A CONSTITUTIONAL AMENDMENT: THE PEACE OF PARIS

 

The focus now shifted to Washington, where an exceedingly complex set of problems presented themselves. While for many persons the chief American figure in the collapse of the Soviet Union was Ronald Reagan, a better case can be made for the team of George Bush and James Baker, who in 1990 faced a delicate and dangerous set of issues they managed to resolve with consummate skill. The fact that the Soviet Union collapsed on their watch did not, of itself, assure them a secure status in the pantheon of Western statesmen; to the contrary, had they pressed too hard in an effort to exploit the vulnerabilities of the Soviet position they might very easily have cast away the winnings earned by several generations of Allied leaders. Nothing could be more misleading than the cliché that the Bush administration “presided” over the demise of the Soviet Union.

George Bush and James Baker had formed their friendship in Texas. Bush's father had been an investment banker and later U.S. Senator from Connecticut; the son had come to West Texas to make his fortune in the oil business, and he had succeeded. Like the father, he now turned to public service. In Houston he met Baker; the two families soon became friends. Their backgrounds were not dissimilar: Bush had gone to Andover, then to Yale, where he studied economics and was tapped by Skull and Bones. Baker had gone to Lawrenceville, then to Princeton, where he studied politics and was bickered into the Ivy Club. Bush had joined the Navy after college and seen action in the South Pacific; Baker had joined the Marines during the Korean War. Baker had returned to Texas to go to law school and then had gone back to Houston, where his grandfather's firm was one of the largest and most successful in the country. Bush had moved to Houston to enter politics. When Baker was becoming the managing partner at a prominent Houston law firm, Bush was being elected the first Republican congressman from Houston in almost a century. The two men were tennis partners at the local country club. They had similar political views though one was a Republican by inheritance and the other a Democrat for much the same reason; both were centrist, mildly conservative, and rather non-ideological. When Baker's first wife died after an agonizing illness, Bush persuaded his friend to manage the Bush campaign for the Senate. Baker changed his registration and discovered a flair for politics that might have appalled his grandfather. Both men lost statewide races in Texas—Bush when he was defeated for the Senate in 1970, Baker when he ran for Attorney General in 1978. Neither man was a natural candidate. Indeed, excepting Bush's one successful race for the presidency (which Baker ran), neither has held public office by winning an election on his own since their defeats in Texas. Instead they flourished in high-level appointments in Washington, Baker first coming into the Ford administration as undersecretary of commerce, Bush having served Presidents Nixon and Ford in a series of senior posts (ambassador to the United Nations, director of Central Intelligence, envoy to the People's Republic of China). Bush arranged Baker's appointment at Commerce, and it was Baker who orchestrated Bush's most pivotal appointment, as running mate to Ronald Reagan in 1980. Baker managed the second Reagan-Bush campaign that assured Bush's primacy for the 1988 nomination.

Yet it was Ronald Reagan, who was a natural politician and had none of the awkwardness and self-consciousness of the privileged when they take up politics in a democracy, who brought both men to real power. He, and not they, had caught the wave of reaction that swept the United States in the late seventies and eighties. He made Bush vice president and then, to general surprise and some consternation among conservatives, chose Baker as his chief of staff. In Reagan's second term, Baker became secretary of treasury (having been blocked by conservatives from becoming national security adviser).

When Bush was elected, Baker was promptly named secretary of state. The Treasury portfolio is an ideal post, in the current era, to prepare for the State Department. It commands far less media attention and less competition from other players trying to usurp its role than the top jobs at State. By all accounts Baker was an effective treasury secretary, was partly responsible for the creation of NAFTA, successfully talked the dollar down in a tour de force of media and market psychology, and gained a reputation as a skillful negotiator. The Baker Plan to relieve Third World debt, however, never quite succeeded. Baker took to the Department of Treasury a team he had worked with at the White House, and these—Kimmitt, Zoellick, Ross, and Baker's spokeswoman Tutweiler—along with others he subsequently took to the Department of State. Thus by the time Baker went to State he had had eight years at the highest levels of government, in concert with a highly respected staff with whom he knew he could work effectively.

For several reasons Baker was better prepared for the role of secretary of state than any appointee since Dean Acheson. Like Acheson, he had served at the Treasury and had conducted negotiations with foreign states at the highest levels; like Acheson he had been a successful lawyer and thus blended a sense of practical affairs with the ability to interpret and formulate messsages; like Acheson he had cultivated with success members of Congress and the media, the two most powerful constitutional entities in Washington; like Acheson, he had served a charismatic president but had reserved his trust and intimacy for that man's less glamorous successor. But above all, like Colonel House, he had engineered the nomination and election of a man who regarded him as a trustworthy and intimate friend.

