THE SHIELD OF ACHILLES (173 page)

*
It had expressly excluded Calvinists from the settlement.

*
This is so even though Russia, Poland, Britain, and other states were not parties; as late as the nineteenth century Burke was claiming that the partition of Poland was a breach of the Peace of West-phalia.
New Cambridge Modern History
, vol. 4, 358.

*
This is the chancellor described in Book I who, defying pressure from the jittery regency council acting on behalf of the young queen, kept Sweden in the war after the death of Gustavus Adolphus. The son endeavored to reflect his father's policy.

*
Henry IV is recorded as having called the Dutch provinces “
libres, mais non pas souverains,
” in a conversation with the English ambassador. Roelofsen, 100, n. 23.

*
Only one part of
De Jure Praedae
was published in Grotius's lifetime (the book itself did not come to light until an auction in the nineteenth century); this was the celebrated
Mare Liberum
, arguing, as its title suggests, for freedom of the seas and against Portuguese claims to an Asian monopoly. The work of which it formed a part, however, dealt very largely with the legal basis for war.

*
H. St. John, 492, dated May 3, 1712 (1798). It may be that his constitutional perspective was so different from Bolingbroke's that Torcy misunderstood the nature of the British proposal. Or it may be, as I am inclined to believe, that Torcy “misunderstood on purpose,” endeavoring to preserve the freedom of action of his sovereign.

*
As had earlier constitutions for previous societies of states, e.g., with respect to religious worship.

*
“The Congress is dissolved.”

*
“Let us kiss and let all be forgotten” was Metternich's own account of the tsar's words.

*
“Each nation has its particular laws; but Europe has its law too. It is the constitutional order that provided it.”

*
And the market-state says: “Don't bother asking. You're on your own now.”

†
This suggests that the peace settlement in 1919 did not come at the end of an epochal war.

*
A History of the Peace Conference of Paris
, vol. 3, ed. Harold Temperley (1920), 59. Not every leader of a nation-state saw the force of humanity as so constructive. As Bismarck put it, “One can ride the wave, but one cannot steer it.” Ibid., 250.

*
It is likely that the most important service performed by Keynes in 1919—he was the Treasury's representative on the British team—was to take a short manuscript from a prison camp at Monte Cassino via his diplomatic pouch to Bertrand Russell in Cambridge. This was the immortal
Tractatus Logico-Philosophicus
, written by Ludwig Wittgenstein in notebooks he carried during the war. Wittgenstein had enlisted in the Austrian army at the outset of the war, served on the eastern front and in the Tyrol as an artilleryman, and been taken prisoner by the Italians in November of 1918.

*
Which had the unintended effect of precipitating the rapid development of German rocketry. William B. Breuer,
Race to the Moon: America's Duel with the Soviets
(Praeger, 1993), 10.

*
Nor was this a unique reaction. We should bear in mind that in 1919, student protests against the Chinese government's negotiations at Versailles led to the May 4 movement from which the Chinese Communist Party eventually emerged. And Lenin said in Moscow on October 8, 1920, that by attacking Poland “we are destroying the Versailles settlement.”

*
In contrast to the legal philosophers of earlier periods who sought an external validation, e.g., the command of the sovereign (Austin) or natural law (Pufendorf).

*
For the philosophically inclined reader, Kelsen's rendering will be strikingly reminiscent of Ludwig Wittgenstein's
Tractatus Logico-Philosophicus
.

*
Linde, 99. It is interesting that logical positivism—which renounced any possible philosophical contribution to moral and political debate and indeed held that all metaphysical statements are nonsense—also reached its zenith of influence at this morally and politically fraught time.

*
Schmitt cited both the Turkish democracy's expulsion of Greeks and the Australian provisions for restricted immigration by Asians as examples.

*
And indeed some of the most sophisticated commentators continued to maintain that nothing had really changed in the bipolar relationship even after Gorbachev introduced
perestroika
and
glasnost
and the “new thinking,” because nothing much
had
changed with respect to the comparison of forces and nuclear arms. These persons were highly dubious of Gorbachev's international proposals. William G. Hyland,
The Cold War Is Over
(Time Books / Random House, 1990).

*
To be distinguished from the Chinese strategy of actually introducing markets.

*
Lenin's relatively liberal New Economic Policy, described in Chapter 2.

*
This fundamental paradigm applied in the conventional, nonnuclear arena as well. The late Johann Hoist noted that “Soviet negotiators have attempted to structure the geographical parameters for arms control regimes in Europe in a manner which will preserve for Soviet territory that privileged status of being exterior to the regime in question. The definition of the reduction zone in MBFR [mutual balanced force reductions] and the refusal to include anything more than a narrow zone of 250 km of the Soviet Union in the CSCE/CBM [Conference on Security in Europe/Confidence Building Measures] regime, indicate the way in which Moscow approaches arms control as a means for structuring the broader context of the political order.” Johann Hoist, “The NATO-Warsaw Pact Relationship?” in
New Directions in Strategic Thinking
, ed. Robert O'Neill and D. M. Horner (Allen & Unwin, 1981), 93.

