6.1 Introduction
Solidarity seems on course to becoming for our age what human rights were for the end of the Cold War. The literature on solidarity has grown dramatically in the last few years in both international relations and international law. And the language of solidarity appears in an increasing number of legal documents and statements, most notably the UN Draft Declaration on the right to solidarity (thereafter ‘the Draft Declaration’),Footnote 1 which defines solidarity as ‘the expression of a spirit of unity among individuals, peoples, States and international organizations, encompassing the union of interests, purposes and actions and the recognition of different needs and rights to achieve common goals’.
That solidarity has acquired such purchase in international legal discourse and practice is not surprising. The solidarity turn, on the one hand, could be seen as the expression of, and attempt to respond to, our ‘new age of catastrophe’,Footnote 2 an epoch characterized by a deepening crisis of global capitalism with unprecedented geopolitical, economic, political and biological dimensions. Indeed, the draft declaration explicitly foregrounds the role of solidarity ‘in preventing and overcoming global challenges such as health emergencies, environmental degradation, climate change, armed conflict [and] forced migration’.Footnote 3 And, as the editors remind us in their Introduction, solidarity has generally tended to accompany moments of crisis.
On the other hand, the solidarity turn could also be seen as symptomatic of the more specific crisis of the international legal order and the age of human rights. Solidarity may be conceived as a human right in documents like the draft declaration, but its articulation on the surface differs from the hegemonic understanding of human rights that has characterized the last three decades in at least two ways. Its collective dimension, which is implicit in its call to unity and contrasts with the individualism of rights. And its welfarist connotations, which is implicit in its emphasis on common goals and contrasts with the market-friendly orientation of contemporary human rights.Footnote 4 Tellingly, the right to solidarity in the draft declaration is more reminiscent of the language of ‘third generation’ rights, which, for as long are they were mobilized by the ‘third world’, were ironically viewed as mere (utopian) aspirations rather than legally binding or enforceable rights.
But if solidarity is called upon to address the many challenges of our ‘age of catastrophe’, to what extent is its deployment in international law and international legal discourse truly divorced from the ideas and practices that have characterized the neoliberal age which has shaped the international legal order over the last three decades and arguably led to an aggravation of the very crises solidarity is now called upon to tackle? Is international legal solidarity the road to salvation and redemption or is the ‘age of solidarity’ just old wine in a new bottle, with the neoliberal logic prolonged into the future under a different name?
To answer these questions, the chapter explores the connections between solidarity and neoliberalism using the example of collective security (CS). Although there is no mention of solidarity in the UN Charter, several scholars read the document as expressing the principle’s ‘highest degree of constitutionalization’ in international law.Footnote 5 On a general level, this constitutionalization is associated with the commitment members have undertaken to assist the UN (art.2(5) UN Charter (UNC)) and to ‘take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55’ (Article 56 UNC), which sets out the conditions for the creation of ‘stability and well-being which are necessary for peaceful and friendly relations among nations’, namely economic and social progress and development, international cooperation and solutions and respect for human rights. But constitutionalization is also more specifically associated with the UN system of collective security (CS) in the form of the obligation to give effect to Resolutions of the UN Security Council (UNSC) designed to restore international peace and security (Article 25 UNC). Some scholars disagree with the characterization of CS as a form of solidarity, arguing that solidarity is characterized by ‘spontaneity’,Footnote 6 not a legal duty of the kind that defines the system of CS. Yet, legalization does not in itself seem to be a bar to solidarity. Historically, legal codification has been seen as one of the ways in which the normative basis of social solidarity could be articulated.Footnote 7 And instruments like the Draft Declaration show that legalization, indeed constitutionalization, is key to how solidarity is today conceived at the international level. For many scholars, finally, CS influenced ‘the emergence of a variety of other manifestations of solidarity in international law’,Footnote 8 making it a potentially illuminative case study for assessing its prospects and limitations.
That those connections have never been explored is not surprising. Neoliberal thought was explicitly developed as a critique of, and in opposition to, the practices and politics that are commonly associated with solidarity, including equality, welfarism, collectivism and socialism. As such, any notion of ‘neoliberal solidarity’ could on the surface appear like a contradiction in terms. In addition, neoliberalism was long approached as a theory of economics, rather than international politics. To use the field of CS to investigate the neoliberal influences on the international law and practice of solidarity would seem to be not only a contradiction, but an outright aberration.
