Events: The Force of International Law

Fleur Johns, Richard Joyce, Sundhya Pahuja

• Publisher: Routledge-Cavendish
• Year: 2010
• ISBN:
  9781136920295
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Events: The Force of International Law presents an analysis of international law, centred upon those historical and recent events in which international law has exerted, or acquired, its force. From Spanish colonization and the Peace of Westphalia, through the release of Nelson Mandela and the Rwandan genocide, and to recent international trade negotiations and the 'torture memos', each chapter in this book focuses on a specific international legal event. Short and accessible to the non-specialist reader, these chapters consider what forces are put into play when international law is invoked, as it is so frequently today, by lawyers, laypeople, or leaders. At the same time, they also reflect on what is entailed in naming these 'events' of international law and how international law grapples with their disruptive potential. Engaging economic, military, cultural, political, philosophical and technical fields, Events: The Force of International Law will be of interest to international lawyers and scholars of international relations, legal history, diplomatic history, war and/or peace studies, and legal theory. It is also intended to be read and appreciated by anyone familiar with appeals to international law from the general media, and curious about the limits and possibilities occasioned, or the forces mobilised, by that appeal.

Chapter 1
The international law in force

Anachronistic ethics and divine violence

Jennifer Beard

Introduction

Most textbooks on international law state the founding event of modern international law to be the Peace of Westphalia of 1648 that followed the Thirty Years War. This is the event in which a European society of sovereign states is said to have been established and, so, the law of nations. The peace was set out in two treaties between the Roman Empire and various European powers at Osnabrück on 15 May 1648 and at Münster on 24 October. The treaties recognized the existence of nascent, territorial states comprising their own legal and religious jurisdictions. Prior to the peace, these territories had been subject to the jurisdiction of the Holy Roman Empire, which had been ruled by the Catholic Church over a number of centuries. European peoples were not the only peoples over whom the Catholic Church had claimed jurisdiction by virtue of its divine duty to save all souls. However, the Peace of Westphalia remained silent about the territorial rights of the peoples of the ‘New World’ and their territories. In that respect, the peace was founded on older claims of legitimate rule that had sanctioned the objectification of a New World. That same objectification enabled European legal theorists to incorporate the violence of colonization into new theories supporting the law of nations that arose out of the Peace of Westphalia. This division between the Old World of Europe and the New World, understood as an effect of pre-modern violence, remains a part of international relations today. In consequence, I suggest that the Peace of Westpahlia should be considered as much a culminating event of violence as a foundational event of modern, international law.

A critique of the foundations of international law

I have found it useful to explore the founding events behind the force of international law by engaging with Walter Benjamin’s ‘Critique of violence’, particularly through a reading of that text by Judith Butler (Benjamin 1986; Butler 2006). This section of the chapter explains why Benjamin’s critique is relevant to the relationship of violence and international law. The following section will engage with the violent events surrounding the discovery of the New World. The aim will be to show how the sanctioning of imperial violence produced a mythical and conceptual separation between Europe and the New World, which was incorporated into the legal system established by the Peace of Westphalia. The point is to question the kind of justice that exists in an international law that is so intimately related to violence.

Benjamin’s ‘Critique of violence’

In his ‘Critique of violence’, Benjamin examines how violence is legitimized through its relation to law and justice (Benjamin 1986). Benjamin first distinguishes between natural law and positive law. He says, ‘Natural Law attempts, by the justness of ends, to “justify” the means’, positive law to ‘guarantee’ ‘the justness of ends through the justification by legal sanction of the means’ (Benjamin 1986: 278). Benjamin argues that positivism is the better basis upon which to begin his analysis of the legal justification of violence because of its theoretical distinction between ‘historically acknowledged, so-called sanctioned violence, and unsanctioned violence’ (Benjamin 1986: 279).

The treaties establishing the Peace of Westphalia are interesting in that respect. These treaties are a good example of how legal agreements were used to legitimize the emergence of a new society of legal subjects (states) and a system of laws to regulate those subjects. Benjamin argues that a positivist ‘legal system tries to erect, in all areas where individual ends could be usefully pursued by violence, legal ends that can only be realized by legal power’ (Benjamin 1986: 280). The Peace of Westphalia marks the beginning of a new ‘balance’ of power in Europe that is secured by the legal constitution of a particular way of dividing and occupying territory and populations. The aim of the peace was to check the violence of territorial acquisition and conflicts over legitimate rule by establishing a system where violence (and power) would not appear to function regardless of, or outside of, the law (Benjamin 1986: 280–81). Benjamin argues that these kinds of legalized violence can be divided into law-making (rechtsetzend) violence and law-pre-serving (rechterhaltend) violence. Benjamin distinguishes both of these forms of violence from what he calls divine violence.

Law-making violence occurs when violence is used to bring about a new legal order. Here law is used to sanction the use of violence by ‘recognising the new conditions as a new “law”, quite regardless of whether they need de facto any guarantee of their continuation’ (Benjamin 1986: 283). There is an inherent ‘law-making character’ to all such violence. In terms of international law, for example, we might say that the Peace of Westphalia sanctioned the reality of a nascent system of state-based relations that emerged as a result of a long period of violence. This was an event of law-making violence.

