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From Recognition to Intervention: The Shift from Traditional to Liberal International Law

Linda S. Bishai

International Studies Association
41st Annual Convention
Los Angeles, CA
March 14-18, 2000



The purpose of this paper is to discuss and problematise the current shift in legal theoretical circles from traditional international law to a new kind of liberal internationalist project. This shift will be described in terms of traditional conceptions of international law as constitutive of states through recognition versus the new liberal conception of international law as intervening in the sovereignty of states through third-party determination of legitimacy. That is, the liberal international legal project advocates the establishment of a bifurcated system of states in which legitimacy (and access to international institutions) depends upon a designation of liberal status. The prioritizing of liberal over non-liberal in the international sphere, though unacknowledged, has already begun to inform the discussions of humanitarian intervention in both political and legal circles. This paper will argue that Intervention (with a capital I ) takes place within the liberal international project as a form of ontological hierarchy even before intervention in the form of military force on sovereign territory takes place. It is not at all the purpose of this argument to criticize the development of the international human rights regime or the desirability of the global spread of democratic institutions. Even intevention (small i) is not a priori undesirable if it is focused on relief for the victims of human rights abuses instead of vindication or moral glorification for the intervening regimes. Rather, this paper attempts to reveal the hidden violences of the liberal internationalist project in order to open a theoretical space for new paradigms of international law which can foster human rights and freedoms without imposing the fundamentalisms of objectified standards of legitimacy.

The paper will be divided into four parts. First, it presents a discussion of the traditional understandings of international law in which recognition mediates relations between states as sovereign equals entitled to respect. This mediation is not unlike the role in human societies played by etiquette; both etiquette and international law are specified systems of behavior which regulate relations among strangers for the purpose of maintaining a peaceful order. Second, the disruption of this system of behavior arises when one or more parties assumes an exemption from the presumption of showing recognition/respect on the basis of unworthiness or illegitimacy. Such disruptions are unavoidable, indeed intentional, within the liberal international project. These breaches are not only an error in international etiquette, but also deeply undermine the entitlement of dignity that is necessary for international relations to take place on a peaceful basis. Third, this paper argues that Liberalism's assumption that not only are some states more legitimate than others, but that this legitimacy should be the basis of participation in international institutions, amounts to an Intervention into the traditional legal expectation of states that sovereignty is accorded recognition and respect. Thus, states deemed to be non-liberal have been subject to the Intervention of third parties by being excluded from international relations. Finally, this paper will argue that the assumptions of the liberal international legal system are already present in the discussions currently held about justifications for military intervention. Last year's bombing campaign in Kosovo and the continuing treatment of Iraq provide ready examples of the dynamics of the Liberal shift in international law and politics. The conclusion to be drawn from this "uncovering" of Liberalism's repressions is that space must be found in the ever-developing norms of international law for the advancement of human rights and democratic values without the righteous vindication and ontological certainty found in this recent strain of Liberal internationalism. Not only does such triumphalism provoke furious reprisals from those abitrarily excluded, but it risks the ossification and weakening of liberal institutions themselves due to the complacent neglect that accompanies ontological certainty.


Traditions of Recognition

Traditional international law bears more than a passing resemblance to the rules of etiquette. Both developed as a means of systematizing relations between autonomous "sovereign" entities, and both require a certain formalism in treating their subjects with equal respect simply on the basis of their subject-hood — individuals in the case of etiquette, states in the case of international law. This key concept of equal respect is due regardless of the behavior of the subject. Thus, the rudeness of an individual may not properly be countered by rudeness on the part of those who were subjected or witness to it. Similarly, in international legal relations, states with various and questionable methods and regimes were traditionally entitled to the continuation of the same standard forms of respect. Mutual acknowledgement of equality, however insupportable empirically, allows relations between states to take place on a smooth and peaceful basis. Just as, in polite, etiquette-driven society, the wealthy must not scorn to notice the poor, so in international relations, a superpower must exchange ambassadors with a small undeveloped nation. The arbitrary nature of these customs does not lessen their importance, and it is no accident that protocol is one of the most useful tools in the diplomatic pouch. The formal outward show of peace and good will at the very least allows for a face-saving social dignity even in cases where relations are strained to the breaking point. Notwithstanding the requirement of respect, there is still a spectrum of possibilities both within etiquette and international law for showing disapproval. A calculated expression of shock and subsequent chilled tone in relations clearly indicate to the perpetrator that social boundaries have been unacceptably transgressed. Thus the international system has social norms for relations in the same way that domestic societies do. Lest the statism inherent in this analogy appear too reactionary, it is simply for the purposes of clarity that focus is best trained on the state for now; this should not be taken for a lack of concern with contemporary debates about the porousness of the state and the plural nature of sovereignty. 2 Indeed, these issues are raised in the concluding section as areas of relevance for a post-liberal conception of international law and relations.

Like etiquette, traditional international law is also criticized for its lack of conclusive enforcement mechanisms. In domestic spheres, etiquette gives way to law as soon as behavior ventures into the criminal realm. However, what exactly constitutes criminality in both domestic and international spheres is a matter of continuous negotiation. For example, formerly patronizing forms of address can now be prosecuted as sexual harassment. No less strikingly, acts by heads of state which were formerly invisible on the international stage can now be prosecuted as criminal offenses notwithstanding the official status of the perpetrator. This is the point where etiquette and international law part — although not in terms of general perspective. Etiquette must refer to the law enforcement mechanisms of state officials, while international law must deal with criminal matters in consensus-based ad hoc ways without the benefit of universally recognized officials. This often involves the domestic mechanisms of various states, as in the case of the British Law Lords' landmark ruling pertaining to the criminal liability of General Augusto Pinochet. International criminal law is in a particularly vital phase at the moment, but it still suffers from the lack of universal enforcement mechanisms which plague international law generally. However established a future International Criminal Court may become, it will still be less effective than most domestic law enforcement mechanisms simply because it will not have the same standing in international society. Nonetheless, this development should not be taken as a weak or meaningless gesture. The etiquette/law analogy is not meant to disparage international law as pretty window dressing in the power-based realm of international politics. Rather, seeing international law as a system of rules for social behavior which allow common understanding and a peaceful basis for relations is actually to see international law as a very critical political tool.

