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Overview In extreme circumstances, legitimacy Legality and Legitimacy in can introduce constructive fl exibility in international law, as illustrated by the 1999 Kosovo intervention. In contrast, International Order the 2003 Iraq war demonstrates the dangers of abusing such fl exibility. In he  NATO armed intervention over the past the absence of a legitimacy TKosovo was illegal under international law, but widely regarded as legiti- discourse brought the immediate mate. Th e 2003 US invasion of Iraq was both illegal and illegitimate, though condemnation of legally uncertain acts. unilateral attempts were made to legitimize it, using the Kosovo precedent. Th e Today fl exibility exists and claims for sanctions against Iraq, preceding the 2003 invasion, were legal, but seen by many legitimacy are made more often— as illegitimate. Th ese examples are symptomatic of a wider disconnect between either reinforcing or challenging legality. legality and legitimacy which aff ects many areas of international life. Legality is not the only criteria for determining acceptable state behaviour. Other Legitimacy can strengthen legality, criteria—humanitarian, ethical and political—play a signifi cant role in modern enhancing the authoritative power international relations. Ignorance of international law has serious negative of treaty-based or customary rules. consequences, but so has the blind reliance on international law, detached from However, the legitimacy of law can be undermined by its structural human aspirations and actual circumstances. inability to respond to urgent prob- When laws serve only themselves, there is a lack of legitimacy. Legitimacy lems. When laws are seen as limited, watches over laws, ensuring that they serve their fundamental purpose—to obsolete, or harmful to people, improve the lives of those they govern. Existing international law may fail to legitimacy can be a corrective force, respond eff ectively to pressing global needs, particularly those arising from invoked for global justice, human humanitarian emergencies. Th is failure triggers the need for a corrective, or even dignity, emergency protection, or for an alternative act. Legitimacy serves to support and, when necessary, to correct environmental security. Legitimacy legality. When international law would prevent the international community from needs law as much as law needs intervening to help large groups of people at serious risk, the gap between law and legitimacy—law cannot be respected legitimacy is clearly manifested. In other situations legally impeccable decisions— if seen as illegitimate, while appeals such as UN-authorised trade embargoes—have indirectly produced serious civil- to legitimacy must be based in law to ian suff ering and their legitimacy has been rightly questioned. prevent opportunism. Human history shows that law can be challenged—the Nuremburg Tribunal is a prime example—when emergencies demand action which the existing law at Written by Vesselin Popovski and the time is unable to explicitly permit. Such actions can be seen as legitimate, even Nicholas Turner if unauthorized by law. Laws can soon develop—as the Geneva Conventions and the Genocide Convention did after Nuremburg—to ‘catch up’ with transforma- © United Nations University, 2008 tive challenges. In the early 1960s the UN Security Council (UNSC) condemned ISBN 978-92-808-3059-0 ISSN 1814-8026 Israel’s violation of Argentinean territory to arrest a war criminal, Adolf Eich- Licensed under the Creative Commons mann, and bring him to justice. Th irty years later the same Council established Deed “Attribution-NonCommercial- international tribunals for Yugoslavia and Rwanda, demanding that states arrest NoDerivs 2.5” war criminals and bring them to justice.

Legality and Legitimacy in International Order 1 “advancing knowledge for human security and development”

