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International Law

Seeking Power Over Death: Lethal Mainspring Of World Politics

Consequences of War by Peter Paul Rubens



Abstract: At its core, history is the determinable record of humankind’s struggle for and against death. Though such a bold assertion might first appear self-contradictory, the corollary truths are clarifying. In general, we may learn, each nation-state does whatever it deems necessary to survive, but too often this “realistic” presumption requires the “death” of “others.”Now, by examining this zero-sum calculus more closely – a systematic assessment that would include certain primal expectations of the individual human being (the microcosm) – scholars may discover that this interminable struggle is also marked by an ironic reciprocity: Each state struggle for the “death” of designated others(in earlier millennia, before states, it was a struggle of empires)represents a fierce defense against its own potential annihilation. This perplexing simultaneity suggests that the underlying rationale of Realpolitik or power politics[1]is not acquisition of territory, wealth or “victory,”[2] but personal immortality. Once this bewildering rationale can be understood, therefore, such deeper insight could bestow upon our endangered planet variously enlightened opportunities for global survival. Grasped imaginatively, and with apt measures of urgency, these new modalities could become intellectual blueprints for world justice and world peace. In essence, these “blueprints” could offer humankind eleventh-hour reformist strategies of a once-inconceivable potency.[3]


In such primal matters, history must be our starting point.[4] In Man and Crisis (1958), 20th century Spanish philosopher Jose Ortega y’Gasset observes accordingly: “History is an illustrious war against death.” Though this comment is captivating, and sets the stage for our sought-after answer, it represents only a partial piece of a much wider truth: Ultimately, power over death represents the greatest conceivable form of power here on earth;[5]but acquiring such optimal power in world politics can also “demand” the  killing of  “others.”[6]

To acquire a politically manageable “power over death,” individuals (microcosm)and states (macrocosm) must first make tangible preparations to bring fatality to identifiable “enemies.” At times, this belligerent thinking would involve variously seductive notions of “martyrdom.”  As we may learn from the evening news, these notions may call not “only” for war, but also for genocide.[7]

In both cases, the planned mass killing of other human beings is more-or-less comparable to religious sacrifice, a primal custom oriented toward the ritualistic deflection of death to “others.”[8]

There is more. Going forward, scholars and policy-makers must suitably re-examine vital underlying links between microcosm and macrocosm. In this regard, Elias Canetti, winner of the 1981 Nobel Prize for Literature, once wrote imaginatively of not being dead as the principal exemplar of all power. Confronted with what Canetti had called “terror at the fact of death,” humankind – both individually, and collectively – seeks one particular advantage above all others.

This evident advantage is “to remain standing” while others must prepare to “lie down.” In the end, it is those who can remain upright, however temporarily, who are meaningfully “victorious.”[9] It is these fortunate ones, after all, who have managed to “divert” death to less-fortunate “others.”

By definition, of course, there can be no greater or more advantageous diversion.

               A key lesson obtains here for states as well as for individuals. For all “players,” microcosm and macrocosm, the situation of physical survival is the unambiguously central expression of all power. But as belligerent nationalism makes meaningful survival more and more problematic, Realpolitik or power politics effectively deprives states of their most genuine power lever.[10] Left unmodified, the “all against all” Westphalian Process[11] effectively creates or merely magnifies adversarial relations, and encourages state enemies to then enjoy “microcosmic” triumphs that will remain unrecognized or concealed. These triumphs are the deeply-satisfying human emotions experienced by persons when confronting powerless individuals who are preparing to “lie down.”[12]


In world politics, the ultimate acquisition of power is never really about land or treasure or conquest or some other reassuring evidence of primacy. It is, rather, a presumed victory over death, ultimately a personal triumph, one described by Heinrich von Treitschke that is closely linked to the always-special prerogatives of sovereignty.[13]

Relevant reasoning here is straightforward. When my state is powerful, goes the argument, so too am I. At some point, when this state seems ready to prevail indefinitely, I too am granted a personal life that is gloriously unending. Stated somewhat succinctly: An “immortal” state creates (as either its citizen or subject) the “immortal” person.

Such abstract ideas can be bewildering.  Still, to actually feel such conceptual reasoning at a palpable level, one could intentionally recall the staggering images of mid-1930s Nazi party rallies at Nuremberg. Leni Riefenstahl’s monumental film celebration of Der Fuhrer, The Triumph of the Will, says it all best. Reminding the German people of Hegel’s famous aphorism, the legendary film underscores that a nation-state can actually become the “march of God in the world.”

Today, in 2021, neither the United States nor its enemies can seemingly understand this primal linkage. As a result, all states continue to be driven by policies that bring them neither personal satisfaction nor institutional safety. To the contrary, all they can continue to expect in a chaos-leaning Realpolitik world is a perpetual global landscape of war, terrorism and genocide. In the best of all possible worlds, however, humankind – recalling the ancient creed of Epicurus that death fear is foolish and irrational- would consider the one indispensable query:

What is death? A bogy. Turn it round and see what it is: you see it does not bite. The stuff of the body was bound to be parted from the airy element, either now or hereafter, as it existed apart from it before. Why then are you vexed if they are parted now? For if not parted now, they will be hereafter. Why so? That the revolution of the universe may be accomplished, for it has need of things present, things future, and things past and done with.”[14]

There is more. All states fail to understand that death is generally identified by their enemies as a zero-sum event. Anything that is done to sustain one’s own national survival invariably represents, for these enemy states, an intolerable threat to their own “lives” and a diminution of their own power. Reciprocally, anything that is done to effectively eliminate hated enemies must expectedly enhance their collective life and augment their collective power. Ideally, these strategies will fare best whenever God is “on our side.”[15]

There is still more. Because of the deeply intimate associations between collectivities/macrocosm (states) and (microcosm) individuals, the reciprocal life advantages of death and dying can be enjoyed doubly.

“Normally,” even if only at a subconscious level, the living person never really considers himself more powerful than at the very moment when he faces the dying person. Here, as we may learn again from Elias Canetti, the living human being comes as close as he or she can to encountering genuine feelings of personal immortality. In roughly similar fashion, the “living” nation-state never really regards itself as more powerful than at that moment when it confronts the apparently impending “death” of a despised enemy state. Only slightly less power-granting are those reassuring sentiments that arise from confrontation with a “dying” enemy state; that is, the same sentiments experienced by a belligerent state that seeks some tangible “victory” over another.

 In both cases, personal and collective, convention, good taste and sometimes skilled statecraft require that zero-sum feelings about death and power be suppressed. Such polite feelings ought not to be flaunted; nonetheless, they do remain prospectively vital and determinative.


               Oddly, perhaps, in all world politics, power is so closely attached to the presumed conquest of death(national and personal) that core connections have been overlooked. As a result, students and practitioners of international relations continue to focus mainly on epiphenomena, on easily recognizable ideologies, identifiable territories, tangible implements of warfare (arms control and disarmament) and so on. The problem is not that these conspicuous factors are unimportant to power, but rather that they are of a manifestly secondary or reflected importance.

There is more. During a war, any war, the individual soldier, a person who ordinarily cannot experience satisfyingly tangible power during peacetime, is offered an utterly unique opportunity to remedy such absence. Inter alia, the pervasive presence of dead bodies in war cannot be minimized. Actually and incontestably, it is a central fact of belligerency. To wit, the soldier who is surrounded by corpses and knows that he is not yet one of them is “normally” imbued with an absolute radiance of invulnerability, of immortality, of monumental and perhaps incomparable power.

Reciprocally, and in like fashion, the state that commands its soldiers to kill and not to die, “feels” similarly great power at the removal of a collective adversary. This surviving state, like the surviving individual warrior, is transformed, indisputably and correspondingly, into a potentially primal source of everlasting life. Such abstract observations are hardly fashionable among general populations; they may even appear barbarous and uncivilized. Yet, for now at least, scholars should be seeking not to prescribe more appropriate behavior for states, but rather to accurately describe such behavior. This means looking behind the daily news.

Always, truth must be exculpatory. True observations may sometimes be indecipherable or objectionable; but they are no less true.

