Home EJIL Book Discussion A Comment on Russell Buchan’s “International Law and the Construction of the Liberal Peace”

A Comment on Russell Buchan’s “International Law and the Construction of the Liberal Peace”

Published on November 18, 2014        Author: 

Few would deny the momentous changes underlying Russell Buchan’s thesis about an emerging “international community.” After the end of the Cold War, international law came to accept ideas of governmental legitimacy glaringly at odds with the regime-agnosticism of earlier eras. New and newly robust norms came to address both how national leaders are chosen (the legitimacy of governments themselves) and the permissible range of governmental actions toward citizens (the legitimacy of government policies, primarily as they affect human rights). These norms clearly pointed to a liberal democratic mode of governing.

Where Buchan parts company with previous analyses of these phenomena, including my own, is his view that these changes reveal an entirely distinct “international community” acting within the broader “international society.” My comments on his fascinating new book will suggest this hypothesis is unnecessary to explain these revolutionary developments and carries with it a substantial risk of both reductionist reasoning and undermining the very norms he examines.

Buchan’s thesis relies on the seemingly inherent hostility felt by the “international community” toward “international society,” with the former regarding the latter as fundamentally illegitimate. Buchan believes the organizing principle of the community is to effect regime change in non-liberal states in order to enlarge the domain of the “liberal peace.” The enmity felt by liberal toward non-liberal states in Buchan’s telling is intense: a non-liberal state is “in a state of aggression with its own citizens” and for this reason regarded “as a threat to the security of the international community.” (p. 83 and 80). “Non-liberal states are proscribed admission to the international community and dismissed as illegitimate.” (p. 42). The relationship between the two is effectively zero-sum: “liberal states now largely reject the legal standards endorsed by the international society and instead subscribe to the legal framework advocated by the international community” (p. 18).

But one is compelled to point out that these liberal norms have also received broad support from non-liberal states. Highly repressive states have ratified human rights treaties that contain all the elements of Buchan’s definition of liberal government (elections, human rights and the rule of law). The most aggressive democracy-protection regimes in the world have been established by the AU and ECOWAS in Africa by, a region not widely populated by liberal democracies. The ICC statute — which criminalizes acts Buchan describes as state aggression toward its own people — has been ratified by many non-liberal states.

Perhaps most significantly (since Buchan devotes much discussion to the matter), non-liberal states have consistently supported the unabashedly liberal agenda of the UN Security Council. The Council has dispatched numerous missions to post-conflict states with the explicit charge of creating democratic institutions. Many of these missions have overseen elections, and when the results of those elections have been flaunted, non-liberal states on the Council have voted for resolutions demanding that electoral results be respected (for example, in Haiti, Angola, Liberia, Cote D’Ivoire, Sierra Leone and elsewhere). Indeed, one cannot point to the selection of any new government on the watch of a Council-approved mission that occurred in ways other than through democratic elections constrained by human rights protections. Of course not all were successful and some were disasters. But Buchan is making an argument about norms, not their implementation.

An example is the UNMISS mission to South Sudan, which the Security Council established in July 2011.   Among its mandated tasks was “strengthening the capacity of the Government of the Republic of South Sudan to govern effectively and democratically.” The mission was created (and renewed three times) with no objections from Council members Russia, China and Gabon (rated “Not Free” by Freedom House in 2011) or Bosnia, Lebanon or Nigeria (rated “Partly Free”). (As an aside, the substantial differences in repressiveness among “non-liberal” states is a topic Buchan does not discuss).

Of course, I am not arguing that these actions demonstrate a commonality of values between liberal and non-liberal states. That would deny reality.   I am merely pointing out that one cannot account for norms of liberal governance by focusing only on the acts and attitudes of liberal states. Non-liberal states support liberal governance initiatives for a variety of reasons, as I have argued elsewhere. Equally, liberal states rely on the support of non-liberal states to bring these initiatives to fruition.   The norms, in other words, are a product of accommodations among the wide range of states that inhabits a pluralist international order.

Perhaps Buchan would argue that liberal states are both working with non-liberal states and seeking to undermine them at the same time. But this argument, like Buchan’s actual claim of liberal hegemony, requires us to understand what liberal states “believe” or “plan” “value.” Political scientists have developed sophisticated models that seek to understand the many variables that feed into the foreign policies of ideologically diverse states.

