World Socialism and the Creation of International Law, a Guidebook - Part 8 - Monotheism
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http://www.constellationsjournal.org/MKosk11%5B1%5D.4.pdf
Constellations Volume 11, No 4, 2004.
Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA.
International Law as Political Theology: How to Read Nomos der Erde?
Martti Koskenniemi
I
Rarely in modern times have Europe and the United States drifted as far
apart as they have today. It would be wrong to seek any single cause or
a predominant theme for their separation. Much history and trauma, on
both sides, is surely involved. A mutual ressentiment of the current
intensity is not born overnight. But one of the more visible and
perhaps sharper forms in which the divergence has appeared concerns
thinking about international affairs. For the Americans, ever since
September 11, the old truths of political realism seem to have
overwhelmed any hopes for a more peaceful and united world that the end
of the Cold War had brought about. The world is still as dangerous as
ever, perhaps even more so, due to the extraordinary types of weapons
and strategy possessed by America's enemies. A dangerous world
requires a hardening of attitudes and more determinate, less
conciliatory behavior. For decades, the United States has agreed to
play the diplomatic game with the Europeans and an amorphous
"international community," united often only by its implacable
opposition to everything the United States stands for. Now this must
stop.
The European view of the world could scarcely be more different.
"Nowadays . . . the United Nations Charter has almost universally
been recognized as the constitutional document of the international
community of states."1 Here is Antonio Cassese, former president of
the International Criminal Tribunal for the Former Yugoslavia:
at least at the normative level the international community is becoming
more integrated and - what is even more important - . . . such
values as human rights and the need to promote development are
increasingly penetrating various sectors of international law that
previously seemed impervious to them.2
Where Washington decision-makers and their academic epigones see the
world as sharply divided between "us" and the "enemies of
freedom," the Europeans have dusted off constitutional themes
familiar from the interwar period, and apply them not only to the
"paradise" of the European Union but, with an even greater sense of
urgency, to the international scene. In policy and in doctrine,
Europeans embrace the Kantian view that the international world will in
due course organize itself analogously to the domestic one, as a
vertically constraining system of law manifested in notions such as jus
cogens or universal jurisdiction over crimes against humanity, and that
it is the business of international institutions to bring this about.3
For an old-European thinker such as Jürgen Habermas, the terms of the
American-European controversy are clear: "The crucial issue of
dissent is whether justification through international law can and
should be replaced by the unilateral, world-ordering politics of a
self-appointed hegemon."4
For reasons of polemic, but also in a genuine effort to understand,
Europeans now often view American policies and attitudes through Carl
Schmitt's writings during the interwar era and above all in his 1950
Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum. Whatever
Schmitt's political choices, readers have been struck by the
expressive force of his critiques when applied to contemporary events:
the war on terrorism as a morally-inspired and unlimited "total
war," in which the adversary is not treated as a "just enemy";
the obsoleteness of traditional rules of warfare and recourse to novel
technologies - especially air power5 - so as to conduct
discriminatory wars against adversaries viewed as outlaws and enemies
of humanity; Camp Delta in the Guantánamo naval base with its still
over 500 prisoners from the Afghanistan war as a normless exception
that reveals the nature of the new international political order of
which the United States is the guardian - the source of the normative
order, itself unbound by it.6
Such a view puts the "war on terrorism" squarely within the
thematic of the last 100 pages of Nomos der Erde, which discuss "the
question of the new nomos of the Earth." To be sure, Schmitt saw the
new world order commence in the declarations of war on Germany by the
allied and associated powers in the First World War and consolidated by
the way the Versailles conference was conducted "against" (instead
of "with") Germany, by the institution of the League of Nations as
an instrument of British and American policy in Europe, and above all
by the criminalization of the war of aggression in the 1928
Briand-Kellogg Pact and the 1945-46 Nuremberg War Crimes trial. To
apply Schmitt's description of the new nomos to the behavior of the
Western powers in Kosovo and Iraq, the 50-year interlude may be
explained by the Cold War having prevented a full-scale moralization of
international politics. Ironically, then, for half a century, the
Soviet Union may have taken the role of the Schmittian Katechon -
restrainer of the coming of the Antichrist.7
Nomos der Erde can be read from different perspectives. On its surface,
far from appearing as Schmitt's "most idiosyncratic book,"8 it
appears to be a history of international law and international
relations. Despite its sometimes esoteric mythological or etymological
speculations, it recounts much that is commonplace for mainstream
historiography in these fields: the importance of the turn from
religious medieval "unity" to the secular system of
territorially-limited sovereignty under the treaties of Münster and
Osnabrück; the contrast between inter-European law and the state of
nature projected onto the new world; and the turn to a pacifist
universalism under the League Covenant. The direct influence of Nomos
der Erde has been small: until very recently, it existed only in
German, and even for German lawyers, referring to it may have been a
faux pas.9 Nevertheless, Schmitt's voice is clearly audible in German
postwar histories of international
law like those by Grewe and Ziegler.10 Through the writings of Hans
Morgenthau, Schmittian perspectives became absolutely central for
international relations "realism" - a pedigree often left
unrevealed.11 Nomos der Erde is also often read biographically, as the
most developed achievement in Schmitt's turn to international law
after his fall from grace in the Nazi Party in 1936 and his consequent
turn from Staatsrechtslehre to more innocent academic pursuits. From
this perspective, Nomos (which was already finalized in 1945) appears
to weave together Schmitt's interwar arguments on the League of
Nations and the "discriminatory concept of war," aspects of his
Großraumlehre (theory of greater spaces), and his war-time texts on
the opposition of "Land and Sea," foreshadowing later commentary on
international politics. I will, however, read Nomos in the context of
Schmitt's general oeuvre in order to make the point that the book's
arguments should not be understood as mere historiography or
contextualized against the background of Schmitt's turn to
international politics. Instead, I see the mixture of Ideengeschichte,
mythical speculation, and sharp insight into international politics as
fragments from a political theology that is not explicitly articulated
therein.12 Reading it in this light might perhaps suggest a novel twist
for the European-American controversy. The idea would be not (only) to
employ Schmitt to understand the United States but to think with and
against Schmitt in the interests of today's politics.
II
Like international law textbooks, Schmitt represents the history of
international law in three stages: the medieval respublica christiana
was a religiously-based, homogenous order that received its validity
from God as mediated by the right ecclesiastic and secular authorities
claiming universal jurisdiction. It was replaced by the territorial
state as the principle of delimitation of spatial authority in Europe
that realized a sharp distinction between secular and Church
jurisdiction. The jus publicum europaeum that came to regulate the
relationship between European states was consolidated through the great
discoveries that opened up non-European territory as a field of
unlimited European land-taking and made it thus possible for the
European order itself to remain stable. The great merit of this system
for Schmitt lay in the manner in which it was able to limit
inter-European warfare by conceiving it as a public law status between
formally equal sovereigns, by replacing the medieval notion of the
justa causa belli by the formal concept of the justus hostis. This
enabled enemies to be treated on an equal basis, through formal rules
and without existential enmity.
[TRUNCATED FOR BREVITY. SEE ORIGINAL ARTICLE]