Once ‘made’, the law must be preserved. Theories of positive law rely on violence to preserve the law in the name of the common good. Benjamin might have argued that international law is preserved by the constant reassertion of the founding act of the Westphalian Peace. The primary essence of the peace is the maintenance of a system of sovereign, territorial states. Today, international law may not support the concept of absolute state sovereignty, but it certainly maintains the formal principles of territorial integrity and sovereign equality as basic norms. This kind of violence might be understood as the law in force. There are many technologies of power and state practices that constrain or compel legal subjects to ensure the law’s preservation. These forces are complex and broad-ranging. As Orford has argued, a crisis of legal authority pervades the discipline of international law (Orford 2004). International law is constantly ‘called upon to renew itself and reassert its relevance’ (Orford 2004: 441). Those who seek to rely on and give force to international law are constantly seeking ‘a new sovereign ground for the law, whether that be in the form of international organizations or of powerful national sovereigns who stand outside the law and guarantee its operation’ (Orford 2004: 441). Regardless of this crisis of authority, I would argue that the foundational structure of international law is always maintained. That structure is the state system. The ‘peace’ offered by the Westphalian system is the ‘inalienable right’ of all peoples to ‘the exercise of their sovereignty and the integrity of their national territory’ (GA Res 1514 1960). The legal subject of the state is essential to the existence of international law and contemporary relations of power. International legal norms reflect the effects of these power relations by ensuring that state boundaries and populations remain relatively static while issues of governance such as rights-based approaches to human development or the choice of economic policies are regulated in ways that do not affect the existence of the state subject as such.

Benjamin suggests that both ‘law-making’ and ‘law-preserving’ violence can be understood in terms of a kind of ‘mythical violence’. In this sense, the law is there to justify power. In myth, ‘the law’ is the power of gods explained. In constitutional law, law is explained as the power of the state to instate and maintain the ‘peace’ within and around its frontiers (Benjamin 1986: 295). Benjamin gives as an example the idea that ‘in the beginning all right was of the kings or the nobles – in short of the mighty …’(Benjamin 1986: 298). The power behind international law is also aimed at securing existing power structures that rely on the system of sovereign states established by the Peace of Westphalia. For Benjamin, power lies behind all forms of violence envisioned by the legal theories of natural law and positivism. He concludes that legal theories of justice are merely a form of reasoning inherent in the justification of means and ends arising from what is ultimately violence imposed by fate (Benjamin 1986: 294). In consequence, Benjamin argues that any violence justified by legal sanction is not necessarily morally just.

Benjamin concludes that the only form of violence to fall outside of the law is ‘divine violence’. He says that if ‘mythical violence [i.e. legalized violence] is law-making, divine violence is law-destroying’ (Benjamin 1986: 297). The human response to divine violence, according to Butler, is an anarchistic one that happens ‘without recourse to principle’ (Butler 2006: 214). There is no reinstatement of a new law that might arise from divine forms of violence. According to Butler, ‘no law is made from this place, and the destruction is not part of a new elaboration of positive law’ (Butler 2006: 214). Divine violence is said to work against the positive law ‘that binds a subject to a specific legal system and stops that subject from developing a critical, if not a revolutionary point of view on that legal system’ (Butler 2006: 203). According to Butler, such violence is not ‘justified through a set of ends but constitutes a “pure means”’ (Butler 2006: 211).

Laws that are enacted in the name of a particular religion are not forms of divine violence. For example, the violence of colonization is not divine violence, although for centuries the Catholic Church justified its imperial practices as a means to save souls. The violence of colonization is better understood as a form of mythical violence. The violence can be understood as mythical in the sense that the fate of colonized peoples was interpreted through the sovereign and legal authority of the Catholic Church as one that was somehow justified because of the particular conditions or status of the peoples themselves. That mythical belief in the legitimation of imperial violence was incorporated into the system of sovereign relations established by the Peace of Westphalia. Hence, the Peace of Westphalia can also be understood as a mythical event, primarily concerned with legitimizing the constitutional powers of individual European territories. But in marking out a system of inter-sovereign relations, the peace maintained the right of states to colonize foreign territory and populations. This right had already been established during the period of discovery in the fifteenth century pursuant to the belief held by the Catholic Church of its duty to save all souls. The next section of this chapter explores the conceptual effects of such a mythological interpretation of events.

The event of discovery

As stated in the introduction, international law is founded on the Peace of Westphalia, which was the culmination of a religious war. One of the effects of bringing the war to an end by declaring a new legal order was to bring the violence of the self-declared universal jurisdiction of the Roman Catholic Church within the terms of the Westphalian Peace. The distinction between Christian and non-Christian worlds legitimized by the Catholic Church remained a legitimate reality in the establishment of the Peace of Westphalia and the constitution of two worlds: the Old World of Europe and a New World that was to be subjected to colonization. In this section I explore how this distinction between the Old World and the New World was constituted through violence and justified through law in the event of discovery.