But when Buchan makes assertions about what liberal states “believe,” he relies not on data but, overwhelmingly, on two sources that simply do not support these empirical assertions. First, he relies on the liberal norms themselves. But as I mention above, these norms are frequently the product of accommodation between ideologically diverse states, meaning hypotheses about their “motivations” must take account of all states involved. Second, his footnotes quote extensively from George W. Bush and Tony Blair. Needless to say, these two controversial figures hardly represent all liberal states, many of which were quite wary of their hyper-aggressive form of liberal internationalism. Latin American democracies, for example, regularly express fear that electoral norms will serve as a cover for US intervention. European states have filed amicus briefs in Alien Tort Statute cases opposing what they see as overreaching by US federal courts in extra-territorial human rights cases. Continental European states vehemently opposed the Iraq intervention and only grudgingly granted the US and UK occupiers authority to govern thereafter. (In passing, Buchan’s claim (p. 48) that the US only invaded Iraq in 2003 because it could not afford to wait for UN weapons inspections to finish is contradicted by the most reliable accounts of Bush administration thinking. It planned the intervention long before inspectors returned to Iraq. And the reason was not to promote democracy).

Thus, on the critical question of whether advocating liberal values abroad includes intervention and regime change, the “international community” is itself deeply divided. Indeed, if one believes that the post-Bush United States has abandoned some or all of that President’s intertwining of democracy-promotion and unilateral action, the “international community” may now be wholly united against the sort of liberal messianism Buchan describes.

In sum, given the problems in demonstrating an aggressive hostility toward non-liberal states, the claim of a separate international community with such hostility as its central organizing principle seems an unnecessary stretch. Liberal norms can be accounted for through the normal, more universalist mechanisms of international law.

If my first critique is of problems in establishing the existence of a separate liberal grouping of states, my second is of the affirmative dangers of doing so.   These are several.   First, the zero-sum imperative of locating states in either one group or the other requires ignoring or substantially downplaying the importance of border stability in the foreign policies of liberal states. If spreading democracy is the single imperative driving liberal states, why have they expended enormous energy and resources in maintaining dysfunctional heterogeneous states? Democratic institutions are immeasurably harder to implant in these societies than in more homogenous secessionist and rump states. Why not allow secession in cases such as Bosnia, Somalia and the “frozen” conflicts in former Soviet territories and avoid having to force tolerance and democratic cooperation on highly antagonistic groups? The answer would seem to be that stability of borders is a more important goal for many liberal states than democracy promotion.

Second, positing a coherent liberal community moves too quickly past the substantial disagreements among liberal states about the nature of democracy and its international institutional form. Important debates rage that Buchan either does not discuss or moves past too quickly. One is about the very nature of democracy itself: is it simply a set of procedures to select national leaders (á la Joseph Schumpeter) or is it a substantive conception of rights enjoyed in practice? International actors have embraced both definitions. Choosing one or the other has critical consequences for issues such as whether anti-democratic political parties may be excluded from elections. Another is how to account for the fact that virtually all international pronouncements about the democratic legitimacy of particular regimes have come at moments of crisis, such as a disputed elections, coups or other disruptive events. An obvious explanation is that even liberal states value interaction with stable authoritarian regimes (in trade, military alliances, intelligence sharing, etc.) more than they value democratic change.

Third, events and legal analyses can become drained of nuance when conceived in zero-sum terms. An important example is the occupation of Iraq, discussed in Chapter VII. For Buchan, the occupation shows “the determination of the international community to promote liberal democratic standards in post-conflict society” (p. 218).

But the US plan going into the war made no provision for democratic reforms. The Bush Administration planned to install its ally Ahmed Chalabi and a small group of Iraqi expatriates as the country’s new leaders. Paul Bremer and the CPA, whose work Buchan cites extensively as evidence of a liberal reformist agenda, were a hastily-crafted Plan B after Chalabi and his friends proved highly unpopular. The details, set out in books such as those by Thomas Ricks and Rajiv Chandrasekaran, do not show an occupation conceived as a clear-eyed democracy-building project supported by “international community” writ large.

Finally, and most importantly, is the danger of democratic norms being perceived as yet another chapter in the history of western “civilizing” missions. In this respect, I strongly part company with Buchan. Telling illiberal states that they reside in an anachronistic and illegitimate residuum of an international ancien regime is the surest way to ensure they will reject liberal values. Liberal states have neither the resources nor political will to compel adherence to liberal democracy. Rather, it’s spread will depend on the norms being perceived as fundamentally legitimate and universal. Thomas Franck, whom Buchan cites extensively, put the matter well his seminal 1992 article “The Emerging Right to Democratic Governance,” which is worth quoting at length (86 AJIL 84, 85):

The coherence of the democratic entitlement ultimately will depend on whether most states, most of the time, freely agree to be monitored: whether, in short, the process is perceived as legitimate. To achieve this normative coherence, monitoring will have to be uncoupled, in the clearest fashion, from a long history of unilateral enforcement of a tainted, colonialist ‘civilizing’ mission. . . In this respect, as in many others, the principal enemy of the evolution of a new rule is fear of its vigilante enforcement. For that reason, the entitlement to democracy can only be expected to flourish if it is coupled with a reiterated prohibition on such unilateral initiatives. Only then will the rule enjoy the degree of principled coherence necessary to the widespread perception of its legitimacy.

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