Beginning in late 1989—as Gorbachev changed direction and began aggressively seeking a cooperative relationship with the West—Baker developed an intense collaboration with his Soviet counterpart, Shevardnadze. From the following February, Baker and Shevardnadze met every single month (with one exception) until the signing of the Paris Charter.*

There were of course many issues to be thrashed out in this breathtaking schedule of meetings, but two particular objectives dominated all others. First, the Soviet Union had to be moved along a path that would transform it from a communist to a parliamentary state. Second, the incorporation of a unified Germany into the Alliance that had in one coalitional form or another fought the Long War, had to be accomplished. Of course these two goals were to a large extent intertwined, and this added to the complexity and difficulty of the diplomacy by which they were achieved. If either objective had failed, that failure could have sunk the other. For example, at the Twenty-eighth Party Congress in July 1990, anti-Gorbachev elements counted on the spectre of German unification to rally opposition against the government. If West Germany (the FRG) had appeared more threatening—less linked to NATO's essentially defensive posture, more likely to acquire nuclear weapons—the result could well have been increased support in the balloting for Yegor Ligachev, who had become the leader of the anti-Gorbachev forces. The prospect of removing the most critical state, East Germany (the GDR) from the Warsaw Pact and simply handing it over to the stronger FRG—a conquest without cost—ought to have been frightening enough to threaten Gorbachev's hold on power. The United States, however, had proved itself a supportive and sympathetic partner since the Malta summit and NATO at its London meeting the same month had publicly agreed to “eliminate the last vestiges of the Cold War.” Gorbachev was able to defend his policies by saying that the “context” provided by the Americans supplied the reassurance that enabled further agreements. Or to take a different counter-factual, if a more confrontational regime had replaced Gorbachev in Moscow, the German objective of reunification would not have simply vanished—it had achieved far too much momentum. Rather it would have been pursued by other methods, perhaps including the move toward neutrality with which the Soviet Union had so often tempted the FRG in the past. Bush and Baker thus had always to so maneuver in one dimension, the Soviet relationship, that they could use positive developments there to achieve results in the other dimension, Germany—and vice versa—when the historic relationship between the two states suggested just the opposite, namely that strengthening either society would alarm the other.

The most important steps that Bush and Baker could take to keep Gorbachev on the path toward assimilation into the society of parliamentary states had to do with protecting the increasingly hollowed-out shell of the Soviet state. So long as that state existed and so long as Gorbachev was its dictator—he had managed to ram through decisions when most of the Politburo opposed them, even in the case of the decision to remove the Communist Party's leading role in government—the Soviet Union would become increasingly parliamentary. Gorbachev was now careening along a course that could have almost no other desirable terminus for him than the embrace of Western economic and political multilateral institutions. Only a coup d‘état would interrupt this trajectory. If the state collapsed altogether, however, Gorbachev lost the reason for which he had turned to the West, which was the survival of the state. In such chaos, it was not clear in 1989 what leaders would succeed Gorbachev and what their policies might be. It may have appeared that the Soviet Union was unworkable and that it was disintegrating under its own, entropic forces, but in actuality the Soviet economy was

a workable system [though] decidedly inferior to capitalist economies. [I]t was compatible with modern industrial society and capable of technological change, increasing consumption, and taking on the rest of the world in military [and space] hardware.26

 

Indeed it still possessed the world's largest arsenal of nuclear weapons. It was therefore imperative that Bush and Baker take every opportunity to insulate Gorbachev from the consequences of the ideological and political collapse of communism and to avoid appearing to exploit his troubles. After so long a struggle it would have been tempting to destabilize the Soviet system, covertly giving arms to the breakaway republics, flying into Eastern European capitals to make dramatic declarations on the order of Charles de Gaulle's “Quebec Libre!” speech, accelerating interest-payment schedules in order to increase pressure on the regime, and so on.*

