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The End of History? Reflections on Some International Legal Theses
III. Liberal Millenarianism and International Law
It is now possible to return to the question of the relationship between these international legal theses and liberal millenarianism. In this context, the implications for the understanding of democracy that underpins these claims can be brought into view. It will be valuable at the end of this discussion to take stock of the fact that, if these international legal scholars are right, democracy has, will have, or at any rate ought to have, far-reaching significance in international law, as determinant of the legitimacy of governments.
A. Liberal Millenarian Perspectives
Most likely, all the international legal scholars discussed in this article would locate themselves at some considerable distance from Fukuyama on almost every issue. Certainly, none shares the narrow, elitist outlook that pervades his account of the `end of history'. A number explicitly dissociate themselves from that account. Franck, for instance, states that he does not consider that `[exulting] in smug satisfaction at the "end of history"' is an appropriate response to the post-Cold War juncture, which he sees rather as an occasion for `seizing the moment to rethink the basic structure and processes of the international system'.77 Slaughter explains that liberal internationalism promises a result that is `neither utopia nor the end of history, but holds out the hope of at least a small measure of progress toward individual rights and the global rule of law'.78 There are some grounds for believing that liberal millenarianism may, nonetheless, be built into the form and structure of these scholars' arguments. As discussed earlier, liberal millenarianism includes, but extends beyond, Fukuyama. It is characterized by a progressivist notion of history, coupled with a conceptualization of history's telos in terms of liberalism, and a distinctive voice and tone. On what basis, and to what extent, can it be said that the international legal theses considered here exhibit these features?
A progressivist view of historical change is evident in Franck's history of the development of the norm of democratic governance. His account is divided into developmental phases, beginning with the principle of self-determination and culminating in the right of free and open elections, now evolving from lip service into widely respected normative commitment. `The transformation of the democratic entitlement from moral obligation to prescription has evolved gradually', he explains, but `in the past decade the tendency has accelerated'.79 Each phase pushes further along the course to eventual prescription. The fact that the phases overlap does not detract from, but rather reinforces, the impression of progress and directionality, as do the metaphors of generations and building blocks. The norm of democratic governance appears to be growing out of, or building on, earlier developments. This evolutionary logic also informs the work of scholars who put forward liberal internationalist and Kantian theses. Slaughter, for instance, in seeking to connect international law with developments in international relations, offers an unmistakeably progressivist account of the history of international relations. This account starts with Wilsonian internationalism (or, as realists later called it, idealism), passes through the stage of realism, and reaches its conclusion with liberal internationalism, which is said to combine the strengths, but also to overcome the shortcomings, of both its forerunners. Since these forerunners are presented as the only alternatives, liberal internationalism is made naturally to appear as an advance.80 The notion of the `liberal peace', liberal internationalism's central premise, likewise posits that historical change is incremental and directional. The image is one of an expanding zone of liberal states that will reach the end of its expansion when all are included within it.
The second aspect of liberal millenarianism is that history's telos is taken to be liberal democracy, along with a market-oriented economy. It hardly needs restating that this is indeed the goal envisaged in the international legal theses examined here. That this should be so is believed, in the liberal millenarian perspective described earlier, to be supported empirically by the elimination of all ideological alternatives. And it is also believed to be supported normatively. That is to say, these ideological alternatives have been eliminated because they were flawed, as democracy and capitalism - at least in principle, if not in current practice - are not. Both points are alluded to in a memorable passage by Franck:
[T]he [global democratic] entitlement now aborning is widely enough understood to be almost universally celebrated. It is welcomed from Malagache to Mongolia, in the streets, the universities and the legislatures, not only because it portends a new, global political culture supported by common rules and communitarian implementing institutions, but also because it opens the stagnant political economies of states to economic, social and cultural, as well as political, development.81
For Slaughter, `the geopolitical framework for the millennium is ... liberal internationalism'.82 An eventual `world of liberal states' is the sole alternative to `[sacrificing] the values of universalism ... to the realism of recognising that States in the international system inhabit very different worlds'.83 The choice, in her account, is either liberal universalism or realist difference, either grasping the liberal-democratic peace or living perpetually on the edge of war. The embrace of liberal democracy in every country thus appears as humanity's ultimate salvation.84
