all its post-revolutionary conquests, and numerous minor changes were effected. Little of this brought major consequences to the European states system. In contrast, the Treaty of Frankfurt that terminated the Franco-Prussian war included the French cession of Alsace and Lorraine to Prussia. The French population, press, and government defined this as a national humiliation. The 1871 border changes became a cause célèlebre in France for more than 40 years, ruined any chances of Franco-German reconciliation, and help explain the punitive peace imposed on the Reich in 1919. The difference in the meaning and affective dimension of territory took place in only 56 years.
The “we” and “they” of seventeenth century Europe, defined primarily in terms of religious faith, now gave way to identities based on citizenship (a Roman concept resurrected by the French during the revolution) and nationality. The legal definition of citizenship was buttressed later under the Romantic notions of national distinctions based on history, culture, and language. Poets, composers, authors, and painters willingly adopted the myths of distinct nationhood. The music of Wagner, Smetana, Schubert, Sibelius and many others was the music of a “people,” its history, and its culture. So was the literary output of Schiller and Herder and their counterparts throughout Europe. It was replete with historical, cultural, and topographical allusions and metaphors, all pointing to the historical distinctness of nations. Nationalists spoke increasingly of the “homeland,” the “fatherland,” and the “motherland” rather than of the dominion, commonwealth, or realm. Romantic notions of territory featured distinctive relationships between geographical characteristics such as mountains and rivers, and “national character.” Borders became the most obvious markers of a “people” and their identity.
The idea of distinct nations also had its political dimensions. What distinguished the French notion of the nation and the concept of a royaume was that the former belonged to the people and the latter to the royal figure. The idea of popular sovereignty created a stake for every citizen. It was not just a polity, but his or her political entity, marked by borders distinguishing it from other entities. The declining frequency of territorial change in the last century, as well as the increasing sanctity of borders, reflects the common realization that states are more than patrimonial or legal entities, but are the political incarnation of a public moral good. Robert Jackson explains (1997: 34-5):
[The reluctance to violate the territorial integrity of states] is rooted in the moral idea that states everywhere belong to their populations whether or not they are democracies. That is the…norm of self-determination for the civic nation which does not specify a requirement for a particular form of government—but only that it exists and must be respected. International boundaries…are not only the markers of a state’s legal jurisdiction and political control; they are lines that define separate and distinctive nations and peoples, which are assumed to have inherent moral value. To interfere with such boundaries without the consent of the peoples involved is to violate the normative doctrine of self-determination based on the civic nation defined by existing state jurisdictions.
Hence, the greatest transformation in ideas, norms, and practices relating to borders and territory came not in the mechanics and politics of drawing lines, but in the social value accorded to them. In this case a change in values and ideas led to changes in practices. Most of the territorial practices of the seventeenth, eighteenth, and early nineteenth centuries (as well as the drafting of colonial borders) have now disappeared. Borders are no longer changed with impunity; territories are no longer sold, bartered, annexed or partitioned, and territorial conquest is notable for its rarity.[1] Claims to territory have narrowed down to a few, including righting historical wrongs, and self-determination. Most of the juridical bases of territorial claims in the eighteenth century—marriage, succession rights, and religion–no longer exist. There are still critical and sometimes violent contests over the exact location of territories, and there are numerous territorial claims (e.g., Spain’s claim to Gibraltar) but for the most part these remain dormant and the probabilities of the use of force to resolve them are low.
Norms
We now have a strong regime controlling territorial change and the definition of borders. They were first spelled out in the League of Nations Covenant, and subsequently imprinted in the United Nations Charter, the Charter of the Organization of African Unity, the Helsinki Final Act (1976), and in the Pact of Paris (1990). The 1961 Vienna Convention on Treaties removed the rebus sic stantibus qualification as pertaining to internationally recognized borders. That is, states could no longer claim that new circumstances had rendered old frontiers illegitimate. Zacher and Jackson refer these instruments as constituting a “territorial covenant.” The norms include the following principles:
only existing territorial boundaries are legal and legitimate
no territorial change or boundary revision effected through the threat or use of force is legitimate
any territorial revision must be achieved through negotiation
any territorial revision must be consistent with the principle of national self-determination
any territorial revision must have the consent of those affected by it
the affected parties include both “peoples” and states
secession or any threat to the “integrity” of the state will not receive international support unless achieved through negotiations and consent
if such consent is forthcoming, the territorial limits of the seceding state should approximate the former administrative boundaries (e.g., provinces, states, regions, and the like) (Jackson and Zacher, 1997: 10)
Border Practices
Borders define territories and establish the limits of legal jurisdiction. They are the symbols of territoriality, the state, and sovereignty. They also provide defense and many other functions. However, border practices–how they are administered and monitored–vary from country to country and from time to time. At one extreme of a border continuum, countries such as North Korea and Bhutan carefully control ingress and egress of people, goods, and investment. Some attempt is also made to control the flow of ideas. In the Soviet Union, watchtowers, walls, dog patrols searchlights, barbed wire, and mine fields marked borders, particularly those adjacent to Europe. No one could leave the country without official sanction, and no one could enter without a visa. At the other end of the spectrum, the Schengen Agreement has eliminated borders among signing countries in Europe. It is now as easy to move from France to Italy as from British Columbia to Alberta. The Unites States and most other countries populate the middle section of the continuum. Border formalities exist but for most visitors they do not involve more than an hour or two of lining up. Goods, investment, and ideas flow freely. This of course changed after September 11, 2002, and now the United States has moved closer to the North Korean or old Soviet model.
These diverse border practices are all an expression of state consent. No one has a right to enter a foreign country. Most people do so with a minimum of fuss because the receiving country grants the consent almost automatically. But that consent is not granted automatically to those who might want to immigrate or to establish permanent residence abroad. Most states also withhold consent to known criminals or citizens of states against whom they are engaged in hostilities or in a state of war (e.g., the two Koreas, or travelers to Israel who wish to continue to Arab countries in the area).
Modern technology monitors the consent. All sorts of devices, far removed from the primitive border checks of just a century ago, allow governments to exclude both goods and people whenever they decide it is in their interests to do so. Those technologies include canines with the gifted sense of smell, fingerprints, eye identification cameras, and a whole host of other devices. No border is totally impermeable, of course, but to claim that we live in a “borderless world” overlooks a mountain of evidence to the contrary.
