Connect with us

International Law

South China Sea Dispute: In Light of International Law of the Seas

Published

on

The South China Sea (SCS) is one of the most disputed sea in the world, with contested maritime claims by Philippines, Indonesia, Vietnam, Malaysia, Taiwan and China. The geographical location of South China Sea with its proximity with the Strait of Malacca in the West and Pacific Ocean in the East makes it an area of interest as an important water way not only for the regional states but also the hegemonic western states and United States in particular. Over the years China has invested heavily militarily in the region and has also changed the geo-graphical topography of the region to further its claims. While the western powers and United States with the help of international regimes such as United Nations Convention on the Law of the Seas 1982 (UNCLOS) and with the help of regional alliances is trying to counter the claims of China on the South China Sea. The SCS dispute depicts an important case study for the students of International Law and this study is aimed to analyze the legalities of the issue in the light of Laws of the Seas as constituted under UNCLOS.

Historical Background

The claims to the territory of SCS dates back to the Han Dynasty (206 BC-220 CE) Ming Dynasty (1403-1644) during which the water ways under consideration were regulated under the tributary system of the Chinese Empire. Historically China in order to increase its influence over the region and to avoid protracted border skirmishes devised the tributary system according to which the vassal states in the region were given autonomy to carryout trade and transit in the region, while, in return giving tribute to the Chinese emperor, acknowledging China’s dominance, in return China offered gifts and protection to the vassal states. These regulations were in contradictory with the freedom of Navigation and concept of trade by Western states when they entered into the region in search of trade routes by the early 16th Century. During this time period China’s South Sea Region trade was with Funan (present day Cambodia, Thailand and Vietnam) dating back to 502-587 CE and further trade and shipping with Malaya City states dating back to 13th Century. The tributary system saw its demise when China suffered humiliating defeat during the Opium Wars of (1839-42 and 1856-60). The tributary systems was replaced with treaties which resulted from the defeat during the Opium Wars.[1]

Figure 1. Territorial Claims in South China Sea

The historical claims drawn by the PRC over the control of SCS territory is based on nine-dash line which refers to the number of lines drawn in the original map to mark the boundaries of China’s maritime claim. These lines were drawn by geographer Yang Huarien in 1949, for the then Nationalist government of China. The geographer Yang’s map consisted of 11-dashes that were vaguely drawn in the SCS region to claim the contested regions of Paracel Islands, Spratly Islands, Macclesfield Bank, Pratas Islands and Scarborough Shoal. The two-dashes were removed on the behest of Mao Zedong when he ceded the Gulf of Tonkin to Vietnam in 1952, thus, reducing the total line to nine.[2]

Figure 2. Historical Map Showing 11 Dash Line Claim

Law of the Seas

Law of the Seas is defined as “constitution for the oceans” is a set of legal framework aimed to codify the international rules and laws regarding to the sovereignty of internal waters, territorial waters, sea lanes and ocean resources. The Law of the Seas is codified in the United Nations Convention on Law of the Seas (UNCLOS) in 1982 and came into force in 1994 after being ratified by more than 150 states.

The UNCLOS of 1982 was originally codified from the United Nations Conference on the Law of the Sea (UNCLOS I) in 1958 at Geneva. This conference drew upon four conventions relating to the Convention on Territorial Sea and Contagious Zone, Fishing and High Seas Conservation resources and Continental Shelf.[3] These rules regulate the rights of exploiting resources from the region, economic and navigational freedom and right of innocent passage within he maritime domain of an independent and sovereign coastal state. The UNCLOS defines the maritime territorial boundaries of a sovereign coastal state into following categories: 1) Territorial Sea 2) Contiguous Zone 3) Exclusive Economic Zone. 4) High Seas.

1. Territorial Sea

The UNCLOS defines the limit and extent of territorial boundaries for every sovereign coastal state under which it can exploit the fishery and natural resources. The territorial waters extend to 12 nautical miles or approximately 22 km which are represented by baselines drawn beyond the coast or low water line, within this no foreign vessel can pass through and neither a plane can fly-by through the airspace above this area. The rules for establishing the baseline for the territorial seas of a coastal state are inscribed in Articles 5-11,13 and 14 of UNCLOS 1982 and also derives its legitimacy from Article 3 of Convention on Territorial Sea and Contiguous Zones of 1958. Moreover, the breadth of the territorial sea from the base line is limited up-to 24 nautical miles.[4]

2. Contiguous Zone

The contiguous zones under the UNCLOS is the region adjacent to the territorial sea of a state in the open seas. The Article 33(1) and (2) of UNCLOS 1982 which are similar to the Article 24 (1) of Convention on Territorial Seas and Contiguous Zones of 1958, defines the legitimacy of the contiguous zones. Under this law the  contiguous zone may not exceed or extend beyond the 24 nautical miles from the low water line or the baselines from where the width of the territorial seas is measured. Contiguous Zones which can be governed by the sovereign coastal state only for exercising the taxation, customs and immigration laws.[5]

3. Exclusive Economic Zones

The Exclusive Economic Zones (EEZ) which extends to 200 nautical miles or 370 km from the shore line of a state are defined by the Article 56(1) of the UNCLOS of 1982.[6]Within the EEZ a state has exploitative rights to all natural resources and fisheries in the sea, seabed and subsoil areas. A state can regulate but it should maintain the freedom of maritime navigation and over-flight in the region. A sovereign coastal state has right to construct artificial islands and installations within its EEZ for economic purposes. The Articles 62, 69-71 of 1982 Convention further explains that if a state is incapable of exploiting the resources within its EEZ can make arrangements for sharing the region with foreign states by requiring payment from them. 

4. The High Seas

The term high seas signify all the parts of the sea which are not included in the territorial seas and contiguous zones of the states. According to the Article 2 of the 1958 Geneva Convention on the High Seas that states have freedom to exercise freedom of navigation, trade, fishing, laying submarine cables, pipelines and fly by the high seas freely. The land locked states have right to move freely in the high seas using their flags on the vessels. These rules were repeated in the Article 92 of 1982 UNCLOS.[7]

South China Sea Dispute

The South Chins Sea (SCS) dispute is a maritime claims dispute among various states including China, Taiwan, Philippines, Indonesia, Malaysia, Vietnam and Brunei. The states dispute over the claims of territorial control, freedom of navigation, fisheries, shipping lines and exploitation of natural resources of oil and gas in the South China Sea region. The disputed territories include various feature in the SCS such as Spratly Islands, Paracel Islands, Mischief Reefs, Johnson, Hughes, Fiery Cross, Cuarteron, Gaven (North) and Subi Reefs, Scarborough Shoals,  among various continental shelfs and banks.

China over the years has been exercising its influence in the region covered in the nine-dash line and building military bases and structures on the artificial islands in the Spratly and Paracel Islands. Thus, maintain an Area Access Area Denial (A2/AD) strategy, hampering freedom of navigation of western and especially American naval assets and hegemonic interests in the region. China has maintained a physical presence and claim in the region since late 1950’s. China has carried out various oil exploration and drilling expeditions off the coast of Vietnam near disputed Paracel Islands in SCS which led to a stand-off.[8]

Permanent Court of Arbitration; A  Case Study of Philippines vs China 

On 22 January 2013, Philippines registered arbitral proceeding against China  in the Permanent Court of Arbitration in Hague under the Annex VII of the UNCLOS 1982. According to the statement Philippines pleaded that China has violated its sovereign right of freedom of navigation and jeopardizing its access to maritime entitlements in the South China Sea by extending its territorial claim in the SCS region, creating artificial islands and maintaining excessive presence of surveillance vessels, naval assets and fishing boats in the region.