Legality and Legitimacy of the could have given authorization, but International Law on the Use of Force the certainty of Russian and Chinese Use of Force Th e recourse to the use of force has vetoes closed this path to legality. A Article 2.4 of the UN Charter an exceptional and controversial char- self-defence justifi cation could not be demands states refrain from the acter and is the most critical domain invoked—citizens of NATO countries threat or use of force against of international relations in need of do not live in Kosovo. Th e law prohib- territorial integrity or political robust legality and legitimacy. Only ited what morality strongly demanded. independence of other states. two provisions in the UN Charter Th e gap between legality and legiti- macy widened and crystallized. NATO Article 2.7 prohibits interference allow the use of force in international chose to intervene over Kosovo. Later in the domestic jurisdiction of relations: in self-defence (Art. 51) and the independent experts’ International states, except for UNSC actions by UNSC authorization (Art. 42). Commission on Kosovo found that in response to threats to the Th e fi rst option is limited to an armed peace under Chapter VII. attack against a state or an imminent although international law had been threat, leaving no choice of means or violated, the overall net outcome had Article 42 allows the UNSC to moment of deliberation. For the sec- been positive; its conclusion that the authorize military measures to ond legal option the threat can be non- intervention was ‘illegal but legitimate’ maintain or restore international imminent, and may arise from various remains the best expression of the peace and security. situations, but the use of force can only legality-legitimacy gap. Article 51 guarantees states the be made by a collective decision of the When the US referred to the inherent right to self-defence UNSC members. Still there is a gap— Kosovo precedent in connection with against armed attacks. what should be done when people’s its 2003 invasion of Iraq, it abused the lives are in imminent and grave danger, legitimacy discourse for geopolitical but the UNSC members refuse to act purposes. Widespread international or rely on the veto to prevent action? opposition to the US invasion, coupled Th ere have been armed interven- with—and largely a result of—the tions for ostensibly humanitarian lack of UNSC authorization, led to reasons without the consent of the the labelling of the intervention as UNSC—India intervened in Eastern ‘illegal and illegitimate’ by prominent Pakistan in 1971, Tanzania in Uganda legal scholars. Even if the Security in 1979, and Vietnam in Cambodia Council had been induced to authorize in 1979. In all three situations legally the invasion of Iraq, this would have dubious self-defence arguments were been seen as illegitimate. Iraq ironi- presented in order to avoid challenging cally brought legality and legitimacy the strict prohibitions of the UN Char- together by clearly demonstrating how ter. In the 1990s the UNSC autho- illegitimate the illegal action was. rized interventions in Iraq, Somalia, Th e 1999 Kosovo intervention Liberia, Haiti, Yugoslavia, Rwanda, illustrates the ability of legitimacy to Burundi, Sierra Leone, and Timor introduce constructive fl exibility in Leste, among others. Th e norm of international law in extreme circum- intervention on behalf of civilians at risk stances, whereas the 2003 Iraq war continued to develop, but remained tied demonstrates the dangers of abuse of to explicit UNSC authorization. such fl exibility. Appeals for legitimacy In early 1999 the world faced a to challenge legality are sometimes diffi cult dilemma—either to ignore necessary, and international law needs imminent ethnic cleansing in Kosovo, some degree of fl exibility to remain abiding by the law of the use of force in relevant. But there is also the risk of the UN Charter, or to ignore the law abuse of the legitimacy discourse for and intervene. A UNSC resolution actions against international law, being

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opportunistically used by states as ability of the rules governing the act, self-assigned labels to vindicate selfi sh and upon the actor itself. Nuremburg goals. Th e problem with the legitimacy can illustrate this—the law was prob- argument is that it can be employed lematic both in substance and in pro- by the ‘good cops’, but can also be em- cedure, and all prosecutors were from ployed by the ‘bad cops’. Th e judgment victors’ states. Nevertheless, the two of who are the ‘good’ and who are the alternatives—amnesty or extra-judicial ‘bad’ cops is to be made by the people execution—would have been even less at risk in need of protection—they will legitimate. fi nally judge whether legitimacy actions Legitimacy does not necessarily against existing legality have improved replace or transcend legality; it also their situations, or not. has a vital role in reinforcing and sup- porting the law. Indeed, laws, legal Constituting Legitimacy institutions, or processes which lack Th e legality of an action or policy is legitimacy will be treated with disdain. assessed by reference to legal texts, Legitimacy therefore plays a double

