12.04.2016
Putting Anarchy in Order
№2 2016 April/June
Rein Muellerson

Former president of l’Institut de Droit International, and President of the Academy of Law of Tallinn University, Estonia.

Separation of Powers and Balance of Power As Foundations of the Rule of Law

Every political system, and the international system is not an exception, faces the problem of power. Without effective power there is anarchy and chaos while concentration of power suppresses individual as well as collective liberties. Within societies organized as states, i.e. relatively hierarchical societies, one of the most effective remedies against excessive concentration of power is the principle of separation of powers into legislative, executive and judicial branches and their balance. International society (or system) is a horizontal or relatively anarchical system where power is much more dispersed in comparison with societies organized as states.

ORDER vs ANARCHY

However, there is no absolute anarchy even in international society, otherwise there would not be any society to speak of, but a bellum omnium contra omnes (“the war of all against all”). Although the latter has existed at times in some places, politically organized societies have usually found some modus vivendi by curbing anarchy and inserting at least relative order into their relations. One may imagine all societal systems being ranged along the spectrum between A (anarchy) and H (hierarchy). If most societies organized as states are close to the H end of the spectrum though never, of course, achieving it (the DPRK, i.e. North Korea may be coming rather close), most international systems are closer to the A end of the spectrum, never achieving it since otherwise there would not be any society to speak of. In different international societies, as the late British diplomat and international relations theorist Adam Watson has convincingly shown, the element of anarchy may vary quite significantly: “There is a notional range of ways of organizing a system of states, from absolute anarchy or multiple independences to total centralization or empire.”

Putting anarchy in order in various international systems, both in regional ones and in today’s global international system, has taken different institutional forms, from imperial dominance to institutions such as the nineteenth-century Concert of Europe, the European Union or the United Nations with its Security Council. An empire is a form of international governance where an imperial center rules over imperial peripheries. Here dominance and order come hand in hand. Although the time of formal empires seems to be over and anarchophilia inspires international law through the principle of self-determination of peoples, the need for dominance for the sake of order has never completely disappeared. The composition of the UN Security Council with its five permanent members out of fifteen and the right of veto are some of the formal institutional examples of attempts to use dominance in order to curb anarchy. The nineteenth century Concert of Europe was even more successful, though less formal, attempt to order anarchy through collective dominance of five European powers (Great Britain, Austro-Hungarian Empire, Russian Empire, Prussia, and France, the latter being admitted as a full member, formed in 1815 the European Concert).

CONCENTRATION OR BALANCE OF POWER?

However, like in societies organized as states, power in international society also increasingly tends to concentrate in one or more centers. The phenomenon of concentration of power, be it in economics (tendency to monopolization without anti-monopoly measures) or in politics, seems to be the general rule of societal life. In international society too, the necessity of concentration of power for the sake of order tends to lead to its super-concentration. Guy Mettan, a Swiss journalist and writer, observes that “a power when becoming hegemonic, as the Great Britain was after the Napoleonic wars, has a tendency to establish permanent supremacy, trying to destroy any rivalry until there is somebody who would bring it to its senses.” And he emphasizes: “Any power without counter-power has a tendency to become absolute whether this takes place within a state or outside if there is no other power (powers) who would be able restrain it; law in itself is not the sufficient guarantee against such tendencies. A candidate for a dictatorship can always change the constitution in his favor if there is nobody strong enough to challenge him and a power that is dominant internationally is able to ‘interpret’ or rewrite international law in accordance with its own interest if there is no other powers able to resist. And law becomes simply a façade that is called to conceal the pure relations of power.”

Any system of balance of power presumes, as if by definition, a multitude of powers, like separation of powers domestically presumes the existence of legislative, executive and judicial branches between which certain balance should exist. With one single dominant center of power there is either domestically a totalitarian state or internationally an imperial system. If the multipolarity of the world is almost a political necessity due to the sheer size of the world and its social, cultural and developmental diversity, it is also a necessary, though not sufficient, condition for the existence of international law. As Lassa Oppenheim wrote in the first edition (1905) of his famous treatise on international law: “Law of Nations can exist only if there is an equilibrium, a balance of power, between the members of the Family of Nations.” The entrance on the Balance of Power in Encyclopaedia Britannica, written by Walter Alison Phillips, states: “An equilibrium between the various powers which form the family of nations is, in fact—as Professor L. Oppenheim justly points out—essential to the existence of international law. In the absence of any central authority, the only sanction behind the code of rules established by custom or defined in treaties, known as ‘international law’ is the capacity of the powers to hold each other in check. Were this to fail, nothing could prevent any state sufficiently powerful from ignoring the law and acting solely according to its convenience and its interests.”