               In an apparent paradox, some of America’s non-state enemies also seek to “remain standing” vis-a-vis the United States, to seek power in the life-or-death struggle against a despised “other.” One must say “apparent paradox” here because some of America’s terrorist enemies seem not only unconcerned about being able to remain standing, but actually seek to die themselves. In these cases, it would appear, quite literally, that the perpetrators do “love death.”[16]

               What is most important to understand here is that “to die for the sake of God” in these calculations is actually to not die at all. For example, by “dying” in a divinely commanded act of killing presumed enemies the Jihadist terrorist really does seek to conquer death, which he fears with a special terror, by “living forever.” Credo quia absurdum, said the ancient philosopher Tertullian. “I believe because it is absurd.”

Paradoxically, the “love of death” described by Jihadist terrorists is the ironic consequent of an all-consuming wish to avoid death. Since the death that this enemy “loves” is temporary and temporal, leading “in fact” to a permanent reprieve from any real death, accepting it as a tactical expedient becomes an easy matter. If, for any reason, the normally welcome death of an individual engaged in “holy war” were not expected to ensure an authentic life ever-after, its immense attractions would immediately be reversed.

America’s non-state terrorist enemies, in the fashion of its state enemies, also seek to “remain standing,” and to believe that this critical objective can be realized only when America –  the hated individual person in macrocosm – has already become the dead man lying down. Whenever the civilized and decent human being watching evening news about the latest suicide bombing asks incredulously, “Why do they inflict such horror?” there is an ascertainably correct answer: “They do this,” goes this reply, “out of an unhindered passion for the ultimate form of power; that is, to acquire power over death.”

The greater the number of enemy corpses, the more powerful terrorists will feel. Real power, understood as an irremediably zero-sum commodity, is always to gain in “aliveness” through inflicting death upon enemies.


An enemy, whether state or non-state, cannot possibly kill as many foes as his primal passion for survival may demand. This means, among other intersecting considerations, that he may seek to induce or direct others to satisfy this particular passion. As a practical matter, this deflecting behavior points toward an undeniable impulse for genocide, an inclination that could be actualized, in the future, by adversarial resort to higher-order forms of terrorism (chemical/biological/nuclear), and/or to crimes against humanity.[17]

The United States still has much to learn. But before its leaders can fully understand the true nature of enemy intentions and capabilities, they must first acknowledge the most primary connections between power and survival. Once it can be understood that enemy definitions of the former are contingent upon loss of the latter, these leaders will be positioned intellectually to take appropriate remedial action.

Always, the true goal of certain adversaries is as grotesque as it is unrecognized. This goal is to be left standing while assorted others are made to disappear. These relentless enemies must survive just so that their enemies do not. They cannot, by this zero-sum reasoning, survive together. So long as the enemy is “allowed” to exist, no matter how cooperative or congenial it has been, some states will not feel safe. They will not feel powerful. They will not feel power over death.

It is always a mistake to believe that Reason governs the world.[18] The true source of governance on this imperiled planet is power, and power is ultimately the conquest of personal death. This conquest, which displays a zero-sum quality among enemies, is not limited to conflicts in any one region. Rather, it is always a generic matter, a more or less universal effort that is made especially manifest between enemies. On this generic matter, one should consider the revealing remark of Romanian playwright Eugene Ionesco in his Journal in 1966. Describing killing as a purposeful affirmation of one’s own survival, Ionesco observed:

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. My enemy’s death cannot be held against me, it is no longer a source of anguish, if I killed him with the approval of society; that is the purpose of war. Killing is a way of relieving one’s feelings, of warding off one’s own death.[19]

There is more. While certain enemies accept the zero-sum linkages between power and survival, others do not. Although this may suggest that some states stand on an enviably higher moral plane than their enemies, it may also place the high-minded or virtuous state at a security disadvantage, one that will make it too difficult to “remain standing.” This disturbingly consequential asymmetry between state enemies may be addressed by reducing certain adversarial emphases on power-survival connections, and/or by increasing enemy emphases on power-survival connections.

Questions must be asked. Must a state ultimately become barbarous in order to endure? Must it “learn” to identify true power with survival over others, a predatory species survival that cannot abide the survival of enemies?[20]

Prima facie, what is required is not a replication of enemy leadership crimes,[21] but policies that finally recognize death-avoidance as the essential starting point fornational security and national defense. With such recognition, visceral hostility and existential threat[22]could be rejected in toto, and an altogether new ethos – one based on a firm commitment to “remain standing” at all costs[23]– could be implemented.[24]


Core changes are necessary. All must finally rid themselves of the retrograde notion that killing another can confer immunity from personal mortality. In his Will Therapy and Truth and Reality, psychologist Otto Rank affirms: “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 being killed.” What is being described here is still the greatest form of power discoverable anywhere:  power over death. Americans and other residents of a deeply interconnected planet have a right to expect that any president of the United States or major world leader would attempt to understand these complex linkages.

At a minimum, all of our national policies must build upon more genuinely intellectual and scientific[25]sorts of understanding.

               Always, our “just wars,”[26] counter-terrorism conflicts and anti-genocide programs must be fought or conducted as intricate contests of mind over mind, and not just as narrowly tactical struggles of mind over matter.

                Only a dual awareness of our common human destination, which is death, and the associated futility of sacrificial violence, can offer an accessible “medicine” against foreseeable adversaries in the global “state of nature.”  Only this difficult awareness can we relieve an otherwise incessant and still-ascending Hobbesian war of “all against all.”[27]

               More than ever before, history deserves reasonable pride of place. The United States, America’s current president should recall, was founded upon the philosophy of Hobbes and the religion of Calvin. Nonetheless, this means something very different in 2021 than it did back in 1787.

               What should this particular history now signify for American foreign policy preparation? This is not an insignificant query, but it does presuppose an American democracy founded upon authentic learning, not (recalling the Trump presidency) on flippantly corrosive clichés or abundantly empty witticisms. In this connection, individual human death fear has much to do with a better understanding of America’s national security prospects. Only a people who can feel deeply within itself the unalterable fate and suffering of a broader global population will ever be able to decently embrace compassion, coexistence and empathy.

               In the end, a “triumph of death” in one form or another is irresistible and inevitable, and attempts to avoid death by killing certain “despised others” are both futile and inglorious. Going forward, therefore, it is high time for new and more creative thinking about global security and human immortality. Instead of simply denying death, a cowardly and potentially corrosive emotion that Sigmund Freud labeled “wish fulfillment” in The Future of an Illusion(1927), we must finally acknowledge the obvious, and view it as a too-long-overlooked blessing. Ultimately, with such an eleventh-hour acknowledgment, all people and all nations on this endangered planet could begin to think more insightfully about our immutably common destiny. In turn, this means using an always-overriding human commonality as the secure basis for expanding empathy and worldwide cooperation.


               This is a visionary and fanciful prescription, one rather unlikely to be grasped in time. But there is still a plausible way to begin. This way would require the leaders of all major states to recognize that they are not in any meaningful way “world powers” (all are equally “mortal;” none have any verifiable “power over death”) and that a coordinated retreat from Realpolitik or traditional geopolitical competition would now be self-interested.

               There are other considerations. The primary planetary survival task is a markedly intellectual one, but unprecedented human courage will also be needed. For the required national leadership initiatives, we could have no good reason to ever expect the arrival of a Platonic philosopher-king;[28] still, even some ordinary political leaders could conceivably prove themselves up to the extraordinary task at hand. For this to happen, enlightened citizens of all countries must first cast aside all historically discredited ways of thinking about world politics, and (per the specific insights of  twentieth-century  German thinker Karl Jaspers) do whatever possible to elevate empirical science and “mind” over blind faith and stultifying “mystery.”[29]

               “In endowing us with memory,” writes philosopher George Santayana, “nature has revealed to us a truth utterly unimaginable to the unreflective creation, the truth of mortality[30]. The more we reflect, the more we live in memory and idea, the more convinced and penetrated we shall be by the experience of death; still, without really knowing it, this very conviction and experience will have raised us, in a way, above mortality.”

               The legacy of Westphalia (1648 treaty)[31] includes sacrilization of the state. Although we may discover such murderous sacrilization in the writings of Hegel, Fichte, von Treitschke and various others, there have also always been voices of a different sort. For Nietzsche, the state is “the coldest of all cold monsters.”  It is, he says in Zarathustra, “for the superfluous that the state was invented.” In a similar vein, we may consider the corroborating view of Jose Ortega y’Gasset in the Revolt of the Masses. Here, the Spanish philosopher identifies the state as “the greatest danger, always mustering its immense resources “to crush beneath it any creative minority which disturbs it….”

