Neutrality According to International Law & National Totality

^[1]3,244 words

Translated by Simona Draghici

Editor’s Note:

The following translation of a 1938 essay from Carl Schmitt appears online for the first time in commemoration of Schmitt’s birth on July 11, 1888. The translation originally appeared in Carl Schmitt, Four Essays, 1931–1938, ed. and trans. Simona Draghici (Washington, D.C.: Plutarch Press, 1999). I have broken up long paragraphs to make the text more readable.

In his well-received speech of May 14, 1938, Il Duce warned the western democracies against a “guerra di dottrina.” The great battle-cry of such a war of ideologies sounds familiar: “war of the democracies against the totalitarian states.” It is not the aim of this exposition to dwell on that much misused headword, “totality,” once more and to clarify the often impenetrable confusion, all of which would take the larger part of the presentation. This confusion will be only hinted at as the word totality brings to mind the fact that in 1932, one of the most interesting political commentators, Heinz O. Ziegler, published a paper still worth reading, entitled “Autoritärer oder totaler Staat?” (Authoritarian or Total State?), and which at the time met openly and extensively with the approval of the liberal democrats and led to the conclusion that democracy belongs necessarily to the total state, and that only an authoritarian state is in the position to counter the irresistible democratic trend to this totality.

However hard it is to reach a consensus in this matter, a point needs prompt clarification, nonetheless. It will keep a particularly damaging misunderstanding at bay. It is about the interpretation given to the problem of neutrality in international law by the different totalitarian forces that nowadays strongly assert themselves in all countries. A Swiss specialist in international law, Professor Dr. Dietrich Schindler of Zurich has given his opinion on this matter in several articles, and more recently in the review Völkerbund und Völkerrecht, vol. 4, 1938, p. 689, which features his article, entitled “Die Wiederherstellung der umfassenden Neutralität der Schweiz” (The Restoration of Switzerland’s Full Neutrality). His views are in stark contrast to my opinions. Nonetheless, his stance and argumentation are defined with so much scientific objectivity that a basic clarification of this point does not seem out of place. One must try to help the cause of European peace by clearing away a typical and especially harmful misunderstanding as much as it is possible within the modest framework of a theoretical discussion of international law.[1]

Professor Schindler obviously assumes that the total character of a national state generally endangers neutrality according to international law, and even more, turns it into an impossibility. He seems to see the danger which threatens neutrality according to international law nowadays wholly in the ideas of totality. That is a very widespread opinion. Its broad dissemination is due entirely to the somewhat simplistic idea that the totality with which a nation entwines all other states and nations, so to speak, forces all the others to acknowledge its own claims fully and unreservedly. All this implies indeed that in the case of a conflict between a total state and another state, the uncommitted third states are faced with an alternative from which the international law with its concept of neutrality excludes them, just as the involvement of a total state in the conflict makes the respect for the neutrality of the third an impossibility. But this view and interpretation of totality’s claims misjudges the very essence of a nation’s totality which rests in the people’s awareness of itself and of the whole of its own political existence.

Many things may be piled under the label of the totality of state or nation: all sorts of restrictions or alterations of individualistic customs and freedoms inherited from the 19th century; some in fact suffered only a relative change of their scope, such as free trade, free economy, free competition of opinions and of the press from before the war; others are consolidations of all kinds; the expansion of and the increase in the power of the executive over the legislative; the elimination of earlier distinctions and divisions of the executive and the legislative, and so on and so forth. When compared to the Manchester liberalism, President Roosevelt’s New Deal is readily taken for a gloomier “totalitarianism.”[2]

Generally speaking, there are as many kinds of totality as there are peoples in different situations, and if need arise, each state organization establishes its own kind of totality and mobilizes its resources. An excellent article by a young Greek jurist, Dr. Georg Daskalakis in Archiv für Rechts- und Sozialphilosophie, 1938, p. 194, aptly points out that the total state is not a separate, distinctive state form. Rather it is a moment in the life of a state, that is to say, “a moment in the effective development of every type of state, marked by the mobilization of all energies in a certain direction.” Thus, potentially, every form is total, and in distinctly dangerous situations, it is likely to get through a totality phase. No matter the variety of the developmental symptoms, even when grouped together under the label of “totality,” a closer examination would quickly reveal that in fact the totality of a nation or a people’s state is first and foremost its own business.[3]