And yet: failing to investigate the role of neoliberalism in shaping the solidarity of CS would be a mistake. As we will see, neoliberal theory did address questions about war and peace. Indeed, one of the key debates neoliberals were engaged in was precisely about the role of the market in international politics and the relationship between the market, war and peace. Some of them also wrote explicitly about the first iteration of an institutional CS introduced by the Covenant of the League of Nations.Footnote 9 And, equally importantly, key neoliberal thinkers were directly involved in, and presumably influenced, the establishment and functioning of the League of Nations, the first legal instrument to have introduced a system of CS. One of them is Walter Lippman, a chief advisor to President Woodrow Wilson, who helped draft, and penned the authoritative interpretation of, Wilson’s famous ‘fourteen points’, a set of principles designed to inform peace negotiations after World War I. Lippman’s book The Good Society formed the basis of a colloquium organized in Paris in 1938 where the term ‘neoliberalism’ was first coined and which is widely seen as the precursor of the Mont Pellerin Society (MPS) founded by Hayek in 1947. Another is William E. Rappard. A founding member of the MPS, Rappard was a Swiss delegate to the Paris Peace Conference of 1919 and went on to hold several positions in the League, including as the director of its Mandates Division. He also produced extensive writings about the League, the UN, and broader questions of international peace and security, in which he expressively conceived of CS as an expression of international solidarity.Footnote 10 From a broader institutional perspective, finally, recent researchFootnote 11 suggests that the International Institute of Intellectual Cooperation (IIIC), a consultative body of the League of Nations, played a key role in the emergence of neoliberalism ‘as an intellectual and political project’.Footnote 12
To explore the connections between neoliberalism and solidarity in the law of CS, Section 6.2 first places neoliberal views on international peace and security in the wider context of neoliberal theory, epistemology and ontology. Section 6.3 turns more specifically to the neoliberal vision of CS, even though few neoliberals used the term. Section 6.4 examines to what extent these neoliberal ideas were reflected in the emergence and evolution of solidarity in the international law of CS. Section 6.5 turns to the implications of my analysis for our approach to, and indeed critique of, solidarity in CS. My argument is: (a) that neoliberals made the institutionalization of the market order the only means of securing peace; (b) that they envisaged CS as a system of international policing designed to spread and secure the international market; (c) that this neoliberal vision of CS played a role in shaping the duty of solidarity in the international law of CS; and (d) that existing critiques, as they presently stand, do not provide us with sufficient tools to challenge neoliberal (market) solidarity. The conclusion, on that basis, sounds a note of warning to the enthusiasm that has surrounded the adoption of solidarity in international legal discourse and practice and calls for a renewed engagement with its ideological and material underpinnings.
6.2 The Neoliberal Peace of Catallaxy: Peace as Institutional Market Order
Neoliberal views about international order, war, peace and, crucially, CS must be seen in the context of their broader social, political and legal theory. The neoliberal movement includes several ‘schools of thought’ with contrasting views. But abstraction made of the differences between different schools or individual neoliberal thinkers, neoliberalism as a whole largely developed as an attempt to save and reinvent liberalism in the face of what neoliberals saw as a crisis of the liberal order and the threat of communism. As a result, neoliberalism can helpfully be defined by its opposition to two currents: socialism and classic laissez-faire liberalism, what has been referred to as the ‘dual attack’ or ‘dual argument’.Footnote 13
Contrary to socialism, neoliberals re-centred the role of the markets in maintaining social order, rejecting efforts to create ‘artificial economic bonds of solidarity’ through planning. Given the pluralism characterising modern ‘open societies’ and the inherent limits of human knowledge, for them, agreement over purposes and the processing of information to achieve them was simply impossible and could only result in conflict or totalitarianism. Instead, social harmony and co-existence could only be achieved through the market, where different preferences and interests interact spontaneously to produce outcomes that satisfy a greater range of needs and ‘enhance for all the prospects of achieving their respective purposes’.Footnote 14 By coordinating the actions of individuals and groups with different ends, ‘cattalaxy’ – the abstract ‘order brought about by the mutual adjustment of many individuals economies in a market’Footnote 15 – would transform enemies into friends and, hence, secure lasting peace.
Contrary to their nineteenth century liberal counterparts, however, neoliberals did not believe in the inherent stabilityFootnote 16 or self-regulation of markets (i.e. that the peace of cattalaxy would arise spontaneously and that the market order could function autonomously). They rejected both the assumption that economic reason inhered in individuals and that society was characterized by a natural harmony of interests. Instead, the (formal and substantive) pre-conditions for a market order had to be established and continuously secured. Tellingly, alternatives to the term ‘neoliberalism’ have included ‘constructor liberalism’ and ‘positive liberalism’, highlighting its more interventionist dimension.Footnote 17
Formally, such conditions included a ‘strong state’Footnote 18 – there could be no liberal society founded on free enterprise and competition without government – as well as a strong legal apparatus, which scholars often highlight to denote the affinities between neoliberalism and ordoliberalism. Their theory of the state and of law differed, however, from their socialist counterparts. The state’s role was not to intervene in, but to police the conditions of, the market. And, contrary to regulatory law, the law should not prescribe concrete ends but consist of abstract rules of conduct that direct the actions of individual actors.
