"Legitimacy" in International Affairs: The American Perspective in Theory and OperationJohn R. Bolton, Under Secretary for Arms Control and International Security
Remarks to the Federalist Society
November 13, 2003
I thank the Federalist Society for the opportunity to address this year’s annual lawyer’s convention. With so many challenges to American actions around the world, and so many criticisms of our foreign policy, I think it important that we establish for ourselves, and, perhaps more importantly, for our critics, how and why we consider our actions around the world as legitimate. While this may sound like a perilously abstract issue, in fact it daily affects our ability to secure American national interests in a wide range of circumstances. Since many voices question the legitimacy of our policies, it is essential that we both understand and articulate the often unspoken premises on which America typically rests its foreign and national security actions.
Let me take three current examples of important American policies where our legitimacy has been questioned: first, key elements of our Iraq policy; second, President Bush’s new Proliferation Security Initiative; and third, our efforts to protect American persons against the assertion of jurisdiction over them by the International Criminal Court. Of course, the wisdom of these policies has also been criticized, but I hope to treat here not the substantive merits of these issues -- although I would be more than happy to do so at the drop of a hat -- but more fundamentally, and ultimately more damaging, the assertion that we are basically doing something illegitimate.
There are two recent case studies involving Iraq where the legitimacy question has emerged most sharply. First is the question of the authority for -- and hence the legitimacy of -- the U.S.-led Coalition’s recent military action in Iraq. Let me say immediately, for those who wonder, that we had ample Security Council authority under Resolution 678, which authorized the “use of all necessary means” to uphold the relevant Security Council resolutions and to restore international peace and security in the region. Resolution 687 provided for a formal cease-fire but imposed conditions on Iraq, material breaches of which left member states with the responsibility to enforce those conditions operating consistently with the underlying authorization contained in 678. Resolution 1441 contains the Council’s specific decision that Iraq was and remained in material breach, and provided a final opportunity, which Iraq clearly failed to avail itself of.
Significantly, UN Secretary General Kofi Annan has specifically said, “Unless the Security Council is restored to its preeminent position as the sole source of legitimacy on the use of force, we are on a dangerous path to anarchy.” But these sorts of statements, which the Secretary General and others have made repeatedly over the past several years, are unsupported by over fifty years of experience with the UN Charter’s operation. The case of Kosovo in the previous Administration alone proves this point. Since the decision to use military force is the most important decisions that any nation-state faces, limiting its decisions or transferring them to another source of authority is ultimately central to a diminution of sovereignty.
Importantly, there is no doubt in light of the October 17, 2002 Congressional resolution supporting the use of American force that the President had full authority, and therefore full legitimacy, to disarm the Iraqi regime under the Constitution. We should not shrink from the debate on legitimacy through concern that following our own Constitutional procedures on the use of force is somehow not “enough” to justify our actions. Indeed, there is a fundamental problem of democratic theory for those who contend, implicitly or otherwise, that the proper operations of America’s institutions of representative government are not able to confer legitimacy for the use of force. And make no mistake, not asserting that our Constitutional procedures themselves confer legitimacy will result, over time, in the atrophying of our ability to act independently.
Second is the fundamental issue, still in dispute, of where the legitimacy of the next government of Iraq will come from. (I distinguish here “legitimacy” from actual political power or political impact. They are two separate things, and one can certainly have legitimacy without power, and vice versa.) For Americans, the basis of legitimacy for governments is spelled out in the Declaration of Independence: the just powers of government are derived from the consent of the governed. It is, therefore, unequivocally the U.S. view that the legitimacy of Iraq’s next government must ultimately derive from the Iraqi populace, and not from other individuals, institutions or governments, not from theologians, not from academics, not from the United States, and not from the United Nations. This is a fundamental precondition for understanding the legitimacy of the use of any governmental power, and yet it has been fundamentally misunderstood in the UN system.
Many in the UN Secretariat, and many UN member governments, in recent Security Council debates, have argued directly to the contrary. Increasingly, they place the authority of international law, which does not derive directly from the consent of the governed, above the authority of national law and constitutions.
The question of legitimacy also arises as the United States seeks to defend its national interests using novel methods and loose coalitions. For instance, one major new policy, the Proliferation Security Initiative (“PSI”), announced by President Bush in Krakow, Poland on May 31st, has been developed with ten other countries, each using its national-level efforts and capabilities. Without question, the PSI is legitimate and will, I predict, be extremely efficient in its efforts against weapons of mass destruction (“WMD”).
Accordingly, the United States and ten other close allies and friends have created a more dynamic, creative, and robust approach to preventing WMD, missiles, and related technologies flowing to and from states and non-state actors of proliferation concern. PSI has been a fast-moving effort, reflecting the urgency attached to establishing a more coordinated and active basis to prevent proliferation. On September 4, just three months after the President’s announcement, we agreed on and published the PSI "Statement of Interdiction Principles." The response to the PSI and the Principles has been very positive, with more than 50 countries already indicating their support and readiness to participate in interdiction efforts. President Bush has made clear that the PSI will be broadened to all countries that have a stake in nonproliferation and that have the will and the ability to take necessary action to address this growing threat. Our long-term objective is to create a web of counterproliferation partnerships through which proliferators will have difficulty carrying out their trade in WMD and missile-related technology.
As PSI has been created, some critics have questioned its legitimacy, some actually likening it to piracy. As PSI participant countries have repeatedly stressed, however, our interdiction efforts are grounded in existing domestic and international authorities. Participating countries have exchanged extensive information about what we believe our respective national authorities are, and the Statement of Interdiction Principles makes clear that the steps it calls for will be taken consistent with those authorities. The governments of participating countries have conducted thorough reviews of this initiative, and we are very confident that we have substantial legal authority to conduct interdiction operations.