Territory and its delimiting borders are thus a foundational institution of international politics. They are also relatively recent, dating only from approximately the mid-nineteenth century. We can claim it is an institution because border and territorial practices are patterned and broadly legitimate, the norms governing territorial change have universal support, and governments have complex administrative organizations and procedures for monitoring and controlling them. I see little evidence of transformation, although in the case of the European Union (and only there), the patterns are reverting more to eighteenth century models, where ingress and egress were relatively free, passports and citizenship were not yet invented, and movement of populations was generally unregulated. In this limited domain we see elements of reversion. Elsewhere, states remain firmly founded upon defined territories. As an institution, territory is more complex than in previous eras because volumes of transactions are hugely larger than at any previous time. The administration and monitoring of borders, including health controls and tariffs on imports, are more complicated and require greater state revenues and personnel than ever before.
International Law
Ideas
Europe in the sixteenth century had no public international law as we know it today. There were no codes or organizational charters that defined the fundamental principles. But there were vigorous legal debates surrounding a host of issues that dominated the European agenda of that era, and there were arguments about the sources and types of law. The greatest debates concerned the nature of political community in Europe involving clashes between those who adhered to the conception was of a Christian community–the respublica Christiana–under the authority of the Pope and the Holy Roman Emperor, and the champions of the growing power of secular princes.
Other subjects that constituted the discourses of seventeenth century figures such as Grotius and Pufendorf included freedom of the seas, limits to the right of conquest, the inviolability of ambassadors, enslavement of prisoners of war, the status of treaties made with infidels, the freedom to travel, and that issue that continues to generate debate today, under what circumstances, if any, is it legitimate for one political community to intervene militarily in another?
All these issues constituted the stuff of debates about the nature of law, and derivative rights, duties, and principles. Some became inscribed in treaties and thus created particular obligations. A few major ideas, such as those enunciated by Grotius regarding the freedom of the seas, became general principles that effectively guided behavior.
Natural law did not establish particular rights and obligations–law narrowly defined–but provided the theoretical principles from which the rights and duties of states and their rulers could be derived (Hurrell, 1996: 24). As Grotius put it, natural law is the “dictate of right reason which points out that a given act, because of its opposition to or conformity with man’s rational nature, is either morally wrong or morally necessary, and accordingly forbidden or commanded by God, the author of nature” (quoted in Fenwick, 1965: 59). Natural law was a body of thought that outlined what states ought to do. It could guide policy only to the extent that the princes of the era felt morally compelled to follow its dictates. Consequently, jurists increasingly began to look at the actual practices of states when analyzing the “law of nations” rather than to earlier debates about moral precepts. By the late eighteenth century, natural law was in retreat and was increasingly displaced by “positive” law, or the basic principles of coexistence that had developed through practice, as well as treaties and the principles they embodied.
Norms in Early Modern Europe
Hedley Bull (1977, ch 1) has claimed that the sanctity of promises and contracts–including treaties in international relations–is one of several foundations for order in any society, whether tribal, state, or international. The essential norm underlying international law is the reciprocal obligation to observe rights, duties, promises, and exchanges contained in formal agreements, including international treaties. This is the norm of pacta sunt servanda. More recently, we could add the binding quality of custom.
A second critical norm implied or explicitly stated in early modern European international law was the moral worth of independent political communities. Sovereignty is one derivative of this norm: it basically holds that political independence and territorial integrity are, in the relations between states, the highest values to observe, promote, and defend.
A third norm was legal equality. States and political communities may differ in many dimensions: size, population, location, type of political system, and the like, but in the society of states they have equal rights, duties, and responsibilities. This is also a corollary of the doctrine of sovereignty: one cannot claim political independence and seek recognition from other states without at least implicitly consenting to the major rules of the system. To claim superior rights–or to avoid certain common duties–is to deny sovereignty and legal equality. While the principle was systematically violated in Europe’s imperial expansion, it was done without a sense of hypocrisy. Those over whom colonial power was exercised did not in the European view constitute “states” at the time of settlement or conquest, and hence did not hold a status as legal equals.
If all states, regardless of their differences, have equal rights, duties, and responsibilities, and if they are sovereign, then it follows as a fourth norm, that they cannot be compelled to make agreements without their consent. Moreover, treaties concluded between two or more states do not create obligations for non-signatories. The corollary is that treaties imposed through violence and other forms of coercion do not create legitimate obligations or rights. The foundation of early modern European international law was based on consent.
Practices
All of these norms and rules had become well established in Europe by the late eighteenth or early nineteenth centuries. But the question remains: were they just norms floating in space or embedded in a variety of international treaties? Was behaviour generally consistent with them? Or, did we have a situation of “organized hypocrisy” (Krasner, 1999), where treaties, speeches, and diplomatic notes professed respect for the norms, but where behaviour diverged significantly?
Regrettably, we do not have systematic studies about the relationship between international law and the diplomatic practices of states and their rulers between the seventeenth and nineteenth centuries. This was an era of frequent wars, numerous conquests and territorial partitions, and the occasional elimination of states (e.g., Poland). Yet in many areas and types of transactions, customs were codified into law, practices became routine and predictable (e.g., the freedom of the seas), and even in warfare, states generally observed the clear distinctions–codified in laws and treaties–between a state of peace and war (wars were always declared), between civilians and soldiers, and between belligerents and neutrals.
Throughout the two early centuries of international law, many states organized their practices, either to conform to custom or to meet consensual treaty obligations. The scope of legally consistent behaviour also expanded during this era. The great debates–and armed conflicts–over possession of the seas in the sixteenth and seventeenth centuries had become basically settled by the early nineteenth century. States cooperated to control the scourge of their times–sea piracy. They increasingly defined aspects of law of the sea, such as transit through straits and the extent of territorial jurisdiction. They abolished letters of marque and reprisal. Common practices on the recognition of new states developed, as did the laws of war and diplomatic immunities.
Despite these advances in the development of law and in common practice, the norms embodied in treaties and practice became increasingly Eurocentric. The questions raised by Vitoria in his conceptions of jus gentium–what are the rights of indigenous peoples, when can force legitimately be used in conquest of non-European territories, what do we mean by natural law? –dropped from legal discourse. What mattered were the norms the Europeans found convenient to regulate the mutual transactions of the new European sovereigns (Ortega, 1996: 112). The “public law” of Europe was limited to the “civilized” and Christian people of Europe or to those of European origin (e.g., United States). By the early nineteenth century, the settled “law of nations” defined and regulated the basic mechanics of interstate relations. These included:
the limits of territorial jurisdiction
definition of states and fundamental state rights and duties
the procedures for granting recognition and establishing and maintaining diplomatic relations
the forms and laws of treaties
the laws of war and neutrality (Cf., Brownlie, 1984: 359)
Universalizing Norms and Practices
The expansion of the European “law of nations” is an interesting tale, full of twists, turns, and contradictions. It was not a case of a fully developed “law of nations” imposed by the Europeans on others (Stivachtis, 1998: 73), but space limitations preclude recounting the story. Basically, those polities that aspired to membership in the European society of states had to meet the “standards of civlization,” defined primarily in the following terms:
constant intercourse with the members of the (European) Family of Nations and consent to be bound by the rules of European international law; observation of certain European economic standards and commercial practices, particularly where they affected foreigners; the protection of life, liberty, and property of those same foreigners;
certain minimum (e.g., “civilized” standards) in governance and rule over their own populations (Gong, 1984: 14-15; Stivachtis, 1998: 90).