These rules were not, however, devoid of substance. As Whyte’s brilliant study of neoliberal human rights shows, they also had a moral dimension. The market, for neoliberals, pre-supposed the adoption of a ‘common ethical code’, ‘a set of individualistic, commercial values’ geared towards ‘the pursuit of self-interest above the development of common purposes’ which Hayek would call the ‘morals of the market’Footnote 19 and Mises the ‘market civilisation’.Footnote 20 Hence, the policing function of the state and law extended to securing those moral and, as we shall see, cultural pre-suppositions.
Their critique of socialism and classical liberalism, moreover, was not merely theoretical. As Innset highlights, Hayek ‘made the alleged impossibility of socialism into a question of epistemology, one of how knowledge is arrived at in a modern, intertwined world’. This position, Innset further stressed, entailed nothing short of a ‘whole new way of seeing markets’ as ‘mediators of modernity’ rather than mere ‘sites of commerce and exchanges’.Footnote 21 And it also had an ontological dimension. Given that individual freedom could only be secured through the market, contrary to classical liberalism, neoliberalism granted ontological primacy, and thus sovereignty, to the market, rather than the individual or the people.Footnote 22
Together, these had important practical ramifications. One is the infamous maxim ‘there is no alternative’, though not only as a political agenda, but as an epistemological truth. For neoliberals, the market is not only a superior, but the only possible, form of knowledge; that is to say, markets alone, to the exclusion of humans, are capable of the act of knowing. The other is the necessary subordination and adjustment of the whole of society, including its individual units, to the imperatives of the market order and the division of labour.
These theoretical, epistemological and ontological pre-suppositions about the superiority of the market also fed into their views about international peace and security. For neoliberals, the principles of international order should be developed out of and, with some adjustments, by analogy to the principles of the domestic order. Again, this placed them against both Marxist and classic liberal theory. Contrary to Marxists, capitalism was not the source of, but the solution to, war and conflict. Peace, therefore, could be achieved not by the abolition but by the universalization of the market order. Contrary to classical international liberalism’s understanding of the pacifying function of the market,Footnote 23 however, a spirit of commerce and free trade could not arise naturally from increased inter-dependence. Instead, the pre-conditions for the international market had to be established, which, in the international context, entailed the universalization of the market civilization (i.e. the law and morals of the market).
Again, the neoliberal position on war and peace had deeper roots and implications. Epistemologically, it was based not only on the pacifying function of the market, but also a methodological objection to what Popper called ‘historicism’Footnote 24 (i.e. the assumption that one can make historical predictions). Given the limited character of human knowledge, seeking to establish peace by identifying and eliminating the causes of war was not only unscientific or unreasonable but so impossible as to be absurd.Footnote 25 There is no alternative to the spontaneous peace of catallaxy. Ontologically, the sovereignty of the market applied to states as much as individuals and pre-supposed not only formal limitations on national sovereignty, but also a more substantive subsumption of statehood to the market logic. ‘What we envisage’, Röpke explained, is ‘not a national order which is an end in itself and which in the event of conflict sacrifices the international order but one whose line of conduct is fixed upon the principles of international order and whose whole social organization is fundamentally directed towards building up and supporting it’.Footnote 26
6.3 The Neoliberal Solidarity of CS: Policing the International Market Order
These premises and overall vision shaped neoliberal views of CS. In his conclusion to his 1940 The Quest for Peace, Rappard explained that lasting peace is possible between separate political units only in one of four hypotheses: (1) if there is no contact between them; (2) if they cooperate freely and fraternally; (3) if they are all subject to the supreme rule of one of them; and (4) if they all accept a common law to which they consent to sacrifice a share of their independence. Each corresponded to four types of peace: an undesirable peace of autarky; a fragile peace of cooperation, which prevailed under the League of Nations; an objectionable peace of subordination; and a stable, long-standing, ‘organised peace’.Footnote 27 For Rappard, the latter would be ‘to the international community what order is to a national community: the result of certain habits, certain principles, certain institutions, certain procedures and sanctions, which are intended to prevent the outbreak of violence’. Short of a world federation it would at least entail ‘a state of international relations based on the legal organization of the world of nations’.Footnote 28
Not all neoliberals shared Rappard’s optimism about the prospects of achieving the peace of catallaxy through a formalized system of CS, or international institutions and laws more broadly. Such was Mise’s position, who generally clung on to old free market ideals:
What is needed to make peace durable is neither international treaties and covenants nor international tribunals and organizations like the defunct League of Nations or its successor, the United Nations. If the principle of the market economy is universally accepted, such makeshifts are unnecessary; if it is not accepted, they are futile. Durable peace can only be the outgrowth of a change in ideologies.Footnote 29
Rappard himself, moreover, acknowledged not only the limitations of existing CS arrangements but the unlikely prospects of a world government with a proper world police.