The more a nation thinks of itself and recognizes its own singularity and also its limitations, the more it comes to respect the singularity and the limits of other nations, and creates the sure basis for the understanding of the neutrality of a nation, from the point of view of the international law, in the conflicts between others. The self-contained entirety of a single state does not present a threat or danger to neutrality according to international law; rather the danger comes from a suprastatal and supranational claim to decide the rights and wrongs of a nation, on its own legal authority and on behalf of a universal, or in some other way supranational collectivity.[4]

Switzerland’s experiences with the Genevan League of Nations have brought out into sharp relief this kind of threat to neutrality according to international law and brought it to the notice of all the states to which neutrality in keeping with the international law is vitally important. First and foremost, Switzerland’s position has proved that it is not possible to ignore the core of neutrality according to international law, and that the crucial point is unqualified non-partisanship, that is to say, not to take sides in the legal sense of non-discrimination. Indeed, that has always been known and talked about by all the respectable specialists in international law. This simple truth, though, might have been obscured for a while by the numerous, subtle and complicated formulas of compromise in the jurisprudence of the League of Nations in Geneva. Today it is no longer possible to doubt that the basis is strict non-discrimination by which it stands or falls with all the other rights and obligations of the neutrals, and the whole legal institution of neutrality according to international law.

The duty of neutrals to refrain from military intervention derives its meaning and contents only from the obligation to discriminate. And the other way round: if a state follows a procedure the meaning and contents of which consist in disqualifying a party legally and morally in favor of the other during a war-like conflict, by doing so it has readily forsaken its duty to neutrality, no matter what further conclusions it draws from its adherence to that procedure, whether it continues to stay by the legal or moral disqualification, or whether it decides to take this disqualification to its practical, logical conclusion, to resort to measures of economic and financial pressure or finally, to take military action. The duty not to take sides may be legally understood only as the duty to stay away from all such methods of legal and moral discrimination.

The correctness of such affirmations that one can either be or not be neutral, and that neutrality does not come in half measures or portions lies in this concrete and practical knowledge and not in theoretical conceptual subtleties or abstract principles. It goes without saying that the variations in the political situation may compel the neutral state to many differentiations and shades of meaning and offer it some scope for its practical political discretion. The 1914–1918 World War has shown in what difficult and dangerous conditions the smaller neutral states may find themselves when they want to remain truly neutral.

Fortunately, once upon a time, there was no League of Nations in Geneva to intervene in the conflict through sanctions. In spite of all the elbow room and all the adjustments to difficult situations, the central point of the international law always remains the simple alternative of neutrality or nonneutrality. That would apply as long as neutrality according to international law is at all possible.

All the tarnishing and concealment of this simple legal truth endangers the legal institution of neutrality as much as the political existence of the states that opt for it.[5] In the case of collective actions based on Article 16 of the Covenant of the League of Nations in Geneva, “the breaker of the regulations,” explicitly in the sense of the international law, will be set in the wrong. That is of primary importance.

On the other hand, it is of secondary importance as regards the international law whether the member state, which discriminates in that way, decides in favor of military action against the breaker of the regulations or whether it is content with economic and financial measures, or with its legal disqualification and discrimination in terms of the law. That makes it obvious that the universalistic claims and collective methods of the League of Nations in Geneva are what destroys neutrality in terms of the international law.

It is common knowledge that the incompatibility between the Covenant of the League and neutrality has often been stated particularly by the pacifists and the friends of the League, only to mask it with quite a few compromises in actual political practice. The evolution of Swiss neutrality has become such a serious matter in the last six months because of it. It is in the nature of a legal institution such as neutrality that its core, the essential dilemma—neutrality: yes or no?—emerges stronger and clearer as the seriousness of the situation grows. Just as the opposite makes itself felt, namely that the less the League of Nations in Geneva and neutrality have anything in common, the more the League activates its Article 16 and “puts it into effect.” In the long run one will not be able to avoid its logic and logical consistency, because it is in the nature of the institution of the international law. No European state the vital interests of which lie in its ability to remain neutral, is as a result interested in wavering before this dilemma.