The parade of applicants grew rapidly. Japan was the first Asian country to gain full international status as a “civilized” state, in 1899. China, Siam, Persia, and others followed shortly after. They sent delegates to the Paris peace negotiations in 1919 and were among the charter members of the League of Nations. With the process of decolonization international law became universal. Indeed, that process involved a number of significant changes to the traditional criteria for entry into the “club of states” or “family of nations.” All vestiges of the “standard of civilization” were abandoned: having been a colony was sufficient for obtaining sovereign independence and membership into the United Nations and it’s specialized agencies.
Continuity, Complexity, and Change in Contemporary International Law
All law changes with the times. International law is no exception. New technologies, expansion of commerce, travel, and communication, industrialization, and the application of technology to the conduct of war require new forms of regulation or adaptation of older rules. In many cases, such as in outer space, old principles are modernized and made more complex. In other areas, new principles develop. Synthesis is another form: older principles are melded with newer inventions to create a blend, or possibly a transformation. And finally, some principles may become obsolete. We can neither review all of these possibilities nor explore the totality of the broad scope of international law. Rather, we will isolate four areas where transformation or new norms have appeared.
Protection of Human Rights
While Vitoria could condemn some of the cultural practices of the Indians of the New World, and while Vattel could speak of the rights of states to intervene against tyrants, the task of specifying and defining concretely the content of human rights and the limits of government actions toward their own citizens has been primarily undertaken only since the late nineteenth century. At that time, the primary concern was with the Ottoman treatment of Christian minorities in its realms. After World War I, some of the new states of east and central Europe were required to grant constitutional guarantees of minority rights in exchange for recognition by the other European states. Even in the case of colonies (the Berlin Congress, 1884, and the mandates system of the League of Nations) references were made to the obligation of the colonial powers to respect native rights and to take steps to eliminate the practice of slavery.
But the codification of human rights in a systematic manner began only after World War II. In the fifty years since the Universal Declaration of Human Rights (1948), dozens of declarations, treaties, resolutions, and domestic laws have spelled out in detail the rights of individuals against their governments and in relation to each other. Indeed, of the fifty-three international instruments and declarations that, according to Dorothy Jones (1990), constitute the contemporary “code of international ethics,” fully ninety percent of them deal in some fashion with the rights of human beings, either as individuals or as members of groups. And these instruments are not confined to the European core of the international system. They have become universal. Hence, the final communiqué of the 1955 Bandung Conference of non-aligned states listed “respect for fundamental human rights” as one of the first duties of all states (Jones, 1990: 155). The charters of most regional organizations (e.g., the Organization of African Unity) repeat those commitments. The 1991 “Santiago Declaration” of the Organization of American States boldly established peoples’ right to democratic rule and even sanctioned foreign armed intervention in the case of military or other types of coups against democratic regimes. This comes close to enunciating a right of intervention, but such statements have not been reproduced in other organizations.
On the issue of intervention to try to terminate systematic abusive rule, the Santiago statement is by the most radical. It conflicts quite clearly with Article 2(7) of the United Nations Charter that prohibits interference in the internal affairs of member states. But even that prohibition is qualified. It states that interference cannot take place on any issue that is essentially within a state’s domestic jurisdiction, and further qualifies it by other provisions that allow the Security Council to take measures to deal with situations it deems to be a “threat” to international peace and security. And so, while there is no agreed norm that contradicts the spirit of Article 2(7), much less a universally accepted right of intervention, the international community has used the subterfuge of declaring massive violations of human rights, or impending or actual humanitarian emergencies as “threats to international peace and security.” There seems to be an emerging synthesis of the norms of sovereignty, non-intervention, and the protection of human rights and individual security (Cf., International Commission on Intervention and State Sovereignty).
In one area of these issues, however, there is a new norm. Until the mid-1990s, the recognized customary rule of international law was that all heads of state and/or government enjoy immunity from suit or judicial process in the territory of another state (von Glahn, 1992: 156-7). Recent practice has overturned that old standard. The Nuremburg tribunal established the principle that agents of the state cannot escape individual responsibility for war crimes and crimes against humanity. The new Permanent International Criminal Court, established by treaty in 1998, lifts the immunity of heads of state or government who are charged with crimes against humanity, the laws of war, rape, genocide, and other systematic violations of human rights. It further develops the principle of universal jurisdiction, making it possible for any court to lay charges against alleged war criminals. In this area related to human rights, old ideas, conventions, and laws have been overturned. This is a transformation of considerable legal and diplomatic significance.
Obsolescence: The Rights of Conquest
Ideas and norms about the worth of statehood and the security necessary to protect them have gone through both obsolescence and novelty (extinguishing old norms and inventing new ones). Consider the question of conquest. In the sixteenth century, the accepted norms of the day accepted conquest as a part of the game of international politics. In the great debates about Spanish conquests in the New World, the standard view was that these were justified on a number of grounds, not the least of which was the “barbaric” practices of the indigenous populations or the reasonably popular view that barbarians were not in fact humans endowed with souls.
Ideas about conquest changed substantially with the development of nationalism and its corollary, the doctrine of national self-determination. If a defined territory incorporatea a historical and cultural “people,” then military conquest by foreigners contradicta the norm of self-government. That norm had become widely accepted throughout Europe by the late nineteenth century and was used to justify intense pressures on the Ottomans to allow self-government in their Balkan possessions. By the twentieth century, conquest became de-legitimized through the League of Nations Covenant, the Kellogg-Briand Pact, and the Stimson Doctrine (1931). The United Nations Charter (esp. Article 2(4) effectively terminated any remaining vestiges of the old legitimacy accorded to conquest.
Transformation: Jus ad bello
Under traditional positivist conceptions of international law, the use of force was considered a prerogative of sovereign rights. “Reason of state” was a sufficient justification for the use of force. From the treaties of Westphalia until the late nineteenth century, approximately, there were no prevailing ideas or norms that significantly interrogated the standard doctrinal point of view.