It is the political power of international social membership that makes recognition the primary act of statehood. As James Lorimer argued at the end of the 19th century, the dependence of states upon one another stems from their status as created entities. States are not independent, so "they must recognize that they co-exist with other created centers of power. To be entitled to recognition a state must presumably possess the will and the power to reciprocate the recognition. It must be able, as well as willing, to perform the duties incident to international life." 3 States create both themselves and international society through acts of recognition since without this formal step, there are no relations possible between states. As Erik Ringmar puts it, "To abide by the law is thus not primarily a matter of 'being good', but rather a matter of submitting oneself to a rule which makes it possible 'to be' in the first place....The standard, in other words, is used not only to judge actions, but also to identify the actors to whom the standard itself applies." 4 Seen in this way, recognition comes to stand not just for sovereignty but for the identification of the state as an international player. Without this formal step, it cannot participate in a meaningful way; an unrecognized state exists in a peculiar international legal limbo as a kind of observer — present but not influencing the action.

The perceived need for reciprocal recognition is as old as the practice of diplomacy — but it is only in the twentieth century that it came to be applicable to a truly global international society. Sovereignty and recognition, then, go hand in hand as the prerequisite control and the enabling mechanism for participation in international society. These twin requirements are acknowledged in the United Nations Charter, Article 2.1, which declares that "The Organization is based on the principle of the sovereign equality of all its Members." Ian Brownlie refers to the sovereignty and equality of states as "the basic constitutional doctrine of the law of nations, which governs a community consisting primarily of states having a uniform legal personality." 5 The recognition of the equality of states regardless of their relative power is one which pragmatically perpetuates both order and justice since it places states on a level playing field with equal dignity and thus encourages reciprocity in peaceful negotiations and relations. In practice, diplomatic recognition is a matter of routine. However, it is the underlying assumption of equality that enables the traditional international legal system to maintain its fragile pretence of fairness and legitimacy. As Benedict Kingsbury astutely notes, the theory of sovereign equality provides a means by which people can be considered to have expressed (tacit) consent to international agreements. 6 This consent is critical in legitimating international institutions, rules and activities — especially when something like humanitarian intervention is at stake. It is crucial, however, not to mistake the recognition requirement as a morally limited or politically circumscribed procedure. Recognition of sovereign state status confers obligations as well as rights. The corollary to sovereign equality is jurisdiction over territory, a duty on non-intervention into the jurisdictions of other states, and obligations arising from customary law and treaties. 7 The latter qualification includes the general prohibition on wars of aggression. This minimum starting point for international relations does not stop states from actively advocating international human rights norms. The fact that traditional international law maintains the legitimacy of non-democratic regimes as carriers of international legal personality must be seen as the only means of guaranteeing the freedom to engage in politics in the international sphere. Politics in this sense refers to contentious relations between the self and other (or friend and enemy) through which identity and difference are constantly negotiated. 8 It is, then, a conflictual but necessary and unavoidable constitutive process. Politics occurs as a means of enabling the determination of self versus other — it is a continual and vital process and must be protected as such. That is, law (both domestic and international) must secure the necessary negotiations between the self and the other on a basis of equality so that the relationship is not one of suppression or silencing of the other in the attempt to establish a final apolitical "true self". As Carl Schmitt tellingly described it, "a world in which the possibility of war is utterly eliminated, a completely pacified globe, would be a world without the distinction of friend and enemy and hence a world without politics." 9 But such a world is one of silences, and one, which Schmitt clearly raised to serve as a frightening reminder. 10

At this point the relationship between international politics and law becomes critical. The structures of the international legal system inform and influence the nature of the politics, which are possible and vice versa. When the legal structures are based on sovereign equality and recognition, as in traditional international law, then an open politics of contentious but respectful debate may take place. This is what political theorist, Bonnie Honig, calls the Politics of Virtù. In Honig's view, this is "politics as a disruptive practice that resists the consolidations and closures of administrative and juridical settlement for the sake of the perpetuity of political contest." 11 The politics of virtù, then, requires a continuous resistance to closure and settlement for the sake of an openness to as many voices and perspectives as possible. Ironically, the structures of traditional international law support politics "as a disruptive practice" far better than those of liberal international law, as will be discussed below. Because it requires an assumption of equality in inter-state relations, traditional international law maintains open channels for a diverse group of state entities with contradictory forms of governance. It is precisely the inconclusivity of international law, which allows it to foster an international politics of virtù. What is generally perceived as international law's weakness, then, can also be seen as its ethical strength. While Honig's argument is specifically addressed at political theorists in the domestic sphere, her descriptions apply with particular resonance to the international realm. The ethical value of a virtú theory of politics is that it disallows the hidden subjection of different voices in a system which is always attempting to achieve neatness and closure: "virtù is an ethical perspective that calls attention to the remainders of [the] system, to the insistences, cruelties, deceits, and inconsistencies, of virtue as a system of values." 12