In all global politics, it now warrants further repeating, there can be no greater form of presumed power than power over death.


               For the most part, it is not for us to choose when we should die.  Instead, our words, our destinies, will lie far beyond any discernible considerations of conscious decision or individual selection. Still, we can choose to recognize our shared human fate and especially our derivative interdependence. This unbreakable intellectual recognition could carry with it significant global promise, one that remained distressingly distant and unacknowledged in the dissembling Trump White House years.

               Much as we might prefer to comfort ourselves with various qualitative presumptions of societal hierarchy and national differentiation – the stock in trade of Donald J. Trump’s administration – we humans are all pretty much the same.[32] Already, this incontestable sameness is plainly manifest to capable scientists and physicians. Our single most important human similarity, and the one least subject to any reasonable hint of counter-argument, is that we all die.

               It is from the universal terror of this common fate that Westphalian law invests nation-states with the singularly “sacred” attributes of sovereignty.

               And it is from the incontestable commonality of death that humankind can finally escape from the predatory embrace of power politics or Realpolitik in world politics.

               Ironically, whatever our more-or-less divergent views on what might actually happen to us after death, the basic mortality that we share could still represent the last best chance we have for viable global coexistence and governance. This is the case, however, only if we can first accomplish the astoundingly difficult leap from acknowledging a shared fate as mortal beings to “operationalizing” our species’ more expressly generalized feelings of empathy and cooperation.

               There is more. Across an entire planet, we can care for one another as humans, but only after we have first accepted that the judgment of a resolutely common fate will not be waived by any harms that we may choose to inflict upon “others,” that is, upon the “unworthy.” While markedly less than obvious, modern crimes of war, terror, and genocide are often “just” sanitized expressions of religious sacrifice. In the most starkly egregious instances, any corresponding violence could represent a consummate human hope of overcoming private mortality through the targeted mass killing or exclusion of certain specific “outsiders.”

               It’s a murderous calculus, and not a new thought. Consider psychologist Ernest Becker’s ironic paraphrase of Elias Canetti in Escape from Evil:  “…. each organism raises its head over a field of corpses, smiles into the sun, and declares life good.”

There is a deeply insightful observation latent in this idea. It is the uniquely dangerous notion that killing can confer immunity from one’s own mortality. Similarly, inWill Therapy and Truth and Reality, psychologist Otto Rank affirms: “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 being killed.” What is being described here is plainly the greatest form of power discoverable anywhere:  power over death.


               Americans and various other residents of our interconnected planet have a right to expect that any president of the United States should attempt to seriously understand such vital and complex linkages. Here, America’s national policies must build upon more genuinely intellectual sorts of understanding.[33] Always, our just wars, counter-terrorism conflicts, and anti-genocide programs must be fought or conducted as fully intricate contests of mind over mind, and not just as narrowly tactical struggles of mind over matter.

                Only a dual awareness of our common human destination, which is death, and the associated futility of sacrificial violence, can offer accessible “medicine” against North Korea, China, Russia, Iran, and assorted other more-or-less foreseeable adversaries in the global “state of nature.”  This “natural” condition of anarchy was already well known to the Founding Fathers of the United States (most of whom had read Locke, Rousseau, Grotius, Hobbes, Vattel and Blackstone[34]). Now, only this difficult awareness can relieve an otherwise incessant and still-ascending Hobbesian war of “all against all.”

               More than ever before, history deserves a reasonable pride of place. America was expressly founded upon the philosophy of Hobbes and the religion of Calvin. But this means something quite different in 2021 than it did in 1787.

               What should this particular history signify for Biden White House foreign policy preparation? This is not an insignificant query, but it does presuppose an American democracy founded upon some serious measures of authentic learning, not on flippantly corrosive clichés or abundantly empty witticisms. For the foreseeable future, however, this is not really a plausible presupposition.[35]

               Human death fear has much to do with acquiring a better understanding of America’s current enemies, both national and sub-national (terrorist).  Reciprocally, only a people who can feel deeply within itself the unalterable fate and suffering of a much broader global population will ever be able to embrace compassion and “rationally” reject collective violence. To be sure, this new American president should prepare to understand what this implies, both with pointedly specific reference to the United States and to this country’s various (and still increasing) state and sub-state adversaries.

               Always, the existence of system in the world is obvious, immutable and pertinent.[36]During the Trump era, “America First” meant America Alone and America Last. America could never have been truly “first” so long as (1) its president insisted upon achieving such exalted status at the grievous expense of so many others; and (2) while failing to understand that international law remains part of the law of the United States. To once again seek to secure ourselves by diminishing others would merely be a retrograde playbook forever-recurrent instances of war, terror and genocide.

               In the end, of course, for all humankind, as an irremediable element of biology, the “triumph of death” is inevitable. Attempts to somehow avoid death by killing certain despised “others”[37] are feeble, futile and inglorious. Going forward, therefore, it is high time for new and more creative thinking about global security and human immortality.

               Instead of denying death, a cowardly and potentially corrosive emotion that Sigmund Freud persuasively labeled “wish fulfillment” (see The Future of an Illusion, 1927), we must sincerely acknowledge the obvious, and as a long-overlooked blessing.  With just such an eleventh-hour acknowledgment, all people and all nations on this imperiled planet could finally begin to draw purposefully from our immutably common destiny – that is, from our very plainly shared mortality. Among other things, this means using that always-overriding “oneness”[38] as the intellectual basis for expanding empathy and its closely-corresponding pattern of worldwide integration.[39]

               All this is, to be sure, a visionary and fanciful prescription, one unlikely to be grasped in time. But there is still a practical way to begin. It would require the leaders of major states to recognize that they can never in any genuinely meaningful way be “world powers” in a global “state of nature” (all here are equally “mortal;”none has any “power over death”) and that a coordinated retreat from Realpolitik and interminable geopolitical competition would be both self-interested and indispensable.


               It follows from all this that the primary planetary survival task is a markedly intellectual one, a disciplined matter of “mind,” but courage will also be needed, unprecedented courage. To meet required national leadership initiatives, we could have no defensible reason to expect the timely arrival of a Platonic philosopher-king,[40] but even some ordinary political leaders could conceivably be up to the herculean task, that is, to become extraordinary. For this to happen,  enlightened citizens of all countries would first have to cast aside all historically discredited ways of thinking about global survival, and do whatever deemed possible to elevate science over continuous blind faith and contrived “mystery.”[41]

               “In endowing us with memory,” writes George Santayana, “nature has revealed to us a truth utterly unimaginable to the unreflective creation….the truth of mortality….The more we reflect, the more we live in memory and idea, the more convinced and penetrated we shall be by the experience of death; yet, without knowing it, perhaps, this very conviction and experience will have raised us, in a way, above mortality.”[42]

               Though few will actually understand, such a “raising” is necessarily antecedent to human survival in world politics, though only if it is linked purposefully and self-consciously to global integration.“Is it an end that draws near,” inquired philosopher Karl Jaspers, “or a beginning?” The correct answer will depend, in large part, on what another major post-war philosopher had to say about the Jungian/Freudian “mass.”

                In his classic study, Being and Time (1953), Martin Heidegger laments what he calls, in German, das Mann, or “The They.”  Drawing fruitfully upon certain earlier seminal insights of Friedrich Nietzsche, Soren Kierkegaard as well as Carl Jung and Sigmund Freud, Heidegger’s “The They” represents the ever-present herd, crowd, horde or mass, an “untruth” (the term favored by Kierkegaard) that can quickly suffocate vital intellectual growth.  For Heidegger’s “The They,” the crowning untruth lies in its acceptance of immortality at both institutional and personal levels, and its encouragement of the falsely seductive notion that personal power over death is associated with (or derivative from) the “sacredness” of nation-states.


               The arena of world politics (macrocosm) is endlessly violent because individual human beings(microcosm)compulsively fear death. Though widely unacknowledged and patently ironic, the murderous connections are longstanding and difficult to dispute. Already, back in the 19th century, Heinrich von Treitschke convincingly linked world politics and “earthly immortality.” And even before this author of Lectures on Politics, George F. Hegel had identified the state in The Philosophy of Right as the “march God in the world.”