As a result of fundamental changes in thinking about the use of force in international relations, as well as the increasingly destructive consequences of the application of technology to the art of war, peace societies proliferated after the Napoleonic wars. Socialist and liberal parties throughout Europe in the late nineteenth century attacked the “reason of state” justification for the use of force. The Hague Conferences of 1899 and 1907 began to draft conventions designed to surround the institution of war with legal restrictions. The Covenant of the League of Nations, drafted in a time when everyone was appalled by the carnage of the Great War, provided in its preamble an acceptance by the members of obligations not to resort to war and denied them the right to use force except under highly restrictive conditions. Further efforts in the 1920s (the stillborn Treaty of Mutual Assistance, 1923 and the Geneva Protocol of 1924) attempted to identify wars of aggression as an international crime. In 1928, the Pan-American Conference (forerunner to the Organization of American States) adopted a resolution asserting that a “war of aggression constitutes a crime against the human species…all aggression is illicit and as such is declared prohibited” (quoted in von Glahn, 1992: 670-71). The signatories to the Kellogg-Brian Pact (Pact of Paris) in 1928, an hortatory set of aspirations rather than a binding treaty, solemnly “renounce(d) [war] as an instrument of national policy in their relations with one another.” The United Nations Charter and numerous analogues at the regional level prohibit even the threat to use force in the member’s mutual relations. The only exceptions are when force is authorized by the governing body, such as the Security Council, or for individual and collective self-defense.
The New Kid on the Block: Declaratory “Law”
In the natural law tradition, the sources of what states ought to do was in human reason, corresponding to the laws of nature instituted by God. In the positivist conception, the sources of law include, primarily, treaties (reflecting the norm of consent), custom, the standard practices of states, court decisions, the writings of eminent jurists, and general principles that are recognized by all states. What started out as occasional multilateral references to what states should do and what new conditions they aspire to has turned into a veritable flood of pacts, charters, covenants, conventions, protocols, declarations, pronouncements, communiqués, and resolutions. Dorothy Jones (1990: 115) has termed them collectively a “code of ethics;” others have used the term “soft law.” They cover such diverse fields as human rights, the environment, terrorism, water sharing, health standards, endangered species, and the like.
Most resolutions of the United Nations General Assembly or multilateral conference declarations are statements of aspiration rather than law. Communiqués are equally vague in their consequences. They might create implicit obligations and serve as the basis of subsequent treaties but they also might be little more than public relations exercises. Some types of resolutions of international organizations or multilateral conferences, if passed with or near unanimity, can become “instant” customary law and reflect the international community’s adoption of certain principles. And if subsequent state behaviour is mostly consistent with the norms, rights, and obligations of those resolutions, there is more evidence of custom. In some circumstances, the general principles enunciated in these instruments could become jus cogens, or peremptory norms of general international law (Cf., Thakur and Maley, 1999: 277).
The Institutionalization of International Law: Codes, Covenants, and Courts The growing numbers of treaties in the eighteenth and nineteenth centuries, along with the increased authority of customary principles, were important indicators of the institutionalization of international law. Equally important was the incorporation of international legal principles into domestic law. The United States was among the first to acknowledge that domestic legislation and social practice must conform to international legal obligations. The constitution explicitly states that international treaties constitute the “law of the land,” and that in case of a conflict with domestic law, international obligations take precedence. By the late nineteenth century, many other countries had similar constitutional provisions. In practice, this also meant that governments had to revise domestic policies in order to meet international standards. In many areas, international obligations and domestic law became a seamless web. At the turn of the last century, then, all the components of institutionalization were in place: a full and rapidly expanding body of law; a profession with specialization in international law; incorporation of legal offices within foreign ministries; constitutional provisions that transformed international legal obligations into the law of the land; numerous arbitration treaties, and the first international courts; and the millions of transactions and practices of states with each other on a daily basis which more or less conformed to the major principles and rules of international law.
There are the dozens of charters of world and regional organizations (the obligations of which are binding, if not always observed) and more than 40,000 bilateral and multilateral treaties registered in the United Nations. Most international relationships and transactions today are rule-governed and there are permanent mechanisms to resolve disputes over interpretation, violation, and application of the rules. Nothing approaching the density of rules and the conflict-resolving devices that apply them can be found in earlier international systems or in early modern Europe. There are many areas where regulations are needed, to be sure, but increasingly the web of law-like obligations between states resembles law within states. While the society of states is formally an anarchy, where legal obligations between states are based on consent rather than authority, a clear distinction between domestic and international realms in terms of the presence or absence of law is not tenable.
The essential rules of the system constitute a regime for the peaceful coexistence of states on a reasonably predictable basis. By outlining the do’s and don’ts, they promote an order in which rules rather than outcomes should–and most often do–prevail. The rules are valid regardless of whether they promote any particular state’s purposes at a given time (Nardin, 1992: 19, 21). They are a foundational institution of international relations precisely for that reason: they transcend time, place, personality, and national interests. They have some authority independent of the desires of particular states in particular circumstances. Terry Nardin (1992: 22-3) puts it clearly:
To the extent that international law is regarded purely in instrumental terms, the international system becomes an order based on the existence of shared values, not a truly rule-governed order. International law exists as an independent institution only to the extent that its authority is acknowledged in the practice of international relations. And this means that its authority must have some other ground than its usefulness in promoting a desired international order. The authority of law…must not be confused with its rightness in relation to moral considerations or judgements regarding the desirability of the purposes it serves.
An international order could conceivably be based on shared interests of the major players, just as all voluntary associations such as clubs or sports teams can function in the absence of formal law. But in such a system, cooperation depends on the continuation of the shared interests. Once those disappear, so does the order. In contrast, in international relations for the past two centuries or so, all powers (with a few exceptions such as Nazi Germany) there is an implicit prior recognition of the practices, procedures, and other rules of international law. When a state receives recognition from others, it implicitly accepts the broad corpus of international law as binding upon it. It cannot seek recognition and declare simultaneously that it refuses to be bound by the law of treaties or diplomatic immunities, or the broad principle of freedom of the seas. The very act of becoming a state assumes at least implicitly an unconditional obligation to accept the authority of international law. Statehood itself is a status defined by international law, not independent of it (Nardin, 1992: 23). It is the authority of international law that distinguishes the contemporary society of states from historical analogues. Neither among the Sumerian polities, Chinese warring states, nor the city-states of Greece or Renaissance Italy were relations defined primarily in legal terms, and there was no body of law, the acceptance of which preceded the existence and the right to existence of the interacting polities.[1] The high death rate of pre-modern polities through conquest and physical annihilation stands in stark contrast to the relative (in historical terms) security of statehood in the last two centuries. The system of international law contains many ethical ideas, but the most fundamental is the ethic of tolerance of political diversity and the coexistence of states.
International law is thus a foundational institution of that order. There has been significant change (complexity, transformation, novelty, or obsolescence,) in at least four areas: individuals and non-state organizations are becoming subjects of that law; international organizations may sanction collective intervention to protect populations at risk; the right of conquest–also a corollary of sovereignty–has been abolished; and the use of force has become highly circumscribed. Sovereignty, territorial integrity, legal equality, non-interference, consent, and the binding character of treaties remain principles underlying diplomatic and other types of transactions that have not changed significantly over the last three centuries.