From the West's point of view, however, the Soviet Union in some ways presented a more tractable set of problems than did the issue of German unification. Chancellor Kohl, who had often been derided as an unimaginative, plodding leader in comparison to his more glamorous (and rather more vain) predecessors Brandt and Schmidt, had seized the unification issue with an energy that surprised everyone, not least of all his allies. Legally, however, it was not an issue that was Kohl's to decide. The Four Power Agreement that originally divided Germany gave no sovereign status to either the GDR or the FRG. Unification would have to come about as a result of negotiations and agreement among the signatories to that agreement, namely France, Britain, the United States, and the USSR. Each of these great states had substantial interests in the outcome of German unification. Britain, France, and the Soviet Union were far from eager to see a resurgent, single German state in the heart of Europe, united only by a shared sense of German nationalism. Each state looked to use its role as one of the Four Powers to protect itself by managing the course of any unification. This arrangement, however, would deny Kohl the leading role as architect of unification and inevitably pit the Soviets (and possibly the French) against the United States and the United Kingdom over German membership in NATO and the continued presence of U.S. troops on German soil. Yet only Kohl was capable of keeping the new Germany in NATO; the Social Democrats in both Germanys had just agreed that a united Germany should not belong to any military alliance. The United States would have to find a way to reassure its allies that unification should proceed on Kohl's timetable and largely under his direction, and at the same time trust that Kohl would not compromise on the Alliance issue even though he would be subjected to enormous pressures to do so. These pressures would come from two sources: first, Gorbachev might make renunciation of NATO membership the price of Soviet consent to unification, and second, Kohl would soon face a pan-German election in which a large part of the electorate would have recently been at least nominal communists while Kohl's own coalition held a bare majority in the West German Bundestag.

Baker and his team handled both sets of problems with such effectiveness that it can be argued that their ultimate resolution in Paris ranks in significance with House's bringing the United States into World War I and Acheson's skillful creation of NATO and the Marshall Plan after World War II. Of course everything depended upon the president in each of these instances. George Bush possessed the personal modesty not to showboat at Gorbachev's expense and the patience to let the Soviet Union metamorphose internationally according to its own inner dynamic. Bush had cultivated good relationships with Allied leaders and was trusted by them. Perhaps most importantly, he deeply believed in the goals of the Long War. Every president has in his mind a predecessor who sets the mold for how he thinks the presidency should be conducted. For Franklin Roosevelt it was Wilson; for Lyndon Johnson it was FDR; for George Bush it was Dwight Eisenhower; for Bill Clinton it was John Kennedy. And for every presidency this mental model eventually causes great difficulties. President Bush was criticized for not having a domestic vision because he basically held, with Eisenhower, that the domestic sector would take care of itself if left alone by government. Bush was praised for his Gulf War leadership in part because, like Eisenhower, he proved to be an excellent coalitional war leader, sensitive to the political dimensions of alliance warfare. Eisenhower's life had spanned the Long War, and he held a crusader's view of its goals, expressed in the flat rhetoric of a centrist Republican. Bush was ideally suited to bring the Long War to a close, but he needed a foreign secretary who could devote himself almost wholly to this problem and devise and execute a set of negotiating tactics through the thicket I have described above, confronting and persuading three difficult parties: the Soviets, the Allies, and the U.S. Congress.

Instead of exploiting the increasing disarray within the Soviet bloc, the United States extended to the Soviet Union access to several multilateral institutions, offered financial aid and technical assistance for economic reform, and most importantly supported Gorbachev's obviously doomed efforts to hold the Soviet state together. Gorbachev's strategy now was to secure financial support for the Union, hoping that the republics would not wish to abandon a state that was their lifeline to economic assistance.*

During this period, Baker and his team devised a plan for effecting the reunification of Germany that had two important features: first, the Four Power Agreement would be used to create a “Two-plus-Four” negotiating framework, thus breaking out the two Germanys to negotiate with each other, and then presenting the results to the Four Powers, France, the United Kingdom, the United States, and the Soviet Union; second, Soviet consent would be sought for a new Germany within NATO. Both of these notions were highly controversial and there was strong opposition, within the Alliance and in Moscow, respectively, to both ideas. Baker, however, linked the two, realizing that by strengthening Kohl's position and Gorbachev's the United States stood the best chance of achieving its Long War goals—that is, of anchoring German democracy to the West and bringing the Soviet Union into the society of parliamentary states.

Initially, British, French, and Soviet foreign ministers rejected the Two-plus-Four plan, preferring what might be called “Four-plus-Zero” instead. This would have provided that the four powers agree among themselves on a program for reunification and then present it to the FRG and the GDR. This would have posed an insurmountable problem of what is sometimes called “path dependence,” the idea that the order in which decisions are taken affects their outcome. If an initial consensus among the Four Powers were required, the Soviet Union would be in a position to insist on a non-NATO Germany. But if the two Germany's themselves could reach consensus on a unification plan that permitted NATO membership, then the chancellor could bargain directly with Gorbachev and perhaps find a price for Soviet consent.* Moreover, “Four-plus-Zero” was a reprise of what had happened at Versailles—the imposition of a constitutional order without first achieving a consensus that included the German leadership.