The Permanent Court of Arbitration in Hague over a period of four procedural hearing orders on July 12, 2016 issued the final award to the case. According to the award China had no legal basis for claiming the historic rights to maritime boundaries and resources in the areas falling in the Nine-Dash line. The UNCLOS does not recognize the group of continental shoals, reefs in the Spratly Islands collectively to generate maritime zones. The PCA further ruled that China violated the obligations of maritime safety under the Article 94 of UNCLOS. The arbitral tribunal also gave verdict that the Thomas Shoal and Mischief Reef and its adjacent continental maritime features are well within the 200 nautical miles range on Philippines and formulates its EEZ.

The tribunal stated that the Chinese claim originating from various Reefs in the Spratly Islands hold no legitimacy as some reefs such as Mischief and Subi Reefs, Second Thomas Shoal are low tied elevations and have no entitlement of maritime zones. While various shoals such as Scarborough Shoal, Johnson Reef and Fiery Rock although under Article 121(1) of UNCLOS are high-tide areas of land surrounded by water. But they are categorized as rocks which are uninhabitable and do not generate any maritime zone claim under the Article 121(3) of UNCLOS of 1982. The PAC also ruled that China was unable to protect and preserve the maritime environment in the region and its naval and commercial activities in the region have violated the International Regulations for the Prevention of Collisions at Sea.[9] The tribunal further said in its award that China has violated the Articles 123, 192, 194(1), 194(5), 197 and 206 of UNCLOS by building artificial islands on the Cuarteron, Fiery Cross and Johnson, Hughes, Subi, Mischief, Gaven Reefs. Thus, the tribunal gave the verdict in the favor of the Philippines, which China refused to accept and released a White Paper stating that China would solve the issues bilaterally and pressed on its historical claims on the SCS region.[10]

China-Vietnam Oil Rig Standoff

China’s emerging economy and growing industrial infrastructure is dependent readily upon the oil and gas energy resources. As China lacks abundant natural oil and gas resources in its mainland and is dependent upon Middle Eastern, Gulf and African states to sustain its energy needs. The energy security of China has also increased as bulk of its energy resources transit through the congested straight of Malacca and disputed South China Sea. On May 1st, 2014, China’s state owned China National Offshore Oil Cooperation (CNOOC) oil-rig Haiyang Shiyou 981 (HYSY 981) along with three other oil and gas service ships were detected by Vietnam in the disputed SCS region claimed by Vietnam. The oilrig was deployed 120 nautical miles from Ly Son Island in the East of Vietnam and 180 nautical miles South of China’s Hainan province. Due to disputed territorial claims the rig feel in between the hypothetical boundaries of both China and Vietnam.[11] China claimed that the rig was deployed to conduct exploratory drilling and survey of the region and straddled upon hydrocarbon rocks in the region up till 15th August of that year. China further established a parameter of 1 nautical mile and prohibited any naval vessel movement in the area. Vietnam in order to intercept and disrupt the oil rig from establishing a fixed position dispatched six of its coast guard and surveillance vessels. China in order to protect its oil expedition vessels deployed forty naval, coast guard and civilian fishing ships.

Over the coming days the standoff between both states tensed with increase in deployment of naval ships. The incidents of ramming increased as China deployed over 130 naval vessels and aircrafts. While, people started riots across Vietnam and took to streets, various cases of vandalism were reported against Chinese businesses and six Chinese citizens were killed during the riots. China increased its military presence across the border regions also near the Yunnan and Guangxi provinces. After a high-level delegation from Chinese side visited Hanoi on June 18 and the oil rig moved to the North-Eastern region of Triton Island after the official claims of completion of its exploration. On July 15, CNOOC announced that its has withdrawn its oil rig as its endeavor has been completed a month ahead of the scheduled time period.

The stand-off between the two states showcased the limit to which China could take risks to establish its influence and demonstrate its hegemony over the SCS region. Although, Chinese leadership may have not apprehended the Vietnam’s resolve and accepting risks for a sustained period of time.

China-Malaysia Standoff

The most recent incident among the series of confrontation and disputes emerged when China and Malaysia standoff initiated in mid-April 2020 and lasted for a month till May 15, 2020. These latest turn of events started when Chinese survey vessel Dizhi-8 along with escort of Chinese coast guard ships drifted closer to a Malaysian drillship West Capella which was contracted by state owned Petronas oil firm in EEZ claimed by China, Malaysia and Vietnam in SCS. This standoff is also significant as during the unfolding of events US and China both maintained a constant military presence near the disputed area. US had deployed its guided missile cruiser, USS Bunker Hill and an amphibious assault vessel USS America in the region. US further displayed an excessive use of force as USAF B-52, B-1B Lancers conducted sorties along with EP-3E, P-3C Orion, P8-A Poseidon, RC-135W Rivet joint  reconnaissance planes not only over the SCS region but also over Taiwan Strait and East China Sea.[12] These events intensified and heated the already tensed region as both sides frowned at each other and remain locked eyeball to eyeball with each other for over a month. US maintained its claims of Freedom of Navigation (FoN) while challenging China’s assertiveness in the SCS, meanwhile, China during the unfolding of these events restrained itself from any engagement and withdraw from the region on May 15, 2020.[13] While, China afterwards in show of force initiated a month long naval exercises in July 2020 where it also deployed its indigenous Shandong Type 002 aircraft carrier.[14] Following which US carried out its largest naval drills comprising of three strike groups comprising of USS Nimitz, USS Ronal Regan and USS Theodore Roosevelt participated accompanied by cruiser, guided missile-destroyers in a show of force sending a strong message to Beijing.[15] Thus, the most recent strategic movements come at a time when the major powers were engaged in a volley of tariff war, uncertain health and economic system amid the Covid-19 pandemic. The issuance of flexing military muscles and assertion of dominance while defying international norms by China and reassertion of the status quo by the US has become a norm in the region, posing threat to international system.

China’s Approach of Expansion and Cooperation

Over the years China has gained sufficient economic power and has now been exercising its national interests using soft power. The Asia Pacific states which have been used by the West and mainly US to contain China in the region and various Quadrilateral alliances such as between US, India, Japan, Australia which emphasize upon naval and maritime cooperation and increase in freedom of navigation missions in the SCS to counter the Chinese claims. Similarly, renaming of Pacific Command of US Navy to Indo-Pacific Command also signifies the American aims and interests in the region towards countering the Chinese naval expansion in the region. The region has witnessed various aggressive maneuvers at sea and in the air between the military assets of both China and the US in the SCS. US with its immense naval resources, increasing in frigates, destroyers, anti-submarine warfare assets, and nuclear submarines in the region, has been facing challenges to its hegemony and freedom of navigation missions in the South China Sea in the face of increasing Chinese naval presence. China has been to strengthen its control over the SCS has created artificial islands by dredging and landfills and established military bases over them.[16]

For furthering its interests in the SCS region China has been engaging into economic cooperation with the SCS states. It has proposed to carry out joint initiatives for oil and natural resources exploration with Vietnam, Philippines and Brunei. China has been working on the framework of developing Code of Conduct for SCS through the framework of Association of South East Asian Nations (ASEAN) to overcome the territorial disputes. China’s policy of economic cooperation is shifting the geo-political dimensions in the South China Sea region which is a blow to the Western policy and hegemony. China’s continual defiance towards the international laws and regulations are also evident to the increasing Chinese power and weakening of the international regimes which are losing power to enforce their authority.[17]China is shaping the international law to its own liking and has been strategically investing into research and scholarly works to prioritize its national interests. US has to organize and gather regional and international support if it wants to force China to abide by the international law.[18]

Conclusion

The contemporary world order is defined by the western international regimes that govern and regulate the behavior of the states. International Law is defined to establish a recognized obligation framework under which states are compelled to operate. Evidently the norms and premise of the international law are being weakened and challenged as the emerging powers such as China has been playing around the international law. The revocation of UNCLOS in SCS by China in recent history is an evident example of this changing behavior and deterioration of the international norms. China has over the years attained significant economic muscles and to further its economic viability it is dependent upon the free transit of its oil and trade vessels through the South China Sea region until its Belt and Road Initiative is not matured. To counter the challenges it face in the South China Sea and beyond with increasing presence of US naval assets and alliances in the region China has to take resolute steps to maintain its territorial presence in the South China Sea and beyond. China has successfully sustained the pressures from international regimes and laws thus signifying the weakness and changing of the world order. The legitimacy of the international regimes has been challenged by the Chinese defiance and the US is gaining on and investing in establishing alliance in the region to counter and contain the Chinese influence. The US can resort to coercive actions as a last resort to maintain its weakening hegemonic stature, while, China is trying to avoid any direct conflict but at the same time is manipulating the International regimes in its favor by enhancing economic cooperation.


