Paradigms

ISSN: 0951-9750 (Print) (Online) Journal homepage: http://www.tandfonline.com/loi/cgsj19

Constituting a new world order: What states,

whose will, what territory?

Mervyn Frost

To cite this article: Mervyn Frost (1994) Constituting a new world order: What states, whose
will, what territory?, Paradigms, 8:1, 13-22, DOI: 10.1080/13600829408443059

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 Paradigms, Vol.8 No.1 Summer 1994
Constituting a New World Order:
What States, Whose Will, What Territory?
by Mervyn Frost

In International Relations Theory, Chris Brown writes:

... most of the time a practical discourse ... works within a carefully
delineated area and is not required to explain and justify its most
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fundamental assumptions. Sometimes, however, fundamental

questions do come to the surface, basic assumptions are challenged,
and when this happens what is required is an overarching conception
of the world which can provide a coherent account of the essentials of
human existence.1
He was referring to the discourse of strategic studies, but the point is
applicable to other discourses including the practical discourse of
international relations. During the long period of the Cold War there
was, both among scholars 2
and practitioners, a well settled discourse of
international relations. Within this discourse there was a long list of
settled norms.3 Recent developments in Eastern Europe have brought
some fundamental questions to the surface which require us to produce
"an overarching conception of the world which can provide a coherent
account of the essentials of human existence." Such a theory may
usefully be termed a "background theory" in that in the normal discourse
of international affairs both theorists and actors have little need to refer
to it, but assume it as a backdrop. However, when circumstances change
and hard cases are produced, it is useful to refer to the background
theory to produce answers to apparent contradictions and tensions within
the settled norm.
In this chapter, I shall, once again, argue the merits of what I have
called, "the constitutive theory of individuality" as the best available
background theory capable of providing answers to the hard cases posed
by those claiming the right to establish new states in Eastern Europe.
I shall proceed as follows. First, I shall explain why claiming the right
to establish new states presents international normative theory with a
hard case. Second, I shall examine how constitutive theory provides
answers to these cases, and finally, I shall look at a few of the
implications of using constitutive theory in this way.4 To understand the
emergence of this hard case we must examine the stable discourse with
its settled norms which existed prior to the profound changes of the last
two years.
 14 Paradigms, Vol.8 No.l Summer 1994

The Stable Political Map of the World

From about the end of the period of decolonisation it was accepted in
the practice of international relations that what was given was a world
divided into territorially defined states. The static political map was a
settled norm. There was widespread acceptance that wars of aggression
aimed at redrawing the map were illegitimate. Direct imperialism was
prohibited. The international reaction to the Soviet invasion of
Afghanistan proved the rule.
Acceptance of this norm did not preclude the super-powers competing
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with one another for influence in different parts of the world. They
struggled for power and influence in most quarters, but in doing so what
they sought was not formal colonisation. Rather, they sought to change
the political systems within states to their preferred model, liberal
democratic or communist. Where this level of macro change was not
achievable they rested content with the more limited goal of securing the
allegiance of the government of the day.
In summary, then, what was settled was the given division of the
world into states. This norm was complemented by another settled norm,
which was that the states marked out by the static map should be places
within which the local people could govern themselves. It was settled
that these states should be self-determining democracies. This is not to
say that most (or even many) of the states were democracies. Nor is it
to say that there was widespread agreement on what democracy, properly
so called, is. What I am asserting is that it was widely accepted that
those states which were not democracies (however defined) had to make
excuses for not being such and had to profess a commitment to moving
in that direction. Also, the democratic norm clearly ruled out other
norms as inadmissible. The coverage of the democratic norm was that
states could not legitimately revert to absolute monarchies, dictatorships
and the like without indicating how this would, in the long run, help
progress towards democracy.
Within the domain of discourse which I have been describing with its
settled norms (I have only mentioned two; there are/were many more)
international relations scholars studied the way these states interacted
with one another. They studied the power play between them.
Normative theorists among them focused mainly on questions about the
legitimacy of boundary crossing (ie., on the legitimacy of intervention)
and on questions about what duties citizens owed to foreigners
(protecting rights, securing redistribution of wealth, preventing famine
and so on). They were also concerned with the circumstances under
which war could be justified and how wars ought to be fought.
 Constituting a New World Order 15

Of course, there were secessionist movements (in Canada, Spain,

Ethiopia, Sri Lanka and South Africa to mention but a few), but such
movements had to make their case against the background of the settled
norm. Both in theory and practice the secessionists made little progress.