Process Institutions: Trade
If diplomacy was becoming institutionalized in the late seventeenth and early eighteenth centuries, this was not the case for trade. There were patterns of commerce that endured for long periods of time (e.g., wheat from eastern Europe through Antwerp and Amsterdam, timber and pitch from Scandinavia to Holland and England), but they were rarely independent activities. Trade was a part of the great project of building states and thus became organically connected to diplomatic problems. There was a lex mercatoria among private traders, but as the seventeenth century wore on, trade increasingly became an irritant in diplomatic relations, and often a source of war.
Practices
Typical trade practices of the era included attempts to establish monopolies, the formalization of monopolies (the slave trade), piracy, privateering, armed raids on factories in the colonies in the West and East Indies, embargoes, boycotts, prohibitive tariffs on some commodities, armed convoys, and the like. The British and Dutch fought three primarily commercial wars in the second half of the century. The issues they contested included the limits of territorial jurisdiction (attempts by the British to prevent Dutch fishing near English shores), privateering, Dutch attempts to prevent British bottoms from participating in the Baltic trade, British embargoes on wool and other commodities, and more minor concerns. In the West Indies, the French, British, and Spaniards fought numerous battles in attempts to break monopolies or to destroy the productive facilities of those who were underselling. The East Indies were no more secure. The great charter companies had their own armed forces and were authorized to negotiate treaties with local potentates. Attempts to create monopolies led to frequent battles between both the companies and local authorities, and among the companies. Local pirates also infested the waters of the area.
The practices of trade in this era resembled a war of all against all. Sea trade in particular was fraught with dangers, and during wartime (e.g., most of the time) trade was an adjunct of military campaigns (Cf., Sofka, 2001: 153-7).
Ideas
The prevalent ideas about trade in this era complemented, supported, and justified these activities. Mercantilism was a loose set of ideas that established an organic connection between state power and state wealth. Indeed, the two were inseparable. Mercantilist theorists and the many politicians who espoused them regarded the possession of natural and other resources the basis of wealth. This being the case, there were intellectual grounds for dominion, meaning monopoly. What one possessed pre-empted others from possessing. And in so far as many of the commodities involved in trade were in effect luxuries, any competition within this very small market threatened to destroy the whole enterprise (Parry, 1971:73). There were other ideas as well, including the notions that trade is a zero-sum game and governments must hoard bullion. We need not elaborate on these themes but only to point out that the main beliefs about trade in this era helped to lead to highly bellicose practices. Ideas did not always drive them, but they certainly provided them with political legitimacy.
Norms
There were no norms or critical rules to help guide commercial practices (aside from the lex mercaterio). The law of the sea was a domain of contestation and quarrel, with the Dutch as champions of the freedom of the seas (Grotius’ contribution) and the British among those who wanted to appropriate them for national purposes. There was a law of prizes, but this referred primarily to the conduct of war rather than commerce. There were of course many national laws regulating trade (the Navigation Acts in England), but these were more a source of conflict than mechanisms for lowering transaction costs. In brief, trade in the late seventeenth and early eighteenth centuries was not institutionalized. It was a domain of constant struggle, conflict, and of frequent warfare.
The Institutionalization of Trade
Now we fast-forward to t2, the present, and the scene looks almost incomparable. There are thousands of trade treaties, few monopolies, well-established and mostly observed norms such as reciprocity, lower tariffs, preferences for the weak, transparency in obligations and practices, and the like. There is an international oranization that has a dispute mechanism, the decisions of which are binding on states. There are other arbitration treaties, regional trade dispute settlement mechanisms, and a rich body of international maritime law that is commonly observed. By my reckoning (Holsti, 1991: 308), commercial and navigation issues as a source of war have declined from a high of 20% of all issues that generated wars in the 1648-1715 period, to .01% in the period since 1945.
Space limitations preclude an extended discussion of contemporary practices, ideas, and norms concerning trade. They are in any case well known. We must not create the impression, however, that this is an area of interaction without difficulties. Despite clearly stated norms and rules, many practices are inconsistent with them. Immense subsidies given to agriculture in North America and Europe, numerous regional arrangements that challenge the most favored nation principle, a host of non-tariff barriers, and occasional predatory practices such as we observe today in the American imposition of punitive tariffs on Canadian softwood exports violate established norms. But on the whole it would be difficult to argue that in this domain we have a regime of organized hypocrisy. The general trend, particularly since the early 1990s, has been to reduce tariffs, bring more areas of commercial activity under international trade rules, identify and exclude various forms of “cheating,” and to identify domestic legislation that is inconsistent with international trade rules. There are ample grounds, then, for arguing that trade has become strongly if not perfectly institutionalized.
Sources of Change
How do we account for the rise of this relatively new institution in international relations? The story is long and complex, but two elements stand out. The first is in the realm of ideas. The second is the experiences of the 1930s.
If there is any area where academic ideas had a profound impact on international practices, trade is it. Although there were numerous critics of mercantilist doctrine in both France (e.g., Quesnay) and England, none had the impact of Adam Smith and David Ricardo.
Adam Smith’s An Inquiry into the Nature and Causes of the Wealth of Nations (1776) made two great contributions that ultimately led to the incorporation of free trade ideas into the foreign policies of most states (Knorr, 1944: 185). Smith was able to demonstrate that thanks to the division of labor, free trade increases wealth for all those involved in exchange. But the more important implication of this position was that dominion is not necessary for generating wealth. In fact, he argued, compared to free trade, it is much more expensive.
The second major implication of The Wealth of Nations was that economics is a science. Its essential principles are not questions of protecting interests or of beliefs, but of truth. Mercantilists could rail against the “ivory tower” aspects of scientific economics, but as the nineteenth century progressed, the empirical evidence supporting the free trade and comparative advantage ideas grew rapidly. The proponents of economic science did not have to invoke a deity, special interests, or nationalism to make their points. The proponents of mercantilism had little else upon which to make their case. They could and did argue that maintaining colonial monopolies was essential for national defense and grandeur; or that shipping monopolies were necessary aids to British naval supremacy throughout the world.
David Ricardo published his major text, The Principles of Political Economy and Taxation in 1817. He provided further support, indeed a “scientific” verification, that international trade is not a zero-sum game and that it brings mutual, if not necessarily equal, benefits to those who exchange. He elaborated on Smith’s ideas and produced the principle of comparative advantage that became the foundation of liberal economic theory for the next 150 years.
