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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx

Carl Schmitt & International Law #1 « Previous | |Next »
April 28, 2005

Conservatives argue that there is a real danger arising from the growing incursion of so-called international law into the domestic business of nation states. They argue that the trajectory of international law in the past 50 years is from one that was limited to governing relations between countries, to international law now dictating relations between people within nation states. As Janet Albrechtsen says:

"Not content with asserting fundamental civil and political rights, internationalists are eager to force-feed nations on a new-fangled diet of economic, social and cultural rights....The goal is ultimately that liberal democracies built around nation states are replaced with a new form of centralised international power wielded by unelected bureaucrats and activists. Welcome to the post-democratic nation state."

Albechtsen defends the nation state in the face of those liberal cosmopolitans who have no time for the nation state. For her the ultimate touchstone is national interest of the nation state, not international law, by which she means cosmopolitan liberal humanism.

So where does that leave international law? How do we think about international law? How do we do this after the Cold War? After 9/11. Albrechtsen says little on this. She is too busy denouncing the universality of human rights of international law. So we have to look elsewhere--to Carl Schmitt.

The quote below is taken from Gary Ulmen, "Toward a New World Order: Introduction to Carl Schmitt's "The Land Appropriation of a New World", which is a chapter in Schmitt's The Nomos of the Earth. Ulmen says:

"What is most significant about the end of the Cold War is not so much that it brought about a premature closure of the 20th century or a return to the geopolitical predicament obtaining before WWI, but that it has signaled the end of the modern age--evident in the eclipse of the nation state, the search for new political forms, the explosion of new types of conflicts, and radical changes in the nature of war."

After the collapse of the Soviet empire, the US became a global system allegedly regulated by a neutral market, but under de facto US hegemony. The American government's response to the Sept. 11 attacks, defined these as (a-political) international criminal deeds and as (political) war acts. So it introduced a new concept of war and legitimated military intervention anywhere, while reserving the right to decide unilaterally which actions to take.

Australia has followed suit, only to confront the realities of international law in the Asia Pacific Rim. Australiais required to commit to the region's Treaty of Amity and Co-operation in return for a foundation seat at the new East Asia summit.

Carl Schmitt's The Nomos of the Earth is one of Schmitt's post 1945 writings on war and international order, which starts from the collapse of the Westphalian State system and the political marginalisation of Europe. It describes "the Eurocentric epoch" of world history as beginning with the discovery of America and ending with the rise of the US as a world power after 1945. The central part of The Nomos of the Earth is the chapter titled "The Land Appropriation of a New World."

Schmitt argues that the emergence of inter-State system in Europe was made possible by the land appropriation of "non-Europe". Spatial distinction between "Europe" and "non-Europe" was a necessary condition of the European sovereign State system. "Europe" means a civil state, state of law, state of society, while "non-Europe" is, consequently, a state of nature, state of war. Where social contract theorists would suppose a chronological succession between these two states (from Nature to Society, from war to peace), Schmitt sees a geographical relationship. Colonial violence in "non-Europe" is without limit. Violence in "Europe," with rule.

Australia was a part of non-Europe where colonial violence was without limit.There the brutal violence is the appropriation itself. He understands the sharing of the world is itself unavoidably destructive and with violence.This violence involves the way in which indigeneous people's land appropriation and form of life is uprooted.

Within Europe this new, state-centric system of public order there was the the transformation of the religiously-inclined just war into a purely secular notion of the formally legal war between European states. In the European era war became a regulated rivalry, a duel between formal states, conducted strictly following the procedures laid down by the jus publicum europaeum, while unlimited enmity was projected "beyond the line"--into the non-European world.27

| Posted by Gary Sauer-Thompson at 11:58 PM | | Comments (0)
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