A response to an article I did not find particularly helpful:
yalefreepress.blogspot.com
Vast. Right. Winged.
Monday, November 15, 2004
International Legitimacy
Greg Djerejian linked to an insteresting piece in Foreign Affairs on Bush's radical erosion of the "four pillars" that traditionally guided American foreign policy after 1945. The backdrop for all of this, is legitimacy.
The conclusion of the authors, Robert W. Tucker of Johns Hopkins University and David C. Hendrickson of Colorado College is in the abstract:
Throughout its history, the United States has made gaining international legitimacy a top priority of its foreign policy. The 18 months since the launch of the Iraq war, however, have left the country's hard-earned respect and credibility in tatters. In going to war without a legal basis or the backing of traditional U.S. allies, the Bush administration brazenly undermined Washington's long-held commitment to international law, its acceptance of consensual decision-making, its reputation for moderation, and its identification with the preservation of peace. The road back will be a long and hard one.
This is a position that has been taken by many in the foreign policy establishment. Somehow, we have been undermining the traditional virtues of diplomacy that America has held dearly, by engaging in a policy of preventive war without necessitating UN or NATO approval before doing so.
The four pillars by which Washington gained legitimacy for its actions, according to the article are 1) devotion to international law, 2) "consensual modes of decision-making", 3) reputation for moderation in policy, and 4) actually succeeding in bringing "peace and prosperity" for our allies. While, I think that the article is rather well-argued, a number of problems present themselves. To wit:
Past Results Not a Guarantee of Future Performance
I believe one of the main problems with the article is the authors' absolutely shallow assessment of American action in relation to what is allowable under their framework and what is not. The most damning piece of evidence is this graf:
The neoconservatives responsible for this startling loss of U.S. legitimacy have defended themselves by pointing to various precedents in which the United States engaged in illegal or unilateral conduct. But although certain aspects of the Bush doctrine were presaged by earlier administrations, no preceding administration brought all of these elements together in so alarming a way. Ronald Reagan proclaimed the right in theory to overthrow undemocratic regimes, but in practice was hobbled by a resistant Congress and was himself unwilling to commit U.S. forces for this object. George H.W. Bush declared in the aftermath of the Gulf War that he possessed the authority to go to war without the authorization of the UN Security Council or Congress, but he had still sought and received approval from both institutions. Bill Clinton embraced regime change in Iraq but was unwilling to fight a major war for it, preferring the more modest (and ineffectual) strategy of supporting a military coup against Saddam Hussein. Clinton also did not rule out in theory a doctrine of preventive war to forestall the acquisition by "rogue states" of weapons of mass destruction (WMD), but in practice he did not fight one. The precipitous collapse of support for U.S. aims under George W. Bush demonstrates that the nation's allies, indeed most of the world, believe that something fundamental in the U.S. global posture has changed-for the worse.
The argument here is essentially that, "Yeah, sure, past administrations have wanted to undermine the four pillars but were unsuccessful due to some practical constraint on their power and political capital. This administration succeeded! For shame!" But this undermines the entire point of their original claim. They didn't just claim that the US acted in accordance to those four pillars in order to obtain international legitimacy, but in fact held these four pillars as principles by which they conduct foreign policy. All of these examples of previous administrations' attempts to overthrow the four pillars as their guiding principles are irrrelevant to the authors, because the administrations had mixed success. For example, the 9/11 Commission even concluded that one of the reasons that Clinton was unable to have good follow-through in capturing bin Laden and severely hampering al Qaeda's operations is that he was having political problems with the Monica mess, thereby depleting his political capital. So the only problem Tucker and Hendrickson have with the Bush administration, isn't the principle of the Bush doctrine as they seem to claim, but rather that, unlike previous administrations, he had a rather compliant Congress and public, and was therefore successful in overturning the four pillars. Seems like a pretty shallow critique to me.
The corollary to this problem with their argument is their claim that we did have international legitimacy before Bush took office, but now do not. Without attacking this claim, for I have limited time, I will accept it as true. But, if in the past, our principles were not in accordance with the four pillars (even though the end actions may have been), then how were we still able to maintain legitimacy in the realm of foreign policy? I have an answer, but I am afraid it will come at the end of the post.
Flaunting of International Law Now
The question of international law is certainly a very important one. The authors note:
In obligating the UN's individual member states to refrain "from the threat or use of force against the territorial integrity or political independence of any state," the charter permitted but one clear exception: force could be employed in self-or collective defense against an armed attack.
They then refute an argument that they claim is often used to delegitimize UN law, namely that the UN Charter would prevent us from warding off an attack or retaliating without first seeking approval. They even have the documentation from the charter itself to prove that these UN critics are all wrong!
