The State between Fragmentation and Globalization

II. From Fragmentation to the Promotion of a New State Model

a. This fragmentation can be understood both quantitatively and qualitatively.

On the quantitative level, firstly, increases in the number of states as a result of dissociation from former states is not a new phenomenon. However, two very different phases can be distinguished: decolonization and the collapse of the Socialist camp.

With decolonization, largely encouraged by the United Nations, the international society became a machine for the manufacture of states. The number of states tripled in the space of some thirty years, and the state emerged more triumphant than ever. The new states strongly affirmed their sovereignty, their commitment to the principle of non-interference, the right to freely choose their domestic political, economic and social system. Confrontations between ideological systems turned the state into a sort of legal shell giving cover to extremely diverse forms of domestic legitimacy. Of course, the state's fundamental unity, the hierarchical principle which renders the state a structure of internal domination, was maintained. As Montesquieu wrote, '... dans toute sorte de gouvernement on est capable d'obéir'.⁴ One could even add that one 'must' obey.

It is only at one level, that of apartheid, of racial discrimination, a prolonging of colonialism, that international action penetrates to the very internal organization and politics of states. With the spread of the state phenomenon, the post-colonial era is therefore in large measure the era of the triumph of the sovereign state. It is protected by international rules which guarantee the exclusiveness of its domestic competences, its territorial integrity, and its political independence. One and the same movement promotes both the state and international law, and the development of this latter must be based not only on the free consent of each state but also on the consensus of the 'international community of states as a whole'.

In recent years, the growth in the number of states formed through dissociation from already existing states has developed a new dynamic, in a new context and spirit. It could be said that international society has become a machine for destroying rather than producing states. Break-ups and regroupings have developed or have the potential to develop precisely against this existing international society, despite the discrete resistance of its members and courts: this is true in the cases of the USSR, Yugoslavia, the dangers currently threatening certain African countries; it is equally true in the case of the reunification of Germany, the dynamic behind which was more national than international.

On a qualitative level, however, the resemblance between the two phases or steps of decomposition is stronger, but more in their rather negative elements. Indeed, in both situations - decolonization and post-Communism - we see that international society has not, until now, been in a position to ensure the development of new states or regimes, certainly not in terms of economic development, but also in institutional, legal, political and social terms. While international society has produced states, it has hardly known how to build them, neither the states it has manufactured nor those which have somehow formed themselves against it.

In the case of decolonization, we are reminded of the failure of development law and of all types of 'new international order' - economic, information, communication, and so forth. Even more serious is the fact that, after a few decades of independence, many of the new states formed in the 1950s or 1960s have been unable to ensure their political or social stability, thus remaining fragile and vulnerable. Has the 'soft state' concept not been created in their name, implying a weakness, a feebleness?

A concerted therapeutic effort has had to be undertaken to protect these states over the course of the past few years, with an extension of peace-maintenance operations in order to prevent their destruction, if not also to allow their reconstruction: Africa, South-east Asia, and Central America provide various examples. The United Nations has had the tendency to become a hospital for the treatment of states, or even for perfecting a sort of compassionate protocol via humanitarian interventions. We can measure the extent of regression in terms of the goals set recently by development law.

In the case of post-Communist states, which have only recently come into being, it is still too early to draw any clear conclusions. However, their difficulties can readily be seen. These difficulties are: political, with respect to the initial rumblings of transition to democracy, which cannot be reduced to merely monitored electoral operations; economic, with the transition towards a market economy, the recipe for which, like that for development, is still to be discovered; and social, with the problems of national identity and especially the minorities headache.

We even get the feeling that the dissociation of constituent entities is now encouraged by certain international instruments, such as the recent Lisbon Declaration (3 December 1996), adopted within the framework of the Organization for Security and Cooperation in Europe (OSCE), which integrates minority rights issues into security questions. Each minority, upon closer analysis, tends to integrate several others into itself in such a way that this logic of Russian dolls can lead to indefinite fragmentation. It is no longer even just the idea of the nation-state which is being questioned, but the social framework of the state itself which risks crumbling into dust.

A recent trend must be added to this picture, whereby each individual is viewed as a minority in and of himself, with the idea of plural allegiances, linked to multiple individual nationalities, to immigration phenomena, to individuals' legitimate maintenance of citizenship ties with external entities, both of their origin and of their choice. This phenomenon of shared loyalties leads to a deep dissociation from the unique tie which identifies a state to its citizens. There is a strong risk of it leading to zero loyalty in practice. We should take care, therefore: what such a mechanism could set in motion, although no doubt unintentionally, is a planetary apartheid. Behind the mask of the right to be different, of a respect for cultural rights and cross-national ties, is a personal legal regime without borders, which could replace territorial law, that of the state.