               Ultimately, states battle against other states amid Westphalian anarchy not for geopolitical primacy, but for individual human salvation. While the predictable result of such battles has always been death and mega death, not eternal or even longer life, an overriding mythology still endures. This is the lethal conviction that it is in war, not perpetual peace, that humans are able to acquire power over death. Sometimes, this acquisition is intended to be direct – that is, an immediate consequence of killing on the side of God. More generally, however, such power over death devolves indirectly to general populations that are not actually involved in the business of killing.

               Even such de facto “bystanders” can have “God on their side.”

               None of this is to wholly deny the validity of more traditionally accepted explanations of Realpolitik or power politics, namely that these struggles are about tangible goods, geography or “national security.” These conspicuous and common explanations are not “wrong”; they are however, trivial and epiphenomenal. Such explanations are generally “correct,” but merely as secondary reflections of what is most fundamentally important.

               In William Goldings’ classic novel, Lord of the Flies, the marooned boys make grotesquely ritualistic war upon one another because they have been thrust into a netherworld of fear and chaos, but only because this dissembling exile from “civilization” threatens them with personal death. Indeed, it is only after they have settled upon an amorphous but ubiquitous horror(“the beast”)that they decide to wage a titanic struggle to survive, a struggle that bears uncanny resemblance to the “normal” dynamics of world politics. In what amounts to yet another irony of inflicting death to bring freedom from death, the suffering boys are rescued by an English military ship, a naval vessel that will now transport them from their literally primal state of nature on the island to the more “civilized” state of nature in world politics.

               In essence, readers learn, the rancorous and barbarous conditions that obtained on the deserted island were actually just a microcosm of the wider system of international relations. But who can now rescue this wider system of Realpolitik from itself? Before we can meaningfully answer this core question, scholars and policy-makers will need to probe more closely behind the visible events the day, beyond mere reflection. Above all, this probe will have to be suitably theoretical.

                Theoretic generality is a trait of all serious scientific meaning, and scientific inquiry in such matters is indispensable.[43]

               In the beginning, in that primal promiscuity in which the lethal swerve toward politics first arose, forerunners of modern nation-states established a system of perpetual struggle and violent conflict, a system absolutely destined to fail.  Captivated by this self-destroying system of international relations, states still allow the degrading spirit of Realpolitik to spread everywhere unchecked, like an ideological gangrene on the surface of the earth. Rejecting all pertinent standards of logic and correct reasoning, this inherently false consciousness of power politics imposes no reasonable standards upon itself. It continues to be rife, despite its endless rebuffs. Somehow, Realpolitik takes its long history of defeat as victory. Prima facie, it’s a-historical proponents have never learned anything.

               The vast majority of human beings are unable to accept the biological truth of mortality.[44] Understood in terms of world politics, this suggests, inter alia, that state sovereignty will likely continue to be viewed by many as a suitable  institutional antidote to personal death. To be sure, such a view may not be explicitly apparent even to Realpolitik adherents, and it would very likely disregard certain palpable benefits other than a presumed power over death (e.g., enhanced personal status of belonging to a “powerful” country). Nonetheless, it is a perspective that will not simply fade away graciously on its own.

               It is high time for candor. Whatever our in-principle preferences, the plain fact of having been born augurs badly for the promise of immortality. Accordingly, the primal human inclination to deny an apparently unbearable truth will continue to generate the same terrors from which we allegedly seek refuge. The irony is staggering, but incontestable.

               In its obvious desperation to live perpetually, humankind has embraces a cornucopia of faiths that offer life everlasting is exchange for unchallengeable loyalty. Such loyalty is then transferred from faith to State, which battles (or prepares to battle) with other states. Though historians, political scientists and pundits routinely describe such conflicts as a tangible struggle for secular influence (power politics), it is often something different altogether. This is a struggle between Good and Bad, Right and Wrong, Decency and Indecency, even the “Sons of Light” and the “Sons of Darkness.” In this last example, apocalyptic imagery of the Dead Sea Scrolls is invoked not because any or all of a combatant state’s rationale is necessarily religious, but because such imagery best portrays the enormity of ideological attachments.

               In the United States, ideas of prevailing apocalyptic contest obtained widely during the 1950s Eisenhower years, and also later during the Reagan Administration.[45] More recently, Donald Trump’s core message of “American First” was assuredly not without underlying or implicit references to righteous struggles in world politics with
“God on our Side.” Unambiguously, for several million Trump supporters, their leader’s slogan of “America First” was essentially an eschatological code term used to signal impending End Times.

               “Death,” says Norbert Elias, “is the absolute end of the person. So the greater resistance to its demythologization perhaps corresponds to the greater magnitude of danger experienced.”[46] Now, major state sin world politics must strive more vigorously to reduce the magnitude and likelihood of anticipated existential danger. In this connection, they must remain wary of planting new false hopes that offer only illusions of personal survival through perpetual international war or war-planning.

               Today, the world is still full of noise and gratuitous rancor, but it is still possible to listen for real “music.” For this to happen, leaders, citizens and subjects will first have to detach themselves from mythical promises of power over death. In the most promising of all possible worlds, the underlying human death fear could itself be made to disappear,[47] but this prospect seems very blatantly unreal. It follows, conspicuously, that vastly more “gentle” foundations will be required for world politics –foundations other than the conflictual dynamics of Realpolitik. Happily, such foundations have already been identified and crystallized in Pierre Teilhard de Chardin’s fruitful concept of “Planetization.”

               What does this really mean? At its core, planetization is not just one step further along the incremental continuum of authority from “civilization.” Rather, it represents the very opposite of civilization.[48] Looking ahead, moreover, a meaningful emphasis on global “oneness” or planetization represents humankind’s only real hope for survival. Both scholars and statesmen must expressly affirm that such survival is first and foremost an intellectual obligation, one that can be satisfied not by pre-scientific hopes for nation-state “victories” amid Realpolitik, but by concrete steps toward worldwide cooperation.

               It is time for candor, We are all mortal; we all die. The point of global survival is not to deny such an incontestably common fate, but to draw most productively upon it for planet-wide reconciliations.[49] What we need now most on this grievously imperiled planet is not a continuously mistaken focus on simplistic reflections of reality or epiphenomena[50]  (think here of America’s obsessive daily focus on transient political personalities and superficial news makers), but authentically durable archetypes of global restructuring.[51] Inevitably, such pie-in-the-sky recommendation will generally be dismissed as naïve or “visionary,” but – as we may still learn usefully from Italian film maker Federico Fellini – “The visionary is the only realist.”


[1] Such politics define a “vigilante” or “Westphalian” system. For legal origins, se: 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. Also, in pertinent international law, there are certain core obligations that each state owes to every other state, individually and collectively.

[2]See, by this author: Louis René Beres

[3]  “It must not be forgotten,” says Guilaume Apollinaire, in The New Spirit and the Poets (1917), “that it is perhaps more dangerous for a nation to allow itself to be conquered intellectually than by arms.”

[4] All history has a subjective element.  In the words of Oswald Spengler (The Decline of the West, 1918): “Every culture and every period has its own way of regarding history. There is no such thing as history in itself.”

[5]In world politics, says philosopher Alfred North Whitehead, any deeply-felt promise of immortality is of “transcendent importance.”  Seehis Religion in the Making, 1927.

[6] While this connection is most obvious inmatters concerning Jihadist terrorism, it is also found in certainmore orthodox mass casualty behaviors of international war. See, on Jihadist terror and power over death, by this author: Louis René Beresfile:///C:/Users/lberes/AppData/Local/Temp/Sacred%20Violence%20Religion%20and%20Terrorism.pdf

 and Louis René Beres, file:///C:/Users/lberes/AppData/Local/Temp/Religious%20Extremism%20and%20International%20Legal%20Norms%20Perfidy%20Preem.pdf

[7]See Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature, December 9, 1948, entered into force, January 12, 1951, 78 U.N.T.S. 277. Although the criminalizing aspect of inter­national law that proscribes genocidal conduct may derive from a source other than the Gen­ocide Convention (i.e. it may emerge from customary international law and be included in different international conventions), such conduct is dearly a crime under international law. Even where the conduct in question does not affect the interests of more than one state, it becomes an inter­national crime whenever it constitutes an offense against the world community delicto ius gentium. See M.C. Bassiouni, International Criminal Law: A Draft International Criminal Code 30‑44 (1980). See also Bassiouni, “The Penal Characteristics of Conventional International Criminal Law,” 15 Case W. Res. J. Int’l 27‑37 (1983).