Following World War II, things began to change. The establishment of the MPS in 1947 was driven as much by ideological affinities as by a feeling of deep alarm about the deepening crisis of liberalism and the broader crisis of civilization that it had led to as well as a sense of urgency to ‘rework’ liberal tenets to fit modern conditions. ‘Over large stretches of the Earth’s surface’, the founding statement of the MPS opened, ‘the essential conditions of human dignity and freedom have already disappeared’. And, since that ‘international crisis [was] only one part of the general crisis of society today’, according to Röpke, it could only be overcome by similar solutions (i.e. the establishment of a market order), to which neoliberals now had to urgently attend.Footnote 30
In this context of dread and moral panic, support for an ‘international framework of law and order’ backed ‘by solid sanctions’Footnote 31 and a strong international police that would learn from the League’s mistake grew. As early as 1945, Popper warned against the (utopian) belief that the laws and morals of the market order could ever be fully universalized. The ‘propaganda for ending all wars is self-defeating. We must end international anarchy, and be ready to go to war against any international crime’,Footnote 32 he insisted. Subsequently, neoliberal thinkers agreed. ‘The apparatus of modern war is so formidable, the cost of its maintenance so onerous, the dangers of actual conflict are so great, that we cannot afford to rely on spontaneous goodwill’, Robbins concluded in his 1969 investigation of the economic causes of war.Footnote 33
As Slobodian documents,Footnote 34 moreover, anxieties about international order increased with decolonization and the emergence of an increasingly militant third world seeking a new international economic order that clashed with the neoliberal vision, rooted as it was in the permanent sovereignty over natural resources and global economic redistribution. Röpke offers perhaps one of the most chilling articulations of the neoliberal mindset at that time:
What can all these things avail, what can the finest plans for an international order avail if the soul of each individual is disordered, if the political, economic and social structure of the individual nations does not fulfil the pre-requisites for an international order, in short, if the moral, intellectual, political, economic and social disorder in our society is not righted throughout its entire structure, beginning with the individual, and including the family, our fellow-workers, the local community and the whole nation? … What can be expected from international conferences and conventions under such circumstances? … Is there not a chance of [them] only developing into new sources of dissension instead of harmony for the nations as long as the latter are not sound within, and before their ethical and mental state, as well as their political and economic constitutions, have become mature enough for a far-sighted and generous universalism?Footnote 35
This new consensus never resulted in a comprehensive theory of international policing. But several neoliberals made suggestions about its characteristics, partly drawing an analogy with the policing function of the ‘strong’ neoliberal state (for a summary of some of its key characteristics, see Table 6.1). First, to restate the obvious, the aim of neoliberal policing is the pursuit of peace, not in the negative sense of the absence of military violence but in the more positive sense of establishing and securing the legal and moral pre-suppositions of international order (i.e. the international market civilization). This means neoliberal policing is broader than both wars against aggressors and law enforcement. Second, waging war on crime means intervening not only in cases of aggression or of armed conflict between states, but against all criminals, that is, enemies of the (open market) society, which include states and individuals alike. Thirdly, its beneficiaries were primarily non-state (economic) actors rather than states. Fourthly, temporally, neoliberal policing should be proactive rather than reactive, positive rather than negative. This meant an emphasis on crime prevention, including the ‘emergence of those policies which are eventually responsible for conflict’.Footnote 36 But also, to quote from Hayek, a focus on the ‘wholesale transformation’ of the ‘societies and ways of life’ of non-liberal societies. Spatially, finally, international policing should be universal, that is, it should cover all territories and societies.
| Solidarity | Neoliberal | League | Charter | Post-Cold War | Twenty-first century |
|---|---|---|---|---|---|
| Objective | market civilization | absence of war | negative peace | positive peace | comprehensive security |
| Status | legal | legal | legal | legal | legal |
| Character | instrumental | instrumental | instrumental | instrumental | instrumental |
| Targets | enemies of the (market) order | aggressor states | peace-breaking states | enemies of peace | enemies of security |
| Beneficiaries | humanity | states | states | states | humanity |
| Temporality | proactive | negative (deterrence) | preventative | pre-emptive | proactive |
| Spatiality | universal | imperial | partial | international | universal |
The practical consequences are far-reaching. Given the epistemological primacy of the market, in the face of hostility and resistance to market civilization, there is no alternative but destruction or elimination. Such cases, Popper argued in a statement that bears a chilling resemblance to the treatment of Iraq after the Gulf War, would justify the international community taking control of an aggressors’ resources, prevent its re-armament and administer it as an international territory, never to be returned. The ontological primacy of the market, on the other hand, meant such cases raised no conflict with state sovereignty or individual freedom. For Popper, a crucial difference remains between ‘civil and international peace’ and hence between domestic and international policing. The function of the state is to protect ‘its units or atoms’ (i.e. citizens). But, given the state is not a ‘natural unit’, the same cannot apply to international organizations, which should therefore aim to protect not their constitutive entities, namely states, but individuals within states. Breaking the ‘political and military power’ of aggressors, Popper stressed, in no way undermined the interests of individual citizens who could still engage in legitimate economic activities.Footnote 37
Only Rappard explicitly envisaged the legal basis of international policing as a form of ‘international solidarity’. But to the extent that solidarity constitutes the legal expression of the system of policing, as it does in the actual CS, then we could summarize the above by saying that neoliberal solidarity involves a legalized obligation upon the ‘open’ international society to expand and secure, by whatever means, the legal, institutional and moral pre-conditions that alone can produce peace and that therefore prevail over any notion of popular or national sovereignty. Neoliberal solidarity is not an act of common political will for a concrete purpose. It is an institutionalized duty to collectively, blindly and wholly commit to whatever action is needed to secure the universalization of the market civilization.