International law as such (in contradistinction, e.g., imperial legal systems or the current EU law) cannot exist in a societal system with one dominant center. International law as a more or less coherent system of rules and principles, i.e. as a legal system, though limited at that time only to the so-called ‘civilized nations,’ started developing after the Westphalian peace of 1648 that concluded the devastating Thirty Years’ War in Europe. Before that period there had existed in Europe a political system of multi-layered authority, where the Papacy, the Emperor of the Holy Roman Empire and a multitude of kings, counts, earls and dukes competed for a place under the Sun. Hedley Bull, more than a quarter of a century ago, insightfully observed, having in mind the development of European institutions and the European regional system, that though it might seem “fanciful to contemplate a return to the medieval world, but it is not fanciful to imagine that there might develop a modern and secular counterpart of it that embodies its central characteristic: a system of overlapping authority and multiple loyalty.”

The Westphalian international society that emerged in the aftermath of the Thirty Years’ War was a regional international society which, however, at the end of the day managed to extend itself as well as its characteristics and principles to the rest of the world. Adam Watson writes: “The European society of states evolved out of the struggle between the forces trending towards a hegemonial order and those which succeeded in pushing the new Europe towards the independences end of our spectrum. … The Westphalian settlement was the charter of a Europe permanently organized on an anti-hegemonial principle.”

Only with the emergence of relatively equal centralized nation-states did the modern international law (then often called the ‘international law of civilized nations’, i.e. the European international law) start to take shape with its concepts of sovereignty and domestic or internal affairs. Of course, not all states were equal and there was a constant struggle for dominance and attempts to either ignore international law, re-interpret it in accordance with one’s interest or instrumentalize international law for one’s own purposes. However, with the exception of the rather short period of the Napoleonic Europe, no power was able to dominate the whole continent. And it was exactly for that reason that when Napoleon Bonaparte had disturbed the existing relative balance to the roots and established almost a continental-wide empire, the victorious powers, consciously and conscientiously, created a continental international system, which became known as the European Concert and which guaranteed the longest peaceful period on the European continent.  

Therefore, the comment by John Kerry, the U.S. Secretary of State, in March 2014 on Russia’s policy vis-à-vis Ukraine shows surprising historical ignorance. He said: “You just don’t in the 21st century behave in 19th century fashion by invading another country on completely trumped-up pretext.” The problem with this quote is not only that both in the twentieth and twenty-first centuries it is Washington that has more often than anybody else invaded countries on trumped- up pretexts. President Nixon and his national security advisor and Secretary of State Henry Kissinger have both showed considerably better knowledge of history. Richard Nixon, in 1971, speaking with the editors of the Time magazine and referring to the nineteenth century European Concert, stated: “We must remember the only time in the history of the world that we have had any extended period of peace is when there has been balance of power. It is when one nation becomes infinitely more powerful in relation to its potential competitor that the danger of war arises. So I believe in a world in which the United States is powerful. I think it will be a safer world and a better world if we have a strong healthy United States, Europe, Soviet Union, China, Japan each balancing the other, not playing one against the other, an even balance.”

And though Kissinger’s diplomacy and Nixon’s visit to China in 1972 also served, inter alia, the purpose of balancing against the Soviet Union, the realism of the Nixon-Kissinger tandem is in stark contrast to the Wilsonian (or Lenin’s, for that matter) utopian messianic idea of the betterment of the world in the process of which societies are destroyed and thousands, if not millions, killed. And Kissinger warns us that a stable balance of power remains as crucial now as in the era of Westphalia, by emphasizing that today “to achieve a genuine world order, its components, while maintaining their own values, need to acquire a second culture that is global, structural and juridical—a concept of order that transcends the perspective and ideals of any region or nation. At this moment of history this would be a modernization of the Westphalian system informed by contemporary realities.”