[8] Still the best scholarly clarification of these connections are René Girard, Violence and the Sacred (1977) and René Girard, The Scapegoat (1986).

[9]See, by this author, Louis René Beres:

[10] On the various meanings of Realpolitik, see, by this author, Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (1984).

[11] See # 1, supra. This references a continuing process of threat, counter-threat and war.

[12]This brings to mind the closing query of Agamemnon in The Oresteia by Aeschylus: “Where will it end? When will it all be lulled back into sleep, and cease, the bloody hatreds, the destruction”?

[13] See Louis René Beres, “Self-Determination, International Law and Survival on Planet Earth,”Arizona Journal of International and Comparative Law, Vol. 11, No.1., pp. 1-26.

[14] See Epicurus, The Stoic and Epicurean Philosophers (Whitney H. Oates et al., 1940), p. 282.

[15] G.F.  Hegel goes even further, saying in Philosophy of Right(1821) that the state is nothing less than “the march of God in the world.” Through the ages, and with “God on our Side,” conflicting states and religions have asserted that personal immortality can sometimes be achieved, but only at the sacrificial expense of certain despised “others,” of “heathen,” “blasphemers,” “apostates.” When he painted The Triumph of Death in ca. 1562, Peter Bruegel drew upon his direct personal experience with religious war and disease plague.  Already in the sixteenth century, he had understood that any intersection of these horrors (one man-made, the other natural) could be ill-fated, force-multiplying and even synergistic. This last term describes results wherein the “whole” outcome exceeds the calculable sum of all constituent “parts.”

[16]See, for example, by this author: Louis René Beres, “Martyrdom and International Law,” Jurist, September 10, 2018; and Louis René Beres, “Religious Extremism and International Legal Norms: Perfidy, Preemption and Irrationality,” Case Western Reserve Journal of International Law, Vol. 39, No.3., 2007-2008, pp. 709-730.

[17]For definition of Crimes Against Humanity, see: Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, done at London, August 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 (entered into force, August 8, 1945).

[18]See Karl Jaspers, Reason and Anti-Reason in Our Time (1952).

[19] This comment from Ionesco’s Journal appeared in British Magazine Encounter (May 1966). See also: Eugene Ionesco, Fragments of a Journal (Grove Press, 1968). Elsewhere, says Ionesco, “People kill and are killed in order to prove to themselves that life exists.” See the distinguished dramatist’s only novel, The Hermit 102 (1973).

[20]Such questions have been raised by this author for many years, but usually in explicit reference to more broadly theoretical or generic nuclear threats. See, for example, Louis René Beres, The Management of World Power: A Theoretical Analysis (1972); Louis René Beres, Terrorism and Global Security: The Nuclear Threat (1979; second edition, 1987); Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (1983); Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (1984); Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (1986); and Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (2016).

[21]Under international law, which is also law of the United States, responsibility of national leaders forinternational crimes is not limited by official position or by requirement of direct personal actions.  On the principle of command responsibility, or respondeat superior, see: In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb) 12 LAW REPORTS OF TRIALS OF WAR CRIMINALS 1, 71 (United Nations War Crimes Commission Comp. 1949); see: Parks, COMMAND RESPONSIBILITY FOR WAR CRIMES, 62 MIL.L.REV. 1 (1973); O’Brien, THE LAW OF WAR, COMMAND RESPONSIBILITY AND VIETNAM, 60 GEO.L.J. 605 (1972); U.S. DEPT OF THE ARMY, ARMY SUBJECT SCHEDULE No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907) 10 (1970).  The direct individual responsibility of leaders for genocide and genocide-like crimes is unambiguous in view of the London Agreement, which denies defendants the protection of the Act of State defense.  See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Strat.  1544, E.A.S.  No. 472, 82 U.N.T.S.  279, Art. 7.  Under traditional international law, violations were the responsibility of the state, as a corporate actor, and not of the individual human decision-makers in government and in the military.

[22]On the prospective lawfulness of such threats, including nuclear threats and even actual nuclear engagement, see: “Summary of the Legality of the Threat or Use of Nuclear Weapons,” Advisory Opinion, 1996, I.C.J., 226 (Opinion of 8 July 1996). The key conclusion of this Opinion is as follows: “…in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”

[23]International law is part of US domestic law. In the precise words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.  For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”  See The Paquete Habana, 175 U.S. 677, 678-79 (1900).  See also:  The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984) (per curiam) (Edwards, J. concurring) (dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985) (“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).

[24]The precise origins of anticipatory self-defense in customary law lie in the Caroline, a case that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this case, the serious threat of armed attack has generally justified certain militarily defensive actions. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self-defense that did not require an antecedent attack. Here, the jurisprudential framework permitted a military response to a threat so long as the danger posed was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See: Beth M. Polebaum, “National Self-defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U.L. Rev. 187, 190-91 (1984) (noting that the Caroline case had transformed the right of self-defense from an excuse for armed intervention into a legal doctrine). Still earlier, see: Hugo Grotius, Of the Causes of War, and First of Self-Defense, and Defense of Our Property, reprinted in 2 Classics of International Law, 168-75 (Carnegie Endowment Trust, 1925) (1625); and Emmerich de Vattel, The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations, reprinted in 3 Classics of International Law, 130 (Carnegie Endowment Trust, 1916) (1758). Also, Samuel Pufendorf, The Two Books on the Duty of Man and Citizen According to Natural Law, 32 (Frank Gardner Moore., tr., 1927 (1682).

[25]Says Jose Ortega y’Gassett about science (Man and Crisis, 1958): “Science, by which I mean the entire body of knowledge about things, whether corporeal or spiritual, is as much a work of imagination as it is of observation…. The latter is not possible without the former.”

[26] See especially Hugo Grotius (The Law of War and Peace, 1625); Christian Wolff, The Law of Nations Treated According to the Scientific Method (1749) and Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature (1735). Worth noting here is that though the Founding Fathers of the United States were well familiar with Grotius, Wolff and Pufendorf, these names would go wholly unrecognized today by the US Congress.

[27] Thomas Hobbes’ Leviathan still offers an illuminating and enduring vision of chaos in world politics. Says the English philosopher in Chapter XIII, “Of the Natural Condition of Mankind, as concerning their Felicity, and Misery:” during chaos, a condition which Hobbes identifies as a “time of War,” it is a time “…where every man is Enemy to every man… and where the life of man is solitary, poor, nasty, brutish, and short.” At the time of writing, Hobbes believed that the condition of “nature” in world politics was less chaotic than that same condition existing among individual human beings -because of what he called the “dreadful equality” of individual men in nature being able to kill others – but this once-relevant differentiation has effectively disappeared with the global spread of nuclear weapons.

[28] See by this author, at Oxford University Press, Louis RenéBeres:

[29] See Karl Jaspers, Reason and Anti-Reason in Our Time (1952).

[30] See observation by philosopher Emmanuel Levinas, God, Death and Time (1993): “An immortal person is a contradiction in terms.” (p. 45).

[31]The condition of anarchy, which has its codified origins at the Peace of Westphalia,stands in marked contrast to the jurisprudential assumption of solidarity between all states in the presumably common struggle against aggression and terrorism. Such a peremptory expectation (known formally in international law as a jus cogens assumption), is already mentioned in Justinian, Corpus Juris Civilis (533 C.E.); Hugo Grotius, 2 De Jure Belli Ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey, tr., Clarendon Press, 1925) (1690); Emmerich De Vattel, 1 Le Droit des Gens, Ch. 19 (1758).

[32]We may also think here of an applicable Talmudic metaphor: “The earth from which the first man was made was gathered in all the four corners of the world.”

[33] Useful hereare the more deeply philosophical insights of Pierre Teilhard de Chardin in The Phenomenon of Man (1955):”The egocentric ideal of a future reserved for those who have managed to attain egoistically the extremity of `everyone for himself’ is false, and against nature. No element could move and grow except with and by all the others with itself.”

[34] According to Blackstone, echoing Vattel, each state and nation is expected “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” See: 2 William Blackstone, Commentaries on the Laws of England, Book 4, “Of Public Wrongs.” Lest anyone ask about the significance of Blackstone, one need only point out that Commentaries are the original and core foundation of the laws of the United States.