In contrast to virtù theories of politics, Honig describes the Politics of Virtue. It is no coincidence that the theorists of the Politics of Virtue (Immanuel Kant and John Rawls in particular) are the same theorists looked to for guidance by the proponents of the liberal international legal project. Liberal internationalism is in essence the attempt to implement a Politics of Virtue in the international sphere. Honig describes the Politics of Virtue as follows:

As tantalizing as are the twin goals of order and justice, virtue theorists must employ a certain deafness to voices of dissent and resistance — what Honig calls "remainders" — left over from the imperfection of the fit between the structures of the community and its members. In the international sphere, these dissonant voices, sovereign states, are crucial to the maintenance of peace and security since they represent large populations and cannot be peacefully (or ethically) silenced. As Honig argues, the very concept of politics depends upon difference and conflict. Politics cannot be permanently suppressed or controlled, it must be participated in as widely as possible in order to avoid the repression of difference. This paper argues that the recognition-based system of traditional international law fosters a politics of virtù which, while often unable to prevail over conflicts and violence, more ethically deals with the disparate voices of a diverse planet. Liberal international law, with its prescription for Intervention, silences the non-liberal remainders through its totalizing administration of a community which shuns conflict in its concept of both the political and the legal.


Taking Liberties

Liberal internationalist concepts have begun infiltrating legal theory in recent years by means of international relations theory. The benchmark for liberal internationalism is Immanuel Kant, whose ideas about reaching humanity's full potential by transforming the attitudes of individuals and commitments to republican institutions have influenced political theory since they were written two hundred years ago. 15 Kant proposed that stable perpetual peace could be achieved if every state had a republican (i.e. liberal democratic) government, if all states willingly joined a federation which jointly secured their rights and ended all wars, and if these rights were transformed into universal cosmopolitan rights such that a violation in any part would be felt throughout the whole world. The key to this vision, then, is the idea that a natural order regulates human society and must only be properly adhered to on a global basis in order for peace to become the norm. Post-war international relations theory drew on Kant to generate a form of neo-liberal internationalism, which was based on the idea of the Democratic zone of peace. In the post-war world, Kant's thesis had become an empirical observation: that liberal states do not go to war with one another. This observation was taken as an indication of a "natural order" and formed the basis of a liberal internationalism in which liberal state structures were taken as the precursors of peace, thus legitimating an initiative to globalize liberalism in the name of promoting peace. Political theorist, John Rawls, has promulgated one of the best-known versions of liberalism in his theory of justice. In applying liberal theory to international society, Rawls also draws on democratic peace theory as an elemental fact of international relations which justifies analyzing international politics in terms of internal political structures:

This basic assumption allows liberal international theory to make a crucial departure from the assumptions of traditional international law, that is it allows international theory which treats states differently on the basis of their internal structure. Although there is no empirical proof of why democratic states retain peaceful relations with each other, especially given the many peaceful relationships which non-democratic states are capable of maintaining, and although defining the basic elements of the democratic state has become increasingly difficult, liberal theorists have been unable to refrain from a certain amount of righteous glee. 17 Rawls links the democratic peace assumption with another cornerstone of liberal international theory — the assumption that since the great evils of humanity (Rawls's list includes "unjust war and oppression, religious persecution and the denial of liberty of conscience, starvation and poverty, not to mention genocide and mass murder") stem from political injustice then "once the gravest forms of political injustice are eliminated by following just (or at least decent) social policies and establishing just (or at least decent) basic institutions, these great evils will eventually disappear." 18 Thus liberal international theory becomes a project with the goal of nothing less grand than the elimination of evil through the establishment of just institutions. This model loudly echoes the characteristics of Bonnie Honig's Politics of Virtue — the attempt to establish a virtuous (peaceful) society through the abolition of (contentious) politics. This can only be done by creating a "just society" which eliminates certain illiberal elements. These assumptions tip the balance tremendously in favor of liberalism as the only right form of political organization. Although he can not advocate spreading liberalism forcefully, Rawls's enthusiasm for what he calls "well-ordered liberal and decent peoples" leads him to assert that "outlaw" states which violate human rights may rightfully be subjected to forceful sanctions and even intervention in the attempt to protect the society of well-ordered peoples. Because human rights are considered to have a moral force in all societies regardless of political system, their violation can be regarded as a just cause of war. Rawls concludes: Societies deemed to be outlaws, then, may be treated differently than the traditional international legal entitlement to sovereign equality would require. Outlaw states take on the role of the criminal in domestic society. They do not conform to the established legal norms and therefore they must be punished. Thus, they may be singled out for sanctions and intervention in the name of protecting the liberal and decent segment of international society. Not only is it permissible under Rawls's theoretical framework to gently pressure outlaw states to change their ways, but they may be denied economic assistance and membership in cooperative organizations.

