(image source: forum historiae iuris)
I published an article on Forum Historiae Iuris, the peer-reviewed electronic journal of the Max Planck Institute for European Legal History.
Find out more here (xml-version, pdf).
Abstract:
French President Charles de Gaulle (1890-1970) was a controversial figure on the international scene during the Cold War. He steered an original and provocative course bordering on independence from the bipolar structure of post-1945 world politics. De Gaulle’s combination of national independence and a global appeal to state sovereignty casts a long shadow over foreign policy debates in France and in Europe. Although his references to the long run of geopolitics, to history or to “Grandeur” seemed to run against the course of history for many contemporaries, de Gaulle’s discourse can be linked up with timeless normative understandings between states. Self-determination, national legitimacy and independence are the precondition to a system whereby state consent creates norms.
The present contribution concentrates on the legal arguments employed to support de Gaulle’s audacious speeches, travels and press conferences. My analysis aims to complement classical diplomatic history. Law is seen as a vector of consensus, used to attract partners in a horizontal normative environment. During the Cold War, vertical integration within ideological blocs was a consequence of military and strategic necessity. However, the balance of nuclear deterrence created political leverage for second-rank states, conformable to the fundamental legal values of liberty and equality as essential components of sovereignty within international society. Sovereignty can be seen as a pretext to undermine collective structures, but is a recall of states’ double quality as both legal subjects and norm creators. The common liberty of all actors in the international arena is a bulwark against top-down descending unification. Bottom-up legitimated notions of justice and law resurface when we analyse primary sources in detail. Pragmatic political discourse and normative legal discourse are constantly cross-disseminated. International relations are not legal at an instant and political at another, but bear the same, mixed taint at every instance.
This article starts by sketching the implications of Second World War on the traditional European system (A) and will then address the three main areas of French foreign policy in the 1960s (B): Political intergovernmental cooperation, supranational economic integration, and the nature of the transnational military and strategic partnership.
De Gaulle’s perturbing diplomatic action had a double objective. On the internal front, he strived to restore national pride after the Algerian imbroglio, and to mark a turn-around for the French economy. On the external front, he wanted to recall the perpetual rules of international relations to the hegemonic power within the Western bloc. Both were intimately linked . The United States, imbued with a missionary conviction that their action would ultimately lead to stability and peace through the rule of law , had to be reminded that the international society functioned as an arena. For de Gaulle, every state (including the new ones, created in the wave of decolonisation), had a legitimate claim to further its own national interest, irrespective of supranational order . The order propagated by the Americans entailed a consensus around values which de Gaulle found naïve. For de Gaulle, there was no genuine “common international interest” behind the structure of the post-1945 international organizations, but merely badly disguised attempts to manipulate allies . A Europe of States, “from the Atlantic to the Ural”, did not distinguish between East and West, whereas, for Washington, including the former would be impossible .
Yet, distinct sets of values and geopolitically determined interests did not necessarily entail armed confrontation, but reflected a realist perspective on international relations. Polycentrism, echoing the horizontal order after the Peace of Utrecht (1713 ) or the 19th Century Concert of Europe, was achievable. Not in terms of physical capability, but in terms of political decision centres, where international discourse could be mastered independent from the leading ally . De Gaulle was convinced that his opinion was so self-evidently internally valid and reflected structural necessity for the international system, that history would prove him right .
The jurist’s position in specific political discourse is very close to complete apology. De Gaulle saw political will as the prima donna of international lawmaking (as the Luxemburg compromise, and the Fouchet proposals demonstrate) and relied on the unilateral interpretation of agreements (cf. the NATO decisions of 1966). Yet, de Gaulle’s advocacy of the international arena as one of confrontation did entail a minimum consensus on values. In itself, the promotion of a multipolar and egalitarian international society is a normative principle, relying on reciprocal consent and advantage, inextricably linked with a European tradition of diplomatic culture, which functions as the nurturing and mutually influenced infrastructure of legal discourse.