In the maritime interdiction area, for example, we can find a variety of ways to interdict illegal shipments when the vessels carrying them come to port, given that sovereign power is at its greatest in national waters. Other vessels on the high seas may, under well-accepted principles of customary international usage, be boarded by any navy if they do not fly colors or show proper identification. That is not, of course, to say that we have the authority to make any seizure that we want. The question of what is permissible for seizure and what is not must be determined on a case-by-case basis. As a nation that has consistently upheld the importance of free trade around the world, we will not act capriciously. Where there are gaps or ambiguities in our authorities, we may consider seeking additional sources for such authority, as circumstances dictate. What we do not believe, however, is that only the Security Council can grant the authority we need, and that may be the real source of the criticism we face.
Article 98 Agreements
My third example of challenges to U.S. legitimacy concerns our efforts to seek agreements with other countries to protect U.S. persons from the jurisdiction of the International Criminal Court (“ICC”). These efforts have been disparaged as contrary to the letter and spirit of the Rome Statute that created the ICC. As President Bush has argued starting in the 2000 campaign, and as I detailed here last year, numerous problems inherent in the ICC directly affect our national interests and security, and therefore also affect the security of our friends and allies worldwide. The ICC is an organization that runs contrary to fundamental American precepts and basic Constitutional principles of popular sovereignty, checks and balances, and national independence.
Accordingly, we are engaged in a worldwide effort to conclude legally binding, bilateral agreements that would prohibit the surrender of U.S. persons to the Court. These “Article 98 agreements,” so named because they are specifically contemplated under Article 98 of the Rome Statute, provide U.S. persons with essential protection against the Court’s purported jurisdictional claims, and allow us to remain engaged internationally with our friends and allies.
Thus far, the United States has concluded and signed Article 98 agreements with 70 countries all around the globe, representing over 40 percent of the world’s population. Each Article 98 agreement meets our key objective -- ensuring that all U.S. persons are covered by the terms of the agreement. This broad scope of coverage is essential to ensuring that the ICC will not become an impediment to U.S. activities worldwide. Article 98 agreements serve to ensure that U.S. persons will have appropriate protection from politically motivated criminal accusations, investigations, and prosecutions. These straightforward agreements commit partners, either reciprocally or non-reciprocally, not to surrender U.S. persons to the International Criminal Court, not to retransfer persons extradited to a country for prosecution, and not to assist other parties in their efforts to send U.S. persons to the ICC.
Indeed, our current tally attests to the growing consensus worldwide that Article 98 agreements with coverage of all U.S. persons are legitimate mechanisms as provided in the Rome Statute itself. Of the 70 countries that have signed Article 98 agreements with us, 50 are signatories or States Parties to the Rome Statute. Based on our extrapolations from negotiations currently underway, not only do we anticipate a rising number of total Article 98 agreements, but even more agreements from States Parties and signatories to the Rome Statute. Our ultimate goal is to conclude Article 98 agreements with every country, regardless of whether they are a signatory or party to the ICC, or regardless of whether they intend to be in the future.
The main opposition to our Article 98 efforts comes from some EU officials and from the presumptuously named “civil society,” which argue that the wording of Article 98 limits the categories of persons that can be covered by bilateral non-surrender agreements. On the contrary, Article 98 clearly allows non-surrender agreements that cover all persons, and those who insist upon a narrower interpretation must, in effect, read language into Article 98 that is not contained within the text of that provision.
Here is a real irony in the legitimacy debate. From our perspective, it is difficult to see how following provisions of the Rome Statute to protect U.S. persons would do unacceptable damage to the spirit of the treaty, when the treaty itself provides for such agreements. Indeed, parties to the Rome Statute have used Article 124 to exempt their nationals for a period of seven years from the Court’s war crimes jurisdiction, yet there has been no suggestion that triggering these treaty provisions will undermine the Court. One EU member, France, has already invoked that exemption in order to protect its citizens from accusations with respect to war crimes.
Our detractors claim that the United States wants to use these agreements to undermine the ICC, or that these agreements as crafted lack legitimacy under the terms of the treaty. To the contrary, we are determined to be proper in our relations with the Court, proceeding in a manner specifically contemplated by the Rome Statute itself. Moreover, in each agreement, the United States makes clear its intention to bring to justice those who commit genocide, crimes against humanity and war crimes where appropriate. This is the stated goal of ICC supporters, and a goal that the United States has and will maintain.
The real legitimacy issue here is the Rome Statute’s purported claim that the ICC can exercise jurisdiction over U.S. persons even though the United States is not a party to the treaty, and is no longer even a signatory to the treaty. It is, to say the least, most ironic of all that a “human rights” treaty is advanced on a theory that fundamentally rejects and seeks to override the exercise of popular sovereignty in the United States by purporting to bind us without our consent. One can only imagine the criticism we would receive if we tried something similar on other nations. Our efforts to secure Article 98 agreements are not only legitimate under the Rome Statute itself, but reflect the basic right of any representative government to protect its citizens from the exercise of arbitrary power.
The question of legitimacy is frequently raised as a veiled attempt to restrain American discretion in undertaking unilateral action, or multilateral action taken outside the confines of an international organization, even when our actions are legitimated by the operation of that Constitutional system. The fact, however, is that this criticism would delegitimize the operation of our own Constitutional system, while doing nothing to confront the threats we are facing. Our actions, taken consistently with Constitutional principles, require no separate, external validation to make them legitimate. Whether it is removing a rogue Iraqi regime and replacing it, preventing WMD proliferation, or protecting Americans against an unaccountable Court, the United States will utilize its institutions of representative government, adhere to its Constitutional strictures, and follow its values when measuring the legitimacy of its actions. This is as it should be, in the continuing international struggle to protect our national interests and preserve our liberties.
Released on November 13, 2003