While it is hard to argue against the protection of human rights, it is necessary to question the apparent objectivity of Rawls's framework. He does not claim that his theory of a law of peoples describes international society as it is, but only as it might possibly be. Yet in his willingness to separate states into five separate categories ranging from liberal to outlaw, Rawls assumes that the best way to achieve a just law of peoples is to remove subjectivity from the analysis, sterilizing the debate by refusing to acknowledge that the subjects to which it refers have complex and interwoven histories and are engaged in a continuing process of negotiating their identities vis ā vis one another. He does not ask why a certain state may have adapted easily to liberal democratic institutions while another displays anti-social "outlaw" behavior in the international sphere. Nor does he question the extent to which liberal societies really are liberal. The good and the bad are givens. The only change envisioned by the theory is in the direction of liberalism. Attempting to remove the subjectivity of historical friend and enemy relationships in the name of more accurately determining justice achieves an unfortunate side effect — it places one category of society above another without regard to its historical status. Justice requires an understanding of the specific and changing context of the situation. Laws must be interpreted in order to apply to situations, which could not have been foreseen. Justice and subjectivity, therefore, must not be separated concepts. Carl Schmitt, the infamous and eminent anti-liberal, gives this discussion a critical twist when he discusses the impossibility of wars in the name of humanity:

In other words, liberal states may co-opt the ideals of human rights as their own and thereby determine that their enemies are outlaw (inhuman) states. Stripping a society of its humanity allows the "just and decent" society of states to intervene with impunity under the liberal international framework. Given that there is no world government with enforceable universal jurisdiction which could legitimately interpret violations of law, and also given that recognition of sovereign equality is the nearest thing to a constitutional standard for traditional international law, the liberal international theoretical framework is highly problematic. The liberal assumption that states may be treated differently based on their political structures allows a subtle but profound change in international legal standards, which condones an ongoing practice of Intervention into the internal affairs of non-liberal states. This will be clarified with more detail in the next section.

The manifestation of liberal political theory in international legal theory has yielded a form of liberal internationalism, which bears close resemblance to its political theoretical progenitors. Again the impetus behind the shift from traditional to liberal international theorizing is driven by the assumptions of the democratic peace. Thus not only does liberal international relations theory allow this distinction to be accounted for theoretically, but in the words of Anne-Marie Slaughter, it "mandates a distinction among different types of States based on their domestic political structure and ideology." 21 Because traditional international law does not permit this distinction, liberal internationalists theorize, it no longer reflects a true picture of relations in international society. A theory of liberal international law, as Slaughter hypothesizes, should reflect a world of liberal states with internal liberal attributes (these include peace, democratic government, market economies, transnational transaction networks, transgovernmental communication, and the collapse of the foreign/domestic distinction). The peaceful and productive attributes of liberal states, taken as general assumptions of the system, generate a very different model of international law. For one thing, the actors in the liberal international system are not only states but also individuals and groups operating through transnational channels. States may attempt to regulate these transnational individuals and groups, but must also account for their representation of the aggregate society within their boundaries; thus jurisdiction and sovereignty are "disaggregated". In Slaughter's world of liberal states, traditional international law and its categories of public/private, domestic/international, are irrelevant. Liberal international law is defined as comprising "all the law that regulates activity across and between territorial boundaries. The resulting body of 'law' is defined not according to subject or source, but rather in terms of purpose and effect, in conformity with a particular body of international relations theory." 22 While this new definition of law seems incredibly destabilizing, it is based on the assumption that all the states involved are liberal are therefore interdependent and peaceful in their relations. Liberal international law, then, creates a separate liberal system within the world system, which operates only among liberal states.


Liberal Intervention and the Displacement of Politics

The section above discussed the basic assumptions of liberal internationalism as the understanding that the zone of peace among liberal democratic states is a "fact" of international society, and that this justifies the differential treatment of liberal and non-liberal states. Differential treatment as a legal assumption requires a major break with traditional international law. As Slaughter puts it, "From the perspective of traditional international legal scholarship, it remains taboo to use distinctions between different categories of sovereign states as a basis for legal analysis." 24 Liberal international theory is about breaking this taboo. The shift, then, from traditional to liberal international law authorizes a reformulation of legitimacy itself from sovereign recognition alone to a liberal democratic regime requirement. The reformulation permits the domination, on moral grounds, of non-liberal states by liberal states — effectively bifurcating the international system into liberal and non-liberal sectors. For Slaughter, such bifurcation is not only permissible but fully desirable as a tool for liberalizing changes on a global scale:

While the liberal international project appears only to have the general good and justice for all in mind, its assumption of the intrinsic goodness of the liberal "zone of peace" has sinister aspects. It is the liberal states, which have the — unilateral — prerogative of designating the distinction between liberal and non-liberal. The empiricist democratic peace argument conceals the violence of the attempt to remove politics from the international sphere. This is the universalizing justice of the Politics of Virtue as opposed to virtù. Because this suppression of the political (through the removal of the equality of the other) is hidden behind the veil of humanity and the general good, it becomes performative as Intervention. Intervention in the sense of unilateral, third-party designation of status, is a liberal international performative practice in the sense that it produces the effects that it names. 26 States designated as non-liberal become "outlaws" through reiterated practices which assume and thus normalize (perform) their outsider status. The fact that these liberal performances are in the name of an ethical international practice only makes it all the more potent. Repeated performances of liberal (good) and non-liberal (bad) status have the cumulative effect of normalizing the silent assumptions of superiority and inferiority. The less we question these norms, the more successful they are at achieving authority as the natural order (i.e. the natural "fact" of democratic peace). This establishes a critical link between performativity and normativity, as Cynthia Weber explains: In this way, liberal states establish themselves as "normal" and "natural" and their illiberal histories are elided, while non-liberal states are established as fundamentally abnormal and thus also criminal. An example of liberal performative practices can be seen in Slaughter's suggestion that the Act of State Doctrine be used to establish a "badge of alienage" — mark of shame — on non-liberal states that elect to assert their sovereign prerogative in domestic courts. The liberal international project, then, is not even concerned with showing a lack of tolerance and respect; rather, liberal states are obliged to heed Rawls's injunction and refuse to tolerate outlaw states in order to make all peoples "safer and more secure". The cumulative effect of these assumptions amounts to a third party Intervention into the sovereign status of non-liberal states. Without any ability to participate in the process, they are deemed dangerous outlaws and denied the traditional status of sovereign equality. This "badge of alienage" also creates a presumption of moral strength in the position of liberal states as the ethical norm.