The issue of totality has arisen in one form or another for every state in these times. The new comprehensive plans, the legislation regarding state defense and the security of the borders, and so on express themselves plainly as propagandistic slogans. Nobody will probably deny any longer that a war in earnest between the big modern powers will compel them to total mobilization. Thereby one should be ready to look the facts in the face and see that they have derived their power of persuasion from the formulas of the total state, instead of carrying on the uncanny war of slogans and ideologies.[6] It is only about these facts. Only they can be examined objectively within a genuine, direct discussion among European nations, whereas the ideological-propagandistic battle, the guerra di dottrina stealthily and without delay introduces the question who is to blame for this evolution towards totality or who has started it.

Nonetheless, an objectively open and direct method of discussion contradicts the methods and procedures that are integral part of the League of Nations in Geneva. That Genevan establishment may be described as a rather typical illustration of what may be called indirect power, to use the hotly contested concept of “potestas indirecta.”[7] It is common knowledge that in this formulation, the claim and the doctrine of “potestas indirecta” was juridically and politically worked out by the Roman Catholic Church at the time of the Counter-Reformation. This singular concept, as theologically and juridically elaborated by Bellarmine, served the universalistic claims of the Roman Church to domination over the then-established sovereign states. It began to have effect in the second half of the 16th century. Both chronologically and situationally, it belongs to the era of the religious, sectarian, factional, and civil wars which only ended in 1648. In this respect, many French publicists will draw a parallel between the year 1550 and our present times.

Naturally, the century-long row over indirect power did not at any moment come close to a mutual conversion of the spiritual and political fronts opposing each other, yet it made quite obvious the fact that the claims and the methods of this kind of indirectness did not prevent wars but rather intensified them, because they rendered a true neutrality impossible and transformed the wars of self-contained states and of nation-states into international civil, religious, and sectarian wars. It would be good and also appropriate from the point of view of international law to pay attention to the singularity and the modes of operation of the indirect method. From the numerous historical parallels that appear from all sides nowadays as in every age of radical changes, this one, when correctly applied, seems to me to be particularly enlightening and to facilitate a true understanding of the present-day reality.

It is characteristic of indirect power, that without waging war itself, but by virtue of a supranational moral and legal authority, it takes it upon itself to decide what is legally and morally permissible and what is not in the showdowns between states and nations, and in that way, alters the character of the confrontations. Moral and legal discriminations and disqualifications, ostracism and excommunications, or in modern language, moral, social and economic boycott are the typical methods of the “indirect” power. As a consequence, the non-discriminatory war between states changes itself into an international civil war and therewith it achieves a kind of totality that is as horrid and destructive as everything of which a facile propaganda has accused the national totality.[8]

Three centuries ago, a great English thinker, a pioneer and theoretician of the struggles against the “potestas indirecta,” Thomas Hobbes, dealt with the legal constructs of this doctrine and its methods of ostracism and moral disqualification. He correctly identified it as the main source of the increasing fierceness and internationalization of the internal and the external political fighting. Referring to the legal and moral disqualification of entire nations, he asked the following question: what effect may the disqualification and ostracism of a whole nation have”? And he answered: “when a Pope excommunicates a whole nation, methinks he rather excommunicates himself than them.”[9] If that is valid in the case of the Pope and the Roman Church, then it will be as much in the case of the League of Nations in Geneva, and pronounces the correct verdict about its methods through which a confrontation between states is extended to neutral third countries, according to Article 16 on the discrimination against a participant state.

First published in the July 1938 issue of Monatshefte für Auswärtige Politik, pp. 613–18. Reproduced in Positionen und Begriffe im Kampf mit Weimar–Gent–Versailles, 1923–1939 (Hamburg, 1940), pp. 255–60.

Notes