[1]Daniel Wei Boon Chua, “China’s History and the South China Sea,” Asia Dialogue, March 6, 2017, https://theasiadialogue.com/2017/03/06/chinas-history-and-the-south-china-sea/, (Accessed on May 11, 2019).

[2]Ben Black, “The South China Sea Disputes: A Clash of International Law and Historical Claims,” Penn StateJournal of Law and International Affairs, March 22, 2018, https://sites.psu.edu/jlia/the-south-china-sea-disputes-a-clash-of-international-law-and-historical-claims/, (Accessed on May 11, 2019).

[3] Peter Malanczuk, Akehurst’s Modern Introduction to International Law (New York; Routledge, 1997) p. 173

[4] Ibid, 182-183.

[5] Ibid, 184.

[6]Robin R. Churchill, “Law of the Sea International Law (1982),” Britannica, December 8, 2006, https://www.britannica.com/topic/Law-of-the-Sea#accordion-article-history, (Accessed on May 11, 2019).

[7] Malanczuk, 185-186.

[8]Michael Green, Kathleen Hicks, Zack Cooper, John Schaus And Jake Douglas, “Counter-Coercion Series: China-Vietnam Oil Rig Standoff,” Asia Maritime Transparency Initiative, June 12, 2017. https://amti.csis.org/counter-co-oil-rig-standoff/, (Accessed on May 11, 2019).

[9]The South China Sea Arbitration (The Republic of Philippines v. The Peoples Republic of China), Permanent Court of Arbitration, https://pca-cpa.org/en/cases/7/, (Accessed on May 11, 2019).

[10]PTI, “China releases white paper, reasserts claim over South China Sea,” Economic Times, July 13, 2016, https://economictimes.indiatimes.com/news/defence/china-releases-white-paper-reasserts-claim-over-south-china-sea/articleshow/53187848.cms, (Accessed on May 11, 2019).

[11]Green, Hicks, Cooper, Schaus, Douglas, Jun, “Counter-Coercion Series: China-Vietnam Oil Rig Standoff,”  (Accessed on May 11, 2019).

[12] “Two US warships in South China Sea amid China-Malaysia standoff,” Aljazeera, April 21, 2020, https://www.aljazeera.com/news/2020/04/warships-south-china-sea-china-malaysia-standoff-200421055333993.html

[13] Rozanna Latiff, “Chinese ship leaves Malaysian waters after month-long South China Sea standoff,” Reuters, May 15, 2020,  https://www.reuters.com/article/us-china-security-malaysia/chinese-ship-leaves-malaysian-waters-after-month-long-south-china-sea-standoff-idUSKBN22R1SN

[14] “China to hold military drills in South China Sea,” BBC News, July 4, 2020, https://www.bbc.com/news/world-asia-36700583

[15] “US Sends Stern Message To China; Deploys 3 Aircraft Carriers In South China Sea,” Eurasian Times, June 13, 2020,  https://eurasiantimes.com/us-sends-stern-message-to-china-deploys-3-aircraft-carriers-in-south-china-sea/

[16]Black, “The South China Sea Disputes: A Clash of International Law and Historical Claims,” (Accessed on May 11, 2019).

[17]Mercy A. Kuo, “The Geopolitics of Oil and Gas in the South China Sea,” The Diplomat, https://thediplomat.com/2018/12/the-geopolitics-of-oil-and-gas-in-the-south-china-sea/, (Accessed on May 11, 2019).

[18]Lynn Kuok, “Countering China’s Actions in the South China Sea,” August 1st, 2018, https://www.lawfareblog.com/countering-chinas-actions-south-china-sea, (Accessed on May 11, 2019).

I am a keen reader of international relations and political studies with specific interest in low intensity conflicts.

Continue Reading
Comments

International Law

The Noble Nobel

Published

on

One of the most coveted awards in human history, the Nobel Prize was created by the last will and testament of Alfred Nobel, inventor of the “dynamite”. These are essentially personal awards from his private estate but has since evolved into something much larger. All the Nobel Prizes are awarded in Sweden except for the Peace Prize given in Norway. Alfred Nobel flourished during the Industrial Revolution, when the United Kingdoms of Sweden and Norway were still together, amassing his fortune making military weapons. Some argue that these prizes were posthumously conceived to improve his reputation.

Nobel Prizes are awarded in the fields of Chemistry, Physics, Medicine, Literature, and the most coveted, the Peace Prize. In his will, Alfred Nobel characterized the Peace Prize to be given “to the person who has done the most or best to advance fellowship among nations, the abolition or reduction of standing armies, and the establishment and promotion of peace congresses”.

More than a century later, has the Nobel Peace Prize lost its luster?

The Norwegian Nobel Committee, a five-member committee appointed by the Parliament of Norway chooses the recipient. Interestingly, despite being appointed by Parliament, the committee is a private body tasked with awarding a private prize. Unless the Committee becomes inclusive, it will lose its moral authority in an increasingly divided world.

Russian journalist, Dmitry Andreyevich Muratov, drew international headlines after auctioning off the Nobel Peace Prize he had won last year for a record $103.5 million to aid Ukrainian refugees.

In doing so, he showed a level of responsibility and moral leadership that has unfortunately been lacking in the institution of the Nobel Prize itself.  This auction presents a moment to reflect on the future of the prestigious award.

Since its inception, nearly every winner of the Nobel Prize for Science has been a “white” man – as almost no scientist that were female or of any other ethnicity were deemed worthy enough to win this illustrious award. Not only this, but only four of the 200 winners in the history of the Nobel Prize for Physics have been women. The committee’s nomination and selection processes are reflected by the institution’s lack of diversity, tainting the reputation of a prize intended to celebrate humanity. This matters especially today because moral leadership is needed more than ever.

In these testing times, when the global powers are wrestling against the climate crisis, terrorism, population growth, food insecurity, refugee crisis, religious violence, Islamophobia, racism, and conflicts like the Russia-Ukraine war and its repercussions on world peace, the Nobel committee must demonstrate moral leadership. And it can only do so by redressing its centuries’ old gender and racial disparities against nominees.

The Nobel Prize committee has been on shaky ground in recent times. In matters of war and peace, the stakes are higher. In retrospect, the last two times it selected a head of state were a disaster. In 2009, the committee selected then-President Barrack Obama at the beginning of his presidency. The award was given in the hope that President Obama might change the direction of his country after he had campaigned for the office in part of his opposition to previous heavy-handed military interventions in the Middle East – notably in Iraq. This anti-war sentiment was what the Nobel committee likely honed in on when selecting him for the award.

Yet, President Obama authorized a military surge in Afghanistan and the invasion of Libya. The botched Libya invasion did remove Muammar Gaddafi, but it also helped destabilize the Sahel region, instigating a state of instability and chaos that is still with us today.

The Nobel Committee was on firmer ground when it chose Muratov along with Filipino journalist Maria Ressa “for their efforts to safeguard freedom of expression, which is a precondition for democracy and lasting peace.”

Ressa is considered a brave journalist, but many in the Philippines will say otherwise and even wonder if the award was given erroneously.

Furthermore, in the case of Muratov, it is worth asking if the undisclosed bidder for his Nobel Peace Prize – was, in fact, the Norwegian government. What we know for sure is that Norway recently handed 4 million Euros worth of seized Russian media assets to Muratov.