The Emergence of a Hard Case

In the wake of recent developments in Europe, it appears that the
settled norm about the static map is no longer in place. I need not
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rehearse the details about the ending of the bipolar world, the breakup
of the Soviet Union, the emergence of a slew of new states in Central
Europe, and the recognition a_ccorded by the international community to
new states emerging from the dissolution of Yugoslavia, the division of
Czechoslovakia and the reunification of Germany. The map has been/is
being redrawn.
The drawing of the new map started with the recent history of events
in the USSR. Initially, most people viewed perestroika and glasnost in
the USSR as a triumph for the well settled democratic norm pertaining
to democracy. A set of states which had previously been less than
democratic were seen to be moving in the direction of" internal reform.
The marches in capital cities by hundreds of thousands of citizens were
seen as referenda endorsing the long settled democratic norm. The
people were expressing their will and what they willed was democracy.
But this could not simply be understood as a victory for the long
established democratic norm. For it turned out that the people in the
regions did not simply want to reform existing states by moving them in
a democratic direction. What they wanted was the establishment of new
states and they showed themselves prepared to fight for these.
We can now see the hard case emerging. In international discourse
it no longer suffices to express oneself in favour of democratic reform
within states. Now we who are involved in the practice of international
relations (ie., all of us) have to answer the hard question: for whom (for
which people, for which nation, for which ethnic group, for which
association) are we in favour of democratic self-determination?
At the heart of all that I have said above is the question, "what is a
people?". In the old order the settled norms committed us to endorsing
democracy within the existing states. Now we are asked, "what existing
and nascent states should be supported?". It is of little use saying that
the people themselves should determine what new states ought to come
into being. For what we need to determine is which people's will is
determinate here. Peoples are not neatly packaged into easily
identifiable units. Also, in spite of the widespread acceptance of the
 16 Paradigms, Vol.8 No.l Summer 1994

principle of self-determination, it is not generally accepted that any group

which defines itself as an ethnic group, a nation or a people has a right
to its own state. By what criteria are we to make judgements about what
constitutes a legitimate claim for the setting up of a new state?

What Background Theory? Four Possibilities

We find ourselves within a practical discourse of international
relations. Circumstances have changed and have presented us with cases
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not neatly covered by any of the existing settled norms. It is not as if the
whole discourse has collapsed. Large parts of it are untouched. Many of
the old settled norms remain settled, and a majority of these are still
acknowledged by their players in world politics (including the people in
the areas with fluid boundaries). The existence of states is still
acknowledged as a good, and so is the existence of the international
system of sovereign states, the protection of human rights, that peace is
better than war, that democracy is better than autocracy, that
international law is a good and so on. These provide a point of departure
from which a background theory can be constructed to solve the hard
cases.
What background theory best justified the old order within which it
was taken as settled that the existing set of sovereign states with their
given boundaries was a good to be preserved? Let me mention four
background theories that held some currency. First, Hedley Bull argued
that the system of states was good because it preserved order and that
is why rational people should will to retain it.5 Second, in the work of
Kenneth Waltz the argument is found that the system of states is
justified because6 it is the system most likely to maximise utility and to
minimise harm. Third, human rights theorists, like Michael Walzer for
example, argued that the only reason for supposing a state to be
legitimate would be if it reflected a freely arrived at contract between its
citizens.7 Fourth, I have argued in terms of what I called constitutive
theory that the system of states is best justified as providing a framework
within which people can be constituted as8 citizens and that this is an
essential requirement of free individuality.
Let us look at how these might be taken to apply to the hard case
presented by new claims for statehood. In terms of the four background
theories mentioned above, we get the following points. First, states are
to be protected against aggression because this will ensure order.
Applying a background theory of order to the question of the new states,
it follows that recognition ought to be granted only to those new states
which will secure order. I presume we would have to assume that the
 Constituting a New World Order 17