Intervening tendencies are part and parcel of the Politics of Virtue which assumes that there are no disruptions, resentments or injustices within its realm. This idea of a smooth calm, unruffled by politics, resonates within the concept of the democratic "zone of peace". The zone is inhabited by peace-loving liberal states that share values and thus cooperate to solve their problems in a reasonable, well-ordered, apolitical fashion. This is the image which liberal internationalism assumes is possible and attempts to make real. And yet, as Honig muses, can a theory which fails to account for foundational dissent within its realm accurately reflect the diversity of human opinions? Although dissonance in the Rawlsian scheme is left to the individual, and not the institutional, the closure sought by Rawls's theory is elusive. Honig finds that Rawls's dedication to pluralism is oddly disconnected from the understanding that politicization is necessary to protect pluralism. Her analysis of his theory of justice has similar ramifications for the law of peoples and its attitude towards outlaw states.

The protection of pluralism allows for the right of difference to exist, but without respect for otherness, the dominant culture becomes the natural "fact". In the liberal international project this means both that the non-liberal states are disrespected (or worse) and that the differences within the liberal zone itself are subjected to the flattening impact of dominance. As Andrew Hurrell points out in his discussion of Slaughter's theory on transnational linkages within the liberal zone: "There is very little reason for believing that all States are equally able to operate effectively within these networks. It is in the nature of hegemony that power brings options: to act unilaterally imposing a particular set of regulatory standards via the exercise of direct power; to exploit different forms of conditionality or to press for formal regulation through international institutions." 30 Thus even liberal states are subject to coercive conformity with, for example, the United States simply by virtue of its disproportionate influence both militarily and monetarily. But Honig's analysis also points to a crucial insight that Rawlsian theory neglects — that the good (the well-ordered, the liberal, the just) must be engaged in a continuous struggle with the bad (the disordered, the non-liberal, the outlaw) in order to maintain self-definition. The total absence of the outlaw, then, is an impossibility, for it cannot be achieved without violent silencing of dissonant voices. In other words, there is no singular formula for justice, which can embrace all of humanity if humanity is to have the freedom to think differently. The liberal project is to create a world, which silences politics for the sake of a uniform conception of a well-ordered society — but which requires politics in order to maintain its liberal commitment to a plurality of values.

Rawls assumes for his theory, then, that the Law of People can be worked out among only liberal democratic societies and will result in basic principles of equality that are already familiar as principles of traditional international law including human rights instruments. The principles that Rawls considers as constituting the basic charter of the Law of Peoples include:

  1. Peoples are free and independent, and their freedom and independence are to be respected by other peoples.
  2. Peoples are to observe treaties and undertakings.
  3. Peoples are equal and are parties to the agreements that bind them.
  4. Peoples are to observe a duty of non-intervention.
  5. Peoples have the right of self-defense but no right to instigate war for reasons other than self-defense.
  6. Peoples are to honor human rights.
  7. Peoples are to observe certain specified restrictions in the conduct of war.
  8. Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. 31
These principles assume that the Peoples who follow them share common understandings of freedom, human rights and justice and decency. Since non-liberal "outlaw" states do not share liberal conceptions of these ideals, they do not participate in the constitution of the charter of the Law of Peoples. They are, nonetheless, subject to these principles. Rawls is particularly willing to jettison the traditional international legal principle of the duty of non-intervention as it applies to non-liberal states, specifying that "a principle such as the fourth — that of non-intervention — will obviously have to be qualified in the general case of outlaw states and grave violations of human rights. Although suitable for a society of well-ordered peoples, it fails in the case of a society of disordered peoples in which wars and serious violations of human rights are endemic." 32 Apparently failing to appreciate the irony, Rawls mandates liberal states to intervene against outlaw states in accordance with a body of legal principles that the outlaw states were barred from helping to create. Liberal internationalism thus allows two tiers of "intervention" — first, when the society of well-ordered peoples unilaterally creates the liberal "zone of peace" and the Law of Peoples to the exclusion of non-liberal outlaw states; and second, when the traditional ban on intervention is lifted in order for liberal states to protect liberal principles from the outlaws who violate them (after being silenced by the process which generated the principles). Once these Virtue-ous practices have been exposed, the hidden ontological arrogance of liberal assumptions comes to light. As Honig points out, Rawls does not question why there are outlaws — "criminality is extrasystemic". 33 But if outlaws simply exist, then Rawls must recognize that his theory contains the objective standard of antecedent moral worth that he wishes to avoid. How can antecedent judgments be fair? How is it that the Law of Peoples can only be determined by liberal and decent peoples? Who determines who they are? The point of this critique of liberal internationalism is not to justify criminal behavior on the part of states commonly deemed to be non-liberal, but to question the singular moral authority behind liberalism's willingness to jettison traditional norms of sovereign equality. That is, if we are to criticize the violation of human rights, is the "badge of alienage" the proper, or even ethical, way to proceed? Honig contends that a politics of virtù "that chastens its aspirations to closure is less likely than justice as fairness to convert resistances into criminality, otherness into bad character." 34 Maintaining an openness to the idea that "criminality" might mask the resistances of the excluded other allows an international practice of politics which conceives of the need for the punishment of criminal behavior without the assumption of unilateral antecedent superiority on the part of the peoples who call themselves liberal. In this way, a politics of conflicting but equal agons allows for an ethics of responsibility in which no single perspective contains the final formula for peace.