Who can fail to see that in this way we legitimize and legalize inequality, as each individual withdraws into his or her dispersed but homogeneous community? We would thus turn such a right into a machine for manufacturing, at best, ethnic states or, at worst, ghettos ridden with mafia and sects. Is this model, which Russia has failed to impose upon the Baltic countries, which Israel seeks to thrust upon Palestine, and for which Bosnia presents all the scars, a desirable future for international society? At a time when the South African model has been rejected at domestic level and has caved in under general reproach, is it not tending to surreptitiously become a universal model in the name of the right of groups to an identity and to diversity? A rampant dissolution of states would be the result, but with no organized substitute.

b. Against this negative analysis, we can contrast the idyllic vision of a new state model, reconciling the state of law - a variation on the Rule of Law - and its particular identity with an international order founded upon common rules. However, outside the European Union - a utopia underway, but by this very fact geographically and culturally closed in - this is but a dream. The model for such an order is based on an abstraction rather than on descriptive elements. Nevertheless, this model is in some ways the positive vision or driving force for the ideal state, or a virtual state: it is still the state, but a state which is no longer engaged within and is subordinated without.

It is not being contested that the state is still needed, not due to an institutional fetish but simply because nothing better has been found. A political model, even if imperfect, remains until it is replaced by another superior form. Even American hegemony, which we will come back to, comforts itself in maintaining states, at least under certain conditions. We can measure the necessity of the state by looking at the catastrophic consequences provoked, both at domestic and international level, by its collapse - recently in Yugoslavia, Somalia, Rwanda, perhaps soon in Zaire or in Albania. We see everywhere, and irremediably, a return to barbarism, with the civil wars which result from this collapse. The state or barbarism, such is the simple alternative with which international society is faced.

On the legal front, we also see that international law has been caught off-guard by such situations. The collapse of the state falls outside the security mechanisms foreseen in the Charter of the United Nations. The international responsibility of the state itself, according to the terms of the proposed articles of the International Law Commission (Article 14), risks complete breakdown in the case of an insurrection on its own territory. In this type of situation, all international institutions - including other states - aspire to rebuild the state in question as quickly as possible, in their commitment to stability and international security.

The internal withdrawal of the state, or the minimal state, occurs on an economic as much as on the legal-political level. Economic interventionism, the managed economy, the entrepreneurial state, the closed market state are all condemned, with the result that entire sectors supposedly managed by the state escape its control. Only recently were we talking about permanent sovereignty over natural resources. Now, attention focuses more on sovereignty over human resources, which is being called upon to make way for change. Job mobility, capital flight, and universal investment opportunism are factors in this dissolution. Not only does the European model of the welfare state appear to have become out-dated, but the very concept of public service has itself been brought into question. A general privatization mentality has tended to strip the state of all that which does not fall within its strict executive functions, thus paralysing numerous sectors of its domestic normative capacity.

In keeping with the new model, this somewhat reduced domestic normative capacity of the state should be channelled and controlled by judges rather than legislators. From this point of view, the pre-eminence of the legislator expresses a conquering and idiosyncratic conception of law: sovereignty of the state, mastery over itself, political voluntarism, law directed toward change, free organization of society from within, an instrument for rupture and action. The law is the sovereign power, the capacity for innovation and for decision-making; it is also the rule particular to a group. It is at the same time the act of political decision-making and the power of law as rule.

The come-back of the judge represents, rather than a minimalist conception of law, because legalization of social life can be extremely complex, a conception which is more reactive than active, more natural than wilful, more ethical than state-centred. This conception, moreover, is part of a more open and undefined framework than that of the classic state. We can slide easily from national to international courts, in a network of competences which pierce the screen of the state: in this way, the European Court of Justice and national courts are building a body of Community law which hems in the state; international penal tribunals can substitute for domestic penal competence; even the International Court of Justice, via its advisory opinions, can pass judgements on the security policies of states and can lay claim to controlling their defence powers (Advisory Opinion of 8 July 1996 on the legality of the threat or use of nuclear weapons).

This new model of the state, should it prosper, should be completed by the external subordination of the state. The state is asked to serve not so much as a filter between the internal and the external, but rather to facilitate passage back and forth, to act as an interface, not an enclosure. It is called upon to open its borders - to people, merchandise, information, cultural products. Already here, in this imposed opening up of the state to the four winds, we find one of the meanings of the term 'globalization'. The state further learns from this term that it is called back to order: human rights have universal scope, as does respect for minorities, the right of families to be together, free movement of individuals, and humanitarian rights. The state exposes itself to reprimand, to coercive action in the most serious cases, if it fails to uphold these rights. Humanitarian intervention, ranging from NGO assistance to coercion by gunboats, whether legitimated by international instruments or not, can at any moment remind the state of this fact.

The difference between international law and domestic law therefore tends to become blurred; state sovereignty is no longer just a word. Yet at the same time, international law has itself become blurred. We can thus read, in an example chosen at random from amongst many others, in the International Herald Tribune of 7 March 1997, the opinion of Thomas L. Friedmann on China and American policy in an article entitled 'The Words Beijing Needs to Hear: Rule of Law':

Mao said, `We will never accept foreign capital.' Then Deng came along and said, `We will accept foreign capital but never foreign norms.' Now you say, `We will accept foreign capital and foreign norms, but not others.' OK, we'll wait for the next guy.

These are very revealing phrases: no reference is made to international law, it is not even necessary to give it lip-service. There is only a question of exporting and universalizing the values embodied in domestic legislation ('foreign laws') - the law of the United States, obviously.

We could find no better way to argue that globalization - of markets, values, a model of the state, and of law which is its bearer - is the instrument of a policy, an intentional policy, a state-centred policy, of hegemony of the New World.

4 `... in any type of government, one is capable of obeying'.

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