The ideas of Smith and Ricardo did not overwhelm mercantilist thought and practice initially. Smith himself was not optimistic about the possibilities that British policy-makers would adjust policies to the findings of the new science (Cf., Knorr, 1944: 190-91). But the ideas did enter into the public agenda and became increasingly persuasive. The public debates and discourses in England surrounding trade and colonialism following the Napoleonic wars hinged on the issues and perspectives initiated by Smith, Ricardo, and others. They helped set in train an increasingly popular free trade and anti-colonial movements. These remained a minority views, but they were articulate and forceful (Knorr, 1944: 241, 248). The debates culminated with the 1846 repeal of the Corn Laws (which placed tariffs on imported grain) and three years later, the repeal of the Navigation Acts. Charles Kindleberger (1975: 36) came to the conclusion that interest or power centred theories cannot explain the transition for mercantilism to free trade nearly so well as the ideological explanation:
Vested interests competing for rents in a representative democracy, thrusting manufacturers seeking to expand markets, or faltering innovators, trying as a last resort to force exports on shrinking markets…none of these explanations seems free of difficulties as compared with an ideological explanation based on the intellectual triumph of the political economists, their doctrines modified to incorporate consistency.
There was no straight line between the introduction of Smith’s and Ricardo’s ideas and the institutionalization of trade. Tariffs remained high in most of the world until the mid-twentieth century, colonial monopolies, re-christened Imperial Preferences, continued until the same time, and the arguments of mercantilists, re-named economic nationalists, were effective in promoting government policies (particularly in Germany) that emphasized the protection of “infant” industries, state subsidies, and generally high tariffs. Although many late nineteenth century bilateral trade treaties reduced tariffs to some extent and introduced the MFN principle, the world in 1919 had not progressed very far outside of proscribing piracy, letters of marque and reprisal, and some of the more odious seafaring practices of eighteenth century mercantilism. The Great Depression and World War II provided the essential impetus for a transformation of the world trade system into a domain of rule-based activity. Both these great events constituted major learning experiences.
The sources of the depression included a number of factors, including German war reparations and hyperinflation, over-production in the United States, massive stock market speculation, the inability of the British to provide leadership in the areas of trade, finance, and money, and rising tariffs. The Nazi attempted to create a hermetically sealed trade block of which it was the master–attempting autarky for strategic reasons. All of these, combined with competitive devaluation of currencies led to a marked decline in world production and trade. International cooperation in this destructively competitive situation was impossible. The policy preferences of all the major powers increasingly diverged, symbolized most blatantly by Nazi coercive trade policies, Japanese and Italian imperialism, and high tariffs in the United States (Cf., Gilpin, 1987: 80, 130).
Serious thinking about the creation of a post-war trade order based on economic liberalism took place in Washington during the war. Secretary of State Cordell Hull promoted the view that economic nationalism, high tariffs, trade blocks, and competitive devaluations had been a major cause of World War II.
To me, unhampered trade dovetailed with peace; high tariffs, trade barriers, and unfair economic competition, with war. Though realizing that many other factors were involved, I reasoned that, if we could get a freer flow of trade…so that one country would not be deadly jealous of another and the living standards of all countries might rise, thereby eliminating the economic dissatisfaction that breeds war, we might have a reasonable chance for lasting peace (Hull, 1948: (I) 81).
Hull’s views were roughly similar to those of President Roosevelt and many officials in the American State and Commerce Departments (Cf., Lipson, 1982: 256). One sees in this quotation a summary of many of the arguments made by the successors of Adam Smith and David Ricardo in mid-nineteenth century England. The purpose of free trade is not only to maximize wealth, but also to promote peace.
Armed with these ideas, the United States took leadership in the creation of international organizations that would develop and sustain a multilateral rule-based trading regime. This was not a question of charity, but of enlightened self-interest. The United States, the only major country to have emerged from World War II with an economy much stronger than in 1939, had a clear interest in gaining market access to Europe, Asia, and to the remaining colonies. In addition, it had ideological and strategic concerns, particularly after the Cold War began around 1948: it had a strong stake in binding allies to it, in promoting its values abroad, and in building up foreign economies so that they could withstand the blandishments of communism. It also offered significant market opportunities for the post-war reconstruction of war-torn economies. A liberal, rule-based multilateral trade order thus coincided with the economic aspirations of most of the industrial countries. We must emphasize that the United States did not bully others into fashioning the regime. Indeed, in order to persuade others to come on board, it had to make numerous concessions, including the non-dismantling of British and other colonial powers’ preferential trade arrangements. The communist governments, on the other hand, would have no part of it, portraying institutions such as the International Monetary Fund and the General Agreement on Tariffs and Trade (GATT) as instruments of American imperialism.
To summarize: explanation of the institutionalization of trade has to emphasize ideas and disastrous experiences above other lines. Legal, interest-based, and power-based explanations have some purchase. But it would be difficult to conceive of contemporary institutionalized trade arrangements in the absence of Adam Smith, David Ricardo, and the Great Depression and its war aftermath.
War
If trade and diplomacy followed roughly a straight line of institutionalization, war has not. In our t1, roughly the late seventeenth and early eighteenth centuries, war had certain elements of an international institution as we have defined it. It rested on certain coherent ideas, a number of important rules were developed, and certain formalities and etiquette accompanied its prosecution. Practices were generally standardized throughout most of Europe.
The Thirty Years War was a major learning experience. Among its lessons were the need to organize armed forces on some principle other than mercenary troops and for political control over the military. The major effort of the late seventeenth and early eighteenth century monarchs was to create standing, professional armed forces under effective state control. Louis XIV led the way and was copied by all the monarchs that mattered and many that did not.
The purpose of this major shift in organization was to assure that the massive marauding type of warfare of the 1640s would not be repeated. Among its problems was the massive killing of civilians and destruction of property, the political projects of commanders–literally loose cannons in the field–and the indecisiveness of long wars of attrition that melted down state treasuries. Since wars had to be financed primarily by taxing the peasantry, the consequence was systematic peasant revolts throughout most realms. There was thus a powerful incentive to find organizational formats that could fight brief, decisive wars under the direct command of the monarchs.
Ideas
Although not spelled out until after the Napoleonic wars, the military thought of the eighteenth century could be termed roughly “Clausewitzian.” This was the view that the military is primarily an instrument of the state, to be used for its diplomatic purposes. It is not an instrument of annihilation, of religious conversion, or of punishment, but an agency of the state designed to inflict its will on other states when diplomacy and other means failed. This conception of war is conservative in the sense that it presupposes and accepts a society of states. Force is to be used not to destroy all “others,” but to bend their will in as economic matter as possible. This view of war melded nicely with the ambience of the Enlightenment that placed the values of moderation, balance, and etiquette above most others. Whether this moderation derived from an intellectual ambience, ideas, or a lack of capacity remains a matter of debate among historians (Cf., Sofka, 2001: 151-2).