INTERNATIONAL LAW AND THE BALANCE OF POWER

International law, especially in its most sensitive and politically loaded areas, does not work well in a world with unipolar tendencies since in such a world international law (a result of bargaining and compromises) and its interpretation are dictated from a unipolar center. Until the beginning of the 1990s international law had evolved as a normative system based on a balance of power, though the bipolar system was not international law’s best environment. The Cold War-era balance of power was almost exclusively a competitive balance where both poles not only constantly tried to outplay each other strategically, but also believed in the worldwide triumph of their respective social, economic and political systems, though the détente period in their relations was also marked with bilateral and multilateral agreements (the latter were sometimes initiated by the two superpowers and then sent to the allies with a FYA (for your attention) mark), especially in the field of disarmament, as well as with informal rules of the game and political understandings. Although such a balancing system with only two dominant actors, which, above all, strive for absolute dominance and worldwide expansion of their respective societal models, is not the most stable system, even in such a situation this relative power equality, constraining each other’s arrogance, had a pacifying impact, though it was more the realities of the Mutually Assured Destruction (MAD) than international law that had the strongest pacifying effect. However, even in such, far from ideal, circumstances for the development of international law, it progressed in many areas and played a role that should not be underestimated. And although such central principles of international law as non-interference in internal affairs of states and non-use of force (I would compare these principles to domestic legislative norms guaranteeing the right to privacy and personal security and the right to life) were often breached, the balancing system played a positive role in the development and observance of international law. When today some liberal imperialists claim that the UN-authorized intervention in Libya in 2011did not produce the expected result because it was carried out in the wrong way (in their opinion, not because it went beyond the Security Council’s authorization but because not enough force was used) and lament that the intervention in Syria was prevented by the veto power of Russia and China, they show complete ignorance of the real world. Any intervention in Syria, taking account of its location, size, ethnic and religious patterns and the interests of regional and global players, is a significantly more explosive matter than the destruction of Libya.  

The post-Cold War unipolar moment also led to the attempts to transform the existing law into a unipolar normative system controlled from the single center where there should not be any room for counterbalancing. For a while, it seemed that international law might indeed evolve in that direction. However, at the beginning of the twenty-first century not only China and Russia habitually viewed by the West as “usual suspects,” but other emerging powers started counterbalancing, and multipolar elements in the system began to take shape. However, this emerging trend was not to the liking of Washington, which, through its containment and roll-back policies, unilaterally but also using NATO and even the EU, targets primarily Russia and China in an attempt to perpetuate the unipolar moment of the 1990s. As a result, while the existing norms became undermined in most sensitive areas, new ones have not been able to crystallize. Hence, today we live amid increased normative uncertainty.

More effective international law, at least in the real world and not in utopian imagination, can be based on three interrelated phenomena: multipolarity, balance of power, and concert of powers. If the first two may emerge naturally due to uneven development of societies over relatively extended periods, their relative (or sometimes absolute) rise and decline, the third phenomenon needs to be built through cooperative efforts and has to be accepted by participants as legitimate. Using the language familiar to international lawyers, there should be opinio juris sive necessitates (“an opinion of law or necessity”) of the balance of power and not only a de facto existing situation of balance. Hugh White, an Australian author, writing about the need for Washington to accommodate the rising China in Asia (neither confronting China nor withdrawing from Asia) observes: “Balance of power is what emerges naturally. … By contrast, a concert is an agreement to minimize the risk of war that is inherent in the balance of power system. A concert of power does not happen naturally. It has to be carefully built and maintained, and this is not easy.” And Henry Kissinger observes in the same vein that “the challenge in Asia is the opposite of Europe’s. Westphalian balance-of-power principles prevail unrelated to an agreed concept of legitimacy.” What is needed, in his opinion, for South and South-East Asia is a regional concert based of the balance of power of the main actors. Moreover, such a system is urgently needed also at the global level and today we do not have such an agreed balance in Europe, mainly because of the NATO expansion.

IS THERE ANY ALTERNATIVE TO THE BALANCE OF POWER?