“Actions are always either legal or illegal; they cannot be partly legal. In contrast, legitimacy is fl uid and changing, and depends on perceptions and outcomes” case law, and precedents. Challenges role. It can strengthen legality and add and appeals may be raised as part of more authoritative power to treaty- the adjudicative process, but there is a based or customary rules. However, clear and fi nal view either in favour or when laws are seen as limited, obsolete, against. An action is always either legal or harmful to people, legitimacy can or illegal; it cannot be partly legal. In be a corrective force, invoked in the contrast, legitimacy is fl uid and chang- name of global justice, human dignity, ing—it depends on perceptions and emergency protection, or environ- outcomes. As a subjective interpreta- mental security. Legitimacy can rein- tion of what is desirable and appropri- force legality, but also it can challenge ate, legitimacy can be maintained by legality. Ideally, what is legal should a constant eff ort to ensure conformity be legitimate and what is legitimate with the normative expectations of the should be legal. However the mere pre- aff ected constituents. Legitimate deci- scription ‘should’ suggests that such sions are based in democratic partici- unity is not always present. pation whereby aff ected persons have States can ignore international law, the opportunity to raise their voices. and disregard even their own previ- When legitimacy is separated from ously signed treaties. President Kim democratic participation, it risks Jong Il (North Korea) withdrew from being exposed to ideological and self- the Nuclear Non-Proliferation Treaty concerned manipulation. (NPT) in order to develop a nuclear Legitimacy is a relative measure— capacity. President George W. Bush it depends upon the perceived accept- (US) un-signed the Rome Statute of

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the International Criminal Court and and involving humanitarian and moral imposed bilateral sanctions on states discourse to justify controversial policy. which were signatories to this Statute. No doubt, legitimacy enters into con- Th e lack of a global parliament (legisla- sideration in particular when the issues ture), a global government (executive) at stake are highest and international and a global police force allows states to law is most rigid, such as the global manipulate and violate the laws. But the distribution of power, the norms of law does not become irrelevant because recourse to force, the interplay between it is violated by individual, self-interested states and within states in times of states. Th e law can be challenged by the violence, post-war arrangements, the legitimacy of a higher rationale—saving nature of power leadership, and geo- human life, for example. politics, among others. Th ere are two visions of inter- Legitimacy is a fl exible category; national law—a positivist school, it can be gained and it can be lost. It regarding law as a fi rm set of rules to evolves over time and its maintenance be followed without exception (con- requires constant eff ort. Legality is a “Legitimacy can reinforce legality, but it can also challenge legality”

ceptually driving from domestic law); distinct, immediate, black-and-white and a functionalist school, seeing decision—in a court of law the verdict international law as a gradual process is either guilty or not guilty. Legality is of decisions, shaping itself authorita- a judgement from the beginning of the tively through the organs of the United process; legitimacy is a judgement from Nations and international treaties. the end of the process. International law is therefore ‘uncer- tain’ law, or at least less certain than Legality-Legitimacy Gaps in UN domestic law. Th is uncertainty necessi- and International Regimes tates the introduction of legitimacy—a Th e United Nations was originally softer category between the extremes created to represent a global voice, to act of fi rm law and fi rm state power. Th e as ultimate legitimacy-provider. UN introduction of legitimacy also brings legitimacy is rooted in its representa- into the picture non-state actors, global tive and universal nature, its political voices and civil society as bearers of impartiality, its transparent proce- public morality. dures, and its dedication to global Th e legitimacy narrative has devel- justice. oped as a way to encourage more In reality, the lack of eff ective attention to questions of appropriate UN action in cases of mass atroci- authority to act coercively in contested ties increased the legitimacy defi cit situations, when the basis for assess- of the UNSC, of its processes and ment does not belong to the primacy composition. Th e unrepresentative or relevance of international law. Th is nature of the UNSC has widened the narrative breaks free from the straight- legality-legitimacy gap—the UN is jacket of legalism and evaluates states’ ‘torn’ between its original image of a behaviour with sensitive refl ection on comprehensive global institution, com- ethical and political considerations, prising all 192 states of the world; and loosening the constraints of legality, its reality with a UNSC that is accused