6.4 Solidarity in the Law of Collective Security: Towards a Neoliberal Utopia?
6.4.1 The League Model: Planting the Neoliberal Seeds?
To what extent has this neoliberal vision shaped the emergence and development of CS as a form of international solidarity? The system of CS was first introduced by the Covenant of the League of Nations. Under Article 10, all League members undertook to ‘respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League’. ‘Should any Member of the League resort to war in disregard’ of the Covenant, Article 16 continued, ‘it shall ipso facto be deemed to have committed an act of war against all other Members of the League’ and be met with economic sanctions, backed by force if necessary.
The duty of solidarity was from the outset influenced by proto-neoliberal ideas. Many saw the system of CS as marking the beginning of a new world order,Footnote 38 which broke with nineteenth century liberalism. Rappard, moreover, explicitly associated his vision of an organized peace with Wilsonian idealism, the seeds of which, he claimed, had been planted with the creation of the League and the ‘principles of active solidarity’ enshrined in Articles 10 and 16.Footnote 39
In line with neoliberal prescriptions, with the introduction of CS, the problem of war and international peace indeed became a problem of law and order.Footnote 40 The duty of active solidarity marked the first time that sovereignty – then largely an attribute of colonial powers – was limited in pursuit of the higher end of international peace and security based on a common moral condemnation of war as instrument of international politics. It was also the first time that commitment took the form of a legal obligation superseding other international commitments and enforceable against any of its members. From that perspective, the duty of solidarity provided the basis of an embryonic form of international policing, similar to the policing of domestic crime, changing the nature of war from a private institution between belligerents to a public war against an ‘internal enemy’ and bringing an end to the principle of neutrality.
At the same time, the duty still bore the imprint of the ‘old world order’.Footnote 41 The duty’s object was the pursuit of negative peace, that is, the absence of war – internal law and order, including colonial wars, remained under state jurisdiction. The duty’s targets and beneficiaries were States rather than individuals – solidarity was designed to protect the territorial integrity and political independence of its members from aggression by another State. Legally, the duty was ‘imperfect’ in the sense that states were free to determine whether an act of war had been committed. Temporally, solidarity was negative: collective action was meant to deter aggression.Footnote 42 Spatially, its reach was limited: the US, notoriously, refused to join the League, and colonized and semi-colonized territories were altogether excluded from its purview. Epistemologically, the system was based on the idea that violence could be prevented and, ontologically, it was grounded in the superiority of the state and the political (as opposed to the international market, and the economic sphere). In that sense, the duty of solidarity was closer to a system of collective self-defence based on the common interest of League members to avert war, than the normative expression of a truly international system for policing crime.Footnote 43
For neoliberals, the limited nature of solidarity signed the League’s death warrant. For Robbins, the League made the ‘weaknesses of a mere association of sovereign states’ and the ‘possibility of a harmony of interests between them … painful evident’ and warned that the ‘realisation of the principles of liberalism in the international sphere’ would not succeed ‘so long as CS is driven merely by the idea of common interest and the futility of violence’. Similarly, Rappard was adamant that the League failed because of the prioritization of sovereignty over international solidarity,Footnote 44 as well as its European, rather than ‘universal’ character,Footnote 45 which both weakened and limited the powers of the world’s policeman.
6.4.2 The Charter Model: Two Steps Forward, One Step Back?
Following the demise of the League of Nations and the outbreak of World War II, the duty of solidarity re-emerged in the post-World War II order through a range of obligations states have undertaken under the UN Charter. Central to the duty is the member states’ conferral, in Article 24, of primary responsibility for the maintenance of international peace and security to the UNSC and their commitment under Article 25 to abide by its decisions. Its substantive and operational scope are then defined in Articles 39, 41 and 42, which give the UNSC the power to ‘determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and to ‘decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’.