Norms
The norms that developed in this era emphasized the distinction between combatants and civilians, between the state and the armed forces, and between belligerents and neutrals. Many of them were encoded in treaties and became part of the “law of nations.” Again reflecting the culture of the era, the prosecution of military campaigns had to follow certain protocol and etiquette. The examples are numerous: hostilities followed a formal declaration of war; rules governing the treatment of prisoners and the etiquette of ransoming; rules governing sieges and surrender; the etiquette and protocol of surrender; the assumption that peace treaties were definitive; and norms dealing with the treatment of civilians. In many of the wars of the era, some of these norms and rules were broken (especially those dealing with the treatment of civilians after a successful siege). But on the whole, today one can be somewhat nostalgic about the limited and rule-bound character of war in the era.
Practices
Practices, meaning in this case strategy, tactics, and execution, were highly standardized. Strategies emphasized putting the adversary in a defenseless position so as to induce surrender. There was not compulsion nor was it a matter of honor to annihilate the enemy. Tactics referred to maneuvers, wheeling, the lineup of troops, logistics, and the like. Armies were similar in the following respects: their officers, formerly drafted at the moment from among the nobility, now were recruited for talent and trained in academies. Soldiers wore distinctive uniforms and clearly displayed their weapons. Except for sieges of strategic towns, battles for the most part took place in the countryside, during particular seasons of the year, and also at sea. For the most part, civilians were spared. Indeed, commerce and other forms of interaction continued to function largely as if there were no war. Frederick the Great’s ideal war was one in which civilians were not even aware that it was in progress.
The De-Institutionalization of War
There is an almost perfect inverse correlation between the development of norms surrounding warfare and their observance in military operations. In the eighteenth century, there were as many “gentlemen’s agreements,” unwritten protocols, and etiquette as rules defined in the “law of nations.” In the nineteenth century the laws of war started to become codified both in international instruments (the first Geneva Convention, 1864, the 1899 and 1907 Hague conventions), and in national military codes (the Lieber code in the United States). These dealt with issues such as treatment of prisoners of war, the sick and wounded, and prohibitions against the use of certain weapons (the “dumdum” bullet). Most important, the various instruments spelled out in great detail the responsibilities of armed forces with regard to civilians. They essentially codified the informal rules of the eighteenth century that clearly distinguished between combatants and civilians and prohibited the direct targeting of the latter in military operations.
Twentieth century technological innovations and the imperatives of “total war” rendered many of those rules inoperative. Here we now had the de-institutionalization of war: in many standard operations, the limits were observed only intermittently or not at all. In World War I, two new domains of military activity–air space and under the sea–offered new strategic opportunities, first in bombing civilian targets from the air and second in torpedoing Allied shipping, including civilian vessels. Still, in that war, only 5 percent of the casualties were civilian.
World War II proved that Rousseau’s old adage about war was incorrect: “man kills in order to win; he does not win in order to kill.” Nazi policies in east Europe and the Soviet Union were designed to bring military victory in order to kill. The final count was appalling even by the standards of Genghis Khan: more than 6 million Jews and Gypsies, about 3 million Russian prisoners of war, and several million more civilian victims of terror bombing and the activities of the Geheimstaatpolizei and SS. The Japanese starved and worked to death hundreds of thousands of Allied prisoners of war. Allied fire bomb raids of little strategic value against civilian targets in Hamburg, Dresden, and Tokyo killed many more than the two atomic bombs on Hiroshima and Nagasaki. All sides regularly shot prisoners instead of interning them. The statistics tell the rest of the tale: 50 percent of the casualties of this war were civilians.
That figure has now grown to about 90 percent. The hundreds of intrastate wars since 1945, including “wars of national liberation,” have seen the total breakdown of the distinction between combatants and civilians. The latter are directly targeted in order to maximize terror and to undermine support for political authorities. These wars are characterized by loose political controls, a great deal of predatory and plundering activity, militias operating on their own, often brutalizing civilian populations. The dividing line between war and criminality is tenuous at best in these conflicts, and the laws of war and humanitarian law are conspicuous by their irrelevance. The case for de-institutionalization and reversion is buttressed by the re-appearance of mercenaries and private security firms as important actors in these wars.
Ideas
Ideas about war have changed no less than practices and norms. In the eighteenth century, we see the development of the classical or Clausewitzian notion of war as an instrument of policy to defend or achieve known state interests. In that period those interests were generally limited to colonial expansion, attempts to break up trade monopolies, and occasional territorial aggrandizement. Napoleon re-introduced the idea of a pan-European empire, thus undermining the assumptions and goals of the Westphalian settlement. Hitler was to repeat this purpose, albeit to construct a hierarchy of races rather than nations. The ideological purposes of the Soviet Union were also total in the sense that a successful world revolution would transcend the old states system. The purpose was not to adjust, to balance, to equilibrate, or to operate within a society of states, but to destroy it and to create an entirely new order based on fundamentally different principles.
Both world wars of the twentieth century demonstrated that aims could not be limited in the eighteenth century sense. The purpose of armed action was as much to destroy nations as to force a surrender of the adversary. Unconditional surrender was the justification for re-modeling the defeated societies in the image of the winners. But at least in these circumstances there was a known political end for military action.
In the hundreds of intrastate wars of the past half-century, ideas about war have become increasingly muddled. For Mao Tse-tung and Ho Chi Minh, war was an instrument of revolution. Its purpose was primarily to invoke revolutionary fervor among the working masses and to transform that energy into massive social upheaval to defeat imperialists and entrenched governments. But when we get into wars such as those in Mozambique, Angola, Sierra Leone, Liberia, and the like, plunder, theft, enrichment, and social predation become a way of life without any greater purpose than systematic theft. Warriors might speak of “de-stabilizing” governments, “liberating” oppressed peoples, or the like, but actions are seldom fitted easily to such tasks. One oppression simply replaces another.
Technowar: the Re-institutionalization of war
But not all forms of armed action have gone the route of reversion to pre-1648 practices and de-institutionalization. Technological developments (smart bombs, drones, and unmanned missile/gun platforms like the “Predator,”), a political vulnerability to charges of excess “co-lateral damage,” and in general a greater sensitivity to civilian casualties have combined to encourage modern industrial countries to base strategies on the selection of discrete military targets and infrastructure. This is a recent development. In the Gulf War, allied missile and bomber attacks on Baghdad cost about ?? civilian lives and large-scale postwar civilian suffering. In the Kosovo war, about 10,000 civilians lost their life. Estimates of civilian casualties in the Afghanistan operation of 2001-2002 run between 1500 and 3000, significantly lower than in Kosovo. If this is a trend, then we may be witnessing a rebirth of the old eighteenth century distinction between combatants and civilians and a decline in the huge gap between the laws of war and actual military operations.
