0748622551.Edinburgh.University.Press.Philosophy.of.International.Law.Mar.2007

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context; it is simply conceptually inapplicable.103
The pre-modern refers to the post-imperial chaos of Somalia,
Afghanistan, and Liberia. The state no longer fulfills Weber s criterion
of having a legitimate monopoly on the use of force. Cooper elabo-
rates upon this with respect to Sierra Leone.104 This country s collapse
teaches three lessons. First, chaos spreads (in this case, to Liberia, as
the chaos in Rwanda spread to the Congo). Second, crime takes over
when the state collapses. As the law loses force, privatized violence
enters the picture. It then spreads to the West, where the profits are
to be made. The third lesson is that chaos as such will spread, so that
it cannot go unwatched in critical parts of the world. An aspect of this
crisis is that the state structures themselves, which are the basis of the
UN language of law, are a last imperial imposition of the process of
decolonization.
The modernity of the UN is that it rests upon state sovereignty and
that in turn rests upon the separation of domestic and foreign
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74 Philosophy of International Law
affairs.105 Cooper s words are that this is still a world in which the
ultimate guarantor of security is force. This is as true for realist con-
ceptions of international society as governed by clashes of interest as
it is for idealist theories that the anarchy of states can be replaced by
the hegemony of a world government or a collective security system:
The UN Charter emphasizes state sovereignty on the one hand and
aims to maintain order by force. 106
It is because the world is divided into three parts that three differ-
ent security policies will be followed.107 Europe is a zone of security
beyond which there are zones of chaos which it cannot ignore. While
the imperial urge may be dead, some form of defensive imperialism is
inevitable. All that the UN is made to do is to throw its overwhelm-
ing power on the side of a state that is the victim of aggression.108
Cooper generally counsels against foreign forays. European humani-
tarian intervention abroad is to intervene in another continent with
another history and to invite a greater risk of humanitarian catastro-
phe.109 However, the lessons of recent state collapse in Sierra Leone
and other places cannot be ignored. Empire does not work in the post-
imperial age, that is the acquisition of territory and population.
Voluntary imperialism, a UN trusteeship, may give the people of a
failed state a breathing space and it is the only legitimate form possi-
ble, but the coherence and persistence of purpose to achieve this will
usually be absent. There is also no clear way of resolving the human-
itarian aim of intervening to save lives and the imperial aim of estab-
lishing the control necessary to do this.110 While Cooper concludes by
saying that goals should be expressed in relatives rather than
absolutes, his argument is really that the pre-modern and the modern
give us incommensurate orders of international society.
This brings us back to the conversation between Walmsley and
Wingate at the Foreign Office in 1957. After reading Dixon s address
to the Security Council, Wingate said he would have expressed himself
more frankly. Walmsley replied that one could speak reasonably to
reasonable people, but that at the UN it is better not to make unnec-
essary admissions. I think that is where Britain still remains, except
that the world in which Britain operates today has become infinitely
more dangerous. Is it not time to rethink the nature of reasonableness?
Notes
1 ICJ Reports (1969), 3 at 77.
2 M. Sorensen, Les sources du droit international (1946) esp 109.
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Continuing Uncertainty in the Mainstream 75
3 A. D Amato, The Concept of Custom in International Law (1971)
82 4.
4 Ibid., 52; Sorensen, Les Sources du droit international, 52.
5 L Unit� de l ordre juridique international, Cours g�n�ral de droit inter-
national public (2003) 160; the author s translation.
6 Ibid., 160 1.
7 Ibid., and the literature cited therein: a comprehensive survey of doc-
trine, especially continental.
8 For instance, N. K. Hevener on the 1971 South West Africa opinion,
A New International Legal Philosophy, 24 ICLQ (1975) 790, at
793 4; and R. Churchill on the Fisheries Jurisdiction Cases, The
Contribution of the ICJ to the Debate on Coastal Fisheries Rights, 24
ICLQ (1975) 82.
9 ICJ Reports (1986)1, para. 184 of judgment.
10 Ibid., para. 186.
11 Ibid., para. 206.
12 Ibid., para. 207.
13 Ibid., para. 208.
14 Ibid., para. 261.
15 Ibid., para. 207.
16 Ibid., para. 263.
17 So the true founders of modern legal positivism are Robespierre and
Saint Just.
18 G. de Lacharri�re, La Politique juridique �xterieure (1983).
19 Ibid.
20 Ibid.
21 R. J. Dupuy, La Communaut� internationale entre le mythe et l histoire
(1986).
22 Ibid.
23 Ibid.
24 Ibid.
25 T. Carty, The Origins of the Doctrine of Deterrence and the Legal
Status of Nuclear Weapons, in H. Davis, (ed.) Ethics and Defence
(1986) 132.
26 R. Nisbet, Twilight of Authority, at 191, quoted in T. Carty, Legality
and Nuclear Weapons: Doctrines of Nuclear Warfighting, Davis,
Ethics and Defence, 152.
27 J. Garrison, The Darkness of God: Theology after Hiroshima, (1982)
29 33 quoted by the author, in Davis, Ethics and Defence at 153.
28 Carty, The Decay of International Law, 111 13.
29 C. Guttierrez Espada, El Estado de necessidad y el uso de la fuera en
derecho internacional (1987), a comprehensive review of the treatment
of the issue by the ILC at 47 59, and especially at 36, 59 61.
30 ICJ (2002) 1.
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