Intervening Assumptions

The above discussion on the questionable ethics of liberal internationalism's jettisoning of the sovereign equality standard is not a purely theoretical construct. The foreign policies of "Western" countries since the fall of Communism have become increasingly "liberalized" on the question of humanitarian intervention. Two cases in particular bear fruitful analysis of a diminishing assumption of sovereign equality in favor of a liberal distinction between good liberal states and outlaw states in which intervention is both permissible and required to maintain a global standard of liberalism. These cases are the continuing isolation imposed upon Iraq and the NATO airstrikes over Kosovo. In the case of Iraq, Saddam Hussein's regime, which had been supported by Western powers for many years, was swiftly and completely re-painted as an international pariah when it attempted to act upon a historical claim over the territory of Kuwait. In dealing with this violent and obvious breach of international law (both traditional and liberal), the United States and its allies had several diplomatic options which they refused. Russian diplomats had managed to get Saddam Hussein to agree to leave Kuwait if the US would remove its own forces from their positions of imminent attack and if a conference was held to submit all regional issues to adjudication. The Russian deal was rejected. Even after the Gulf War had begun, Hussein made offers to withdraw through Soviet President Gorbachev. These offers were again rejected. The conduct of the Gulf War clearly established Iraq as a outlaw state and one which was not entitled to the benefits of diplomatic respect. While international law was obviously breached and the approval of the Security Council legitimated the military action to force Iraqi forces out of Kuwaiti territory, the assumptions of the allies (the liberal community) were those of superior moral enforcement versus inferior rogue regime. The goal of restoring international legal order could have been reached peacefully and diplomatically by treating Saddam Hussein as an international equal. But that was not the liberal internationalist goal. The Gulf War did more than redress the illegality of the invasion of Kuwait — it firmly established Iraq as an evil society whose leader could be seen to have no redeeming characteristics and whose policy would be presumed to be criminal rather than otherwise. This characterization of Saddam Hussein has allowed intervention to become a firmly established norm in the dealings of the West with Iraq. Having determined that Iraq was repressing Kurdish minorities in its mountain areas, the allies established a northern and southern "no-fly zone" which covers 60% of the entire airspace of the country. 36 This zone is continuously and closely patrolled, and the frequent Iraqi attempts to "annoy" the allies by violating it result in retaliatory bombing raids and attacks. Also, having determined that Iraq was attempting to develop weapons of mass destruction, the liberal powers made an international inspection team a required part of Iraq's terms of surrender. Despite the fact that India, Pakistan and Israel have recently developed nuclear weapons without intervention from the liberal community of states, Saddam Hussein has been classified as an outlaw and thus may not pursue the same goals which other sovereigns deem necessary (no matter how worrisome they may be to the cause of international peace). But as William Polk explains, Hussein's rational for pursuing nuclear weapons is not so unfamiliar:

Thus the behavior of liberal states allows for nuclear arms buildups because liberal states are peaceful and morally superior, while the same security calculations by non-liberal states is seen as an automatic criminal threat towards the rest of the world. Meanwhile, even if liberal internationalists can justify treating Saddam Hussein personally as a criminal, it is difficult to understand the liberal principles that have allowed the years of sanctions to push Iraq's population into the dark ages. This oil-rich country which could once boast of high standards of education and lifestyles has now become a subsistence economy for much of its population. A recent UNICEF study found an alarmingly high death rate for Iraqi children under the age of 5 (131 per 1000). 38 Treating an entire state as an outlaw is to unilaterally deny its right to participate on an equal basis in the international system. While this may seem fit punishment for an illiberal leader, it also denies entire populations the status of equality and equal opportunity in the international system in ways which affect the stability of their economy and the security and prosperity of their lives. The imposition of liberal standards in this case has caused illiberal, even immoral, outcomes — thus liberalism begins to resemble its own enemy, the outlaw.

The case of the Kosovo intervention, like intervention in Iraq, remains ongoing. In the autumn of 1998, after watching the internal situation in the Former Yugoslavia deteriorate from bad to worse, Europe and the United States determined that a repetition of the mass killings that occurred unchecked in Bosnia would not be allowed. In the years that had passed since Slobodan Milosevic had been legitimated by the United States as a peacemaker in the Dayton Accord, his refusal to soften the nastiness of his regime, especially regarding the non-Serb population of Kosovo, had earned him rogue status in Western eyes. But once again, the intervening policy of the liberal states in attempting to vilify the regime by isolating the country backfired. Years of economic sanctions against the Former Yugoslavia had actually helped Milosevic:

With his lock on power stronger than ever, Milosevic pursued his favorite strategy of inflaming nationalist resentment against the Albanian population in the Kosovo province. The liberal West, unable to face a second moral defeat in the Balkans, pursued another disastrous policy. Instead of negotiating with the Former Yugoslavia as an equal, that is, with the assumption that as a sovereign state it was entitled to some recompense in return for a change of policy and a concession to the rights of the Albanians, the West presented Milosevic with an ultimatum. While much was made of the diplomatic initiative in Rambouillet, in fact these talks were simply a formal cover for what was already an intervention into Kosovo. Having already committed itself to the use of force in Kosovo if the Rambouillet agreement was not signed, NATO members wrongly assumed that Milosevic would never risk calling this bluff. However, the terms of the Rambouillet agreement involved an agreement by Yugoslavia that it would permit "free and unrestricted access" throughout the territory of the Federal Republic of Yugoslavia (FRY) itself in the course of maintaining the peace and implementing the accord. 40 So unworthy of equal respect were the Serb negotiators at Rambouillet seen to be by the liberal states, that they were offered an ultimatum: agree to allow their entire territory (not just Kosovo) to be freely available for use by NATO troops and equipment or else suffer the consequences of bombardment. Intervention if you do, intervention if you don't. With such a non-choice on offer from the West, it is hardly surprising that Milosevic chose to stand his ground. And from a certain perspective, he can claim a victory. At least today, NATO troops do not have free run of the territory of the rest of the FRY.