Liberal millenarianism involves, thirdly, a `post-historical' voice or standpoint that figures the non-liberal world, still mired in `history', as radically `other'. Progress towards the full achievement of liberal democracy is taken to be more or less straightforward in liberal societies, while elsewhere the almost total transformation of prevailing realities will be required. This is, again, apparent in the thesis of the emerging norm of democratic governance. Such governance is portrayed as something some largely have, and the rest almost entirely lack. Thus, Franck writes that for the citizens of some states this norm will `merely embellish rights already protected by their existing domestic constitutional order. For others it could be the realization of a cherished dream'.85 A similar standpoint orients the liberal internationalist and neo-Kantian approaches. Slaughter envisions that her model of international law for a one-world order of liberal states might be `normatively applicable to all States even if positively descriptive of only some'.86 In practice, she observes, the distinction between liberal and non-liberal states may be difficult to apply, especially in the context of `quasi-liberal' and `transitional states'. Certainly, it cannot be treated as an `absolute divide'.87 But the point of the `liberal peace', around which her argument turns, is that, as Doyle explains, liberal states are not just relatively but `fundamentally different' from non-liberal states. Hence the `separate peace' among them.88 If this is the reason for the `separate peace', it is, of course, also the consequence. In any event, the claim of liberal internationalism, as of the norm of democratic governance, is that this fundamental difference should, and is beginning to, be reflected in international law.
There is, finally, the issue of liberal millenarianism's distinctive tone, its momentous, celebratory, and apparently optimistic, key. Liberal millenarianism seeks to call attention to events which augur that history's destination may finally be in sight. The discussion in the previous section gave only a slight indication of the tone of these international legal arguments. The quotation from Franck above is, however, typical of the terms in which his claims, and those of some of the other international legal scholars, are expressed.89 Thus, for instance, Franck goes on to speak of a `cosmic but unmysterious change' in which governments, `no longer blinded by the totalitarian miasma' have come to recognize the advantages of democracy.90 Slaughter likewise writes emphatically of revolutions that `liberated millions. Millions ...', and occasioned a `human rights victory on an unprecedented scale, a triumph of human dignity and the human spirit'.91 On the basis of those events she proposes liberal internationalism as a new vision of peace and good government for a new age.
If the thesis of the emerging norm of democratic governance and related claims share key features of liberal millenarianism, they also give rise to a number of the concerns raised by Fukuyama's critics. In accounts of the norm of democratic governance and the order of liberal states envisioned by the liberal internationalist and Kantian theories, liberal democracy is presented largely as an identifiable, coherent and stable system. It is stressed that a great variety of practices and institutions is consistent with liberal democracy, but little attention is drawn to the diversity of the values, ideas and principles that might animate those practices and institutions. In particular, little attention is given to the enduring tensions within liberal democracy between liberal and democratic preoccupations, and to the implications for that tension of different models of liberal democracy. While the international legal theorists are less apt than Fukuyama to mistake capitalism for liberal democracy, their arguments nonetheless tend, like his, towards an attenuation of the democratic dimension.
The democratic component of liberal democracy comes to revolve, principally, around elections. That what is denoted is a particular method of producing governments is made particularly clear in the thesis of the emerging norm of democratic governance. Democracy's part there is adjectival; it is a procedure for securing the acquiescence of citizens in their governance by others.92 The same holds, however, whether democracy is understood in these terms, or in terms of a social contract to protect citizens' rights (as by Fox and Nolte), a mechanism to ensure that government acts not just in its own interests but in the interests of society as a whole (as by Slaughter) or a system of government that is not just prudentially but also morally justified (as by Tesón). The shared assumption is that democracy refers to the `process by which the people choose those they entrust with the exercise of power',93 the right `to participate in the selection of one's own national government'.94 Yet, according to some political theorists, democracy entails not just the right to participate in the selection of national governments, but also the right to participate directly in decision-making affecting one.95 According to other theorists, democracy involves not just the process of selecting governments, but also the process of connecting people with their governments through civil society.96 Still other theorists emphasize that democracy requires not just the right to vote and stand for election and associated civil liberties, but also the whole range of further rights that actually enable participation in public life on a footing of equality.97 While Franck, Fox and Nolte take their position to be dictated by that which customary international law will support,98 what is being suggested here is that it is also embedded in the structure of their argument. Inasmuch as elections stand at the narrative's climax, democracy is made to appear to have nowhere further to go. Issues of citizenship, accountability and equality, and their respective significance and relative importance - along with other issues at the heart of democratic debate - are thus removed from view.