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of being unrepresentative and ineff ec- to discourage forms of behaviour which tive. Th e UN’s ideas and its standing are legal, yet responsible for pollution as a solid global institution are des- and harm. Th e preference for market- perately needed to prevent violence, based mechanisms over regulatory ignorance, and unilateralism, but at the regimes often allows corporate actors same time one of its cornerstones—the and industrialized countries to buy UNSC—suff ers from a legitimacy their way out of commitments, which crisis, driven by its lack of account- are in any event insuffi cient to protect ability to the General Assembly (GA), the global environment. the World Court, and the peoples of A new challenge to the legiti- the world. Th e concentration of legis- macy and the legality of the NPT was lative, executive and judicial power in spurred by the US shift away from the hands of fi ve permanent members multilateralism towards unilateral is clearly inequitable and undemo- policies, which reshaped the incentives cratic. Th e lack of transparency in the for smaller states. Th e NPT is one processes and procedures of decision- of the most signifi cant achievements making adds to a lack of performance of international law, built on a bar- legitimacy. gain whereby non-nuclear states gain Th e UN General Assembly is access to civilian nuclear technology, expected to speak as a representative, and are provided by the nuclear states normative voice of all humanity, but with both negative security assurances its resolutions often suff er from pro- (non-use of weapons against them) and cedural technicalities, political power- positive security assurances (nuclear games and point-scoring, prompting disarmament). Th e failures of the fi ve suggestions that the creeping powers nuclear powers to carry out their com- of the UNSC are at least partly due to mitments to seek disarmament and these defi ciencies of the GA. Similarly at the same time their attempts to problematic is the legitimacy of other restrict access to nuclear technologies, organs of the UN, although some of have exacerbated the asymmetries in the allegations are politically motivated the non-proliferation regime. In this and must be carefully evaluated. manner, the legality of the NPT is Th e tension between legality and damaged due to non-reciprocity in the legitimacy is not limited to the UN— implementation of the non-proliferation it is evident in a wide range of inter- and disarmament obligations, while the About the Authors national regimes and issues. Global legitimacy of the treaty—designed to environmental governance is affl icted reduce demand for nuclear weapons— Vesselin Popovski is the Senior by the failure of political institutions is at risk because the core bargain has Academic Programme Offi cer to respond to climate change, and been undermined. and Director of Studies on Inter- the sense that those who are most Even the most fundamental inter- national Order and Justice in aff ected are the most alienated. Th ere national norms, such as the prohibition the Peace and Governance Pro- is a democracy defi cit—civil society, of torture, have been undermined by gramme of the United Nations directly aff ected by the environmental arguments which use law itself. Th e University. rules, has only limited participation ‘torture warrants’, that will forever Nicholas Turner is a Research in the process by which the rules are stain the Bush Administration, or the Assistant in the Peace and made. Th is makes the global regime at reference to the status of ‘illegal enemy Governance Programme of the least inadequate, if not illegitimate. Th e combatant’ to facilitate detention of United Nations University, Tokyo, legitimacy of global ‘green’ governance terrorist suspects, appallingly aim to Japan. is also called into question by its failure reconstitute the law through unilateral

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manipulation of its main premises and can enhance legitimacy. Although the consistent practices. Th is may be more reinterpretation of the norms of non- dangerous even than violating the law intervention and sovereignty has con- as it draws into question the status and sequences for peace and security, it is operational meanings in this instance also clearly necessary to reconcile these of the numerous and entirely suffi cient norms with the need for intervention in existing treaty provisions for protect- situations of humanitarian emergency. ing civilians and prisoners of war. It is Th e promotion of the ‘responsibility to vital to maintain concerted opposition protect’ norm represents one attempt

“The promotion of the ‘responsibility to protect’ norm represents one attempt to build a bridge between legality and legitimacy, closing the gap opened by the Kosovo intervention”