What are the realistically possible alternatives to the principle of balance of power in international politics? The whole history of international relations shows that where there is no balance of power, there is either anarchy or empire that reigns supreme. Of course, international relations in their long history have seen all these three models—anarchy, empire and balance of power—and elements of their various combinations or their modifications can be seen even today. International society is an anarchical society by definition, without one central authority, especially when compared with hierarchical societies organized as states. However, anarchy is never absolute and there have always been negotiations, rules and institutions, including norms and principles of international law that have tamed anarchy. Today we also see the coexistence of elements of all these three models in international relations. Being by nature an anarchical society, it is natural that a lot of anarchy reigns in it; one may say that we have too much of it, especially in some parts of the world, though in many areas international law and other institutions have effectively curbed it. At the same time, the composition of the UN Security Council and the veto power of its five permanent members is an element of the balance of power that is not, however, functioning well today mainly due to attempts to replace the balance that has existed since the end of World War II with an imperial model. And we have also elements of an imperial model where the United States is attempting to play the role of the center of an informal empire, manifested primarily through the existence and activities of NATO and other alliances.

Naturally, the principle of the balance of power is not an ideal form of international relations. Obviously, the principle of sovereign equality of states may suffer, even though, as it has been observed earlier, this principle may even benefit particularly smaller nations, which usually do not have much say at the table of powers that are balancing each other. As Travers Twiss, a prominent British jurist and one-time professor of international law at King’s College, London, wrote, “The concept of a general balance designed by treaty-systems would guarantee particularly the existence of the sovereignty of less powerful nations against the more Powerful States.” In a more anarchical system, smaller countries, which instinctively, though often counterproductively, may be more anarchophilic than more powerful states, would be constantly threatened by their stronger neighbors (as in the present-day Middle East), while in a more imperial system (as in the American and Soviet informal empires during the Cold War) smaller nations have very little say. In a balance-of-power system smaller states will find support from other powers if one of them starts too obviously to suppress the interests and relative independence of a smaller neighbor. And it is necessary to bear in mind that we are talking here a civilized, consciously built and accepted balance-of-power system and not a spontaneously emerging or existing system where some powers try to break the balance in an attempt to obtain absolute security, thereby threatening not only the security of others, but also security in general as well as their own security. This would lead to a system of alliances competing for absolute or relative security not a civilized balance-of-power system.

It has sometimes been discussed whether the balance-of-power principle is a legal or only political principle. Certainly, it is a political principle in the first place, which can, however, have legal implications and as such it becomes a political underpinning of international law. Moreover, if elements of the balance are enshrined in legal documents, as they were reaffirmed in the Utrecht (1713) and Vienna (1815) peace treaties or in the United Nations Charter (1945), the political principle of the balance of power becomes underpinned by norms of international law. For example, the Peace of Utrecht of 1713 had as its aim “establishing and stabilizing the peace and tranquility of the Christian world by a just equilibrium of power, which is the best and most solid basis of mutual friendship and of permanence and concord.” International society, because of its essentially interstate nature, is also considerably more politicized than most domestic societies. In a sense, domestic law is also a political phenomenon as it is made in the cauldron of domestic politics. However, most of its principles and norms govern relations that are not political by nature, and an interpretation and application of domestic law is (or at least should be) free from direct political influences. States, however, as well as interstate relations (i.e. the main object of legal regulation in international society) are political phenomena par excellence. This feature has a significant impact on international law. International law is in many ways a much more politicized phenomenon than domestic legal systems and it is usually interpreted and applied not by impartial and independent courts or other quasi-judicial bodies (this is rather the exception than the rule in international society) but by states themselves or by international political bodies like the UN Security Council. As Dame Rosalyn Higgins has written, “There is, of course, a very substantial difference between the use, the employment, of international law by the Security Council, on the one hand, and by a purely judicial body such as the International Court of Justice, on the other.” Therefore, it would be rather futile to argue whether the balance-of-power principle is more political or legal. In the first place, it is certainly a political principle and arrangement which should be underpinned by legal norms to be stable and predictable. As two prominent American international lawyers, Alfred Vagts and his son Detlev Vagts, wrote during the high days of the Cold War, “Increasingly, 20th century academic lawyers, whether or not they refer to themselves as realists, are willing to see the relations between states as being governed by a variety of constraints, expectations, and understandings. These can take many different forms, some of them quite removed from the patterns lawyers are used to finding in domestic law. In such a system, power relations can be treated as determinants or preconditions of international law, if not precisely a part of it.”         