When Columbus set off with the sanction of the Catholic Pope and the Spanish monarchs to find a western route to the Indies, there was no sense of the earth’s territories divided into spaces of equal, sovereign power. Instead, ‘new’ territory was subject to possession through treaty, occupation or conquest. From his diaries, we know that there was never any doubt that Columbus’ intention was to possess the territories he discovered in the name of the king and queen of Spain, by force if necessary or by peaceful conversion. As Columbus encountered each territory, he claimed it. In this way, pursuant to papal bull, Spanish law became the law to be enforced. At the time, the Catholic Church was an extremely powerful force in Europe, which was by then largely Christian. All Christian monarchs were expected to defer to the divine authority of the pope. One of the many powers vested in the pope was the authority to grant dominion over territory. Papal bulls issued by Pope Nicolas V in 1452 and 1455 to King Alfonso V of Portugal had confirmed to the crown of Portugal dominion over all lands discovered or conquered by Portuguese explorers. These bulls were revoked in bulls issued in 1493. Pope Alexander VI issued these latter bulls to King Ferdinand and Queen Isabella of Spain. They stated that one Christian nation did not have the right to establish dominion over lands previously dominated by another Christian nation. The bull also assigned to Castile the exclusive right to acquire territory and to trade in the lands lying west of the meridian situated 100 leagues west of the Azores and Cape Verde Islands. These bulls mark the beginning of the imperial competition between Westphalian states to acquire foreign colonies. Here we see how the mythology of divine authority vested in the papal bulls was relied on to justify imperial violence and to preserve the empire. The fateful event of discovery was instituted by force of law and in turn was justified and enforced through law. In this way, the ‘triumph of fate is the establishment of law itself’ (Butler 2006: 208). The Christian empire rising from the west of Europe would lay down the word through the colonization of these territories by monarchs deferring to the Roman Catholic empire. The legal rights proclaimed by Catholic popes have since been reasserted over time in different events.¹

Underlying that instantiation of law is the myth of a world newly discovered. If the Old World of Christian Europe was to justify its conquest and destruction of the New World then it had to believe that it held the promise of salvation – that the conquest of the New by the Old signified the fall of one world into the promise of another. The colonization of the New World was justified figuratively by the Old World in its promise that the two worlds belonged to a single history. Columbus understood his discovery of the Americas as part of an eventual unification of the world’s peoples under one Christian religion. He wrote that the unification of humanity, following the conversion of the Chinese and the Muslims, would precipitate the Last Judgement and a return to that ultimate reunification with God (Beard 2007). Law and violence are thus bound together to create a form of global justice based on a particular Christian ethos.

The Christian ethos that had been formed and reformed in Europe could only ever have been imposed on the territories of the New World by a papal claim to commonality through violent means. Any such ethos that instrumentalizes ‘violence to maintain the appearance of its collectivity’ raises serious questions of morality that have not been properly addressed even today (Butler 2005: 4). That is not to say that the ethos of a particular society is morally right simply because it is not universal. Particularities are also prone to ethical and moral debates. The focus here, however, is on the ethos and technologies of international law’s universalism. The universality of international law today can be characterized not by its incapacity to accept certain norms, commonly described as ‘non-western’, but rather by the failure of international law to recognize these differences as law. This may be an inevitability of an international law. Just as law can be understood as sanctioned violence, difference could be understood as an unsanctioned reality. Law can thus be used to delegitimize difference. For if the law were to recognize difference, that recognition would entail a delegitimation of the violence effected in the claim to commonality. Colonial peoples can only be recognized in and through the rendering of commonality: first as Christian souls; and ultimately as populations destined to self-determination through the Westphalian state system.

Moreover, by binding all of humanity to the same promise, which was subject to a particular Christian syst...

Table of contents

• Contents
• Acknowledgements
• List of abbreviations
• Notes on the editors
• Notes on contributors
• Foreword
• Introduction
• Chapter 1 The international law in force
• Chapter 2 Absolute contingency and the prescriptive force of international law, Chiapas–Valladolid, ca. 1550
• Chapter 3 Latin roots
• Chapter 4 Westphalia
• Chapter 5 The force of a doctrine
• Chapter 6 Paris 1793 and 1871
• Chapter 7 Decolonization and the eventness of international law
• Chapter 8 Post-war to new world order and post-socialist transition
• Chapter 9 The liberation of Nelson Mandela
• Chapter 10 Political trials as events
• Chapter 11 The Tokyo Women’s Tribunal and the turn to fiction
• Chapter 12 Many hundred thousand bodies later
• Chapter 13 From the state to the Union
• Chapter 14 The emergence of the World Trade Organization
• Chapter 15 The World Trade Organization and development
• Chapter 16 Protesting the WTO in Seattle
• Chapter 17 Globalism, memory and 9/11
• Chapter 18 Provoking international law
• Chapter 19 The torture memos
• Index