The lack of recognition of Yugoslavia's sovereignty was also clear from the manner in which the intervention was handled militarily. Deemed important enough to intervene in, but not important enough to die for, Kosovo was bombed from such heights that not a single combat death occurred among the allies. Afterward, US Secretary of Defense, William Cohen described the technological wonders of the campaign, saying that "of more than 23,000 bombs and missiles used, we have confirmed just twenty incidents of weapons going astray from their targets to cause collateral damage." 41 But those incidents of "collateral damage" turn out to include considerable numbers of innocent civilians. Since the members of the army and the paramilitary groups were too mobile and hidden to easily locate, NATO's targets were mostly stationery: buildings and infrastructure that had dual civilian and military uses. So much for "liberating" the Serbian people from the jaws of a tyrant. From the Serb perspective,

How can it be the morally superior choice to condemn a tyrant and then harm his subjects? How can it be the morally superior choice to argue that certain crimes demand a swift and forceful response, but not one in which the soldiers of justice expose themselves to any risk? The liberal internationalist project claims to be the most ethical choice for world peace, but in acting on behalf of humanity it creates a dual system in which some are entitled to humane equality and others, because they fall outside of the liberal peaceful zone, can be written off with impunity. All attempts to complicate this Politics of Virtue, by pointing to the ambiguities of both liberal and illiberal status, are rejected as harmful forms of conflict. The liberal and the illiberal are determined in black and white — shades of gray can only lead to criminal confusion. The Iraqi and Kosovo interventions are just such maps of black and white. The outlaw status brought on by their leaders has entitled their populations to nothing but discriminatory treatment and bluntly harsh characterizations. As Simic points out, the anti-Milosevic Serbs in the FRY are desperately trying to find something admirable and worthy in the "liberal" intervention. The complexity of an illiberal state that contains an innocent and deserving population confounds liberal internationalism's Politics of Virtue. The Intervention of non-equality among states not only allows discriminatory treatment when it comes to military intervention, but it stridently calls for it in the name of an ethical humanity. When the hidden assumptions of liberal internationalism are laid bare, they are shown to be illiberal after all.



This paper has argued that liberal internationalism perpetuates a dual concept of intervention against illiberal states. First, by considering the democratic peace to be an international fact which legitimates liberal and illiberal "zones" of law, liberal international theory Intervenes by unilaterally making the categorizations and designating certain states as illiberal. The recognition of sovereign equality to which all states were entitled under traditional international law is removed in an Intervention into the equal status of states, as Liberalism designates some states more "equal" than others. The second form of intervention, by military force, is thus enabled by the first. Once a state's sovereign equality has been the subject of Liberal Intervention, it becomes a likely target for intervention due to its outlaw status. Outlaws are not entitled to the fair treatment accorded to equals, thus their illiberal behavior may be punished, even must be punished, in order to preserve the peace-loving and law-abiding nature of the liberal zone.

It is not the purpose of this paper to argue against the establishment of universal human rights norms, or the prosecution of individuals for their participation in crimes against humanity. However, the establishment of these norms must occur under conditions in which all voices are heard, and the institutions which prosecute are seen to be established on the basis of equality and tacit consent. To allow the international sphere to be divided along the lines of liberal and illiberal states, societies or institutions, is to set in place a discriminatory structure that constantly performs interventions of inequality. With these dual concepts of intervention, liberal internationalism perpetuates the solidity of the sovereign border between domestic and international in illiberal states, the porousness of which it claims for itself. If illiberality is performed against states rather than individuals (as we have seen that it is in the cases of Iraq and Kosovo), how can the civilian populations hope to grasp the speeding coattails of globalization as it passes them by? The liberal zone of peace, then, may allow for high standards of civil and human rights based on a cooperative transnational transactional vision of law — but outside the zone, the dealings are all with states, those deemed untrustworthy to partake in the freedom of liberal enterprise. Once Intervention by classification has placed an outlaw state outside the zone, it is effectively barred from participating on an equal basis in the very decisions, which will determine its future status. This is the paradox of liberal internationalism: in enforcing liberal standards among the chosen few, liberal societies must then pursue a logic of illiberal, even criminal, behavior against the remaining "outlaw" remainders. The irony is that it is more ethical to treat "outlaws" with respect and equality than to shun them. The tradition of sovereign equality did not require a revocation of human rights standards, rather it ensured that the legitimacy of the standards that did arise was unquestioned. The interventions into Iraq and the Former Yugoslavia have done more harm to the standard of liberal values than maintaining a façade of conflicted equals could have. To return to the lessons of our etiquette guide, much can be accomplished by the use of respect in personal dealings, and lest we forget, etiquette is not formalism for the sheer sake of form — it has a very pragmatic point. Respect for the other, even when that other has not demonstrated respectable behavior, enables the maintenance of communication and social face which are so critical to political compromise and willingness to negotiate. As Miss Manners herself points out, "an evil heart that is constrained by the demands of politeness is less of a public menace than one freer to follow its evil impulses." 45 While pursuing the spread of democratic institutions and the maintenance of human rights standards is a worthy goal, it cannot come at the expense of respect for the other and acceptance of that other as a sovereign equal. Space must be found in international law and politics for human rights and democratic values unaccompanied by the righteousness and certainty of liberal triumphalism. A "post-liberal" internationalism creates a sphere where closure and certainty are resisted and the chiefest liberty is the freedom to be outside without being outlaw-ed.