Cordell Hull, who secured the Nobel Peace Prize in 1945 for his role in establishing the United Nations, was the same person who turned away Jewish refugees fleeing the Holocaust by redirecting their ships to the infamous concentration camps. On 5 June 1939, he returned a ship carrying 937 passengers. Over a quarter of them ended up dying in the Holocaust.

There have been some glaring omissions as well. At least one is worth noting. Indian leader Mahatma Gandhi, one of the most significant persons of our time. Even today he is a byword for peace activism. Yet even he failed to win the Nobel Peace Prize, despite being shortlisted five times. In 2006. the former director of the Nobel Institute, Geir Lundestad, said the most significant omission in the prize’s history was never awarding the peace prize to the Indian political activist Mahatma Gandhi. However, the committee’s Euro-centric inclinations kept him from receiving the prize.

The sad reality appears to be that the Nobel Peace Prize committee blurs the lines between being an independent institution guided by clear moral principles and one that is a realpolitik instrument of Norwegian foreign policy. It was only in 2017 that the committee prevented current members of the Norwegian parliament from serving on the committee. However, the membership of the committee is currently selected by Norway’s Parliament and perhaps not surprisingly includes four politicians. Two of whom are former government ministers.

With Russia invading Ukraine, China making its own bold land grab in the South China Sea, disinformation on the rise, and many democracies in OECD countries facing a populist if not putschist threat, clear moral leadership on the international stage is needed more than ever.

The Nobel Prize Committee, in this context should take several reforms designed to make the organization more representative.

Firstly, the organization should clearly establish itself as a civil society organization – not an arm of Norwegian foreign policy. The presence of former or current politicians on the committee should be limited if not removed entirely. More civil society leaders like human rights experts would go a long way here.

Second, the committee lacks diversity considering it is composed of entirely of people from white, Christian backgrounds and, of course, Norwegian. Why aren’t representatives of Norway’s immigrant communities or even the ethnic Sami people a key feature of its famed instrument of soft power?

Thirdly, the committee should not be afraid to revoke the Nobel Prizes given to individuals who later betray its principles.

Again, these are extraordinary times, and the Nobel Committee is an important institution whose peace prize is closely followed globally. With Western institutions under pressure, the Nobel Peace Prize is an entity worth saving. The choice is Norway’s.

Continue Reading

International Law

Regulate outer space before it is too late

Published

on

The war in Ukraine has reached outer space as Russia and the United States lock horns in flag-waving catfightsin the International Space Station, long heralded as the epitome of international co-operation. This is the second international conflict manifesting itself in space in just over a month. A few weeks ago, the collapse of the Kleo Connect joint venture between Europe and China, aimed at producing hundreds of Low-Earth Orbit satellites, highlighted the fragility of the space domain.

These developments are a timely reminder that the EU’s new multilateral space initiatives are not sufficient and need to be accompanied by a durable framework for cooperation and non-conflictual competition in space.

Outer space is a global commons, which means it is in everyone’s interest that new codes of conduct and treaties are implemented to ensure greater collaboration between states and private space actors. So how do we keep the peace in space while still encouraging healthy competition the fuels innovation? The key lies in smart regulation and strong multilateral consensus. Given the intimate connection between space security and terrestrial security, a simple yet compelling principle must guide space security and inter-state relations down here on Earth: if outer space becomes critically unsafe, it will be unsafe for everyone without exception. 


The rules, or lack thereof, that govern space today, are already directly impacting our relations here on Earth. The quest for space supremacy has catalysed the increasingly fraught relations between the U.S., China and Russia, as well as between the UK and the EU, as Brexit forced Britain to leave the EU’s Galileo system.


Competition in the space domain is crucial for the development and improvement of increasingly complex space technologies. However, this unchecked, and potentially conflictual competition, has come hand in hand with an increasingly insecure space frontier. The global race for ever more accurate satellite infrastructure has induced a rise of increasingly hostile cyber operations. The transmission of counterfeit signals, known as spoofing, the intentional interference of signals, known as jamming, hijacking and even direct kinetic attacks are likely to become more frequent as they given the cloak of national security. They are a growing concern for sustainable global security.


Despite its limitations, the Outer Space Treaty of 1967, established over half a century ago, remains the foundation of international space law and is the most important of the UN’s five major space treaties. The lack of a renewed treaty capturing all the technological advancements achieved over the last decades has created a vacuum in the space domain that has been filled by increasing anarchy and narrow unilateral geopolitical goals.


While the 1967 treaty critically prohibits the deployment of weapons of mass destruction in outer space, it does not prohibit the launch of ballistic missiles through space. It also does not prohibit the placement of non-nuclear weapons in space. In short, the treaty does not prevent all forms of escalation, and it leaves many issues unaddressed, particularly in the age of new weapons and cyber technologies. The unwillingness of the signatory parties to develop their space capacities exclusively for “peaceful purposes”, as stipulated in the treaty, has set a precedent for accepting militarised space use, which continues today.


While space infrastructure undoubtedly holds an important role in national defence and security, it also plays a pivotal role in our global economy. Our global communications systems powered by satellites allow us to closely monitor the trillions of dollars’ worth of goods being traded every day. We receive crucial intelligence regarding geological and meteorological developments through our satellites that allow us to thwart natural disasters saving trillions of dollars and thousands of lives in the process. Satellites now also play a decisive role in our ability to monitor and track worrying changes in our climate and environment. More resources need to be allocated into these crucial activities and away from reckless military escalation.


The use of the ISS for national propaganda and the collapse of the Kleo Connect joint venture illustrates that the trust and cooperation needed for rival countries to navigate the space economy are still in short supply. The EU’s new Space Traffic Management initiative aims to develop an EU strategy to ensure the safe and sustainable use of space while preserving the EU space industry’s competitiveness. It is a step in the right direction but it is not enough to defuse tensions in space. Given the critical role of outer space both for civilian and military purposes, a carefully managed, well-regulated and cooperative framework is indispensable moving forward. Gaps in space law, such as over space mining and debris and the role of private actors, will need to be addressed responsibly within international fora with legally binding agreements. Other neglected areas include space debris mitigation, situational awareness and space traffic management rules. The same ethos that spearheaded the successful Nuclear Non-Proliferation Treaty and the Partial Test Ban Treaty must steer our space relations. 

Our advanced societies are becoming increasingly and irreversibly overdependent on outer space in our daily activities. Therefore, any disruption or conflict in outer space, intentional or accidental, will be at the detriment of us all. Regulating space is an urgent priority for the global community – it is high time that it is treated as one.

Continue Reading

International Law

Endgame: Time, History and Alternative World Futures

Published

on

Hamm: “What time is it?”

Clov: “The same as usual.”

Samuel Beckett, Endgame

When studying history, it becomes difficult to distinguish endings from beginnings. Though it should be obvious to capable political scientists and historians that the time for Realpolitik[1] is already over, power politics[2] remains essentially unchecked. What still remains uncertain is (1) whether a catastrophic world-system ending would manifest itself suddenly or incrementally, and (2) whether it would augur “new beginnings” or just “the same as usual.”

               There is more for “experts” to consider. As is true for the questions, certain correct answers could be interrelated or synergistic. If the latter, a “whole” expected ending would actually be greater than the sum of its “parts.” That worrisome calculation would be true by definition.

               What then?

In such unstable matters, global policy imperatives would become clear and unambiguous. Going forward, world leaders would then be well-advised to recognize the inherent limitations of always seeking national security in a global threat system.[3] It follows, for these leaders, that now is the optimal time to identify more durable configurations of international relations and international law.[4]

This time represents planet earth’s “eleventh hour.”

And there could be no more urgent kinds of identification.