reference here is to order both internal and external. What we would

find unacceptable about this is that it would recommend that recognition
be granted to the most brutal leviathan. In this view a tyrant who
preserved order ought to be recognised. This would be a straight
legitimisation of might as right. In Yugoslavia this would require of the
international community that it support whichever group seems most
able to impose order on the anarchy which prevails there. Second, states
are to be protected because they maximise utility. Applying this criterion
to new states, new states which maximise utility ought to be recognised
and protected. Besides the well known problems involved in measuring
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utility this raises the unacceptable prospect of recognising a state within

which utility is maximised through the repression of some minority (or
minorities). This principle would legitimate Iraqi repression of Kurds if
this could be shown to maximise utility in the region. Third, states are
to be protected insofar as they protect human rights and are based on a
founding contract between the rights of holding citizens. The application
of this to the problem of new states produces the situation that where a
group of people contract with one another to form a new state, this
should be recognised and protected. Two problems spring to mind here:
not all existing states can plausibly be said to rest on such a contract.
Moreover, it raises the problem of why a small group which contracts to
form a new state should override the contract of what might be a much
larger group which contracts not to allow the small group to break away
from the larger group. This may be put another way by asking: does my
option to exit our association always outweigh your choice that I stay in
the present arrangement? (If the Zulu's or the Afrikaners opt for
independence from the rest of South Africa must this be granted to
them?). It must be pointed out here that to allow the exit option to
trump prior contracts and arrangements would pose particularly difficult
economic problems. Should those in rich areas of an existing state have
the right to declare UDI and leave the people in poor areas destitute?9
Finally, states ought to be recognised and protected because it is only
within states that individuals come to have the rights of citizens and this
set of rights is constitutive of free individuality. Applying this to new
states informs us that new states ought to be recognised10insofar as they
establish full citizenship and advance free individuality.

Constitutive Theory
A significant strength of constitutive theory is the way in which it
links the settled norm that accords value to human rights with the norm
that accords value to sovereign statehood. Unlike the other three
 18 Paradigms, Vol.8 No. 1 Summer 1994

background theories mentioned above11it does not see the value of the
state in purely instrumental terms. Instead, it shows how fully
autonomous individuals are constituted as such within states. It is only
within states that individuals come to be citizens and citizenship is a
requirement for free individuality.
It is, of course, true that not all states provide a framework for
freedom. Only those which embody constitutional government, the rule
of law, the separation of powers, an effective and impartial
administration and so on, do so. Thus, constitutive theory cannot simply
be seen as an endorsement of the status quo - an endorsement of all
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existing states.
At this point it is important to be clear about what constitutive theory
claims to do and what it pointedly does not do. It claims to bring into a
coherence a set of norms which are widely accepted in the international
community of states. But it does not suggest that all actors who profess
adherence to these norms actually follow them in practice. A relevant
parallel here is that not all people who profess a commitment to the
norms of promise keeping, respecting the rights of others and so on, do
so. I make these points to rebut a criticism of constitutive theory made
by Brown in International Relations Theory. He argues that because
most states do not provide the conditions for free individuality outlined
above, they are not entitled to claim sovereignty for themselves.12 His
argument seems to be that the fact of non-adherence to the professed
norm undermines the plausibility of constitutive theory as a satisfactory
background theory.
In respect to Brown, I want to suggest that what constitutive theory
gives us is a perspective from which we can judge sovereignty claims -
even the sovereignty claims of those states which do not properly
constitute free individuality. It demonstrates that sovereignty is not to
be conceived of as an absolute value seen in isolation from other values.
Those states claiming it for themselves are forced by constitutive theory
to see that their sovereignty claims must be seen as bundled together
with other norms. Where the states claiming sovereignty are not
providing the other dimensions needed for freedom within their states,
their claims are to that extent diminished.
I suggest that this is the implicit normative dimension in Robert
Jackson's Quasi States: Sovereignty, International Relations and the
Third World in which he analyses the notion of sovereignty as it pertains
to many third world states.13 He shows that these states fail to provide
many of the functions which are definitive of sovereign states in the
developed world. Jackson's analysis is in terms of the lack of capacity of
these states. Implicit in this is a judgement about what states ought to
do. If this is correct we must judge that these states are guilty of a
 Constituting a New World Order 19

moral failure to provide a framework for the constitution of free

individuals.
That many states have not lived up to the demands of the constitutive
package that comes with sovereignty is not a reason for rejecting
constitutive theory.14 Indeed, if they did live up to the demand there
would be no need for the theory. The theory gives us a useful way of
thinking about sovereignty and its links to other political values.
Sovereignty does not simply require of other people and states that they
refrain from boundary crossings (interventions) come what may. It
requires of outsiders that they do what they can to secure sovereignty as
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a framework for freedom with all that that entails.