The Charter model of solidarity stood in a no less ambivalent relationship to neoliberal ideas than its predecessor. Many scholars described the UN as a structure set up by the Great Powers to maintain order and the UNSC as a ‘police officer’ set up to pursue ‘international police action’. Linguistically, there was a marked shift in vernacular, from the language of ‘war’ and ‘aggression’ to the language of peace and order.Footnote 46 Formally, the duty of solidarity in Article 25 no longer depended on state discretion, but was to be activated by a centralized quasi-executive authority whose decisions states were bound to follow. Its targets were not only aggressors, but peace-breakers (i.e. ‘enemies of the peace’). Temporarily, the duty acquired a more proactive dimension, triggering solidarity-based action in the face of not only aggression but also threats to the peace. And spatially, too, its scope expanded in that it applied to almost all sovereign entities.
But, if these brought CS closer to the neoliberal idea of international policing, the system of the UN Charter was still premised on the ontological superiority of the state. Internal order remained the preserve of states. Under Article 2(7), the UNSC could not intervene in matters which are essentially within the domestic jurisdiction of states. And the maintenance of international order was not universal in the sense of applicable to all UN members. Instead, in line with Churchill’s vision of the World’s ‘Four Policemen’, international police power was placed in the hands of powerful states, which, by means of the veto, both immunized themselves from police actions and held the ultimate say over the scope of international policing. As we shall see, Rappard was extremely critical of the veto and the UN system of CS.
6.4.3 The Post-Cold War Model: Building Neoliberal Peace?
Few of the early neoliberals lived to see and assess the many changes that the system of CS underwent after the end of the Cold War. But it is more than plausible they would have viewed them positively. The formal architecture of CS remained the same, including the veto, which hence limited the territorial reach of international policing. But new socio-economic and geopolitical conditions enabled a far-more expansive reading and more frequent exercise of the powers of the UNSC bringing the law and practice of CS much closer to the neoliberal idea of international policing.
The aim of CS shifted decisively to the realization of a ‘positive peace’. Many identified it with liberal peace, that is, the promotion of liberal values and institutions. The UNSC now intervened primarily in response to internal conflict or instability. Temporarily, the CS shifted from ‘a culture of reaction, to a culture of prevention’.Footnote 47 Punitive sanctions or peacekeeping operations were now supplemented by a variety of far more forward-looking instruments, from peace-building missions to the international administration of territories. And, finally, with formal decolonization, the territorial reach of policing expanded to cover the entire world.
The affinities with neoliberal thought deepened following the war on terror. The aims of CS now build on a ‘new security consensus’ characterized by a comprehensive approach to collective security and rooted in the ‘inextricable link of security, economic development and human freedom’.Footnote 48 Its scope expanded to include not only threats to the peace, but all threats to ‘human security’ independent of their impact on state security. As a result, non-state actors were included as both targets and beneficiaries of CS. Temporarily, its coordinates shifted yet further, embracing a pre-emptive risk-based approach that required not only action based on risk or suspicion, but regulatory, quasi-legislative initiatives binding on all. Spatially, CS intruded in spaces from which it was previously excluded, running deep into the governance of the state and the lives of its population. It became increasingly polarized along friend–enemy lines, requiring not only the transformation and disciplining but also elimination of the enemies of security.
This new system also had epistemological and ontological implications, even if these are not always explicitly articulated. Epistemologically, the system shifted away from the romantic ideal that war and violence could be prevented towards a more pragmatic and forceful commitment to the everyday administration and containment of crime. Ontologically, the focus shifted decisively away from the state and state sovereignty. The state was now seen to have only an instrumental, rather than intrinsic value. And sovereignty was redefined away from the Westphalian model of ‘sovereignty as autonomy’ epitomized by the principle of non-intervention towards a model of ‘sovereignty as responsibility’ where sovereignty was conditioned upon the states’ ability and willingness to secure the livelihood of its subjects.
6.5 Challenging Neoliberal Solidarity
6.5.1 Critiques of Solidarity in the Law of CS
6.5.1.1 Realist Critiques: Between Unfulfilled Promise and Unrealizable Utopia
Why does this excavation of the neoliberal underpinnings of the solidarity embedded in CS matter? There is no shortage of critiques of the system of CS and, at least implicitly, of the duty of solidarity that underpins it. One strand, which we could call ‘realist’ without implying that its proponents necessarily subscribe to a realist theory of international relations, incorporates realist insights into classic liberal idealistic and/or legalistic understandings of CS,Footnote 49 bringing attention to how politics, power and sovereignty limit the possibilities of realizing the solidarity of CS. Such limits include the de facto dominance of powerful states, particularly the United States, who successfully co-opt the system of CS to pursue their interests. They also include the ‘legalized hegemony’Footnote 50 embedded in the veto of the permanent members of the UNSC, as a result of which solidarity is subject to the solidarity between the great powers, alongside the agreement of members of the UNSC. Historically, these limits are associated with the ‘dark periods’ of the UN when solidarity proved impossible because the UNSC was either paralysed or side-lined, most notably during the Cold War. Geographically, they have carved out ‘non-solidarity’ zones, spaces, people or issues that are either immune to, or do not benefit from, the effects of solidarity, depending on whether the emphasis is on solidarity as a disciplining or protective tool.