Note 1: Judith Martin, Miss Manners Rescues Civilization (New York: Crown Publishers, 1996), 31-32. Back.

Note 2: It is also worth pointing out that although the state in international law is analogized to the individual in proper society, international relations (legal and otherwise) can ultimately only be carried out by individuals. Thus international legal recognition must finally depend on the proper polite behavior of the diplomats charged with putting it into effect. Back.

Note 3: Cornelius F. Murphy, Jr., The Search for World Order: A Study of Thought and Action (Dordrecht: Martinus Nijhoff, 1985), 95. Ironically, Lorimer is also known for his typological division of the international legal sphere into civilized nations and barbarous and savage humanity Back.

Note 4: Erik Ringmar, "The Relevance of International Law: A Hegelian Interpretation of a Peculiar Seventeenth-century preoccupation," Review of International Studies 21 (1995): 87-103, 95. Emphasis in original. Back.

Note 5: Ian Brownlie, Principles of Public International Law, 4th ed., (Oxford: Oxford University Press, 1990), 287. Back.

Note 6: Benedict Kingsbury, "Sovereignty and Equality," European Journal of International Law 9, no. 4 (1998): 599-625. Kingsbury also argues that the willingness of liberal theory to designate different "zones" of international law among liberal and non-liberal states will result in a dangerous breach in the attempt of traditional international law to address and redress issues of inequality among states Back.

Note 7: Ibid. Back.

Note 8: I have in mind here, the agonistic relationship described by William Connolly in Identity\Difference, and although Carl Schmitt describes his friend/enemy distinction in terms of ant-agonism, he is concerned to emphasize that it takes place on terms of equality. Back.

Note 9: Carl Schmitt, The Concept of the Political transl. George Schwab (Chicago: University of Chicago Press, 1996), 35. Back.

Note 10: Aldous Huxley's Brave New World is another such reminder. Back.

Note 11: Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993), 2. Back.

Note 12: Honig, 3. Back.

Note 13: Honig, 3. Back.

Note 14: Martin, 31. Back.

Note 15: My discussion of the roots of liberal internationalism relies on Timothy Dunne, "Liberalism," in John Baylis and Steve Smith, eds., The Globalization of World Politics: An Introduction to International Relations (Oxford: Oxford University Press, 1997): 147-163 Back.

Note 16: John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999), 8. Back.

Note 17: See Susan Marks' discussion of Liberal Millenarianism, "The End of History? Reflections on Some International Legal Theses," European Journal of International Law 8, no. 3 (1997): 449-477. Back.

Note 18: Rawls, 7. Back.

Note 19: Rawls, 81. Back.

Note 20: Schmitt, 54. Back.

Note 21: Anne-Marie Slaughter, "International Law in a World of Liberal States," European Journal of International Law 6 (1995): 503-538, 504. Back.

Note 22: Slaughter, 516. Back.

Note 23: Martin, 85. Back.

Note 24: Anne-Marie Burley (subsequently Slaughter), "Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine," Columbia Law Review 92, no. 8 (1992): 1907-1996, 1909. Back.

Note 25: Burley (Slaughter), 1990. Back.

Note 26: This is Judith Butler's well-known formulation. See Bodies That Matter: On the Discursive Limits of Sex (London: Routledge, 1993), 13. Back.

Note 27: Back. Cynthia Weber, "Performative States," Millennium: Journal of International Studies 27, no. 1 (1998): 77-95, 81.

Note 28: Burley (Slaughter), 1990. Back.

Note 29: Back.

Note 30: Andrew Hurrell, "International Law and the Changing Constitution of International Society," in Michael Byers, ed., The Rule of Law in International Politics (Oxford: Oxford University Press, forthcoming): 355-375, 369 Back.

Note 31: Rawls, 37. Back.

Note 32: Rawls, 37-38. Back.

Note 33: Honig, 142. Back.

Note 34: Honig, 147-148. Honig, 130. Back.

Note 35: Martin, 123. Back.

Note 36: Of course the illiberal treatment by NATO member, Turkey, against its own Kurdish population goes unremarked Back.

Note 37: William R. Polk, "Iraq: A New Leaf," New York Review of Books February 18, 1999. It is interesting to note how often Saddam Hussein is referred to by his first name — certainly a mark of disrespect towards a head of state. Even in this somewhat sympathetic article in which Polk tries to point out how inconsistent US policy has been towards Iraq. Back.

Note 38: John Lancaster and Colum Lynch, "U.S. Looks at Easing Sanctions on Iraq," The Washington Post February 25, 2000, page A01. Back.

Note 39: Charles Simic, Anatomy of a Murderer," New York Review of Books January 20, 2000. Located at Back.

Note 40: Interim Agreement for Peace and Self-Government in Kosovo, February 23, 1999, Appendix B: Status of Multi-National Military Implementation Force. Back.

Note 41: Mark Danner, "Kosovo: The Meaning of Victory," New York Review of Books July 15, 1999. Located at Back.

Note 42: Simic, "Anatomy of a Murderer." Back.

Note 43: Charles Simic, "Who Cares," New York Review of Books October 21, 1999. Located at Back.

Note 44: Honig, 210-211. Back.

Note 45: Martin, 79 Back.