The profile of war is thus schizophrenic. On one hand, there is strong evidence of reversion to Thirty Years War practices and de-institutionalization. That trend has accelerated to the point that a large majority of wars today have all the symptoms of organized criminality, low observance of the laws of war and humanitarian law, the deliberate targeting of civilians, and the breakdown of central control. Many of the standard marking devices of armed forces have disappeared: distinctive uniforms, ranks, military ceremonies, standards, honors, and the like. The classical sequence of war declaration, campaigns, decisive battles, surrender, preliminary peace negotiations followed by a formal peace has largely disappeared. Wars begin often with some minor incident, they break out periodically, then go underground. Cease-fires and truces may be arranged but they have only limited duration. The mortality rate of peace agreements is very high: more than fifty percent are systematically violated within five years after they are signed (Heraclides, 1997: Licklider, 1998).
On the other hand, some of the recent wars fought by various international coalitions seem to take a form that precludes large-scale violence against civilians and seek scrupulously to minimize collateral damage. This has been made possible by the latest weaponry. The rules of war and humanitarian law are instilled in training programs and observed with reasonable regularity. The loud debate about American treatment of al-Qaeda prisoners is revealing in this respect: one could hardly imagine such a ruckus, say, about American treatment of Viet Cong captives. We are thus seeing evidence of greater consistency between norms and actions, which is one important indicator of institutionalization. The creation of the International Criminal Court that provides universal jurisdiction over war crimes and crimes against humanity is further evidence of institutionalization.
But the most difficult problem in characterizing war today is that in the sense of a classical armed contest between states, its incidence is declining precipitously. This type of war may be on the trajectory of obsolescence. It would be premature to explain the phenomenon in terms of changing attitudes and norms regarding the use of force, but that would be at least part of the story. The issue is too complex to address here. Let us conclude with the observation that an institutional analysis of war may be insufficient to understand all the important changes that are taking place in this domain of human activity.
Obsolescence: Colonialism
I have tested the reader’s patience too much. However, before concluding, we need to mention at least one clear case of obsolescence. It is colonialism. The major project from which this paper derives offers the argument that colonialism was an institution of the European states system. Actions were highly patterned, there were numerous ideational justifications and motivations for colonial expansion, including racial theories, liberal paternalism, and geostrategic reasoning. A variety of norms guided actions. These involved unwritten agreements on matters such as spheres of influence, compensation, neutralization of areas of competition (the Congo basin), and more explicitly stated rules about treatment of the “natives” (of which, of course, there was a great deal of hypocrisy). Even if we acknowledge significant differences between, say, British and French administrative theories, the constitutional and legal structures of the colonial empires had much in common. The Italians borrowed ideas and practices from the French, while everyone examined British practices and admired the “enlightened” colonial policies of the Dutch in the East Indies. There is much evidence, then, of colonialism as an institutionalized form of activity. Indeed, by the late nineteenth century, colonialism was a defining feature of the European states system.
The sources of its obsolescence are varied and contested. Many have emphasized the role of ideas, how colonial nationalist movements appropriated liberal tenets and discourses and applied them to their own situation. The institution of the European state became the model toward which independence movements sought to move…at first peacefully but increasingly violently after World War II. Others emphasize power factors, namely that the European colonial powers were so weakened by World War II that they had neither the capacity nor the will to re-establish their supremacy to the condition that had prevailed, for example, in 1914. The Soviet Union and to a lesser extent championed various national liberation movements, while the United States was no friend of colonialism either, or at least not until the early 1950s when the national liberation movement/Soviet nexus in many areas had become stronger. The war-torn economies of Europe, facing the challenges of constructing welfare states, did not offer the means to engage in widespread colonial development schemes that could have undermined the liberation movements. The French defeat in Algeria demonstrated Europe’s vulnerability, and soon national liberation movements flowered throughout the colonial areas. Every “liberation” war, with the possible exception of Malaya, ended with imperial retreat and the birth of new states.
Another line of argument emphasizes the de-legitimization of the colonial idea through international action. The United Nations passed numerous resolutions that systematically undermined the various intellectual props of colonialism. Symbolic of the rapid collapse of the institution, we can take the example of British colonial officials in Kenya writing in their despatches in the mid-1950s that the Kenyans would not be ready for self-rule or independence for another century. But it happened in less than ten years.
Today, colonialism as an institution has disappeared. Residues of paternalism remain in some international practices such as aid programs and the establishment of protectorates in war-torn areas such as Bosnia and Kosovo. But these programs have quite different justifications than their predecessors and the latter are universally seen as temporary necessities rather than as the just spoils of conquest or civilizing missions.
Conclusion
I have selected international institutions as markers of change in international politics. Big bang and trend concepts of change are problematic and have a poor record of outcomes fitting prognostications. Institutional measures take us beyond the daily headlines and provide metrics of significant change in the international system. They also allow comparative sectoral analysis, thus avoiding the common error of other concepts of change that tend to insist that “everything is new.” The table below summarizes the arguments for each of the institutions.
Overall, the pattern is that the foundational institutions of the society of states are becoming more complex with a higher degree of institutionalization. The state, for example, has become the sole form of political organization with the status of sovereignty. Some aspects of territoriality–particularly the increasing transparency of states and populations–are reverting to pre-nineteenth century patterns, but for the most part this institution has continued to strengthen compared to previous eras or in other historical international systems. There is little to argue about diplomacy, trade, and colonialism. Diplomacy has become much more complex, particularly with the inclusion of ngo representatives in negotiating teams, but the rules, norms, and ideas underlying practices are better articulated and stronger than ever. War is the most difficult to classify in terms of change types because there are essentially two different patterns of activity. The “revolution in military affairs” and increased sensitivity to collateral damage help to bring military practices more in synchronization with norms and rules, while many armed conflicts in some areas of the world contradict almost all of them. In many cases, the entire category of “war” becomes problematic when the actual purposes and patterns of action resemble organized criminality more than our traditional concept of war.
This analysis is not designed to preclude other routes for analyzing international change. But I continue to be struck by the lack of discipline and the contradictory findings and arguments among proponents of “big bang” and trend analyses. The immense debates about globalization suggest one point: standards of research have deteriorated in the last decades. Selected examples, wishful thinking, denunciation, hyperbole and assertion without systematic evidence are the hallmarks of much of this literature and so naturally we assume that any major event allows us to proclaim a new world, era, or order. While institutional analysis has its limits (we can debate these), it offers an avenue to escape many of the problems of its competitors.
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