Building on Koskenniemi’s broader approach to international law as a system oscillating between apology and utopia,Footnote 51 Danchin, for example, sees CS being caught in an oscillation between a balance of power model (apology) and a world government model (utopia).Footnote 52 In the specific context of the UN Charter, this oscillation manifests itself in the various mechanisms designed, on the one hand, to preserve state freedom and autonomy (e.g. the principle of equality of states; the right to self-defence; the principle of non-intervention in domestic affairs) and on the other, to restrain state power (e.g. the prohibition on the use of force; the UNSC’s primary responsibility to protect international peace and security; and the duty of solidarity itself), resulting in a paradoxical ‘hybrid collective security system’, an ‘order without government’.Footnote 53
From this perspective, notwithstanding its legalization in the UN system of CS solidarity is at best an unfulfilled promise, and at worse an unrealizable utopia, that will remain caught in the politics of the international legal order.Footnote 54 The latter may explain why solidarity in the context of CS does not feature prominently in recent studies which see it as a principle designed to move the international legal order away from its ‘outdated’ focus on ‘promoting the self-interest of States’ to one ‘that pursues common (community) interests and attempts to find solutions to problems affecting all humankind’.Footnote 55 The former is why international policing has had nothing to contribute to two of the most deadly wars of our present: Russia’s war on Ukraine and Israel’s war on the Palestinian people.
6.5.1.2 Critical Approaches: From Differentiation to Domination
Critical scholars have gone further, highlighting the illiberal or neo-colonial dimensions of international law and, hence, CS. Examples of the illiberal critique include Buchan’s distinction between an international community of liberal states and the broader international societyFootnote 56 or Simpson’s distinction between Charter liberalism and liberal anti-pluralism.Footnote 57 Both distinctions are deployed to frame changes to international law and highlight how, after the Cold War, sovereignty was re-defined to pre-suppose liberal democratic government, turning CS into a means to enforce liberal norms against non-liberal states. Examples of the neo-colonial critique include Anghie’s framing of the UN global war on terror as a continuation of the colonial distinction between ‘civilized’ and ‘non-civilized’ societiesFootnote 58 and Orford’s work on the responsibility to protect.Footnote 59 These approaches cast the shift to sovereignty as responsibility as a new form of neo-colonialism.
For these scholars, solidarity is, at best, discriminatory (i.e. based on double-standards) and, at worst, a tool of neo-colonial domination. Its targets are primarily countries of the global south, various ‘rogue’ or ‘failed’ states and other disobedient actors. For the illiberal critique, this is because of the consolidation of liberal hegemony. For the neo-colonial critique, this is because of solidarity’s colonial antecedents. Indeed, as has been remarked, in the nineteenth century the concept of solidarity was used as ‘a justification for colonial domination’ when ‘responsibility of states to one another became the “civilizing mission” of European states in their quest for colonial control over the population of other states’.Footnote 60
6.5.2 Limitations
However insightful these critiques are, their neglect of the neoliberal underpinnings of the solidarity of CS may lead them to reproduce the neoliberal status quo. Without engagement with the ideological and political content of solidarity, realist arguments risk promoting the legalization of neoliberal solidarity. Neoliberals were very critical of the veto power and more generally of the politicization of international law: their project, if anything, was precisely about limiting, if not erasing, politics from the operation of the international order. This included limiting democratic influences and the power of newly emerging post-colonial states, but also hegemonic capture. Rappard, for example, condemned the Charter for creating ‘two distinct sets of rights and duties’Footnote 61 and effectively placing the P5 ‘above the law’. This, he claimed, had no precedent in either international law or domestic law and had created an ‘international aristocracy of the powerful … endowed with almost unlimited authority over the underprivileged masses’ and ‘impunity in case of violation of their pacific covenants’.Footnote 62 Far from the expression of the collective will of an international community, the duty of solidarity was in reality subordinated to, and hence but the normative manifestation of, the will and interests of the P5. This fitted into his broader condemnation of a ‘peace of subordination’ based on the supreme rule of one over the whole, which he associated with the Pax Romana or the Franco–British hegemony of the 1920 and 1930sFootnote 63 and which could be extended to the post-Cold War Pax Americana. Might may take precedence over right in times of war, he explained, but ‘in the long run, peace can be maintained only by the subordination of might to right’.Footnote 64 The realistic critique, in other words, is far from incompatible with neoliberal solidarity.
Without engagement with neoliberal ideology, on the other hand, the critical project might fail to challenge the specific ways in which exclusion, discrimination and neo-colonial forms of domination work themselves through the (neoliberal) duty of solidarity today.