In December 1989, President Mitterand and Prime Minister Thatcher met privately to share their misgivings about German unification. Earlier Mrs. Thatcher had emphasized that German unification was, after all, “more than a matter of the sensitivities of the German states.” She stressed that “the feelings and interests of other European countries” had to be taken into account. In Paris a debate began about whether a reunified Germany would kill the European Union. The diplomatic commentator, Pierre Lelloche, wrote at the time that “[t]he French are beginning to realize that post-Yalta Europe may well signal the end of French dreams of grandeur and French-controlled European ‘federation.’”27 Baker, however, was able to persuade the British that “Four-plus-Zero” meant unacceptable delay and risked German unification by fait accompli. Without the British, the French could not afford to alienate German sensibilities by being the sole objector; in March the French Foreign Minister announced that France would not insist on a purely Four-Power agreement. In Ottawa on February 13, 1990, representatives of the Four Powers agreed on the “Two-plus-Four” plan.

Delivering “Two-plus-Four” cemented the U.S. relationship with Kohl, and in turn “enabled Kohl's government to persuade the Germans that a united Germany should stay loyal to NATO.”28 Now Baker turned to winning the approval of Gorbachev for German membership in the Atlantic alliance. If this could be accomplished, then any residual German doubts about the wisdom of remaining in NATO would be quieted. At the same time, Baker sought to couple Soviet consent with approval of the Conventional Forces in Europe (CFE) Treaty, making drastic cuts in troop levels and armaments deployed across the Central Front of divided Europe. The vast size of the Soviet forces would be dramatically reduced and a system of international inspections put in place to ensure transparency—a confidence-building measure by which strategic surprise and an unintended chain reaction of mobilization and even pre-emption are sought to be avoided. The NATO fear of a massed tank attack that only the use of nuclear weapons could stop was abating. If Soviet consent could be won for “Two-plus-Four” and CFE, two parts of the three-part Paris Charter would be in place.

Chancellor Kohl now left for a hastily arranged meeting in the Caucasus with Gorbachev. About 3,000 East Germans were emigrating daily in addition to the 344,000 who had gone west in 1989. Kohl claimed that monetary union with the East was the only way of avoiding a complete East German collapse and a flood of refugees numbering in the millions. Gorbachev had continued to insist that a unified Germany would either have to be neutral or at least free of any foreign troops. The week of Kohl's visit, Yakovlev, Gorbachev's closest ally in the Politburo, asserted that Soviet troops would leave East Germany only when NATO left West Germany.

Three events beyond the Soviet Union, however, combined to change the Soviet position. First, at the Camp David summit in June Gorbachev had stressed his view that an American troop presence in Europe was a factor for stability. “I want you to know that I regard this as in your interest and in our interest,” he is reported to have told Bush, providing one more example of Gorbachev's increasing desire to become a part of a Europe-wide security system (within which, as many realized, Germany would sit uneasily as a nonnuclear power if the Soviet Union and not the United States were part of that system). Gorbachev had to be persuaded that the Soviet goal of a de-Americanized, denuclearized Germany was potentially catastrophic for Soviet interests: so long as Germany did not have nuclear weapons, the Americans would have to be present in Europe to provide a link to extended deterrence; if the Americans left, Germany was likely to acquire nuclear weapons for herself. Not two superpowers, half a globe apart, but the two largest armies in Europe would face each other, separated only by the Polish plain.

Then the Americans had proposed at the London NATO Council meeting on July 6 that the Soviet Union no longer be treated as an “enemy and that NATO should be transformed from a primarily military alliance to a primarily political institution.” Bush wrote to Gorbachev, “I want you to know that [the London Declaration] was written with you importantly in mind.” Having floated this offer scarcely a week in advance of the Kohl-Gorbachev meeting, the Americans waited anxiously for a reply.29 Finally, on the day before Kohl left for Moscow, the West Germans announced they were sending the Russians food aid worth about $130 million. Against the background of these three events, on July 15 it was announced that Gorbachev and Kohl had agreed to a cut in German armed forces, a German subsidy to Soviet troops during the period of transition, and a Soviet undertaking to renounce all restrictions on the exercise of German sovereignty, including Germany's right to choose its own alliances. Kohl promised a broad program of economic assistance to the Soviet Union. The Soviets had abandoned their long-standing policy of forcing a German choice between unification with neutrality or continued German division with West German membership in NATO.30

