Legality and Legitimacy in Global Affairs

468 Pages·2012·2.11 MB·English

by  Richard Falk

Legality and Legitimacy in Global Affairs
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Legality and Legitimacy
in Global Affairs
Edited by Richard Falk,
Mark Juergensmeyer , and Vesselin Popovski
1
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Library of Congress Cataloging-in-Publication Data
Legality and legitimacy in global aff airs / edited by Mark Juergensmeyer, Richard Falk, and Vesselin Popovski.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-978157-7 (hardback) — ISBN 978-0-19-978158-4 (pbk.) 1. International law. I. Juergensmeyer, Mark.
II. Falk, Richard A. III. Popovski, Vesselin.
KZ3410.L44 2012
341—dc23 2011044667
Th is volume is sponsored by United Nations University and the Orfalea Center for Global and International Studies,
University of California, Santa Barbara.
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
CONTENTS
Preface vii
1. Introduction: Legality and Legitimacy: Necessities and Problematics
of Exceptionalism 3
RICHARD FALK
PART ONE
2. Law, Legitimacy and the United Nations 45
RAMESH THAKUR
3. Legitimacy Norms as Change Agents: Examining the Role
of the Public Voice 72
ANDREW JOSEPH LOOMIS
4. Defending Legality in the Age of Empire’s Law 92
AMY BARTHOLOMEW
5. Leaving Sovereignty Behind? An Inquiry into the Politics of
Post-modernity 127
FRIEDRICH KRATOCHWIL
6. International Law and Power in the Multipolar and Multicivilizational
World of the Twenty-fi rst Century 149
YASUAKI ONUMA
7. The Trans-civilizational, the Inter-civilizational, and the Human:
The Quest for the Normative in the Legitimacy Debate 198
GILES GUNN
PART TWO
8. Rethinking Legality/Legitimacy after the Iraq War 219
CHRISTINE CHINKIN
9. Lawful Authority and the Responsibility to Protect 248
ANNE ORFORD
10. The Legitimacy of Invading Religious Regimes 273
MARK JUERGENSMEYER
vi Contents
11. Legality and Legitimacy in the Global Order: The Changing
Landscape of Nuclear Non-Proliferation 291
ASLI Ü. BÂLI
PART THREE
12. Legality and Legitimacy: The Environmental Challenge 365
LORRAINE ELLIOTT
13. Legality and Legitimacy of International Criminal Tribunals 388
VESSELIN POPOVSKI
14. Legality and Legitimacy of Exporting Democracy 414
DANIELE ARCHIBUGI AND MARIANO CROCE
15. Conclusion: Legitimacy as Complement and Corrective to Legality 439
VESSELIN POPOVSKI AND NICHOLAS TURNER
Index 451
PREFACE
Can international actions be regarded as legitimate even if they are not legal? And
are legal actions in the global arena sometimes deemed illegitimate? A multiplicity
of transnational forces—from economic practices and environmental policies to
sanctions and outright military interventions—interfere in the domestic aff airs of
states. Some of those intrusions are not legally sanctioned, but still could be tacitly
approved by public opinion. Political leaders of countries have been overthrown
and others tried for war crimes, sometimes through judicial proceedings that have
no offi cial legal precedent or sanction beyond the will of the victor—as in the case
of the Nuremberg Military Tribunal that put on public trial the leaders of Hitler’s
Nazi regime for crimes against humanity, crimes against peace, and war crimes.
Can we judge these once legally dubious undertakings to be legitimate? Can they
serve as precedents for future legal developments and guiding examples for future
actions?
M ilitary intervention is a particularly vexing example of the problem. Th e
army of one state is not supposed to invade another state. Yet cross-border military
actions have been frequent in recent decades—on occasions approved by the UN
Security Council, as in the case of Libya in 2011 and the Gulf War in 1991. Some-
times, as in the case of Kosovo in 1999, the intervention was not legally sanctioned,
but claims were made that the humanitarian purposes, the urgency of the timing,
the proportionality of the use of military force, and the end result of averting a
humanitarian catastrophe were suffi cient to encourage the international commu-
nity to acquiesce to the legitimacy of the action post facto and even to exhibit ap-
proval. In these cases the actions may be regarded as morally and politically
legitimate, even if they are not formally l egal. Th en there is the case of the US-led
invasion in Iraq in 2003, which was regarded by many as blatantly illegal and ille-
gitimate, although it was presented by offi cials in Washington and London as an
action that was justifi ed by its humanitarian purposes and its attempt to preemp-
tively disrupt plans to conduct violence on a horrendous scale through weapons of
mass destruction, claims that never gained international consensus.
Th is book investigates both the general theoretical nature of the relationship
between legality and legitimacy and its particular characteristics in specifi c con-
texts. It goes beyond the task of simply debating whether certain regimes or inter-
vening acts are legal or legitimate, but also deconstructs these concepts through
their interplay in each case. In doing so, it seeks a deeper, more complete appreci-
ation of the dynamic relationship between legality and legitimacy and how the
distinction operates in practice, as well as in theory. Indeed, exploring these vii
viii Preface
c oncepts in specifi c contexts demonstrates both the wide scope of issues and areas
that could be aff ected, and the extent to which legality-legitimacy tensions per-
vade a range of substantive concerns. Th e volume attempts to answer questions
about how legality is defi ned and how legitimacy is constituted and judged; and it
explores the links between the concepts with regard to the actions of global powers
and international institutions such as the United Nations. Th e chapters present the
authors’ interpretations of the relationship between legality and legitimacy, col-
ored and shaped by their disciplinary background and by their specifi c expertise
in various aspects of global politics.
Th is project is the result of a collaborative eff ort over several years. Reliance
on the distinction between legality and legitimacy fi rst achieved prominence in
the report of the Independent International Commission on Kosovo, of which
Richard Falk was a member. Th e idea for doing a project and a volume on the topic
came from Vesselin Popovski at the United Nations University (UNU) in Tokyo,
who approached the Orfalea Center for Global and International Studies at the
University of California, Santa Barbara with a proposal for a joint study on the
connection between legality and legitimacy, not only with respect to the use of
force, but in a variety of other areas such as environmental protection, arms con-
trol, and international criminal justice. Th e Director of the Orfalea Center, Mark
Juergensmeyer, enthusiastically accepted the idea, and Richard Falk agreed to pro-
vide the intellectual leadership and serve as project coordinator. A fruitful work-
shop in Santa Barbara in 2007 brought together a distinguished group of scholars
who presented papers, responded to each others’ ideas, and later revised their
papers into book chapters.
Th is volume would have been impossible without the eff orts of Victor Faessel,
program director of the Orfalea Center, who served as the project’s managing ed-
itor. He coordinated the workshop, corresponded regularly with the authors, and
meticulously took control of all aspects of the volume’s production from the be-
ginning of the project to its completion. In preparing this manuscript for publica-
tion, we also wish to thank the administrative staff s of the Orfalea Center in Santa
Barbara and UNU in Tokyo for their helpful support. At UNU, Nicholas Turner
has been an extremely eff ective administrator of the project, and Yoshie Sawada
handled perfectly all fi nancial arrangements. At the Orfalea Center, Cori Mont-
gomery has provided valuable administrative support. Th e editors are also grateful
to David McBride and the editorial staff at Oxford University Press for their com-
mitment and advice.
Richard Falk, Mark Juergensmeyer, and Vesselin Popovski
Legality and Legitimacy in Global Affairs