CONSOLIDATING GLOBAL BALANCE OF POWER

The international community and especially the most powerful and responsible states should take various steps to consolidate and legitimize a worldwide multipolar balance of power. Some of these steps may look as follows:

First, it is necessary to make the UN Security Council work as it should work. The Council should not be strengthened by abolishing the right of veto or bypassing the Council in the event of threats to international peace and security, but by enlarging its membership and increasing cooperation, particularly between its permanent members. Currently the permanent members see each other more as global competitors and rivals rather than as responsible partners, though not necessarily friends, allies or like-minded people, who may have different interests and even values but who are ready to compromise and bracket their differences to find solutions to challenges facing humankind. 

Second, events, developments, mistakes, tragedies and disappointments after high expectations of the post-Cold War (though, no doubt, there have also been success stories and they have to be taken into account and lessons learned from them) period indicate that the central principles of international law and the UN Charter, reiterated in the Nicaragua case by the International Court of Justice, such as the non-use of force and non-interference in internal affairs of states, retain their relevance despite (or maybe even because of) the emergence of international human rights law and evolution of humanitarian law. For example, the concept of responsibility to protect (R2P) has to be interpreted in the light of these and other principles of international law. The Institute of International Law (l’Institut de Droit International) for more than a decade studied the problems of the so-called humanitarian intervention that now is mostly considered under the heading of R2P. In 2007 the Santiago (Chile) session of the Institute adopted a resolution where a question of “the lawfulness of military actions which have not been authorized by the United Nations but which purport to have been taken to end genocide, large-scale crimes against humanity, or large-scale war crimes” was left for further study due to the differing, often opposite, views of the members of the Institute. However, in 2015 the Tallinn (Estonia) session of the Institute, having meticulously studied the practice and views of various states in the period after 2007 (done by Professor Michael Reisman together with Judge Hisashi Owada and the 10th Commission), came to the following conclusion: “The Commission has concluded that state practice over the past decade has not witnessed enough clear movement away from the traditional requirement of Security Council authorization for a putative Humanitarian Intervention; while some unilateral actions may have received a degree of informal or post hoc approval, practice indicates that the international community continues to view unilateral Humanitarian Intervention undertaken without the authorization of the United Nations Security Council as presumptively unlawful, though sometimes subject to retroactive validation.” After the high expectations of some that the world community, or those acting in the name of such a community, would be able to impartially interfere in order to prevent, or put an end to, atrocities within countries, the majority of experts have become rather pessimistic about the ability of outside intervenors to make things better. Usually the opposite is true. And the matter is not only that unilateral (that is, not authorized by the Security Council) interventions in the name of humanity are often abusive, but that foreign military (and often non-military) interventions rarely make things better. 

Third, as a realist, I would not advocate the dissolution of NATO, yet the world should come to the conclusion that any system of permanent military alliances is a threat to peace. The alliance mentality has to be broken. Alliances are always against somebody, starting from the Peloponnesian League (led by Sparta) against the Delian League (led by Athens) at the times of the Peloponnesian War, to the Catholic League and the Protestant Union in the Thirty Years’ War, to NATO against the Warsaw Pact during the Cold War. Alliances or coalitions may be justified when facing concrete threats or aggression, like Operation Desert Storm of 1991 to force Saddam Hussein out of Kuwait and restore peace and security in the region, which was lawful both as an exercise of the right to (collective) self-defense and collective security authorized by the UN Security Council. Further existence of NATO as a military alliance when its opponent—the Warsaw Pact—is gone as is its leading actor—the Soviet Union, to say nothing of its enlargement, is the biggest mistake of the early twenty-first century. Already in 1998 George Kennan, the father of the containment policy vis-à-vis the Soviet Union, warned against moving NATO to the Russian borders: “I think it is the beginning of a new cold war. I think the Russians will gradually react quite adversely and it will affect their policies. I think it is a tragic mistake. There was no reason for this whatsoever. No one was threatening anybody else. This expansion would make the Founding Fathers of this country turn over in their graves. We have signed up to protect a whole series of countries, even though we have neither the resources nor the intention to do so in any serious way. [NATO expansion] was simply a light-hearted action by a Senate that has no real interest in foreign affairs.” The talk that the post-Cold War NATO is not against anybody is a childish prattle. Military alliances, in contradistinction to collective security systems, are always meant to face concrete enemies, whether real or imagined. Some timid and prudish attempts to find a new role for NATO were ruined by the extension of the alliance to the retracted frontiers of its erstwhile enemy.