Only recently, however, did I discover this speech by Bolton to the Federalist Society, Washington, DC, November 13, 2003: “Legitimacy” in International Affairs: The American Perspective in Theory and Operation.” At the time, Bolton was serving as Under Secretary for Arms Control and International Security.
Bolton began by acknowledging that “many voices question the legitimacy of our policies.” His task? To explain, especially to critics, “how and why we consider our actions around the world as legitimate.”
Head first combatant that he apparently is, Bolton first takes on critics of the Iraq war. Bolton argues that the war was legitimate because it was authorized by Congress in October 2002. In other words, it was legal domestically, so it was OK internationally.
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.
Does this mean the US is free to violate international law? Consider Article VI, Clause 2 of the US constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Moreover, legitimacy is a social understanding implying reasonable, acceptable, or appropriate. If most other states view a single state’s action as illegitimate, then it is, by definition.
Bolton then considers the legitimacy of the Proliferation Security Initiative and the US decision to opt out of the International Criminal Court, despite its apparent mandatory jurisdiction clauses. In those cases, however, Bolton argues that there is explicit international legal authority to interdict suspected shipments of WMD material and to opt out of the ICC (via Article 98 of the Rome Statute).
In the end, however, Bolton defaults to his prior argument about sovereign authority, grounded in the domestic “consent of the governed.” Bolton sees the international debate about the legitimacy of US action as simply an attempt to constrain American power. And he definitely doesn’t want that:
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.
Short version: we’ll decide for ourselves what is legitimate, thank you. And this is the US representative to the most important international institution?
Incidentally, this argument is much like the one President Bush had with candidate John Kerry about the “global test” during the fall 2004 election.
Note: others have dissected Bolton’s arguments in more detail.
Filed as: Legitimacy of American foreign policy