An analogy may be useful here. It is generally recognised that
families have a right to a, measure of autonomy. This notion is
underpinned by more profound theories about the ends that family life
embodies. Where the family unit breaks down social workers might
intervene, but in their intervention they do not neglect the family as a
unit and direct their attention at the people involved seen as free floating
individuals. Instead, the social worker focuses on the whole, that is at
the task of putting the family back together - on recreating family life.
Constitutive theory calls for a similar endeavour internationally. What
is called for is international social work to facilitate the creation of
sovereign freedom-creating states.
Let me put all this yet another way. According to constitutive theory,
to make a sovereign claim is not to close the door on international
intervention, but to declare yourself open to inspection across a whole
range of social values such as human rights, democracy, the rule of law,
constitutional government, international law, and so on through the
whole list of settled norms.

Constitutive Theory and the Recognition of New States

In this discussion it is important that we remember that we are all
participants in that discourse which constitutes the international
community of sovereign states. We are all insiders of this practice. This
is quite different to the circumstances which pertained .until quite
recently. In earlier times there was the community of states and then
there were those outside of this community - those beyond the pale. An
important normative question then might have been "how should we
treat outsiders trying to come in - trying to cross the line?". The hard
questions we face now are different. They are questions about people
already in our community, i.e., people who are already members of the
community of states.
 20 Paradigms, Vol.8 No. 1 Summer 1994

The people submitting a claim for the establishment of a new state (a

claim for self-determination) are constituted within our existing practice.
The existing practice includes a hierarchy of institutions of which the
following are the four crucial ones: the family, civil society (the realm of
rights,15exchange and the market), the state, and the system of sovereign
states. The claimant group must show that in claiming independence
it still respects all the values in terms of which the claimant is
constituted within our community as one who can make such a claim.
Thus the Bosnians must reveal in the argument and action that they
value the system of sovereign states, individual rights, democracy,
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constitutionalism and so on through the list. The claimant group must

argue that the citizenship which they previously enjoyed was somehow
deficient, that their participation in civil society was curtailed, or that
their families were repressed. What they say and what they do will be
relevant to their claims. For example, the use of force ab initio or the
immediate denial of rights to others will undermine the legitimacy of
their case.
Allen Buchanan in his work Secession has listed the four most
plausible grievances which might support a right to secede as being:
reference to an historical injustice, reference to an unjust redistribution
within the existing state which systematically harms the seceding group,
reference to a threat to cultural identity posed by the existing state, and,
finally, a threat of cultural genocide posed by the existing state.16 His
argument does refer to some of the more convincing claims which are put
forward. But I find his view of the state limited. He does not answer the
prior question: when does a group of individuals become "a nation" which
might legitimately make the kinds of claims he mentions? He still sees
the state as being an instrument which has the purpose of effecting
redistributions and of protecting the rights of individuals. He fails to
explain the moral importance we attach to states which derives from the
role of the state as an individually-constituting community.
What is a people? Who has a right to a state? Who may secede?
According to constitutive theory the answer must be any group which in
its everyday action, in the way it makes its claims and in the content of
the claims themselves, shows itself to be committed to and guided by the
settled norms currently guiding the international community.
These norms very specifically would not legitimate the claim of any
group which claims to feel, or in fact does feel itself to have a national
identity. Feelings of nationalism do not, by and of themselves, legitimate
a right to an independent state. Nationalist rhetoric might help mobilise
people in pursuit of legitimate claims, but nationalism itself is not what
legitimises a claim. A strongly discriminatory nationalism which ruled
 Constituting a New World Order 21

against human rights within the proposed new state would be

disqualified.
In other words, to qualify the group seeking statehood must come to
the bar of international morality. It must acknowledge the existing
international institutions. It must acknowledge the legitimacy of its new
neighbours. It must acknowledge the legitimate claims of those fellow
citizens who will be left outside the fence if a new state is formed. Those
who were in the old state, but who are to be excluded from the new one,
must have their interests in a framework for freedom recognised. This
interest is not merely in a specified legal form, but is also an interest in
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economic considerations and just distributions within the region.