An additional, related concern is these theses' uncritical, affirmative approach towards liberal democracy. Franck's reference, cited above, to the embellishment of rights in existing liberal states suggests a perception that such states are already satisfactory; the rest is ornament. Depicting democratic political practice as entailing a `genuine [openness] to meaningful political choice'99 and a `free market in ideas',100 he puts to one side the far-reaching doubts that have been raised as regards the meaningfulness of political choice and the freedom of the market in ideas. Slaughter attaches much importance to what she refers to as the `paradox of liberal states'. By this she intends that `as a factual rather than a legal matter, liberal states are likely to have a lesser capacity for autonomous economic and political action than non-liberal states'.101 But she too neglects to consider how well these constraints on power work, whether they work better for some social groups than others, and whether further constraints might be valuable. With liberal democracy the pinnacle of political development - and with dictatorship, communism and `forced march modernization' the only alternatives ever mentioned102 - questions concerning liberal democracy's limitations can scarcely arise, let alone be addressed. It is not only issues of the kind just noted that are left out of account, however. The whole matter of liberal democracy's tenability in a world of intensified globalization is largely passed over. While globalizing processes are certainly registered,103 the ways in which they are putting democracy under strain receive limited attention.104 These scholars evoke a liberal democracy that is triumphant, vigorous, redemptive.
They also evoke a liberal democracy that provides the key to expanded prospects for peace. In this respect too, however, limitations are glossed over. The `peace', which some international relations analysts claim is now a `fact', is a `liberal peace'; it is said to hold among liberal states. Relations between liberal and non-liberal states are not claimed to be especially pacific, and may, according to the analysts, even be especially aggressive.105 In finding warrant in this for a norm of democratic governance, the international legal scholars give little attention to the implications of the fact that democratic governance does not appear to induce pacific relations with non-liberal states.
But there is also a much larger limitation of which these writers take insufficient cognizance. The `peace' that is postulated among liberal states is an absence of armed conflict between them. Yet the Clausewitzean paradigm of war between nation-states to which this refers today fits only a minority of violent conflicts, even large-scale ones.Mary Kaldor highlights that much contemporary conflict arises out of the break-up of states, and centres on issues of `identity politics' (ranging from religious communalism, to ethnic nationalism, to `tribalism').106 Support frequently comes from overseas diasporas, along with foreign governments and `experts'. State actors are often hard to distinguish from non-state actors. Fighting is commonly sporadic, scattered within and across borders, and focused to a large extent on civilian targets.107 Is this peace or war? Civil war or international war? The boundaries between these categories - like those between violent crime and armed conflict, public aims and private aims, combatants and civilians - are becoming blurred. She concludes that
the prognosis is grim. The breakdown of the distinction between war and peace, the re-privatisation of violence, implies more or less continuous and geographically pervasive low-level violence, ranging from individual criminality to organised warfare.108
Alongside these considerations concerning the character of war are further questions concerning the character of peace. There is, for instance, the question of whether in some circumstances non-forcible coercion, arising (inter alia) from the exploitation of relations of dependency, may compromise assertions of peace. There is also the broader issue of whether systemic inequalities of power, resources and opportunities, between and within nation-states, may in themselves constitute a form of ongoing `structural violence'.109 The identification of peace with an absence of armed conflict leaves out of account the possibility that peace may entail more than the failure to resort to arms.
It follows that the scope of the claims associated with the `liberal peace' is highly circumscribed. Even assuming those claims are justified on their own terms, they miss important contemporary sources of violence, and important questions that arise in connection with that violence.
Moreover, Derrida's `macroscopic fact, made up of innumerable singular sites of suffering' cited earlier finds scarcely greater resonance in these arguments than does Kaldor's `grim prognosis'. These international lawyers are undoubtedly no Panglosses. Yet the progressivist premises of their claims, buttressed by the celebratory tone and `post-historical' voice, do tend to shift attention away from the scale, character and sources of deprivation, oppression and conflict in the contemporary world. To read this international legal literature is to be filled with enthusiasm about the state of, or at any rate prospects for, human flourishing.
