1.

 

When the Peace of 1990 burst on a world that did not expect it, there had been little thought given to what that world would look like when it was free of an institutionalized universal war. Virtually all our international institutions had been molded by the environment of global conflict, and even persons who did not shoulder a rifle or stand watch on a militarized border had found their expectations and attitudes so shaped by the environment of war that few could have said more than “peace is the absence of war” because war, not peace, was really all they had known.

This way of thinking treats states and their interests in much the same way that welfare economics treats the consumer: the decisions of states are, axiomatically, choices that define the interests of states, and, beginning from the positions of power in which they find themselves, states have the sole objective of maximizing that power.1 But it is more than this. This way of thinking, which now seems as confined and airless as one realizes a closed room has felt only when one has left it, reflected a strategic approach to international relations. By “strategic” I do not mean simply “planned” or “economic,” but rather an approach that focuses on the use of force as the principal arbiter of international affairs. Such an approach has been virtually exclusive of all other approaches in the context of a world war in which the very survival of the constitutional form of the State was at stake. One hardly needed to debate a threatened state's vital interests during the Long War; strategic requirements determined these interests.* When the war ended, however, this very lack of discussion underscored how ill-suited the methods of strategy are to determining national interests. As Stanley Hoffmann has written:

Especially in a democracy the definition of the national interest is likely to be a matter of debate and to result at least as much from clashing partisan views as from the permanent necessities of geopolitical position or the unavoidable requirements of external conflicts.2

 

In war the calculus of strategy takes priority, because those states that ignore strategy cannot expect to prevail in an arena dominated by force. But, as Michael Howard foresaw, “A strategic approach may be necessary to produce conditions of stability which will make possible continuing peace; but other, more positive measures, are needed to create peace itself.”3

Thus the first strategic consequence of the new peace is that strategy alone must be augmented. But with what? The approach to peace with which we must supplement strategy is that derived from law—the rule of law, as that phrase is understood in the context of constitutional law, but applied in the context of a new international law. We must, that is, develop an international system that treats states according to general, logical principles, regardless of the particular position of power of any state, but these principles must reflect a strategic appreciation of the relative positions of states' wealth and power. This amounts almost to a reversal of the present system of international law as reflected, for example, in the U.N. Charter, which provides the same universal principles for all states but privileges some to suspend those principles through the veto power or the collective action of the Security Council. Before a new, hybrid approach can be successful, however, perhaps before it can even be understood, we will have to change our ideas about international law, and the principles of this new international law will have to reflect the end of the Long War and the Peace of Paris. That is, these principles must reflect the emergence of a society of market-states in which law and strategy have begun to merge—where war often looks like crime and vice versa, where borders have less to do with defining the State than do more intangible perimeters like language and technological compatibility. One might say these new principles will be less about international law because the basis for the State will be less about nations and more about markets,* because these will have a greater role in defining the purpose of the State and its legitimacy.4

Now it is rare that strategic approaches to statecraft are combined, in any but the most cynical way, with those approaches associated with any sort of law. The definitive word on this subject, at least as regards international law, is presumed to have been given by Clausewitz, who dismissed the Grotian Law of Nations as “certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom.”5 To be fair, it must be recalled that Clausewitz was not writing about the conduct of statecraft but rather about the conduct of war. And although he was writing about war, he was living in a period of peace, in fact, a period of immense success for international law—that is, for the constitution of the society of state-nations known as the Concert of Europe.

Since Clausewitz, the disdain of statesmen for international law has come not in periods of peace but in that period I have called the Long War, largely in reaction to the international effort to restrain state behavior through law at the end of the First World War, memorialized in a series of disarmament treaties and the fatuous Kellogg-Briand Pact that was intended to “outlaw” war. The failure of the Wilsonian program, which sought to supplant an almost entirely strategic approach to world affairs with an almost entirely legal perspective, tended to alienate the two completely for the balance of the Long War. Only now can we perhaps see that even though we cannot prudently abandon a strategic approach to international relations, neither can we ignore that approach grounded in law because without it we have no real plans for how to conduct peace. When we lengthen our gaze, we will see more clearly that law and strategy have always been mutually excited switches on the same circuit, and that the State itself, as we have seen in Book I, is the mechanism of feedback.

Complicating this resort to law, however, is the fact that international law is itself in flux. Changes in the strategic environment inevitably produce changes in law, not simply because law tends to reflect the positions of power in a society—international society in this instance—but because law itself is composed of the practices of parties who will necessarily adjust their ambitions, their actions, and their doctrines to take account of changes in the strategic context. Had there been no Roman victory in the Punic Wars, can there have been a Roman law, urbi et ubique that lapped the Mediterranean as if it were a Roman lake? Without the American vic-tory in the Revolutionary War, it is difficult to imagine a Monroe Doctrine, and without the Napoleonic challenge, it is difficult to imagine the British fleet enforcing the doctrine in the aftermath of that challenge. The international legal environment reflects the strategic environment, much as commercial law reflects the market, or the legislation of governments reflects events in politics.

This is not a one-way relationship, however. Suppose there had been no Allied victory in Europe; would the doctrines of Nuremberg that are now a part of international law have come into being? It is a tempting irony to conclude simply that such trials would have been conducted in Manchester and London if the Nazis had won; this identifies law with power, a view that has many adherents. But why would the Nazis, of all people, have bothered with trials? And why did the Allies—at least one of whom had conducted a war crime of historic atrocity in the Katyn Forest three years before the tribunal met—feel the need to set a standard that might later embarrass them? The Allies not only sought to justify themselves by writing and applying these new rules; they sought to put into place practices that they could later rely upon to reinforce their own legitimacy as world leaders. By this means strategy and law were mediated by history.

Strategic outcomes affect international law, but international law—the rules of legitimate behavior for states—can affect the strategic, because it shapes the political goals that strategy is meant to serve. International law is thus among the first resources consulted in a crisis, and its treaties and treatises are among the last resources deployed when violence has ended and its consequences must be healed. This is not simply a matter of the victor enforcing his will; that too equates law with power alone in a kind of gross category mistake. Rather the will of the victor—what Saddam Hussein thought it reasonable to carry off from Kuwait (mainly German-made cars), and what Margaret Thatcher thought it reasonable to require of a defeated Argentina (mainly a dignified evacuation)—is formed by a particular view of law, and what law ought to be, and how it ought to be enforced. Every leadership of every state has such a view—self-interested, culturally idiosyncratic, haunted by historic threats, excited by historic visions—that is its own view of international law. The law thus viewed is an amalgam of the common practices of other states in an international context that reflects the collectivity of state views.

The coming of peace to the society of states has brought changes in international law, just as the war brought changes in constitutional law to the individual participants. These changes form the environment that has ultimately resulted from the end of the Long War. We eventually will have an international law that is based on the unwritten constitution of the new society of market-states.