While Gorbachev and Kohl were celebrating their agreement, Ukraine became the seventh Soviet republic to declare its sovereignty. Like the Russian Federation, it chose for the moment to remain within the Union but it revoked the right of Soviet troops to remain on Ukrainian territory. Now the Soviets could hardly refuse to sign the CFE Treaty: in promising to remove troops from forward areas they were only conceding what would soon be forced on them. From the U.S. point of view, however, CFE established a precedent that would subsequently be used to govern agreements with Ukraine, Belarus, and the Russian Federation. There remained only the final piece, the commitment to parliamentarianism itself.

On September 3 Baker gave a summary of his goals: “to cast our vision beyond the prevention of war… to the actual building of peace. To prevent war, we must continue to deter aggression… To build the peace, however, America's role must go beyond balancing itself against remaining Soviet power.”

The “first task” on this agenda, he said, was

fostering legitimacy—or, to put it plainly, government selected by the people and responsible to them. After sweeping away the dictators of the past, the peoples of Central and Eastern Europe are working to build legitimate political orders that can endure. America must continue to stand with them, reassuring them of our commitment to their new democracies.31

 

He then proposed free elections as the qualifying standard for every state, and outlined a CSCE (Conference on Security and Cooperation in Europe) process to monitor such elections. This proposal was formalized in the Copenhagen Declaration, which was then ratified by the Charter of Paris and formed one of the crucial documentary elements of the Peace of Paris. When Gorbachev was temporarily overthrown in a coup d‘état, this provision was given such dramatic emphasis that the subsequent Moscow Declaration, the final document in the Peace of Paris suite, explicitly provided that democratic regimes were to be guaranteed by the state system and that the sovereignty of any state was forfeited if it failed to uphold the parliamentary model. The Long War was ending, and a new constitution for the society of states was being put in place.

In form, the Charter of Paris is more or less explicitly an amendment and extension of the Charter of the United Nations, which is reaffirmed in the text of the Charter of Paris. Indeed the Peace of Paris, which includes the Charter of Paris, can be seen as an amendment to Versailles (and San Francisco, which had promulgated the United Nations Charter). The final amendments to the Versailles/San Francisco system include the series of political agreements made by the participating states of the CSCE, beginning with the Helsinki Final Act in 1975, the Charter of Paris in 1990,* as well as the Copenhagen and Moscow Documents, which bracketed that Charter. These signified the end of the Long War by recognizing Germany, and created the instruments by which Russia was formally admitted to the society of parliamentary nation-states. Taken together, these agreements provide the texts of the constitution of the society of nation-states. As Judge Thomas Buergenthal wrote in 1992, the process I have called the Peace of Paris “has transformed into a new order for the world.”32

For three days in Paris in late November 1990, the heads of state or government from thirty-four nation-states—including the Soviet Union, the United States, Great Britain, Germany, and France—met for the second time since the signing of the Helsinki Final Act in 1975. The Paris summit was neither one of the follow-up meetings contemplated by the Helsinki Final Act, however, nor one of the minor meetings provided for on specific subjects. Indeed a “summit of this nature was, in fact, not envisaged by previous CSCE decisions.”33 Gorbachev proposed this reconvening of the parties that had first met at Helsinki in order to give the blessing of the society of European states to the “Two-plus-Four” agreements that unified Germany.34 It was also felt that such a forum might encompass the signing of the CFE Treaty among twenty-two of the CSCE members, confirming for the entire European community an arms control agreement to which only some members were parties. Finally, the meeting in Paris would formalize the adoption of free elections in all member countries. The linking of these three subjects is significant for our study. Only when one variant of the nation-state had achieved consensus could the Long War end, unifying Germany and demilitarizing the central front. The commitment to parliamentary forms of election was thus a precondition, not a consequence, of the success of the other two issues to which it was joined in Paris.