Market civilization pre-supposes universal formal inclusion, and, to that extent, universal legal subjecthood and formal equality between states. In its utopic iteration, the neoliberal project indeed consists of the universalization of the laws and morals of the market. Although they were no anti-imperialists,Footnote 65 many were critical of the old colonial order. As we saw, Rappard disparaged the UN Charter for violating the principle of sovereign equality. And he viewed the mandate system as a medium for integration and assimilation, not for permanent control over mandate territories. Even Mises, the most open proponent of racial hierarchy, deplored the prevalence of the militarist-imperialist principle, which interprets human society as ‘forcible repression of some of its members by others’ rather than the ‘friendly division of labour’ and the ‘development of trade’ that underpins the ‘peaceful principle’.Footnote 66 As such, formally, neoliberal solidarity was not meant to be applied in a discriminatory or neo-colonial fashion.
But the realization of market civilization does not preclude hierarchy and domination. In fact, it presupposes both. As we also saw, neoliberal support for a strong international policeman to the enemies of the open societies was rooted in two assumptions. The first is that the market civilization would not spread spontaneously but had to be enforced. Forceful intervention in non-liberal states is therefore inherent in the neoliberal understanding of peace. The second is that, even with strong enforcement mechanisms, the spread of the laws and institutions of the market (i.e. of liberal states and institutions) can never be fully realized. This assumption may have been partly based on empirical observations. Many individuals and states did not embrace liberal ideas, indeed one of the dominant ideologies of the time, socialism, openly disparaged them. But it also came to be based on deeper presuppositions. Overtly or not, for neoliberals, not all individuals and societies display an equal aptitude to the market, which is shaped not only by ideological posture, but cultural, racial and gendered traits. Recent work has shown that none other than Hayek separated ‘mankind into a civilised and an uncivilised part’.Footnote 67 At first, this was premised on the distinction between liberal and illiberal societies, which he acknowledged had to be subject to different rules. But, gradually, Hayek not only came to associate (market) civilization exclusively with Western liberal values but also to see non-Western liberal societies as inherently aggressive.Footnote 68
From that perspective, there is no contradiction between liberalism and liberal anti-pluralism: under its neoliberal reincarnation, liberalism pre-supposes anti-pluralism, that is, the unequal application of norms of international law such as the principle of non-intervention and the suppression, by whatever means, of non-liberal societies. Neither is there a contradiction between an international community of liberal states and the broader international society of states: states can only exist as independent equals if they abide by liberal values; there can be no international society of states outside the international community of liberal states. Nor, finally, is there a contradiction between the market civilization and neo-colonialism: peace depends on inequality and domination. This, moreover, is no ideological preference or material fact: it is the natural order of things. Epistemologically, there is no alternative to tackle violence than legalizing the discriminatory and neo-colonial solidarity of the market. And ontologically, such solidarity is ‘naturalized’: both individual legal subjecthood and sovereignty can only exist if they align with the rules of the market civilization.
More generally, existing critiques of CS and international law may underestimate the deeper ideological work and struggle required to re-direct solidarity towards the achievement of more emancipatory objectives. The UN draft declaration on the right to solidarity speaks of solidarity as a universal spirit of unity purposively mobilized to direct common action to tackle the many challenges of our age of catastrophe. But, under a neoliberal paradigm, this is pure fantasy. Only the international market is capable of integrating ‘all mankind into a single society’ and hence solidarity is not a ‘spirit of unity’ but an existential universal duty to abide by market rules. And any ‘method of creating solidarity’ through the identification of common ends would be to revert to the social and political model of ‘closed’ societies, that is, a sign of tribalism and backwardness.Footnote 69
6.6 Conclusion
I began this chapter by raising two questions: is solidarity immune to the neoliberal ideology and practices that have characterized the last three decades and does the ‘solidarity turn’ offer a promising way forward in terms of tackling the many crises that characterize our ‘age of catastrophe’? My answer is a qualified no. The example of CS certainly shows that no idea or practice, solidarity included, is inherently ‘good’ or exists outside the systems of knowledge and structures that have shaped the international legal order. Reaching out to ‘solidarity’ as a principle or normative ideal is no magic way out of the crisis. This does not mean there is no scope for re-purposing solidarity in emancipatory directions that break with the market logic traversing international laws and institutions. But to do so, I warned, may require a renewal of the project of critique.
Here I focused on illustrating the need for greater engagement with neoliberal thought in our understanding of solidarity in international law and discourse. However, an emphasis on ideas, as the present chapter offered, is not enough. The possibilities and limits of international solidarity do not reside only in the matrix of assumptions and ideas that shape international law but in its material basis, specifically in the material basis of (neoliberal) capital accumulation. Racialized, gendered and cultural hierarchies, market competition and extractivism might have deepened in the neoliberal age, but these remain an expression of the logic of division, competition and extraction underpinning a system defined by the valorization of capital. Only by also attending to this capitalist basis of international law can we hope for progressive solutions to the current crisis and, ironically, this may partly require not a global commitment to unity and common action, but many solidarities that aim to challenge and disrupt the ‘natural’ status quo.
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