Yet the injunction to return to law must nevertheless contend with two powerful objections: that it would be both imprudent and immoral. It would be imprudent, say the critics, because the principles of the UN Charter that allow for force only in circumstances of self-and collective defense cannot meet the dangers of a world in which terrorists and "rogue states" may acquire WMD. We have to be prepared to take the war to the enemy before he takes it to us. It would be immoral, runs the second line of criticism, because there are certain circumstances in which it is morally imperative to transgress state sovereignty and intervene militarily in the domestic affairs of repressive regimes, especially when acts of genocide are contemplated or ongoing. The United States cannot, according to the now dominant view, allow the Security Council to prevent it from acting in either of these instances.
All of this declaiming against the UN overlooks the fact that the charter itself provides a basis for states to act for their national security without seeking the approval of the Security Council. Nothing in the charter, reads Article 51, "shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security." The United States, if attacked, is obligated to report its counterattack to the Security Council, but its right of individual or collective defense is otherwise unimpaired, and with its veto power it may legally prevent any constraint on its right to respond by force. The question is not, then, whether the United States should accord a veto to the Security Council in cases of national or collective defense, but whether it should do so when the use of force would otherwise be illegal.
But I believe that the authors are misstating the UN critics' position. Rather, more rightly, they are not answering the criticism in the first place. Nothing in Article 51 that they cite mentions pre-emptive action, which is the real worry of the critics that they UN does not allow, and rightfully so. Article 51 seems to indicate that if we were attacked or we had concrete evidence that we were about to be attacked immediately, then we have the right for unilateral retaliatory action without first consulting with the UN to seek permission to do so. But, this is not the question the critics ever posited. The question is whether or not UN law would allow us to prevent attacks before they fully materialized. So, in other words, the critics are correct to worry that the UN would keep us from being able to stop attacks before they start, which means before they become impending.
Now, since I am not an expert in international law, I would even be willing to grant the argument that they make that Article 51 can be used to justify preventive action against another state should the circumstances warrant it. That seems to me the point of their response to critics such as John Bolton, whom they criticize for being negligent and in fact contemptuous of international law and institutions. But, would it then not undermine at least structurally their claim made earlier that the Bush administration acted against the will of international law when it decided to invade Iraq?
This approach would have been unconvincing even if banned weapons had been found in Iraq-possessing weapons is not proof of impending attack-but it utterly collapsed when no weapons were discovered. Advocates for war then argued that the administration had never actually said that the threat was imminent, only that it was "grave and growing." Absent a showing of imminence, however, one could not make a plausible claim for the lawfulness of the action. In truth, the Bush administration did not care a fig for whether the war was lawful. It wanted its strategy of preventive war to seem lawful, but the doctrine's implementation never depended on whether the administration's lawyers could write a coherent brief in its favor.
Either Article 51 does or does not allow for preemptive action. If it does, then it seems to me the question of whether the war in Iraq falls under the allowable types of preemptive action is a matter of judgement rather than law. What to one is imminent or grave and growing is faint to another. If, however, Article 51 does not allow for preemptive action, then the authors fail to answer a critical objection that the critics of the UN posited: The UN Charter's suppremacy as a body of international law that we ought follow is in question as it does nothing to allow preemptive action to stop threats before they become impending. The authors cannot have it both ways. They cannot claim that A) Those who criticize international institutions for being impotent to do anything preventative in the realm of international security are wrong because the UN does indeed allow such actions AND B) Preventative action in the realm of international security is not legitimate, but rather only actions necessary to stop impending attack. Which is it?
I would suspect that the authors would claim that B is the correct choice and that only impending attacks ought be allowed the prevention of force (after all they do say that even if WMD were found in Iraq, the war would still be illegal due to lack of impending threat of attack). But this would still leave each nation's security at the whim of the fates... and madmen. If only impending attacks were allowed to be preempted, then even a minor error that fails to predict the exact time of impending attack would be catastrophic. Instead, preemptive force without an impending threat against a state that has: A) Publicly vowed to destroy us; B) Taken unilateral action to harm our strategic and security interests in the past; and C) Possesses the ability to destroy us or significantly undermine our security, would provide us with enough time to neutralize the threat before it becomes impending and we would have to rely on Lady Luck to keep us from being asleep at the wheel.
Questions of Legitimacy
The authors begin with a brief lesson on legitimacy.
Legitimacy arises from the conviction that state action proceeds within the ambit of law, in two senses: first, that action issues from rightful authority, that is, from the political institution authorized to take it; and second, that it does not violate a legal or moral norm. Ultimately, however, legitimacy is rooted in opinion, and thus actions that are unlawful in either of these senses may, in principle, still be deemed legitimate. That is why it is an elusive quality. Despite these vagaries, there can be no doubt that legitimacy is a vital thing to have, and illegitimacy a condition devoutly to be avoided.