Any such identifications will have to besystematic. This means, above all, a process informed by creative intellectual imaginations and by variously plausible hypotheses. These imaginations and hypotheses should always proceed together, in tangibly judicious “tandem.”[5]

There is more. In science, which includes jurisprudence, every inquiry must begin with a hypothesis. Inter alia, the appropriate rules for conducting this process  should include useful descriptions of relevant analytic models and an exploration of these models by verifiable methods of empirical-scientific inquiry.[6]      

 What might first have seemed promising in the historic “state of nature” (the global condition of anarchy dating back to the Peace of Westphalia in 1648),[7] is still apt to prove injurious for humankind’s longer-term survival prospects.  Pertinent national and international harms could be experienced not merely as debits in any one country’s implicit national security calculus, but also as an irremediable set of intolerable costs. In the United States, such costs effectively defined the corrosive policy trajectory of former US President Donald J. Trump.[8]

                On national security matters, America’s most important task must be a far-reaching rejection of Realpolitik thinking. Substantially more will need to be accomplished on such conspicuously urgent matters.  To the point, it is high time for American leaders to think meaningfully beyond global power-politics.

               On such time and history-related subjects, it’s best to begin at the beginning. In the fashion of every other state, the United States is part of a much larger and interdependent world system.  This more comprehensive system has steadily diminishing chances for any sustainable success within the recalcitrant pattern of competitive sovereignties. What is the rationale, our decision-makers should finally inquire, of seeking a “qualitative military edge”[9] in a system that is inclined to “self-destruct?”[10]

               The basic issues here are not just narrowly scientific. They are also broadly philosophic. “What is the good of passing from one untenable position to another,” asks Samuel Beckett in Endgame, “of seeking justification always on the same plane?” Though the celebrated Irish playwright was not thinking specifically about world politics, his generalized query remains useful. For scholars of world politics and world law,[11] the “bottom line” must always be the primacy of intellect or “mind” as the basic font of a particular  nation-state’s variable power.[12]

                Truth is always exculpatory. Pain, worldwide, is always “deep.”[13] It can never be overridden by the visceral chanting of political nonsense or by substitution of empty witticisms for historical fact.

Prima facie, Realpolitik or balance of power world politics has never succeeded for longer than variously brief intervals.[14] In the future, this unsteady foundation could be further undermined by multiple systemic failures, failures that are sometimes mutually reinforcing or “synergistic.”[15] Moreover, these failures could sometime involve weapons of mass destruction.

               Most portentous, in this regard, would be nuclear weapons.

               There is more. By definition, any failure of nuclear Realpolitik could prove not “only” catastrophic, but also sui generis. This troubling assessment would obtain if any such failure were judged in the full or cumulative scope of its unprecedented declensions.

               For proper remediation, certain specific steps would need to be taken. Immediately, all states that depend upon some form of nuclear deterrence should begin to think more self-consciously about fashioning alternative systems of world politics; that is, about creating prospectively viable configurations that are reliably war-averse and simultaneously cooperation-centered. While any hint of interest in such speculative patterns of global integration will sound utopian or fanciful to “realists,”[16] an opposite interpretation could actually prove more plausible.

               At this tipping point in human evolution, it is more realistic to acknowledge that any traditional “every man for himself” ethos in world politics would be infinitely degrading. Accordingly, this rancor-based ethos is incapable of offering any serious survival reassurances. “The visionary,” reminds Italian film director Federico Fellini, “is the only realist.”

               Again and again – and at some point, perhaps irretrievably – “Westphalian” world systemic failures could become tangibly dire and potentially irreversible. In the final analysis, it will not be enough to tinker tentatively at the ragged edges of our current world legal order. At that decisive turning point, simply continuing to forge assorted ad hoc agreements between stubborn states or (as “hybridized” actors) between these states and various surrogate or sub-state organizations would prove conclusively wrongheaded.

               In the longer term, the only sort of realism that can make any sense for America and other leading states in world politics is a posture that points presciently toward some “higher” awareness of global “oneness”[17] and (however incrementally) toward greater world system interdependence.

               In its fully optimized expression, such a now-indispensable awareness — would resemble what the ancients had called “cosmopolitan.” For the moment, let us be candid the insightful prophets of a more collaborative “world city” civilization must remain few and far between,[18]  but this consequential absence would not be due to an intrinsic lack of need or a witting forfeiture. Rather, it would reflect a progressively imperiled species’ retrograde unwillingness to take itself seriously –  that is, to recognize that the only sort of loyalty that can ultimately rescue all states must first embrace a redirected commitment (both individual and national) to humankind.

               At its heart, this is not a bewilderingly complicated idea. To wit, it is hardly a medical or biological secret that the core factors and behaviors common to all human beings greatly outnumber those that unnaturally differentiate one from another. Unless the leaders of all major states on Planet Earth can finally understand that the survival of any one state must inevitably be contingent upon the survival of all, true national security will continue to elude every nation. This includes even the purportedly “most powerful” states, and especially those that fitfully declare themselves “first.”

               The bottom line? The most immediate security task in the global state of nature must be to become more collaboratively self-centered. Simultaneously, the leaders of all pertinent countries, especially the United States, must learn to understand that our planet always represents a recognizably organic whole, a fragile but variously intersecting “unity.”

               Incontestably, Westphalian anarchy now exhibits rapidly diminishing options for managing world power[19] or providing law-based mechanisms of successful war avoidance.[20]

               More precisely, to seize upon the disappearing opportunities for longer-term survival, our leaders must build sensibly upon certain foundational insights of Francis Bacon, Galileo, Isaac Newton,[21] and on the more contemporary observations of philosopher Lewis Mumford: “Civilization is the never ending process of creating one world and one humanity.”[22] These earlier names will mean  little or nothing to America’s present-day policy planners -but there will still likely be capable advisors who can draw properly upon the incomparable dignities of serious study and dialectical thought.[23]

               Even in present day America, erudition deserves some pride of place.

               There are always key matters of law. Jurisprudentially, no particular national leadership has any special or primary obligations in this regard, nor could it reasonably afford to build a nation’s most immediate security policies upon vaguely distant hopes. Nonetheless, the United States remains a key part of the interrelated community of nations, and must do whatever it can to detach a steadily wavering state of nations from the time-dishonored “state of nature.”

 Any such willful detachment should be expressed as part of a much wider vision for a durable and law-centered world politics.[24] Over the longer term, Washington will have to do its very primary part to preserve the global system as a whole. Immediately, “America Together,” not “America First,” must become our national mantra. However silly or impractical this imperative may sound at first, nothing could be more fanciful than continuing indefinitely on discredited course.

               For the moment, in this connection, there is no further need for detailing analytic or intellectual particulars.  There are bound to be many, but at least for now, only a more evident and dedicated awareness of this civilizational obligation need be expected.[25]

               In The Plague, Albert Camus instructs: “At the beginning of the pestilence and when it ends, there’s always a propensity for rhetoric…It is in the thick of a calamity that one gets hardened to the truth – in other words – to silence.” As long as the states in world politics continue to operate in narrowly zero-sum terms of engagement – that is, as grim archeologists of ruins endlessly-in-the-making – they will be unable to stop the next wave of terror attacks,[26] genocides[27] and/or catastrophic wars.[28]

               Until now, for various unsound reasons, the traditional expectations of Realpolitik have managed to appear fundamentally sensible. Accordingly, there are no good reasons for expressing any still-lingering or retrospective regrets. Nevertheless, from the overriding standpoint of improving our longer-term security prospects, both national and global, the American president must substantially expand his visionary imagination.

                By ignoring the complex interrelatedness of all peoples and all states, “America First” represented the literal opposite of what was most urgently needed.

               Nothing could have been more obvious.[29]

               Now more than ever, affirming the extremity of “everyone for himself” in world politics is a prescription not for realism, but for recurrent conflict and far-reaching despair. Should this perilous prescription be allowed to stay in place, the costs could sometime be nuclear.[30] At that hard-to-imagine point, it will already be too late to discover that “America First” was a law-violating and lethal presidential mantra.