Conclusion
This has been a thumbnail sketch of what must be a much longer
argument. I hope that I have highlighted the following. First, that the
changes in the international arena present us with new problems in
political ethics. In order to solve these hard cases we are driven to find
a background theory which explains/justifies our settled norms. An
examination of this background theory brings us to see at least one norm,
viz sovereignty, in a new light. Second, sovereignty is not best
understood in terms of a metaphor of enclosure, but in terms of one
referring to a morally constituting framework. Third, those making a
claim to establish a new state are already constituted as actors within
the existing international practice. Thus, they are constrained by it and
must show this in the claims they make and in the way they present
them. They must show commitment to the norms of family, civil society,
state and the system of states. Fourth, understanding international
society as a complex constituting structure should force us to reconsider
our traditional approach to questions of intervention. Constructive
engagement in the internal affairs of states seems to be an imperative
rather than an aberration. Both the traditional "hands off' claims by
tyrants and the "foreigners are not our concern" assertion by citizens of
well constructed states must be seen, in the light of constitutive theory,
as illegitimate positions. The new forms of involvement in the
international community in the quasi states of Africa, in the fluid
political circumstances of Eastern Europe, and the constitutional flux in
South Africa all seem to indicate an emerging international practice
driven by a background theory of constitutive individuality much as I
have described it.
 22 Paradigms, Vol.8 No. 1 Summer 1994

Notes

1. Chris Brown, International Relations Theory: New Normative Approaches, (New York:
Columbia University Press, 1992), p.76.
2. This is not to say that there were not fundamental disputes about how to explain what
happens in international relations. Realists, interdependence theorists and Marxists
provided very different explanations for international events. But they were all
participants in a common discourse to the extent that they acknowledged that the
object of their study was a world of states.
3. On the whole topic of settled norms see Frost, Towards a Normative Theory of
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International Relations, (Cambridge: Cambridge University Press, 1986), pp. 120-128.

4. Chris Brown has already produced a paper arguing for the use of constitutive theory
in this way. See Brown, "The Ethics of Political Restructuring in Europe: A Statist
Perspective", Paper for Ethikon Institute. My aim here is to fill out the argument
somewhat and to look more closely at the implications of using constitutive theory in
this way.
5. Hedley Bull, The Anarchical Society, (London: Macmillan, 1977).
6. Kenneth Waltz, Theory of International Politics, (London: Addison-Wesley, 1979).
7. Michael Walzer, Just and Unjust Wars, (New York: Basic Books, 1977).
8. Mervyn Frost, Towards a Normative Theory of International Relations , (Cambridge:
Cambridge University Press, 1986).
9. See Allen Buchanan's good discussion of the economic problems surrounding secession.
He clearly shows how claims to a right to secede must confront the question of
distributive justice between the state that would secede and the state from which it is
exiting.
10. The constitutive theory of individuality which I outlined in, Towards a Normative
Theory of International Relations, op. cit., was a secularised version of Hegel's theory
articulated in, The Philosophy of Right, trans by T.M. Knox, (Oxford: Oxford University
Press, 1973) and subsequently interpreted by John Charvet in, A Critique of Freedom
and Equality, (Cambridge: Cambridge University Press, 1981). This approach is
summarised in Chris Brown, International Relations Theory, op. cit.
11. For a critique of instrumental views of that state, see my "What is to be Done about the
Condition of States", in Cornelia Navari (ed.), The Condition of States, (Milton Keynes:
Open University Press, 1991).
12. Brown, International Relations Theory, op. cit., p.121.
13. Robert Jackson, Quasi States: Sovereignty, International Relations and the Third World,
(Cambridge: Cambridge University Press, 1990).
14. The only reason for rejecting the theory would be if it could be shown that it did not
being the settled norm into coherence.
15. See Hegel, op. cit., Charvet, op. cit., Frost, Towards a Normative Theory of International
Relations, op. cit., and Brown, International Relations Theory, op. cit., for a fuller
discussion of the contribution of each institutional level to the constitution of
autonomous individuals.
16. Allen Buchannan, Secession: The Morality of Political Divorce, (Boulder, CO: Westview
Press, 1991).