to such attempts, protecting legitimate to build a bridge between legality and legality from the tainted legality of legitimacy, closing the gap opened by sovereign decisions that are not impar- the Kosovo intervention. tially assessed. Legitimacy is a vital prerequisite for any decision taken by political actors. Future Dynamics of Law and In an ideal world, law would always Legitimacy be legitimate—that is, laws would As norms evolve and develop, interna- embody the normative beliefs of those tional law must adapt. Laws are codi- living under them. However, the insti- fi ed rules—fi xed representations of tutions, processes and outcomes of how society believes the world should international legal debates often suff er be ordered, in a snapshot of norms and from a lack of legitimacy, refl ecting the expectations at the time. But as society impact of political pressures. changes and new problems emerge, so International law may still endure, norms adaptively respond, while fi xed even when appeals to legitimacy have rules may no longer be relevant. Th e been made as an alternative to legality. legitimacy of law can be undermined Th e problem is not a desire for a higher by its structural inability to face urgent degree of legitimacy; rather, the prob- problems and respond to pressing lem is the way in which an alternative is issues. Failures to agree on defi nitions sought. Appeals to legitimacy outside of terrorism or aggression, to extend the law are vulnerable to opportun- the NPT, or to reform the UNSC ism by powerful states, with danger- demonstrate this problem. ous consequences for international Th e gap between legality and order. Rejecting legality in favour of legitimacy is rooted in the disconnect legitimacy has led to human suff ering; between the needs of real-world situ- the failings of legality may not always ations and the codifi ed international be replaced by legitimacy. Legitimacy rules that aim to govern these situa- needs law as much as law needs legiti- tions. Eff orts to close this gap through macy—just as law cannot be respected, reform of international organizations if seen as illegitimate, so appeals to

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legitimacy must be based in the spirit, acts. Today fl exibility exists and if not the letter of the law to prevent claims for legitimacy are put forward This brief is based on research opportunism. more frequently—either to reinforce, conducted for the project Legal- We must clarify and reinforce the or to challenge legality. Th e question ity and Legitimacy in International law, so that it can regain its legitimacy that future research could address is Order, jointly undertaken by and remove the need for appeals to whether, under what circumstances, the United Nations University other concepts of legitimacy. Th ese and for how long the fl exibility of the and the University of California, changes must be made on the basis of legality-legitimacy gap needs to be Santa Barbara. A book is forth- cosmopolitan normative agreements, sustained and whether it is feasible to coming with the same title. to avoid unilateral attempts to alter the introduce safeguards to discourage Participants included: law. But also we must acknowledge that abuse of the gap. laws are not perfect, and where appeals Daniele Archibugi to legitimacy gain support, it is clear Asli Bali that legal reform is necessary to close the gap between legality and legiti- Amy Bartholemew macy, and rescue the relevance of law. Christine Chinkin Because of the Iraq invasion and US refusal to abide by international Mariano Croce law, there has been a jurisprudential Lorraine Elliot backlash, insistent on the strict author- Richard Falk ity of legal texts and distrustful of claims of interpretative discretion in Giles Gunn extreme circumstances. Th ree times Mark Juergensmeyer ‘crying wolf ’—the prolonged military presence in Afghanistan, the allega- Friedwich Kratochwil tions of weapons of mass destruction Yasuaki Onuma in Iraq, and an unrelenting anti- Anne Orford Iranian campaign—has given rise to widespread doubts as to the wisdom Vesselin Popovski and viability of US national security Balakrishnan Rajagopal strategy. Th ere are pressures for fl ex- ibility in the dynamic conditions of Ramesh Thakur modern international relations, and combined with the slow capacity of law to adapt, they refresh the legality- legitimacy discourse and consider its application elsewhere than to the international use of force. Th e chal- lenge of climate change, for example, may discourage behaviour that could be legal but illegitimately harming the environment. Th e current debates over immigration in many countries also highlight the need to introduce legiti- macy correctives to legality. In the past the absence of a legiti- macy discourse brought the immediate condemnation of legally questionable

Legality and Legitimacy in International Order 7 “advancing knowledge for human security andwww.unu.edu development”

INSIDE: Policy Brief “Advancing Knowledge for Human Security and Development” Legality and The United Nations University is an organ of the United Nations Legitimacy in established by the General Assembly in 1972 to be an international community of scholars engaged in research, advanced training, and the International Order dissemination of knowledge related to the pressing global problems Legitimacy can reinforce of human survival, development, and welfare. Its activities focus mainly on the areas of peace and governance, environment and legality, but it can also sustainable development, and science and technology in relation to challenge the law and human welfare. The University operates through a worldwide network prompt its development of research and postgraduate training centres, with its planning and

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