 Before Americans can hope to survive as a nation under law, we will first have to survive as a species; that is, as a planet-wide civilization. In matters of world politics, this means, among other things, understanding vital differences between the traditional anarchy of “Westphalian” international relations and the more disruptive dynamics associated with “chaos.” When compared to “Westphalian” anarchy, an impending chaos could be more expressly primal, more starkly primordial, even self-propelled or palpably “lascivious.” For further elucidation, we should think here of the “state of nature” described in William Golding’s prophetic novel, Lord of the Flies. Long before Golding, the 17th century English philosopher Thomas Hobbes (see Ch. XIII of Leviathan) warned that in any such rabidly dissembling conditions, the “life of man” must be “solitary, poor, nasty, brutish and short.”

               Looking ahead, such fearsome warnings could become manifestly more plausible in circumstances where expanding threats of a nuclear war would coincide with expanding levels of pandemic. One potential source of optimism, however, is the paradoxical prospect of a beneficent or peace-guided chaos. Whether described in the Old Testament or in certain other sources of Western philosophy, chaos can represent as much a source of large-scale human improvement as one of decline. It is this prospectively positive side of chaos that is intended by Friedrich Nietzsche’s seemingly indecipherable remark in Thus Spoke Zarathustra (1883): “I tell you, ye have still chaos in you.”

               When expressed in more aptly neutral tones, chaos is that condition which prepares the world for all things, whether sacred or profane. More exactly, it represents that yawning gulf of “emptiness” where nothing is as yet, but where some still-remaining civilizational opportunity can still originate. As 18th century German poet Friedrich Hölderlin observes: “There is a desert sacred and chaotic, which stands at the roots of the things, and which prepares all things.”

               Insightfully, in the ancient pagan world, Greek philosophers thought of this “desert” as logos, as a primal concept which indicates that chaos is anything but starkly random or intrinsically without merit. Getting meaningfully beyond the former president’s retrograde impulse and its generic “template –  that is, beyond Realpolitik – will first require “fixing the microcosm.”[31] Before anyone can conceptualize a system of world politics that rejects the refractory mantra of “everyone for himself,” a far-reaching and prior re-conceptualization will have to take place at an  individual human level.[32]

               There is nothing to suggest that American leadership will expect anything more ambitious than transient national improvements in the short term, and little more for the long term. The “prize” should not be just another few years of planetary political life, but rather a more lastingly durable pattern of global survival.

               Always, worldwide security and renewal must be brought back to the individual human being. Building upon Dante’s De Monarchia (1310)[33] and the later cosmopolitanism of H.G. Wells, Lewis Mumford and J.W. von Goethe, 20th century French philosopher Pierre Teilhard de Chardin concludes helpfully in The Phenomenon of Man: “Each element of the cosmos is positively woven from all the others….”  Before an American leader can meaningfully oppose the traditional and crippling dominance of power politics in world affairs, an opposition that would inevitably outlast his own presidential tenure, he would first have to understand what Chardin calls “the idea of a worldwide totalization of human consciousness.”  

This is the incomparably key idea of the world as a single, organic, legal unity.

               Whatever its apparent differences and divergences, the world displays an ineradicable and eventually irrepressible “oneness.” All human beings are cemented to each other not by the nefarious aggregations of belligerent nationalism, but instead by their immutably basic likeness and by their inevitable interdependence. When Siddhartha listened attentively to the river, says Herman Hesse in his novel of the same name, “…he did not bind his soul to any one particular voice and absorb it is his Self, but heard them all, the Whole, the unity….”

               There is one last but indispensable observation, one that concerns various presumed connections between individual nation states and the divine.  Here, the German philosopher Georg F. Hegel had commented famously: “The State is the Divine Idea as it exists on earth….We must therefore worship the State as the manifestation of the Divine on earth, and consider that, if it is a difficult to comprehend Nature, it is harder to grasp the Essence of the State….The State is the march of God through the world….”[34] To date, this is an idea that is responsible for literally uncountable numbers of individual human deaths and collective disasters.

               This brings us all back to the connected phenomena of individual human death fears and belligerent nationalism. In the nineteenth century, as part of his posthumously published lecture on Politics (1896), Heinrich von Treitschke looked insightfully beyond the daily news. Citing to Johan Gottlieb Fichte, the German historian had opined prophetically: “Individual man sees in his own country the realization of his earthly immortality.”[35] Here, Fichte understood something of utterly uncommon and incomparable importance. It is that there can be no greater power on earth than power over death. [36] We may also be reminded by philosopher Emmanuel Levinas that “An immortal person is a contradiction in terms.”[37]

               For too long, a starkly illogical search for immortality has lain at the heart of human wrongdoing, wrongs including war, terrorism and genocide. This is because so many diverse civilizations have regarded death-avoidance as a necessarily zero-sum commodity, a goal that can be met only at the correlative expense of certain designated “others.” In such “traditional” calculations, the presumed prospects for success have typically been linked to the de facto degree of hatred expressed for despised “others.”

               The greater the hatred, the greater the justifications for killing, the greater the personal chances of living forever.

               Though absurd and perverse, this operational  calculus was captured by psychologist Ernest Becker’s paraphrase of  author Elias Canetti: “Each organism raises it head over a field of corpses, smiles into the sun, and declares life good.”[38]  Additionally, we may consider the explanatory reasoning of psychologist Otto Rank: “The death fear of the ego is lessened by the killing, the sacrifice, of the other; through the death of the other, one buys oneself free from the penalty of dying, of being killed.”[39]

               What next? Looking ahead, the United States must act together with other states on more firmly logical foundations than those supplied by variously recurrent myths of “sacrifice” and irrationality.[40] By discarding the toxic gibberish of Realpolitik or belligerent nationalism, cooperating states could finally affirm what ought to have been obvious from the beginnings of world legal order This is the obligatory replacement of “everyone for himself” calculations with affirmations of human oneness. The only alternative, as we may extrapolate from Russia’s ongoing aggressions[41] against Ukraine, is a sordid global future of war crimes, crimes against peace and crimes against humanity.[42]

               Realpolitik should end, but not without the simultaneous establishment of promisingly new global beginnings.  Such establishment, in turn, should begin with the individual human being, with the microcosm,[43] and build incrementally upon certain extraordinary acts of “will.”[44] Reciprocally, species solidarity or “oneness”  must represent the sine qua non for all new human beginnings.

                What increasingly draws near represents an end anda beginning. This is because termination and commencement are never discrete states of human development; more correctly, they represent complementary parts of a single civilizational process. This indispensable process must be ubiquitous and universal. To narrow or particularize it in any way would only cheapen both its attractions and its benefits. 

               In Samuel Becket’s Fin de Partie, first performed at London’s Royal Court Theater on April 3, 1957. Nell queries Nagg: “Why this farce, day after day?” The same question now needs to be asked about Realpolitik and America’s global future. Why, after all, should we continue to abide any system of world politics that has never succeeded and never even met humankind’s most minimal expectations?

               Could it be that we ought never expect answers to questions that have not been asked?


[1] A previous book by this author deals with these issues from an expressly American point of view. See: Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (1984). Professor Beres is also the author of three earlier books dealing with alternative world futures: Reordering the Planet: Constructing Alternative World Futures (1974); Planning Alternative World Futures: Values, Methods and Models (1975); and People, States and World Order (1981).

[2] For political philosophy origins of such assumptions, see especially the terse comment of Thrasymachus in Bk. 1, Sec. 338 of Plato, The Republic: “Right is the interest of the stronger.”

[3] In his seventeenth-century classic of political philosophy, Leviathan, Thomas Hobbes points out interestingly that while the anarchic “state of nature” has likely never actually existed between individual human beings, it nonetheless defines the legal structures of world politics, patterns within which nations must coexist in “the state and posture of gladiators….” This uneasy “posture,” explains Hobbes famously, is a condition of “war.”

[4] In the words of Mr. Justice Gray, delivering the judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” (175 U.S. 677(1900)) See also: Opinion in Tel-Oren vs. Libyan Arab Republic (726 F. 2d 774 (1984)).The specific incorporation of treaty law into US municipal law is expressly codified at Art. 6 of the US Constitution, the so-called “Supremacy Clause.”