The core provisions of the Charter of Paris that issued from this congress are contained in its first chapter, “A New Era of Democracy, Peace and Unity.” It declares that

Europe is liberating itself from the legacy of the past. The courage of men and women, the strength of the will of the peoples and the power of the ideas of the Helsinki Final Act have opened a new era of democracy, peace and unity… We undertake to build, consolidate and strengthen democracy as the only system of government of our nations. In this endeavor, we will abide by the following: Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an over-mighty State… Democratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation, respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person. Democracy, with its representative and pluralist character, entails accountability to the electorate, [and] the obligation of public authorities to comply with the law and justice administered impartially…35

 

This charter then affirms the principles of the Helsinki Final Act, welcomes the new CFE Treaty, and concludes with an explicit approval of the Treaty on the Final Settlement with Respect to Germany signed in Moscow on September 12, 1990, which united Germany. Thus the title of the chapter: “Democracy [the provision for free elections and human rights], Peace [the endorsement of CFE], and Unity [the recognition of Germany].”36

Other commentators likened the summit meeting to “the historic Congress of Vienna.”37 In a perhaps unwitting reprise of Woodrow Wilson's remarks about the Versailles Conference, 38 President Mitterand emphasized, however, that the Paris “Summit was the ‘anti-Congress of Vienna' because on the previous occasion the victorious powers remodeled the map of Europe without much regard for the aspirations of the peoples while the [Paris] Summit was the exact antithesis of such an approach.”39

Perhaps most interesting for our study, however, is Mrs. Thatcher's characterization of the Charter of Paris as “a new Magna Carta.”40 What the British prime minister had in mind by this description is the Charter's emphasis on the provision of human rights. This observation underscores the role of the Peace of Paris as a constitution. Earlier constitutions, particularly Augsburg and Westphalia, had intertwined human rights—religious freedom in particular, but also the right of immigration—with the powers of states, just as domestic constitutions do. In contrast to the U.S. Bill of Rights, which might be said to describe a structure wherein every power not granted to the government is retained as a human right by the people, Magna Carta is best described as granting rights. In the case of sovereign states, such as those that convened in Paris, their promises to secure human rights are indeed very similar to those of Magna Carta. The Charter of Paris provides that states “affirm that, without discrimination, every individual has the right to freedom of thought, conscience, religion or belief, freedom of expression, freedom of association and peaceful assembly, freedom of movement [and that] no one will be subject to arbitrary arrest or detention, subject to torture or other cruel, inhuman or degrading treatment or punishment…” This language is further evidence of the constitutional nature of the Long War—the struggle to define the source of legitimacy for the State from which the division of rights and powers arises—intertwining the domestic and international, the legal and strategic. “It is clear that states which adopt ideologies incompatible with the new… democratic public order must henceforth be considered in violation of their [legal] commitments.”41 Strikingly the Moscow declaration, the final element in the Peace, states, “the commitments undertaken in the field of the human dimension… are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned.”42

The Peace of Paris provides the source of an overarching constitutional order that sets the standard to which all national legal and political institutions must conform. In Buergenthal's insightful words,

[t]hese constitution[al documents] articulate national political, social, economic and sometimes even moral values; they set various priorities for the nation; they establish or call for the establishment of governmental institutions; and they lay down the framework for the evolution of the political process. In short, they shape and are the ideological and political source of the nation's constitutional order…. The nation's law and legal institutions derive their legitimacy from these constitutions.43

 

The Peace of Paris ended the Long War, amended the agreements at Versailles and San Francisco, and completed the process of formally globalizing the European nation-state through a universal international law. The Peace of Paris also, however, has elements of a transitional document about it for it gives a glimpse of the new constitutional order that is emerging and that has yet to suffer its epochal war.

These harbingers of the market-state include a change in the definition of sovereignty that allows human rights to become an enforceable part of international law, as was most recently seen in Kosovo, where Serbian sovereignty was abrogated; an effort to give formal recognition to nonstate institutions, like the media of journalism and the multinational corporation, and to give them a constitutional role in the life of the State according to consumer, not voter, preferences; to ensure for the market-state and its consumers free and open markets (just as Versailles had attempted to ensure free and open democracies for self-determining voters). All of these portentous changes were largely ignored at the time but each is highly controversial and likely to be the source of conflict in the future. Slobodan Milosevic is not the last leader to deny vital human rights to a group of his citizens—as the Dalai Lama might have reminded us. Some twenty states still attempt to censor or strictly control access to the Internet, and Malaysia has been successful—for the time being—in imposing capital flow controls to regain some measure of power over its currency. Most important, there are deep divisions—described in the scenarios in Chapter 25—among the three emerging versions of the market-state and their respective attitudes toward sovereignty and the relationship of sovereignty to human rights.