[35] Anti-intellectualism has always been a large part of American political life. Ironically, the Founding Fathers of the United States were intellectuals. As explained by American historian Richard Hofstadter: “The Founding Fathers were sages, scientists, men of broad cultivation, many of them apt in classical learning, who used their wide reading in history, politics and law to solve the exigent problems of their time.” See Hofstadter’s Anti-Intellectualism in American Life (New York: Alfred A. Knopf, 1964), p. 145. See also the authoritative volume by Jacques Barzun, The House of Intellect (1959).

[36] In the precise words of philosopher and scientist Pierre Teilhard de Chardin in his The Phenomenon of Man: “The existence of system in the world is at once obvious to every observer of nature….”

[37] Such attempts may be more appealing during times of disease pandemic, when the “benefits” of scapegoating are especially palpable. During the medieval Black Death, for example, it was common to blame the Jews as well poisoners. In the twentieth century, Third Reich propaganda was often deliberately propped up on the foundations of such previously orchestrated irrationality.

[38]Concerning such commonality or “oneness,” we may learn from Epictetus, the ancient Greek Stoic philosopher, “You are a citizen of the universe.” A still-broader idea of human singularity followed the death of Alexander in 322 BCE; with it came a coinciding doctrine of “universality” or interconnectedness. By the Middle Ages, this political and social doctrine had fused with the notion of a respublica Christiana, a worldwide Christian commonwealth, and Thomas, John of Salisbury and Dante were looking upon Europe as a single and unified Christian community. Below the level of God and his heavenly host, all the realm of humanity was to be considered as one. This is because all the world had been created for the same single and incontestable purpose; that is, to provide secular background for the necessary drama of human salvation. Here, only in its relationship to the universe itself, was the world considered as a part rather than a whole. Says Dante in De Monarchia: “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, which is evident without argument.” Today, the idea of human oneness can and should be fully

justified/explained in more purely historical/philosophic terms of human understanding.

[39]There have been prophets of global integration in the modern era, especially Condorcet, Immanuel Kant, Auguste Comte and H.G. Wells. For the best treatment of these thinkers and their still-indispensable ideas, see W. Warren Wagar’s the City of Man (1963) and Building the City of Man: Outlines of a World Civilization (1971). Professor Wagar was a great visionary himself, one with whom I had the personal honor to work at Princeton (World Order Models Project) in the late 1960s.

[40] See, by this author, at Oxford University Press:  Louis René Beres,

[41] “There is something inside all of us,” writes philosopher Karl Jaspers, “that yearns not for reason, but for mystery – not for penetrating clear thought but for the whisperings of the irrational.” (See Reason and Anti-Reason in our Time, 1952). Today, in the United States, the “mysteries” of QAnon should come readily to mind.

[42] See George Santayana, The Life of Reason or the Phases of Human Progress: Reason in Religion 260 (1905).

[43] “Theory is a net,” says the German poet Novalis in a quotation embraced by Karl Popper (The Logic of Scientific Discovery) “only those who cast, can catch.”

[44] This “truth” is perhaps best explained by the philosopher George Santayana in his Reason in Religion (1905).

[45] See, by this author, Louis René Beres, Reason and Realpolitik: US Foreign Policy and World Order (1984); and Louis René Beres, America Outside the World: The Collapse of US Foreign Policy (1987).

[46] See Norbert Elias, The Loneliness of the Dying 44 (1985).

[47]Fear of death, we have already seen in world politics, not only degrades normal life, it creates vast fieldsof premature corpses.

[48]In his Notes from Underground (1862): Dostoyevsky reminds us about civilization: “All it does, I’d say, is develop in man a capacity to feel a greater variety of sensations. And nothing, absolutely nothing else. And through this development man will yet learn how to better enjoy bloodshed.”

[49] Although he doesn’t ever approach these issues from the standpointof international relations or international law, the Basque philosopher Miguel de Unamuno best explains the most imaginative and profound connections between the ineradicable universality of death and what Pierre Teilhard de Chardin calls “planetization.” When I was still a “working professor” at Purdue University, I always advisedmy best students that Unamuno’s Tragic Sense of Life (1921) was the single most important book I had ever read. I continue to stand by this far-reaching assessment.

[50] The classic source of elucidating such a mistaken focus is, of course, Plato’s allegory of the cave in The Republic, an allegory wherein human beings never see reality, but only vague “shadows” of reality.

[51] On the meaning of such useful frames of reference, see: Elemire Zolla, Archetypes: The Persistence of Unifying Patterns (1981).

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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International Law

Is Antarctica the new Eldorado? The sixth continent between claims and international law



December 1, 2019 marked the 60th anniversary of the signing in Washington of the Antarctic Treaty, the main legal instrument for managing practical activities and regulating interstate relations in the territory 60°parallel South.

On May 2, 1958, the U.S. State Department sent invitations to the governments of Australia, Argentina, Belgium, Chile, France, Japan, Great Britain, New Zealand, Norway, the then South African Union and the USSR for the International Antarctic Conference. It was proposed to convene it in Washington in 1959. The group of participants at the Conference was limited to the countries that had carried out Antarctic projects as part of the International Geophysical Year (IGY) (July 1957-December 1958).

The Soviet Union supported the idea of convening a Conference. In a letter of reply, the Kremlin stressed that the outcome of the Conference should be the International Treaty on Antarctica with the following basic principles: peaceful use of Antarctica with a total ban on military activities in the region and freedom of scientific research and exchange of information between the Parties to the Treaty.

The Soviet government also proposed expanding the group of participants at the Conference to include all parties interested in the issue.

In those years, the international legal resolution of the Antarctic problem had become an urgent task. In the first half of the 20th century, territorial claims to Antarctica had been expressed by Australia, Argentina, Chile, France, Great Britain, New Zealand and Norway.

In response to the Soviet proposal, the United States kept all the territorial claims of various countries on the agenda, but it undertook to freeze them. Russia, however, believed that third parties’ territorial claims had to be denied. At the same time, the position of both States coincided almost entirely insofar as the right to make territorial claims for the ownership of the entire continent could be retained only as pioneers.

The USSR relied on the findings of the expedition by Russian Admiral F.G.Th. von Bellingshausen and his compatriot Captain M.P. Lazarev on the sloops-of-war Vostok and Mirnyj in 1819-1821, while the United States relied on the explorations of N.B. Palmer’s expedition on the sloop Hero in 1820.

The Conference opened on October 15, 1959 in Washington DC. It was attended by delegations from twelve countries that had carried out studies as part of IGY’s programmes in Antarctica.

The Conference ended on December 1, 1959 with the signing of the Antarctic Treaty. This is the main international law instrument governing the planet’s Southern polar region.

The basic principles of the Treaty are the following: peaceful use of the region, as well as broad support for international cooperation and freedom of scientific research. Antarctica has been declared a nuclear-free zone. Previously announced territorial claims in Antarctica have been maintained but frozen and no new territorial claims are to be accepted. The principle of freedom to exchange information and the possibility to inspect the activities of the Parties to the Antarctic Treaty have been proclaimed. The agreement is open to accession by any UN Member State and has no period of validity.

Over time, it has been proposed that the political and legal principles of the Treaty be further developed in the framework of regularly convened consultative meetings. Decisions at these meetings can only be taken by the Parties to the Treaty that have a permanent expedition station in Antarctica.

All decisions are taken exclusively by consensus, in the absence of reasoned objections. The first Antarctic Treaty Consultative Meeting was held in the Australian capital, Canberra, from 10 to 24 July 1961.

Until 1994 (when the 18th Consultative Meeting was held in Kyoto), meetings were held every one or two years, but since the 19th Meeting held in Seoul in 1995 they have begun to be convened on a yearly basis. The most recent Meeting, the 42nd one, was held in Prague from 11 to 19 July 2019. The 43rdConsultative Meeting will be hosted in Paris on 14-24 June, 2021: the suspension of the Meeting that was to be held in Helsinki from 24 May to 5 June 2020 was due to the Covid-19 pandemic. The 17th Meeting was held in Venice, Italy, on November 11-20, 1992.

The main decisions of the Meetings until 1995 were called recommendations and since 1996 ATCM measures. They come into force following the ratification procedure by the Consultative Parties. A total of 198 recommendations and 194 measures have been adopted.

Over sixty years, the number of Parties to the Antarctic Treaty has increased from twelve founders in 1959 to 54 in 2019. These include 29 countries in Europe, nine in Asia, eight in South America, four in North and Central America, three in Oceania and one in Africa.