[5] Among other things, this means a Nietzsche-like “overcoming” of “Mass Man.”  Says Jose Ortega y’ Gasett in The Revolt of the Masses (1930): “The mass-man has no attention to spare for reasoning; he learns only in his own flesh.”

[6] Among the earliest books laying out such rules, see, by this author, Louis René Beres, Reordering the Planet: Constructing Alternative World Futures (1974); Louis René Beres, The Management of World Power: A Theoretical Analysis (1973); Louis René Beres, Transforming World Politics: The National Roots of World Peace (1975); Louis René Beres, Planning Alternative World Futures: Values, Methods and Models (1975); and Louis René Beres, People, States and World Order (1981).

[7] See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119. Together, these two treaties comprise the Peace of Westphalia.

[8] This belligerent nationalismof Donald Trump stood in marked contrast to authoritative legal assumptions concerning solidarity between nation-states. These jurisprudential assumptions concern a presumptively common legal struggle against aggression, terrorism and genocide. Such a “peremptory” expectation, known formally in law as a jus cogens assumption, was already mentioned in Justinian, Corpus Juris Civilis (533 CE); in Hugo Grotius, 2 De Jure Belli ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey., tr, Clarendon Press, 1925) (1690); and in Emmerich de Vattel, 1 Le Droit des Gens, Ch. 19 (1758). The Founding Fathers of the United States were most likely made aware of these expectations by Blackstone’s Commentaries on the Law of England (1765),a comprehensive classic work which quickly became the conceptual basis of subsequent United States law.

[9] This is an especially reasonable question to ask of Israeli leaders in Jerusalem (political) and Tel Aviv (military), where the only palpable issues are seemingly still drawn from immutable core assumptions of perpetual regional conflict.

[10] We may recall here the pertinent parable from Marcus Aurelius’ Meditations: “What does not benefit the entire hive is no benefit to the bee.” Unless we take meaningful steps to implement an organic and cooperative planetary civilization – one based on the irremediably central truth of human “oneness” –  there will be no civilization at all.

[11] According to William Blackstone’s Commentaries (Book IV, “Of Pubic Wrongs,” Chapter V): “All law results from those principles of natural justice in which all the learned of every nation agree….” In legal philosophy, the classic definition of Natural Law is given by Cicero in The Republic: “True law is right reason, harmonious with nature, diffused among all, constant, eternal….”

[12] Consider here the observation of French poet Guillaume Apollinaire, “It must not be forgotten that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.” See: “The New Spirit and the Poets” (1917).

[13] In “The drunkard’s song,” a passage in Zarathustra, Nietzsche sums up such pain with unparalleled simplicity: “Tief ist ihr Weh” (“Deep is its pain”) says the philosopher about the world. This “lied” was put to music by Gustav Mahler in his Third Symphony, 4th Movement. https://www.youtube.com/watch?v=6aM9hezKudY&list=RDuPQSokfeQN8&index=2

[14] The concept of a balance of power – an idea of which the nuclear-age balance of terror is a more fearful variant – has never been more than facile metaphor. Further, it has never had anything to do with any calculable equilibrium. As such a balance is always a matter of individual and more-or-less subjective perceptions, adversary states may never be sufficiently confident that strategic circumstances are “balanced” in their favor. In consequence, as each side must perpetually fear that it will be “left behind,” the search for balance continually produces only widening insecurity and perpetual disequilibrium.

[15] Such synergies could shed light upon the entire world system’s state of disorder – a view that would reflect what the physicists call “entropic” conditions – and could become more-or-less dependent upon each pertinent decision-maker’s subjective metaphysics of time. For an early article by this author dealing with linkages obtaining between such a metaphysics and national decision-making, see: Louis René Beres, “Time, Consciousness and Decision-Making in Theories of International Relations,” The Journal of Value Inquiry, Vol. VIII, No.3., Fall 1974, pp. 175-186.

[16]Whenever the new Muses present themselves,” warned 20th century Spanish existentialist philosopher, José Ortega y’ Gasset, “the masses bristle.” See Ortega y’ Gasset, The Dehumanization of Art (1925) (Princeton: Princeton University Press, 1948, 1968), p.7.

[17] In medieval western civilization, the world was conceived as an hierarchical order, extending from lowest to highest, and the earthly divisions of authority (always artificial or contrived) were reunited at the level of God. Below this divine stratum, the realm of humanity was to be considered as one, especially because all the world had been created solely for the purpose of backdrop for humankind’s sought-after salvation. Only in its relation to the universe itself was the world to be considered as part rather than whole. In the clarifying words of Dante’s De Monarchia (1312-1313): “The whole human race is a whole with reference to certain parts, and with reference to another whole, it is a part. Fir it is a whole with reference to particular kingdoms and nations, and it is a part with reference to the whole universe, as is manifest without argument.” To sum up the background of this “oneness” assumption (not a hypothesis), the conceptualized medieval universe was tidy, ordered and neatly arranged. Imagined in metaphoric fashion as an immense cathedral, it was so simply conceived that it was frequently represented in art by great painted clocks. At its center lay the earth, at once a mere part of God’s larger creation, but at the same time a single unified whole unto itself. For this fascinating history, literary as well as philosophic, see Anatole France, The Garden of Epicurus (1923).

[18] The best studies of such modern world order “prophets” are still W. Warren Wagar, The City of Man (1963) and W. Warren Wagar, Building the City of Man (1971).

[19] See Louis René Beres, The Management of World Power (1973), op cit.

[20] Because war and genocide are not mutually exclusive, either strategically or jurisprudentially, taking proper systemic steps toward war avoidance would plausibly also reduce the likelihood of always-egregious “crimes against humanity.” Under international law, crimes against humanity are defined as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during a war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated….”  See Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6(c), 59 Stat.  1544, 1547, 82 U.N.T.S.  279, 288

[21] Regarding science in such matters, Niccolo Machiavelli joined Aristotle’s plan for a more scientific study of politics generally with various core assumptions about geopolitics or Realpolitik. His best known conclusion, in this particular suggestion, focuses on the eternally stark dilemma of practicing goodness in a world that is generally evil. “A man who wishes to make a profession of goodness in everything, must necessarily come to grief among so many who are not good.”  See: The Prince, Chapter XV. Although this argument is largely unassailable, there exists a corresponding need to disavow “naive realism,” and to recognize that in the longer term, the only outcome of “eye for an eye” conceptions in world politics will be universal “blindness.”

[22] We may think also of the corresponding Talmudic observation: “The earth from which the first man was made was gathered in all the four corners of the world.”

[23] Dialectic formally originated in the fifth century BCE, as Zeno, author of the Paradoxes, had been acknowledged by Aristotle as its inventor. In the middle dialogues of Plato, dialectic, with its conceptual root in the Greek verb meaning “to converse,” emerges as the supreme form of philosophical/analytic method. Plato describes the dialectician as one who knows best how to ask and answer questions. This particular knowledge – how to ask, and to answer questions, sequentially – should now be usefully transposed to the improved study of American national security issues.

 

[24]Because US law is founded upon “the law of nature” (see US Declaration of Independence and US Constitution), this Trump-era opposition to human rights and freedom was in ipso facto opposition to Natural Law. Natural Law is based upon the acceptance of certain principles of right and justice that prevail because of their own intrinsic merit.  Eternal and immutable, they are external to all acts of human will and interpenetrate all human reason. It is a dynamic idea, and, together with its attendant tradition of human civility runs continuously from Mosaic Law and the ancient Greeks and Romans to the present day.  For a comprehensive and far-reaching assessment of the Natural Law origins of international law, see Louis René Beres, “Justice and Realpolitik:  International Law and the Prevention of Genocide,” The American Journal of Jurisprudence, Vol. 33, 1988, pp. 123-159.  This article was adapted from Professor Beres’ earlier presentation at the International Conference on the Holocaust and Genocide, Tel-Aviv, Israel, June 1982.