Also arguably overestimated is the extent to which there is evidence to support an emerging norm of democratic governance. For Franck and the other theorists of the emerging norm, this empirical issue - raised by some of Franck's critics110 - has a different significance than it does for Fukuyama. While Fukuyama might shift between the empirical and the ideal, the international legal commentators cannot avoid confronting state practice if they are to make good their claim that the norm is emerging in international law. Or maybe Fukuyama's move, or something like it, is precisely what they intend. Perhaps characterizing the norm as `emerging' allows it to remain poised between occurrence and prediction.
Finally, the international legal arguments are inclined to overstate the significance of the present moment, as an indication of the future. While the possibility of setbacks is certainly acknowledged, the evolutionary logic of the arguments tends to signal that contemporary trends will continue in a more or less linear fashion. As Fukuyama's critics highlight, the processes of historical change appear to be far more complex and contingent than this logic allows.
The observations made by Fukuyama's critics are also worth recalling as regards the consequences of these concerns. There is a danger of inducing complacency, and of prematurely pronouncing liberal democracy's future secure. In masking the limitations of liberal democracy, the prospects that those limitations might be addressed are correspondingly reduced. Inequalities may be made to seem, and to become, unalterable. And, to the extent that Kaldor's `grim prognosis' is inadequately heeded, there is a danger of attaching insufficient importance and urgency to the medicine she prescribes. This entails re-establishing legitimate control of violence at a transnational level.111
To these points might be added further misgivings expressed by international legal commentators. Thomas Carothers argues that `[a]dvocacy of a democratic norm actually highlights [the] West versus non-West division and the tension in international law concerning the fact that it is at root a Western system that Western countries are seeking to apply to the whole world'.112 He worries, furthermore, about the harm that might be done, via sanctions or armed intervention, in the `implementation' of such a norm. Is the way opened up for the waging of `just wars' or neo-colonial adventures? All the international legal scholars whose work is discussed here recognize the force of this concern.113 With the exception of Tesón, none accepts unilateral intervention as a legitimate means of enforcing the norm. But each appears to accept collective action by regional organizations and the United Nations.
Carothers here echoes a widely shared apprehension as regards the division of the world into liberal democratic and non-liberal democratic states. This is an apprehension that cannot forget all the other notorious divisions of history: between civilized and barbarian, Christian and heathen, European and oriental, developed and underdeveloped. Given the historical record, there is a case to be answered that a norm of democratic governance, like Fukuyama's `league of democratic nations', would express a `new ideology of imperialism'.114 This article's premise is that democracy's universal relevance can indeed be defended.115 The question is whether it is likely to be defensible within the framework of liberal millenarianism.
That it is not is highlighted in some observations by Martti Koskenniemi.116 Like Carothers, Koskenniemi warns that a universal norm of democracy will `always be suspect as a neocolonialist strategy'. `The nation-State and its democratic forms may not be for export as pure form', he suggests. `They may equally well constitute a specific product of Western history, culture and, especially, economy.'117 What Koskenniemi appears to have in mind here is the sort of liberal world envisioned in liberal millenarianism. He seems to confirm this when he voices the further concern that a universal norm of democracy is `too easily used against revolutionary politics that aim at the roots of the existing distributional system and it domesticates cultural and political specificity in an overall (Western) culture of moral agnosticism and rule by the market'.118
If Koskenniemi's objections are informed by the same vision of democracy as that of the commentators he criticizes, then perhaps the source of his disquiet is not democracy per se but that particular (liberal millenarian) vision of it.119 At any rate, his objections are unlikely to be refuted by arguments appealing to such a vision. However, from this it does not follow that those objections are unlikely to be refuted by any arguments. The simple point which this article has sought to recall is that the vision of democracy on which Koskenniemi (in common with Franck, Slaughter and others) relies is not the only one conceivable. Defenders of democracy's universal relevance have a wide range of alternative democratic possibilities upon which to draw. Among these are many that are substantially more congenial to redistribution and difference, and substantially less subordinate to the market and its mangers, than is liberal millenarianism.