The number of Consultative Parties to the Treaty that have national expeditions in Antarctica keeps on growing: Australia, Argentina, Belgium, Brazil, Bulgaria, the Czech Republic, Chile, the People’s Republic of China, (South) Korea, Ecuador, Finland, France, Germany, Japan, Great Britain, India, Italy, Norway, New Zealand, the Netherlands, Peru, Poland, Russia, Spain, South Africa, Sweden, Ukraine, Uruguay and the United States of America.

The remaining 25 Antarctic Treaty countries with Non-Consultative Party status are invited to attend relevant meetings, but are not included in the decision-making process.

In the 1970s and 1980s, the desire to join the Treaty was reinforced by the desire of many countries to develop Antarctica’s biological and mineral resources. Growing practical interest in Antarctica and its resources led to the need to adopt additional environmental documents.

During that period, recommendations for the protection of Antarctica’s nature were adopted almost every year at the Consultative Meetings. They served as starting material for the creation of three Conventions, which protect the natural environment: 1) the Convention for the Conservation of Antarctic Seals; 2) the Convention for the Conservation of Antarctic Marine Living Resources; and 3) the Convention for the Regulation of Antarctic Mineral Resources.

Later, based on the recommendations and Conventions adopted, the Protocol on Environmental Protection to the Antarctic Treaty was drafted. It became an environmental part of the Treaty and was signed on October 4, 1991 for a period of 50 years at the Madrid Consultative Meeting – hence it is also called the Madrid Protocol.

According to the Protocol, Antarctica is declared a “natural reserve for peace and science” and should be preserved for future generations. After 1991, the new countries that adhered to the Treaty started to show interest in participating in large-scale international research projects on global climate change and environmental protection.

Considering the above, Antarctica can be described as a global scientific laboratory: there are about 77 stations on the continent, which have supplied their scientists from 29 countries. They explore the continent itself, the patterns of climate change on Earth and the space itself.

However, how did it happen that the territories of the sixth continent became the target of scientists from all over the world?

In 1908, Great Britain announced that Graham Land (the Antarctic peninsula south of Ushuaia) and several islands around Antarctica were under the authority of the Governor of the Falkland/Malvinas Islands (claimed by Argentina). The reason for this was that they were/are close to the archipelago.

Furthermore, Great Britain and the United States preferred not to acknowledge that Antarctica had been discovered by the Russian explorers Bellingshausen and Lazarev. According to their version, the discoverer of the continent was James Cook, who saw the impenetrable sea ice of Antarctica, but at the same time confidently insisted that there was no continent south of the Earth.

A dozen years later, the appetites of the British Empire grew and in 1917 it decided to seize a large sector of Antarctica between 20° and 80°meridian West as far as the South Pole. Six years later, Great Britain added to its ‘possessions’ the territory between 150°meridian East and 160°meridian West, discovered in 1841 by the explorer Capt. J.C. Ross, and assigned it to the administration of its New Zealand’s colony.

The British Dominion of Australia received a “plot of land” between 44° and 160° meridian East in 1933. In turn, France claimed its rights to the area between 136° and 142° meridian East in 1924: that area was discovered in 1840 and named Adélie Land by Capt. J. Dumont d’Urville. Great Britain did not mind, and the Australian sector was not disputed by France.

In 1939, Norway decided to have a piece of the Antarctic pie, declaring that the territory between 20° meridian West and 44° meridian East, namely Queen Maud Land, was its own. In 1940 and 1942, Chile and Argentina entered the dispute and the lands they chose not only partially overlapped, but also invaded Britain’s “Antarctic territories”.

Chile submitted a request for an area between 53° and 90° meridian West; Argentina, for an area between 25° and 74°meridian West. The situation began to heat up.

Furthermore, in 1939, Germany announced the creation of the German Antarctic Sector, namely New Swabia, while Japan also formalised its claims to a substantial area of Antarctic ice.

Again in 1939, for the first time the USSR expressed – as a premise and postulate – that Antarctica belonged to all mankind. After the end of World War II, all legal acts of the Third Reich were abandoned and Japan renounced all its overseas territorial claims under the San Francisco Peace Treaty. According to unofficial Japanese statements, however, the country claims its own technical equipment: according to its own version, the deposits lie so deep that no one except Japan possesses the technology to recover and develop them.

By the middle of the 20th century, disputes over Antarctica became particularly acute: three out of seven countries claiming the lands were unable to divide up the areas by mutual agreement. The situation caused considerable discontent among other States, and hampered scientific research. Hence it came time to implement that idea, the results of which have been outlined above.

In 1998, the Protocol on Environmental Protection was added to the Antarctic Treaty. In 1988, the Convention on the Management of Antarctic Mineral Resources had also be opened for signature, but it did not enter into force due to the refusal of the democratic Australian and French governments to sign it. That Convention, however, enshrined great respect for the environment, which laid the foundations for the Protocol on Environmental Protection. Article 7 of that Protocol prohibits any activity relating to mineral resources in Antarctica other than scientific activity. The duration of the Protocol is set at 50 years, i.e. until 2048.

Most likely, its period of validity will be extended, but we have to be prepared for any development of events. Earth’s resources are inevitably running out and it is much cheaper to extract oil and coal in Antarctica than in space. So an oxymoronically near distant dystopian future awaits us.

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International Law

The Hathras Case, Caste Discrimination in India and International Law



ILO/A. Khemka

Over six months ago in September 2020, a 19-year-old Dalit woman was brutally gang-raped by the “upper-caste” men in Hathras district of Uttar Pradesh, and a month later succumbed to her injuries in a hospital in Delhi. Despite insidious efforts of impunity by the state, the accused were arrested. However, the family including other Dalits in the village continue to experience the endemic of caste discrimination. The village remains divided along the caste lines with “lower-castes” living on the periphery struggling to fight against the pernicious system.

Caste discrimination and violence emanate from the orthodoxy of the Indian caste system that is held as sacrosanct. It refers to the classification of people into four groups or Varnas: the Brahmins on the top, which consists of priests and teachers, followed by the Kshtriyas or the warriors, the Vaishiyas or the merchants and the last group the Shudras considered as outcastes. Shudras traditionally referred to as ‘untouchables’, now collectively known as Dalitsare singularly positioned at the bottom of the caste hierarchy. They are marginalised on the pretext of maintaining status quo in the society and are forced to live under deplorable conditions with little or no access to health, education and sanitation. Their socio-economic vulnerability and lack of political voice increase their exposure to potentially violent situations while simultaneously reducing their ability to escape.

In the similar vein, the question that writ large is, how long would the scourge of the caste system traumatise the Dalit community that makeup16.2% of India’s total population. Being relegated to the bottom of the class, caste and gender hierarchies, they form a majority of the landless labours and manual scavengers and their vulnerability is appropriated by those in power. The reason why the Hathras Case allured a lot of controversies was that the state agencies played an essential role in shielding perpetrators and launching fake propaganda of victimisation. This reaffirmation of the upper-caste hegemony by the state violates the domestic law as well as India’s obligation under International law. Hence, it becomes imperative to understand the relationship between caste and racial discrimination against the backdrop of international law.

Hathras Case and Violation of International Law

Violence against Dalits especially women  is used as a tool to inflict political lessons and crush dissents and labour movements for transgressing the caste hierarchies. The Hathras Case of Uttar Pradesh is one of such adversities that reveal a perilous side of the Indian social apparatus and the subsequent pattern of impunity. Despite the constitutional guarantee against any form of discrimination specified under the domestic law and the ratification of international covenants on racial discrimination, gender equality and human rights. Such incidents underscore India’s louche stand against discrimination both nationally as well as internationally.

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965 as substantiated by India, under its Article -1 states that discrimination based on descent falls under the ambit of ‘racial discrimination’. Hence, applies to matters of caste discrimination also. In the Case of Hathras, there was a serious breach of the convention on various grounds by the police and the government. For instance, the Police did not take cognisance of the rape for eight days after the incident despite the request of the family and was reluctant to help when the victim was taken to the police-station .The family was also exhorted by the district magistrate to change their statement. This misconduct goes against Article 5(a) and Article 5(b)of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) which reads that victim should receive equal treatment before the organs administrating justice and must receive protection against violence respectively. Also, the lack of effective remedies provided by the state breaches Article 6 of the convention.

