Dirty Harry II: New Problems, New Rules

Comparing and contrasting the perils and opportunities that international lawyers see in the world with those of non-lawyer foreign policy specialists can be enlightening. At the very least, it can help keep international lawyers from entering into a cul-de-sac where they are more concerned with doctrinal paring than problem solving.

In an earlier post, I mentioned a recent article (“What Dirty Harry Can Teach the New Geneva Conventions”) by Dr. Thomas Barnett, author of The Pentagon’s New Map. In this and in one or two subsequent posts, I want to unpack some of Barnett’s theories concerning emergent threats to national security and the “new rule sets” needed to respond to them in comparison to some concerns of international lawyers. I’ll begin here by comparing and contrasting how Barnett defines and considers “rules” with the practices of international lawyers (broadly speaking).

First and foremost, Barnett’s conception of “rule sets” is much broader than the legal rules that are the primary (though not only) concern of international lawyers. In The Pentagon’s New Map, he begins by simply calling rule sets “a collection of rules that delineates how some activity normally unfolds.” (p.9) He later defines rules as: “[a]ll the procedures, laws, treaties, rules of thumb, and conventional wisdom that seem to guide the actions of individuals, corporations, governments, and the international community at large.” (p.22)

Barnett is thus concerned with a very broad range of sources ranging from what would be more traditionally considered law (treaties, customary international law, etc.) to that which would not (strategic doctrines, standard operating procedures, etc.). Although broader than older definitions of “international law” as the law governing the relations between states, his conception of rules is similar in some respects to Phillip Jessup’s definition of transnational law (“[A]ll law which regulates actions or events that transcend national frontiers. Both public and private international law are included as are other rules which do not wholly fit into such standard categories.”) with some non-binding “soft law” added on.

Within this set of possible rules, though, Barnett’s focus may be a little different that that of an international lawyer. Although non-binding elements such as “soft law” are gaining increased attention, international lawyers still spend the majority of their efforts on drafting, analyzing and (hopefully) elucidating more traditional sources of law such as treaties, customary international law, and caselaw. Barnett, though definitely interested in treaties and (without using the formal term) customary international law, seems particularly concerned with strategic doctrine. The “legal” rules of most interest to him are the laws of armed conflict concerning the ability of a state to use military force (jus ad bellum).

Barnett’s strategic priorities are intertwined with the idea of certain rule sets being of national interest: “our strategic vision for national security needs to focus on growing the community of states that recognize a stable set of rules regarding war and peace.” (p.25) He further contends that “the emerging global conflict lies between those who want to see the world grow ever more connected and rule-bound and those who want to isolate large chunks of humanity from the globalization process so as to pursue very particular paths to ‘happiness.’” (p.32) He calls the set of like-minded states that have signed on to these rule sets the “Core” and the states that are the rogues, the revanchists, and the disconnected, the “Gap.” Barnett’s project is largely concerned with how to bring states out of the Gap and into the Core.

On one hand, international lawyers would be heartened that the assessment of this foreign policy analyst is that U.S. national security can be best enhanced by getting an ever-increasing number of states to sign on to certain “rule sets” (including, but not limited to, the sources of international law itself). What could be a source of interesting debate and discussion between international lawyers and foreign policy specialists is the process by which this transition from the Gap to the Core takes place.

Barnett argues that

America is not going back on any of [its] ideals. They all still apply in shades—inside the Core. Inside the Core we have achieved something awfully close to Kant’s perpetual peace—not just inside the Old Core [the U.S., Europe] but likewise inside the New Core of Russia and China. (p.169)

He later continues:

It’s not that America wants one rule for itself and another for the rest of the world, just that America needs special consideration for the security roles it undertakes inside the Gap. In effect, we don’t want fellow Core members applying their Kantian rule sets to our behavior inside the Hobbesian Gap.

He further explains the need for one set of rules to apply within the Core and another within the Gap.

This concern—how we get from the Core to the Gap will be the subject of my later posts. For now, a few notes concerning how some international lawyers may react to Barnett’s thesis as I’ve described it thus far:

Barnett’s conception of rule sets is more instrumentalist—ends driven—than how many international lawyers may talk about “law.” While “rule sets” and laws are both means to one or more ends (peace, stability, justice, etc.), the idea of law carries with it also the idea of “rights.” That is, choosing to follow or not follow a rule may be a strategic choice but for lawyers, breaking a law (such as, for example, the prohibition of torture) also involves denying a right that is intrinsic to an individual’s personhood. States also have certain rights, such as non-interference in domestic affairs except in certain extreme cases (genocide, etc.).

If Barnett does not distinguish between some rules (that are actually laws) and others (that are not) then his theory will be dissonant at various points with international law. (It is unclear whether or not he would separate his rule sets into such categories.) These divergences with accepted international law would particularly arise if there is one set of rules that apply within the Gap and another in the Core. While Barnett has stated that there needs to be laws that address problems such as torture, he has also written that the U.S. needs to have leeway in invading other countries in prosecuting the War on Terror. Which laws are worth saving (the proscription on torture) and which are not (some of the jus ad bellum rules) is an open question.

Moreover, explicit in Barnett’s analysis is the leadership role of the United States and the special treatment that it deserves. The relationship of hegemony to international law is one that has been of much interest to international lawyers and I will also consider that in a later post.

Barnett’s essay in Wired and his book provide a road-map for using “rule sets” to increase the zone of peace. Depending on how his theory is applied, though, one may inadvertently jettison law in favor of “rule sets.”

For another take on whether there need to be new rules for the evolving startegic landscape,, see the joint American Sociaty of International Law/ Council on Foreign Relations Roundtable on “Old Rules, New Threats.”

I’ll return to these issues in later posts.