The Place of Law in Collective Security

Abstract

fashion in which "collective security" has often been portrayed. However, the theses are also limited. They operate with a very narrow notion of "rule-application" and fail to see to what extent their determining concepts such as "interest," "power," or "security" are themselves defined and operative within a normative context. Realism receives its strength from its focus on empirical-instrumental questions such as "what happened?" or "what can be made to happen?" But it avoids posing normative questions such as "what should happen?" or "what should have happened?" Or more accurately, Realism deals with the latter set of questions on the basis of its responses to the former. Having committed itself to a descriptive sociology of the international world characterized by the struggle for "power" by "states" in the pursuit of "national interests," Realism marginalizes normative questions into issues of "ethics," oscillating between the private (and thus inscrutable) morality of individual statesmen and the public morality of states in which it seems necessary sometimes to dirty one's hands in order to prevent the system's collapse into anarchy. Realism is avowedly instrumentalist, that is, concerned with the effects of particular policies on the world. However, its instrumentalism is not that of the situated participant but that of the external observer, the rational calculator, the theorybuilder. To the external observer, the statesmen and states are atomistic subjects, equipped with a predetermined bag of interests or "values," standing outside the international polity on which they seek to employ various diplomatic, economic, and military management techniques. However, since the basic tenents of its sociology turn out to be normatively loaded, Realism seems compelled to defend itself on normative terms: one's "security" will appear as another's domination, one's "intervention" as another's "protection of sovereignty."38 In this debate, there is no privileged realm of pure description. A. The Normative in the Empirical The interpretative thesis argued that legal or political principles "are not sufficient to explain either the past history of collective security or the course of events in the Gulf. '39 The determinant factors in recent Council actions were not Charter provisions or international law, but the new rapport between the United States and the Soviet Union/Russia, the strategic and economic significance of Kuwait to the Western allies, and 38. For this latter theme, see Cynthia Weber's collapsing of the two apparent opposites into a single term she refers to as "sovereignty-intervention," a term which can characterize any conceivable inter-state relationship. CYNTHIA WEBER, SIMULATING SOVEREIGNTY: INTERVENTION, THE STATE AND SYMBOLIC EXCHANGE 123-27 (Cambridge Stud. Int'l Rel. No. 37, 1995). 39. Hurrell, supra note 2, at 49. Winter 19961 Michigan Journal of International Law so on. I have no great problem with this thesis. It opens a critical perspective that refuses to take at face value the suggestion that United Nations action represents communal interests merely because it has been decided by the Security Council. Nonetheless, the thesis' usefulness remains limited precisely because its hermeneutic suggestion excludes reference to international norms. During the past years, the foundational character of the hard facts of state power and interest to our understanding of international politics has been questioned from a wide variety of perspectives. The "level of analysis" approach already modified Realism's strong reliance on states as the basic units by which international acts should be explained. 4° Structural constraints and non-state actors seemed to create effects as well. Yet, even structural Realism's analytical priority for states may seem like an ideological move, justifying conservative policy and failing to account for the determining agency of class, economic system, or religious faith in the geopolitical, just as in the national, space. 1 Perhaps less controversially, liberal Internationalists have long insisted that the "globalization of politics" has formed interest groups and lines of battle that cannot be reduced to the application of power by states.42 To "explain" the United Nations action in Somalia, for instance, in terms of a power play between members of the Security Council would undermine the extent to which humanitarian perceptions, institutional programs and ambitions, the legacy of East African colonialism, and the character of the Siad Barre regime account for the relevant events. Aside from states, we see both metropolitan (United Nations) and peripheral (Somali) actors, ideas, and interests as relevant.43 To argue that things went so bad because there was no clear national interest to protect is a non sequitur: things went as they did because the events showed factors other than a "national inter-