Further, the police allegedly cremated the victim without the involvement of her family members. It breached Article 2, para 2 of the CERD, which obligate state parties to take measures for prevention and enjoyment of human rights. The Government and police wrought an abhorrent pattern of impunity and State-sponsored Propaganda as they adamantly declined to accept if rape was actually committed simply based on the fact that the forensic report revealed the absence of semen in the body of the deceased. This was approbated despite the fact that forensic evidence can only be found up to 96 hours after the incident and that sample for the case was collected after eleven days. Thus, such impunity to the ‘upper caste’ men by the state organs seriously violates Article-2 and 4 of CERD that state shall not discriminate against the victim and condemn any sort of propaganda based on superiority of the caste respectively.

Such deleterious conduct by the state is not only in dissonance with the Convention on the Elimination of All Forms of Racial Discrimination but also tramples upon various instruments of International Human Rights Law especially the United Nations Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). It also grossly violates the Convention on the Elimination of All Forms of Discrimination against Women. Dalit Women stand at a point of intersectionality in the society, their subordination and violence unleashed upon them result from both sexual and caste discrimination. Hence, this ‘double jeopardy’ thesis exacerbates their plight.

These actions of the transgression of international law invite state responsibility as codified by the International Law Commission. The Commission elucidates that any such act is attributable to the state if it is committed by State organs, whether central or federal. The International Convention on All the Forms of Racial Discrimination also reflects on the application of domestic law. As Supreme Court of India has held in the case of Karmaa Dojree v. Union of India that the provisions of the Convention are of significance to protect fundamental human rights and must be read into constitutional guarantee against racial discrimination. Thus, what makes the Hathras Case, one of the most controversial cases is the grave violations of international responsibilities and demonstration of ‘upper-class hegemony’ by the state and its agencies.

Caste Discrimination as Racial Discrimination

A major point of contention while ruminating on caste discrimination as racial discrimination is, albeit in the language of international law caste discrimination is seen as the violation of the civil, political, social, economic and cultural rights, there is an absence of its legal recognition.

In 1996, India for the first time highlighted that the term ‘descent’ mentioned under Article 1(1) of the convention does not cover the domain of caste, thus, schedule castes and schedule tribes in India does not come under its purview. However, CERD in its Concluding Observations(2007) stated that the term ‘descent’ not only refers to ‘race’ but also include discrimination against members of community based on various forms of social stratification. The Human Rights Council in its report conducted by the Sub-Commission on the Promotion and Protection of Human Rights (2009) considered caste discrimination as‘ discrimination based on work and descent’. Likewise, the report of the Special Rapporteur on Minority Issues (2016) attempted to explicate caste discrimination and emphasised that ‘while many caste-affected groups may belong to the same larger ethnic, religious or linguistic community, they often share minority like characteristics, particularly their non-dominant and marginalised position and the historic use of the minority like framework to claim their rights.’ This informs us that international law categorically view caste discrimination as a segment of racial discrimination. However, India continues to deny the applicability of the term ‘descent’ as inclusive of caste. The lacuna in the recognition of ‘caste’ as a separate identity and India’s denial despite negation is often considered to have a detrimental impact on a significant population of the country.

Caste- based violence similar to the case of Hathras lead to gross breach of international law and yet less often attract state responsibility. This is due to the fragmented legal response and absence of explicit reference to caste discrimination in international law. It is asserted that a comprehensive legal response could help overcome these challenges, not to say that the application of international law would ensure complete protection against caste-based discrimination and violence. But, at least could provide for international solidarity and subsequently better solutions.


The Hathras case of Uttar Pradesh like other similar cases of violence against Dalit women unveils the perennial notion of caste discrimination and the abhorrent pattern of state impunity to the perpetrators. These acts of caste discrimination are strongly condemned under international law, to which India has often reflected on quite evasively. Notably, various international conventions enunciating international law refers to such discrimination as a violation of human rights, albeit have not specifically mentioned it and has continued to reaffirm that discrimination based on descent includes discrimination based on caste. Hence, Dalits face huge challenges at the international level to draw adequate attention to caste discrimination and consequently bear perpetual atrocities at the national level. Therefore, Dalits aspire for international solidarity to consider varying factors of discrimination and a comprehensive legal response to bring caste-based discrimination into international focus.

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International Law

Intellectual Property on Covid-19 needs to be shared



The development of Covid-19 vaccine was supposed to be a global good which will be fairly distributed among the developed and the developing world. But the politicization and the increasing nationalization of the vaccine increased the vulnerability of the poor countries to the Covid-19 global pandemic. Everyday tens of millions of people are getting infected and tens of thousands of people died in the developing countries due to this deadly virus. Behind each death, there is a story of a loved one, shattered dream of a family and the increasing human insecurity of the members of the deceased. Against such a backdrop, vaccination to all is necessary to prevent the Covid-19 pandemic.

Ironically, Covid-19 vaccine has become a new frontier of diplomacy, and a new geo-political tool for some rich countries along with a profit-making tool for some capitalist pharmaceutical companies through the monopolization of the vaccine. All people need to be vaccinated to address the devastating impacts of the deadly virus. The recent example of India clearly shows the deadly outcomes of the Covid-19 virus. Bangladesh, which is one of the densely populated countries, can experience the same devastating outcome as India if all people are not vaccinated as early as possible. In fact, in a country like Bangladesh, where more than 165 million people live within 1, 47, 570 km area, maintaining social-distance becomes really a daunting task.

History suggests that mostly the people in the poor countries die when any pandemic emerges as those poor people have always been deprived of the vaccinations. In this context, the WHO Director-General notes that ‘40 years ago, a new virus emerged and sparked a pandemic. Life-saving medicines were developed, but more than a decade passed before the world’s poor got access to them. 12 years ago, a new virus emerged and sparked a pandemic. Life saving vaccines were developed, but by the time the world’s poor got access, the pandemic was over’.

The same history is going to be repeated in the case of Covid-19 vaccine. Ironically, rich countries, i.e. the US, UK, EU, Canada have bought more Covid-19 vaccines than they actually need which is making the availability of the vaccine for the poor countries impossible. For instance, the EU has ordered 1.6 billion doses for its adult population of roughly 375 million. According to the order, even after full vaccinations, there will be a surplus of around 525 million full vaccinations. The UK has ordered 219 million full vaccinations for its 54 million adults while Canada has ordered 188 million full vaccinations for its 32 million adults. It means that for UK, there will be a surplus of 165 million full vaccinations while for Canada there will be a surplus of 156 million full vaccinations. The United States did not export even a single dose of vaccine. In one hand, the rich countries are hoarding the vaccines while the poor countries are dying due to lack of vaccinations. On the other hand, the pharmaceutical companies and the Western vaccine producing countries are against the IP waiver of Covid-19 vaccine which is ironic as it is high time to ensure IP waiver of Covid-19 vaccine to save tens of marginalized, poor people in the developing world. Unfortunately, Bill Gates has said ‘no’ to vaccine production in the developing world. Gates preferred the monopoly of the vaccine which described him as a ‘vaccine monster’(Zaitchik, 2021). It is noted that ‘Gates has chosen to stand with the drug companies and their government patrons’ (Zaitchik, 2021). Dozens of developing countries including Bangladesh, India, South Africa are asking repeatedly for the patent waiver so that they can also produce the vaccine and save their population from the deadly pandemic.

In fact, Covid-19 vaccine developed as a global good to save the humanity from the deadly virus. Thus, the dedication and commitment of the scientists to develop the vaccine needs to be appreciated. But when that vaccine is monopolized for some pharmaceutical companies, there is nothing more ironic than that while people are dying in other parts of the world. What an unfair world it is!

In this critical time of Covid-19 global crisis, no one is safe until everyone is safe. Thus, instead of preserving Covid-19 vaccines, rich countries need to ensure vaccines to all in the world irrespective of nationality, colour, creed, or class. This treatable and preventable disease needs to be prevented which requires strong and definitely humanitarian global political leadership. Thus, IP waiver on Covid-19 vaccine, technological sharing and economic cooperation between the developed and developing world becomes necessary to address this pandemic collectively. As Dr Jeremy Farrar warns (April 28, 2021) that ‘If countries who can afford to share choose not to, this pandemic will drag on, resulting in more deaths, suffering and economic hardship. We’re in danger of creating a fragmented, unequal world of haves and have-nots, where it will be far harder to come together and address the shared challenges of this century’.

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