*
Consider the calendar of that fateful year which led up to the Peace of Paris. After Gorbachev accepted the Hungarian government's decision to allow independent political parties (February 1989) and the Polish roundtable agreement (April), Bush responded in May by stating that it was “time to move beyond containment” and to “seek the integration of the Soviet Union into the community of
nations.” He set, as a precondition for this integration, “a significant shift in the Soviet Union” and a “lightening-up on the control in Eastern Europe [that would allow those states] to move down the democratic path.” In July, Bush secretly invited Gorbachev to meet in December—in advance of the scheduled summit planned for March. Gorbachev responded with alacrity and publicly acclaimed the invitation to “join the community of nations” by sending a letter to the members of the G-7 meeting at Paris. On September 21 – 23, Baker and Shevardnadze met at Baker's ranch in Wyoming and released a detailed joint statement covering the full range of U.S.–Soviet issues. On December 2–3 – 3 Bush and Baker, Gorbachev, and Shevardnadze met on shipboard for a wide-ranging discussion. The Americans proposed negotiating a trade agreement that would lift the restrictions on most favored nation status for the Soviet Union.

*
Which would have played well with the right wing in U.S. politics that distrusted Bush and Baker.

*
With the Central and Eastern European countries, the United States was studiedly circumspect. The Bush administration responded to the East German revolt by sending Baker to meet with the communist premier and to offer economic assistance to the GDR. When violence broke out in Romania after the revolt against the dictator Ceausescu, Baker announced that he would not oppose Soviet intervention, even though until recently Romania had enjoyed privileged status in the West owing to its independent line from Moscow. In response to the Lithuanian declaration of independence in May 1990, Baker refused to recognize the new government even though the United States had long maintained that the Soviet annexation of the Baltics was illegal. Even as late as six weeks before the anti-Gorbachev coup, Bush went to Moscow to sign the Strategic Arms Reduction Treaty (START) and then stopped in Kiev to warn the Ukrainians of the dangers of independence.

*
Although it was not much commented on at the time, a not dissimilar consideration operated with respect to France, which might not have been entirely averse to seeing U.S. troops expelled from Germany and to having the WEU, of which the United States is not a member, supplant NATO.

*
The Helsinki Final Act was signed by almost all the principal European leaders of the time. It was the product of an intensive effort by the Soviet Union and its allies to obtain recognition for the strategic division of Europe. In exchange for this recognition, the West obtained various paper concessions from the Soviets in the area of human rights. Somewhat unexpectedly, Eastern Europeans and later Russians used these concessions to delegitimate the communist party regimes then prevailing such that once the Berlin Wall came down, the CSCE process set up at Helsinki quickened. Between January 19, 1989, and October 3, 1991, the Vienna Conference was concluded and followed six months later by the Paris Conference, which was in turn followed one year later by the Copenhagen Conference, and then by the Moscow Conference—all children of Helsinki.

*
The capital of unified Germany has been returned to Berlin.

*
Acheson's successor, John Foster Dulles, declared, “I confess to being one of those lawyers who do not regard international law as law at all.” Anthony Arend,
Pursuing a Just and Durable Peace: John Foster Dulles and International Organization
(Greenwood Press, 1988), 57.

†
“Jus cogens norms, which are nonderogable and peremptory, enjoy highest status within customary international law, are binding on all nations, and cannot be preempted by treaty… [They include] torture, murder, genocide, and slavery”
U.S. v. Matta-Ballesteros
, 71 F. 3d 754 (1995).

*
Thomas Franck writes, “Legitimacy is a property of a rule or rule-making institution which itself exerts a pull towards compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process.” The legitimacy of a norm in international law is indicated by four facts: its determinacy or clarity; its symbolic validation by diplomatic rituals and formalities; its conceptual coherence; and the development and maintenance by “right process.” Thomas M. Franck,
The Power of Legitimacy among Nations
(Oxford University Press, 1990), 24.

*
And the NATO action in Yugoslavia over Kosovo.

*
Decisions are not law unless they possess both
authority
—“the participation in decision in accordance with community perspectives about who is to make what decisions with what criteria”—and
control
—defined as “effective participation in [decision making] and execution.” McDougal and Lasswell, 384. “When decisions are authoritative but not controlling, they are not law but pretense; when decisions are controlling but not authoritative, they are not law but naked power.” Ibid.

*
As Paul Porter—another celebrated Washington lawyer—is said to have remarked, “If the ends don't justify the means, I'd like to know what the hell does!”

*
This cable, sent from Moscow where Kennan was serving as deputy to the U.S. Ambassador, alerted official Washington to the intractability of the Soviet position and advised in favor of “containing” Communist expansion.

†
See Chapter
4
.

‡
As Goncharov, Lewis, and Xue Litai show on the basis of archival research and interviews with Korean, Chinese, and Russian participants, “the invasion of June 25, 1950 was pre-planned, [approved] and directly assisted by Stalin and his generals, and reluctantly backed by Mao at Stalin's insistence.” These archives reveal that Stalin, beginning in 1949, launched an immense arms buildup, believing that Korea would serve as a springboard for the invasion of Japan and that a Chinese-backed revolutionary struggle in Viet Nam and Southeast Asia would force the United States to divert critical forces from Western Europe. Consistently with our study, Stalin's moves, as Jacob Heilbrun astutely observes,
⁸⁹
had their “origins not in economic fears of American expansionism but in the need to restore his party's grip on his [own] society…” Soviet occupation abroad even replicated the tactics Stalin had used to consolidate power in the USSR before the war. In Stalin's case, the constitutional imperatives of communism not only determined Soviet strategy abroad but also its tactics in the Long War.
⁹⁰