I think that in the end, this is the exact problem of such vagaries as international law. It assumes here that in some sense, national actors are value-neutral. All that matters is who is the aggressor and who is the defender. I think that this is the biggest problem with certain aspects of the UN Charter. Certainly, being the aggressor is not always the best idea. But, aggression ought not be viewed with skepticism in all cases as these authors seem wont to do. Now the authors do provide a little smidgeon of hope in their use of the term "moral norm" as something that contributes to legitimacy. But what would this "moral norm" be? Would it be not being the aggressor? Or is it being popular in the eyes of world public opinion? I have no idea. The entire question of value and moral truth is not discussed in this article, which is I think its biggest flaw. What if world opinion is just, well, wrong? Does that mean that an action that is morally righteous is illegitimate, as they claim that "ultimately, however, legitimacy is rooted in opinion?" The authors provide no answer to the question of how do we tell if world opinion is right, or "on the right side of history"? Or better yet, how can we measure world opinion? Is this what the foreign ministers say? Or what the people in the streets of Berlin, Paris, and London think? Or is it what people in the State Department say people around the world think? How do we measure it? I think that these issues are exactly where the article falls apart.
Why Might Really Does Make Right
The problems with this article are many. The most salient ones are: their admittedly vague definition and notion of legitimacy; their inability to fit many high-profile actions by the US in the past into their rubric of the four pillars that they claim have traditionally guided American foreign policy and helped establish legitimacy for our actions; and their contradictory stance on international law: that preemptive action that is not merely for impending dangers is illegal and that international insitutions are robust enough to allow preemptive action for not-necessarily-impending dangers.
I think that the incoherence of their article stems largely from the way that the authors view international law and legitimacy. To them, international law has supremacy and actions are rightful in the realm of international law beyond just a mere "might makes right" claim. But, who is there to enforce international law? If the regimes that are committed to its enforcement refuse to enforce it, then international law falls apart and we do end up relying on judgement calls by individual state actors. In the realm of international law, we do indeed have a state of anarchy. The states that are the mightiest provide the enforcement regime for international lawmaking. States choose to enforce international law not because it's international law, but because it is in their interests to do so. And the success of international law is directly proportional to the political and military strength of the nations in the "Coalition of the Willing" of the moment (ie: those states that have chosen to enforce international law in the particular moment in question). And if Denmark is the only nation that really wants to enforce a particular bit of international law, then well, I bet that that little bit will go unenforced this time and will be undermined. Sounds to me like might makes right.
The Iraq War was a clear example. After countless resolutions threatening "serious consequences" (I cannot imagine what those would be other than use of force), Iraq was found in material breach of the international community consensus. The authors cannot dispute this fact. Also, they cannot dispute the fact that certain members of the "international community" chose not to enforce the international community consensus and in fact, international law. As such, as a result of refusal of enforcement, might therefore made right, with the United States stepping in and choosing to enforce the law. If say, it weren't the United States, but rather the Ukraine or Romania that wanted to. I doubt that it would happen since they do not have the military might to do so.
These are just theoretical arguments for why might makes right. There is also an important argument about the particular international structure at this time. Five countries have a veto on the UN Security Council: the US, UK, France, China, and Russia. Lo and behold, they happen to be the most powerful militarily at this time. Is it not then the case that the UN's own structure is committed to the idea of might makes right, contra to the declarations made by Justice Jackson at Neurenberg that Tucker and Hendrickson cite at the beginning of their article?
Finally, this brings me to the answer of my original question. How was it that we still maintained international legitimacy even though clearly, our principles were not devoted to the four pillars Tucker and Hendrickson attribute to our foreign policy successes? It wasn't that structurally, other nations agreed with our approach. It is that they agreed with the contents of our approach. I am still skeptical that we did have legitimacy under their definition. But if we did, it was not because other nations believed that we were acting within structural constraints on our power. It is because they liked what we did.
UPDATE: Welcome Oxblog readers. Thanks to Dave Adesnik for linking. He also raises a good point that I failed to, largely due to my timidity in taking foreign policy historians to task, well, for their account of history (I'll stick to addressing the logical inconsistencies as token math grad student blogger):
Hello? Vietnam? The Contra war? CIA coups in Guatemala, Chile and Iran? The invasions of Panama, Grenada and the Dominican Republic? Even Jimmy Carter got in trouble with the French and Germans for provoking the Soviets by talking about human rights!
My point here is not that the United States' long history of unilateralist behavior provides a justification for anything that George Bush has done. Rather, the point is that apocalyptic predictions about the breakdown of US-European relations have been standard fare for the last sixty years. These predictions crops up every decades or so and they are always wrong. |