B. Conclusion
The thesis of the emerging norm of democratic governance, and the liberal internationalist and neo-Kantian perspectives considered here, grapple with the significance for international law of profound transformations. They call attention to important normative and institutional developments, and connect subject matters more commonly treated in isolation from one another: international law and international relations; self-determination, human rights, and electoral assistance; political theory and international law. In doing so, however, they adopt a narrow understanding of democracy, largely equating it with certain liberal institutions. Franck expresses regret that this is all customary international law will currently support.120 Fox recognizes that democracy entails much more than periodic national elections, but considers that elections, being easier for international organizations to monitor than other facets of democratic life, are international law's most appropriate starting point. `It is much more difficult', he observes, `to stay in a country after elections, for the long haul, to monitor all institutions of government and attempt to secure key elements of democracy ... Elections ... must not end the push to a democratic society, but they are an essential first step'.121
Yet it is not self-evident either that elections are democracy's first step or that ease of monitoring by international organisations should determine international law's priorities. Democracy involves no necessary order of events, and difficulties of monitoring have all too frequently served in international law to make chosen priorities seem unavoidable.122 This is not to suggest that periodic elections and related institutions lack value.123 It is just to highlight the way democracy's further dimensions may be eclipsed. This article has sought to call attention to the part played in this regard by the liberal millenarian standpoint of these scholars. The constraints of the international legal system are not the only ones in operation here.
At the same time, the theses provide powerful reasons for being concerned about this. If a norm of democratic governance indeed `emerges', this will entail - to reiterate earlier discussion - that international law lays down criteria of governmental legitimacy, and that those criteria require democracy. It may also entail that individuals can claim a human right to democracy. The international legal scholars suggest that the norm should be enforced by making admission to, and participation in, international organizations conditional on democratic government (as is currently the case with some regional organizations). Franck proposes that financial and trade benefits and development assistance, and even the protection of UN and regional collective security measures in the event of an invasion, might likewise be made conditional on democratic government. Tesón advocates modifications of treaty and diplomatic law that would place further pressure on governments that do not meet the criteria of liberal democracy. Though Tesón alone would be prepared to sanction unilateral intervention, the other scholars appear to support collective enforcement.
Dire consequences could thus follow where legitimacy is denied. From the perspective of citizens, dire - perhaps even direr - consequences could also follow where legitimacy is accorded. This latter danger is easy to overlook. Yet if, in line with the international legal scholarship discussed in this article, liberal millenarianism shapes the criteria used, international law may find itself according legitimacy for what may in some circumstances be the most cosmetic democracy. In so doing, the law may undercut efforts to deepen democracy's purchase in the countries concerned. To the objection that any step in the direction of democracy is better than unmitigated repression, it may be replied that this is not necessarily so if the conditions upon which power is exercised remain essentially unchanged. Where international law confers on a repressive regime a legitimacy that it formerly lacked, the regime is strengthened and counter-authoritarian forces correspondingly debilitated.
According to former United Nations Secretary-General Boutros Boutros-Ghali, democracy is today an `ideal that belongs to all humanity'.124 To characterize democracy as an ideal is to highlight that it is an engine of criticism and change, necessarily at odds with prevailing realities. To label it as the property of all humanity is to recall, amongst other things, that its institutional complements necessarily reflect the huge diversity of social circumstances to which it is applied. Should international law seek to vindicate efforts animated by such an ideal, then a framework of ideas that posits liberal institutions as history's end scarcely seems an adequate basis on which to proceed.
77 Franck 1990, 601. See also Franck 1995, at 141.
80 See, e.g., Slaughter 1993. For a further narrowing of alternatives
to `Realism' and `Liberalism', see Slaughter 1995.
82 Slaughter 1992a, at 393. (emphasis omitted)
84 It also appears as international law's salvation, inasmuch
as liberal universalism also represents an option in favour of law, rather than
politics. Liberal internationalism thus seems to rescue international law from
realist irrelevance. Fukuyama suggests this too, arguing that, while
`international law in general' (Fukuyama 1992, at 281) became discredited owing
to the failure of the League of Nations and the United Nations, the `states
making ... up [the "league of democratic nations" which he proposes] would be
able to live according to the rules of international law in their mutual
dealings' (Fukuyama 1992, at 283).
