Covering the Front and Back Pages of the Newspaper
February 28, 2003
WAR: International Legitimacy
Mickey Kaus, teasing out the meaning from a characteristically inconclusive Michael Kinsley piece, suggests that respect for international institutions like the U.N. requires us to abide by their decisions even when we believe they are morally wrong. (Note that Kaus' blog has no permalinks because he works for such a low-tech outfit):
that's what the international rules mean -- that we sometimes have to do things that are worse for us, including things that increase the risks we face. That's the price of having an international structure of law -- a New World Order, someone once called it -- which will be a handy thing to have when we're combatting terrorism (which we'll be doing for the rest of our lives). . . . Democracy, which we hope to bring to the Middle East, is basically a bunch of formal procedural rules too, no? We don't ignore them when we don't like the outcome. [Insert cheap shot about Bush actually losing the election?--ed. No! He won by the rules, with the Supreme Court playing the role of France.]
Uh, well, no. First of all, the issue isn't abiding by international laws generally; the Administration is quite comfortable, as am I, that war here would not only be consistent with international law but is required to vindicate international law. The issue is, who gets to decide? I don't think, for example, that the U.S. routinely condemns other countries for making war without U.N. approval (France's intervention in the Ivory Coast being the most obvious example, or our own Kosovo campaign) -- we condemn them if we think the wars themselves violate international law. But "international law," like "natural law," is not a body of juridprudence constructed by a legitimate authority, so much as it is a set of principles and precepts, which various sovereigns by agreement have made workable in at least some particulars, for reasons of self-interest.
The contrast to the rules of democracy ought to be obvious: those rules are not just general precepts but are, by agreement, a nearly irrevocable commitment to allow certain issues to be decided by certain people, who are in turn selected in specific ways. The "who gets to decide" question might get sticky sometimes in separation of powers disputes, but in no case are a group of people (such as the American people) forced to submit to a final decision made by unelected foreign powers. Kaus treats the U.N. as if it actually wielded legitimate sovereignty, when it's more like just another alliance, which will go with us or not on a case-by-case basis but retains no sovereign authority to compel us to stop. Nor would it be consistent with any of our governing principles to give such powers to the U.N. that we denied to King George III. Such authority would be inherently illegitimate, not least for all the reasons you already know: because representation in the U.N. is neither proportional nor representative.
So, we respect international law, and endeavor to act within it -- but we do not respect the ability of an unrepresentative body to decide what that law is. I think that's quite consistent and defensible.
(For the record, the role of France in the recount was played by the Florida Supreme Court, which ignored or rejected the various rules, rulings and factfindings of the U.S. Supreme Court, the U.S. Constitution, the U.S. Congress, the Florida Legislature, the Florida Secretary of State, and the trial court).