[25] International law, which is an integral part of the legal system of all states in world politics, assumes a reciprocally common general obligation of states to supply benefits to one another, and to avoid war at all costs. This core assumption of jurisprudential solidarity is known formally as a “peremptory” or jus cogens expectation, that is, one that is never subject to question. It can be found in Justinian, Corpus Juris Civilis, Hugo Grotius, The Law of War and Peace (1625) and Emmerich de Vattel, The Law of Nations or Principles of Natural Law (1758).

[26] Under international law, terrorist movements are always Hostes humani generis, or “Common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Supp 1935) 435, 566 (quoting King V. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).

[27] Neither international law nor US law specifically advises any particular penalties or sanctions for states that choose not to prevent or punish genocide committed by others. Nonetheless, all states, most notably the “major powers” belonging to the UN Security Council, are bound, among other things, by the peremptory obligation (defined at Article 26 of the Vienna Convention on the Law of Treaties) known as pacta sunt servanda, to act in continuous “good faith.” In turn, this pacta sunt servanda obligation is itself derived from an even more basic norm of world law. Commonly known as “mutual assistance,” this civilizing norm was most famously identified within the classical interstices of international jurisprudence, most notably by the eighteenth-century legal scholar, Emmerich de Vattel in The Law of Nations (1758).

 

[28] In broad legal terms, stopping such “waves” could be properly described as a “peremptory” obligation of states. According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M.  679 (1969).

[29] An irony of Trump-Era US-Russia relations is that although they remained seemingly adversarial, the US president was generally willing to be dominated by his Russian counterpart. In the presumptively worst case retrospective, US President Donald Trump acted as Vladimir Putin’s marionette, a sort of “Manchurian Candidate.” In the opinion of retired US Air Force Lt Col. Alexander Vindman, a former member of Trump’s National Security Council, the defiling American president had wittingly served as Putin’s “useful idiot.” See: https://news.yahoo.com/impeachment-witness-lt-col-alexander-153907783.html

[30] The cumulative costs could also be overwhelming and more-or-less unbearable. This references security costs, economic costs and even broadly “human costs.”

[31] This idea of “man as microcosm” was already developed in Francis Bacon’s Advancement of Learning as a model that took individual man as an accurate representation of
the entire world—that is, “….as if there were to be found in man’s body certain
correspondences and parallels which should have respect to all varieties of things….
which are extant in the greater world.”

[32] A properly antecedent question was raised earlier by Jose Ortega y’ Gasset in 1925: “Where,” the Spanish philosopher queried, “shall we find the material to reconstruct the world?” See Ortega’s The Dehumanization of Art (1925) (1968) by Princeton University Press, p. 129.

[33] Says Dante: “…the whole human race is a whole with reference to certain parts, and, with reference to another whole, it is a part. For it is a whole with reference to particular kingdoms and nations, as we have shown and it is a part with reference to the whole universe, as is manifest without argument.”

[34]  See: See: Wilhelm Friedrich Hegel, as quoted by Karl R Popper, The Open Society and its Enemies, 4th ed., 2 vols. (Princeton NJ: Princeton University Press, 1963), vol. 2, p. 31.

[35] One must consider the contra view of Spanish philosopher Jose Ortega y’ Gasset in The Revolt of the Masses (1932). Here, Ortega identifies the state not as a convenient source of immortality, but instead as the very opposite. For him, the state is “the greatest danger,” mustering its immense and irresistible resources “to crush beneath it any creative minority that disturbs it….” Earlier, in his chapter “On the New Idol” in Thus Spoke Zarathustra, Friedrich Nietzsche wrote similarly: “State is the name of the coldest of all cold monsters…. All-too-many are born – for the superfluous the state was invented.” Later, in the same chapter: “A hellish artifice was invented there (the state), a horse of death…. Indeed, a dying for many was invented there; verily, a great service to all preachers of death!” “The State,” says Nietzsche, “lies in all the tongues of good and evil; and whatever it says it lies – and whatever it has it has stolen. Everything about it is false…. All-too-many are born: for the superfluous, the State was invented.” (See: Friedrich Nietzsche, THUS SPOKE ZARATHUSTRA: ON THE NEW IDOL, in The Portable Nietzsche, 161 (Walter A. Kaufman, trans., 1954).

[36]How does killing in world politics hold out a promise of immortality for the perpetrator? According to Eugene Ionesco, “I must kill my visible enemy, the one who is determined to take my life, to prevent him from killing me. Killing gives me a feeling of relief, because I am dimly aware that in killing him, I have killed death. Killing is a way of relieving one’s feelings, of warding off one’s own death.” This comment from Ionesco’s JOURNAL appeared in the British magazine, ENCOUNTER, May 1966. See also: Eugene Ionesco, FRAGMENTS OF A JOURNAL (Grove Press, 1968).

[37] See God, Death and Time; originally Dieu, la mort et le temps (1993). See also, by Professor Louis René Beres, at Horasis (Switzerland): https://horasis.org/soaring-above-politics-death-time-and-immortality/

[38] See Ernest Becker, Escape from Evil, 2 (1975).

[39] See Otto Rank, Will Therapy and Reality 130 (1936; 1945).

[40] This is the key message of 20th century German philosopher Karl Jaspers’ Reason and Anti-Reason in our Time (1952). Jaspers writes, inter alia, of the overriding human obligation to rise above “the fog of the irrational.”

[41] For the crime of aggression under international law, see: Resolution on the Definition of Aggression, adopted by the UN General Assembly, Dec. 14, 1974. U.N.G.A. Res. 3314 (XXIX), 29 UN GAOR, Supp. (No. 31), 142, UN Doc A/9631 (1975) reprinted in 13 I.L.M., 710 (1974).

[42] Crimes against humanity are defined as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during a war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated….”  Charter of the International Military Tribunal, Aug. 8, 1945, Art. 6(c), 59 Stat.  1544, 1547, 82 U.N.T.S.  279, 288. In law, states must judge every use of force twice: once with regard to the underlying right to wage war (jus ad bellum) and once with regard to the means used in actually conducting war (jus in bello). Following the Kellogg-Briand Pact of 1928 and the United Nations Charter, there can be absolutely no right to aggressive war. However, the long-standing customary right of post-attack self-defense remains codified at Article 51 of the UN Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum. The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hague and Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into all belligerent calculations.

[43] The American Founding Fathers expressed little faith in “The American People.” Nurtured by the philosophy of Thomas Hobbes and the religion of John Calvin, they began their Constitutional deliberations with the notion that every citizen must potentially be an unregenerate being, one who has to be continually and strictly controlled. Fearing popular participation as much as leadership tyranny, Elbridge Gerry spoke openly of democracy as “the worst of all political evils,” while William Livingston opined: “The people have been and ever will be unfit to retain the exercise of power in their own hands.” George Washington, as presiding officer at the Constitutional Convention, sternly urged delegates not to produce a document to “please the people,” while Alexander Hamilton – made newly famous by the currently popular Broadway musical – expressly charged America’s government “to check the imprudence of any democracy.”

[44] Modern philosophic origins of “will” are best discovered in the writings of Arthur Schopenhauer, especially The World as Will and Idea (1818). For his own inspiration, Schopenhauer drew freely upon Johann Wolfgang von Goethe. Later, Nietzsche drew just as freely and perhaps more importantly upon Schopenhauer. Goethe was also a core intellectual source for Spanish existentialist Jose Ortega y’Gasset, author of the singularly prophetic twentieth-century work, The Revolt of the Masses (Le Rebelion de las Masas;1930). See, accordingly, Ortega’s very grand essay, “In Search of Goethe from Within” (1932), written for Die Neue Rundschau of Berlin on the centenary of Goethe’s death. It is reprinted in Ortega’s anthology, The Dehumanization of Art (1948) and is available from Princeton University Press (1968).

Continue Reading

Publications

Latest

Trending