International Law’s Enemy Within: Buchan’s “International Community” as Rival to the Positive Legal Order

In a 2012 essay honoring the work of the late Pieter Kooijmans, I observed: “Going forward, institutions purporting to implement international legal norms face a fundamental dilemma: Will they construe international law as a framework for accommodation among bearers of diverse conceptions – both liberal and non-liberal – of internal public order, or will they construe it as a device for imposition of a predominant vision of public order?”

Anyone who believes that I put the choice too starkly needs to read Russell Buchan’s Lieber Prize-winning book, International Law and the Construction of the Liberal Peace. In it, Buchan makes the case that an “international community” of exclusively liberal states operates within international institutions to supplant a more ideologically inclusive and sovereignty-respecting “international society.” The latter’s defeat at the hands of the former, if unevenly manifested at present, is inexorable: Buchan predicts that “non-liberal states will become increasingly marginalised” and that “the international community will encourage if not compel liberal reformation” (p. 224). Buchan’s account is at once explanatory, predictive, and prescriptive; while he presents his findings primarily as an interpretation of events, his characterizations leave no doubt as to his enthusiasm for the trajectory that he discerns.

Buchan’s theme is, of course, familiar to those who have followed international law scholarship over the past quarter-century. His book is, in one sense, the latest installment of the “democratic entitlement” literature inaugurated in 1992 in Thomas M. Franck’s visionary essay, “The Emerging Right to Democratic Governance,” and in Gregory H. Fox’s more positivistically grounded article on “The Right to Political Participation in International Law”. More broadly, like so many appeals to an “international community” distinct from the empirical collectivity of states, it has strong “New Haven School” overtones; the spirit is kindred to W. Michael Reisman’s magisterial 2000 defense of NATO’s Kosovo intervention, “Unilateral Actions and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention”. But these articulations, coming early in a new era, were cautiously hedged – their assertions tempered both by appreciation of international law’s past accomplishments and by uncertainty about its future directions. In contrast, Buchan’s account, arriving after a longer stretch of post-Cold War history, speaks with greater boldness.

My own writings over the years on the delegitimation of non-liberal governments and the supersession of sovereign equality norms have anticipated, as fulfillments of the logic of the above-mentioned Franck, Fox, and Reisman theses, precisely the kinds of claims that Buchan presents. My accounts of such claims have been infused, not with enthusiasm, but with alarm. The animating concern has been the seeming legal cover that an overreading of recent developments furnishes to unilateralists, who undertake the transboundary pursuit of democracy or justice or humanitarianism as they see it. Unable to secure authorization from those messy real-world processes that alone have been entrusted to derogate from non-intervention norms, unilateralists invoke as a substitute the approval of an occult entity – an authentic “international community” of the like-minded, unencumbered by the diversity of interests and values found in the real world.

Often these appeals to international community are efforts to circumvent formal source doctrines, instead ascribing legal authority to an array of powerful liberal states and (right-thinking) non-state actors. A common denominator of these efforts is a conveniently indeterminate methodology; support from ad hoc combinations of efficacious actors can be harnessed to the cause of righteousness in the name of forward-looking (or forward-leaning, to borrow a telling Bush Administration expression) jurisprudence. As Siegfried Wiessner and Andrew R. Willard summarize the New Haven approach to sources, “[T]he authority of institutional arrangements … is context-dependent, [and] is never known, with specificity, in advance of a particular problem. The authority and potential authority of each arrangement … must always be determined empirically in a given context.” Absent a formally structured account of the supposed juridical authority of various state, inter-state, and non-state actors, it is possible to construe as authorized any efficacious conduct that serves legality’s supposed objectives of “founding and maintaining minimum public order … [and] advancing toward an optimum public order.” On such an account, as Martti Koskenniemi has observed, “any conception of law as fixed ‘rules’ seems irrelevant to the extent that it is not backed by sanction and counterproductive inasmuch as it limits the choices available to those who have the means to enforce them.”

In contrast, Buchan makes no effort, in his invocation of “international community,” to ascribe legal validity to the exertions of “coalitions of the willing.” He thus sidesteps old controversies about naturalist and realist alternatives to legal positivism, as these have played out in application to breaches of sovereign inviolability (e.g., of Panama, Serbia, and Iraq) that have been defended in the name of liberal-democratic values. Rather, he posits a straightforward clash of normative orders: that of an anti-pluralist “international community” of exclusively liberal-democratic states and that of a residual “international society” – now inhabited exclusively by non-liberal states – that clings to the moribund vision of sovereign equality embodied in the ICJ’s Nicaragua v. United States judgment. Whereas the ICJ affirmed (para. 263) that insistence on any particular governmental doctrine “would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State,” liberal states, according to Buchan, now see universal adoption of liberal-democratic norms as indispensable to world peace. Buchan attributes to ad hoc pragmatic considerations alone the restraint that liberal states presently show in pursuing regime change, and he does not expect such restraint to continue indefinitely.

Since Buchan’s claim falls outside the realm of jurisprudence, there is no need to assess it those terms; it is either an accurate account of events or it is not, and insofar as accurate, it is either good or bad news. I will not rehearse here the reasons why I would regard as bad news the collapse of a framework of accommodation between liberal and non-liberal states. I will instead suggest that news of liberal states’ abandonment of the sovereign equality framework is premature – even while mindful that the “prematurity” claim is always available to someone disposed to resist a conclusion.

The problem with the “international society versus international community” opposition is that it states the choice too starkly. Post-World War II “international society” – at least as embodied in the UN Charter and subsequent glosses such as the Friendly Relations Declaration (G.A. Res. 2625 (XXV) (1970)) – has never eschewed judgment about internal affairs as thoroughly as Buchan’s account suggests, and authorized post-Cold War interventions can be interpreted as developments within that framework rather than as departures from it.

Beyond the fact that human rights have played a role in UN principle and practice from the inception, the Charter expressly conceptualizes sovereign political communities as manifestations of the self-determination of the entirety of their territorial populations, and the Friendly Relations Declaration – amid the most extravagant affirmations of the non-intervention norm – reserves protections to states “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” The system was built on the repudiation of Axis-era fascism, and apartheid and other local vestiges of salt-water colonialism shortly became anathematized. The question has not been one of “state sovereignty versus popular sovereignty,” but rather of diverse conceptions of popular legitimacy and pervasive distrust of the interests and values of great powers that would purport to stand in judgment.

And yet, while agreement about what counts as popular sovereignty has often been elusive, there has increasingly been room for agreement about what cannot count. Such agreement ranges beyond cases where patterns of rule manifestly amount to abject thuggery rather than anything that might plausibly be characterized as governance. It has included cases, such as Haiti and Sierra Leone (covered extensively both in Buchan’s book and in my 1999 book), where international actors from diverse ideological and cultural perspectives have in common perceived a manifest popular repudiation of a government. It is true that some more recent international actions (e.g., Côte d’Ivoire and Libya) appear to extend the principle beyond such clear cases; it is equally true, however, that liberal states have just as recently embraced non-liberal solutions (e.g., currently in Egypt) that can be rationalized as not plainly incompatible with popular sovereignty (and that are convenient to other agendas).

Whatever may be said for the “democratic peace” thesis as an empirical correlation, it falls far short of proof that an anti-pluralist approach to international relations will produce a more peaceful world, even “in the long run.” Meanwhile, liberal states very often act as though they perceive a need for broader collaboration and accommodation than a strictly liberal peace can offer. Buchan’s interpretation of the telos of liberal state practice is impressively elaborated, but more moderate interpretations of liberal state practice – harmonizing “international community” with “international society” – remain available.