87 Slaughter 1992b, at 1988-89.
88 Doyle, supra note 64, at 235. Slaughter takes up Doyle's
phraseology, noting the `fundamental difference in the nature of relations
among liberal States as compared to relations between liberal and non-liberal
States'. Slaughter 1995, at 537.
89 But not all express themselves in this way. Cf. the more cautious
tone of, e.g., Fox and Nolte, supra note 3.
92 Franck 1992, at 51 and passim.
95 See, e.g., B. Barber, Strong Democracy (1984).
96 See, e.g., J. Cohen and A. Arato, Civil Society and Political
Theory (1992).
97 Amongst the innumerable different ways and contexts in which this
argument has been advanced, see, e.g., A. Phillips, Engendering
Democracy (1991) and Democracy and Difference (1993).
98 Fox also emphasizes that his position is dictated by that which is
feasible, elections being the most readily monitored dimension of democratic
politics. See Fox, concluding comments in panel `National Sovereignty
Revisited: Perspectives on the Emerging Norm of Democracy in International
Law', Proc. ASIL (1992) 249, 270-71, and infra text at note 121
for discussion of this point.
99 Franck 1995, at 86. Franck lists 130 states which as of late 1994
were `legally committed to permit open, multiparty, secret-ballot elections
with a universal franchise'. Of these he remarks that `[w]hile a few may
arguably be democracies in form rather than substance, most are, or are in the
process of becoming, genuinely open to meaningful political choice'. Franck
1995, at 85-6.
101 Slaughter 1992a, at 395-96 (emphasis omitted). The sense in which
this is a paradox is unclear. If the thought is that the freedom associated
with liberal states entails in another sense greater constraint than is the
case with non-liberal states, then the paradox remains obscure, inasmuch as the
freedom is that of citizens and the constraint is that of the state.
102 See, e.g., Franck 1995, at 86.
104 A rare example of such attention can be found in the final eight
pages of Franck's 484-page study of `fairness' in international law and
institutions. Franck 1995, at 477-484.
105 See Doyle, supra note 64, at 323 et seq.
106 Kaldor, `Introduction', in M. Kaldor (ed.), New Wars
(forthcoming).
107 For a similar account of war in the 1990s, see Supplement to
an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of
the Fiftieth Anniversary of the United Nations, UN Doc. A/50/60; S/1995/1
(1995), esp. para. 10 et seq.
109 The notion of `structural violence' is elaborated in the work of
Johan Galtung. See, e.g., `Violence, Peace and Peace Research', 1 Essays in
Peace Research (1975), ch. 4.
110 See, e.g., Carothers, supra note 3.
112 Carothers, supra note 3, at 264. Derrida likewise discerns
the outlines of a renewed European Christian alliance. Derrida, supra
note 24, at 60-61.
113 See, e.g., Franck 1992, at 84.
114 F. Füredi, The New Ideology of Imperialism (1994).
Franck and others acknowledge the concern. See, e.g., Franck 1992, at 80, 82.
116 Koskenniemi, supra note 3.
119 Ibid. Koskenniemi appears to recognize this, inasmuch as
his `most fundamental problem' is that these international legal commentators
position themselves `as possessing a transparent view of the essential meaning
of democracy...'.
120 This is what Franck appears to suggest when defending a
conception which, he acknowledges, is `not ambitious, not unambiguous, and ...
almost certainly not the one Americans would prefer'. Franck 1994, at
75.
121 Fox, supra note 97, at 270-71.
122 An example is the case of economic, social and cultural rights,
and the way their relative de-emphasis is routinely linked to undeniable, but
exaggerated, difficulties of monitoring and enforcement.
123 However, for an intriguing critique of the `reality' of
elections, see J. Baudrillard (P. Foss et al., trans.), In the Shadow
of Silent Majorities, or The End of the Social and Other Essays (1983).
124 `Democracy: A Newly Recognized Imperative', 1 Global
Governance (1995) 3, 4. See further B. Boutros-Ghali, An Agenda for
Democratization (1996).
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