The Sources of American Legitimacy

Robert W. Tucker and David C. Hendrickson

From Foreign Affairs, November/December 2004

Summary:  The 18 months since the launch of the Iraq war 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.

Robert W. Tucker is Professor Emeritus of American Foreign Policy at Johns Hopkins University. David C. Hendrickson is Robert J. Fox Distinguished Service Professor at Colorado College.

Judgments of legitimacy are rooted in law but sometimes do transcend its commands. It is therefore easy to understand why in some hard cases it seems imperative to accord legitimacy to actions otherwise illegal. At the same time, it is easy to understand why the continual process of making exceptions may so vitiate the law that the exceptions themselves become the rule. U.S. foreign policy now finds itself at the bottom of this slippery slope.

The experience of the Cold War contributed to this process; the exigencies of the competition made exceptions to legal conduct seem necessary and therefore rightful. Since the end of the Cold War, unipolarity sent the nation further down the slope. The development was natural, entirely understandable.

But to understand is not to forgive. It is evident that the United States has reached a kind of tipping point, where world public opinion defines Washington as much, if not more, by the ease with which it justifies illegal actions as by its commitment to legality. The United States has assumed many of the very features of the "rogue nations" against which it has rhetorically-and sometimes literally-done battle over the years. The legitimacy of U.S. power has, at a minimum, been eroded significantly, and at certain moments-for instance, in the general revulsion to reports of widespread torture in Iraq-it seems to have vanished entirely.

The road back from perdition will not be easy. It is impossible to undo the various actions that have tainted U.S. legitimacy; they will remain as blots on the record. Still, there can be little doubt that the first requirement for the restoration of the country's legitimacy is a return to lawful conduct. It is not simply "modern liberalism" or the "postmodern" sensibility of western Europe that is offended by the world's greatest power taking the law into its own hands. Objection to that state of affairs has been at the core of Western reflection on international relations since the birth of the modern state system, and it was axiomatic to America's founders, who erected their constitutional regime on the proposition that power must be checked and balanced.

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.

Such illegal uses of force are in fact unnecessary for U.S. security and actually imperil it. The Iraq war clearly illustrates both points: not only did containment and deterrence offer a perfectly workable method of dealing with Saddam's Iraq, but the consequences of the U.S. occupation have also made Americans much more insecure. Those consequences include daily attacks on American soldiers, the inflammation of opinion in the Muslim world (encouraging new recruits for al Qaeda), and the possibility of further wars arising from the potential disintegration of the Iraqi state.

The baleful results of the Iraq war are also relevant to the dangers posed by the acquisition of nuclear weapons by North Korea or Iran, two instances in which preventive war is often urged. As with Iraq, "preventive" attacks would be remedies worse than the disease and could mean catastrophic war in both regions. U.S. threats of "regime change" also undermine the more reasonable policy of dissuading either state from acquiring such weapons through measures short of war-that is, through a mixture of negative sanctions and positive inducements. The prospects of a grand bargain with either Pyongyang or Tehran would be enhanced were Washington to abandon its not-so-secret wish to bring about the downfall of these regimes.

A second area in which the temptation exists to go beyond the law, but where the need to do so is less than apparent, concerns humanitarian intervention-that is, military action within the territorial jurisdiction of another state to halt abuses of human rights. There is a developing consensus that such interventions may indeed be justified and that the traditional international law forbidding intervention in states' internal affairs must yield to the need to put an end to acts "that shock the conscience of mankind." The question concerns not whether such interventions ought to be forbidden but whether the United States ought to respect certain procedural safeguards if such interventions are to be justified.

Although it is always possible to imagine scenarios in which intervention is blocked by the refractory obstruction of a veto-wielding member of the Security Council, the UN has in fact been reasonably accommodating over the last 15 years, during which time the number and scale of humanitarian interventions have grown far beyond what occurred during the Cold War. In the case of Rwanda, it was not opposition from Russia and China but U.S. skittishness after the failed intervention in Somalia that prevented action by the council. The multitude of peacekeeping missions authorized over the last decade and a half does not support the claim that humanitarian interventions have been seriously hobbled by the veto.