International Law vs International Legitimacy Paper The topic is International Law versus International Legitimacy.To give you an example as to how a forme

International Law vs International Legitimacy Paper The topic is International Law versus International Legitimacy.To give you an example as to how a former student approached this, I have attached her paper here. I don’t need a 19 page paper like hers, but 3 well-thought out pages will suffice. This means some real rigorous analysis — leaving out fluffy phrases such as “in my opinion” or “I think that” or “It is my belief that.” No typos. No baloney filler. By Sabrina Verduzco
2017
For Professor Tom Plate
Princeton Emeritus Professor Richard Falk and the Issue of
International Legality v. International Legitimacy
PART ONE: International Law v. International Legitimacy
International law is regarded as a body of rules that are established either by
custom or treaty and acknowledged by nations as contractual in their relations amongst one
another. However, the dilemma that exists between action and restraint continues to persist into
the 21st century world political sphere. According to leading international-law expert Richard
Falk, “the policy and conceptual challenges associated with navigating the treacherous divide
between freedom and restraint in world politics reflects the particular character of world order
and global governance at this historical juncture.” As a result, there is an inevitable and ongoing
tension between whether international legality as over against international legitimacy should be
prioritized over the other.
Among the many dilemmas that arise from universally applied international laws is that they
are often inconsistent with national issues that lack universal application due to widely varying
cultural and sociopolitical beliefs. Thus, “the veto power of the five permanent members of the
UN Security council can be used on a purely discretionary basis to block decisions strongly
supported by the great majority of the governments of member countries, by the overwhelming
sentiments of world public opinion, and in defiance of the generally agreed ground rules of world
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order behavior even when these enjoy unquestioned status as norms of international law”
(Juergensmeyer & Falk, 3). As a result, the relative power of states is often dependent on
geopolitical actors as a means of being able to set precede. Geopolitics, as used in this paper,
refers to the manner in which culture is often influenced by foreign policy actors and academic
professionals who concern themselves with particular understandings of policy prescriptions and
hegemonic powers.
In this context, American exceptionalism has become especially prevalent in the
21st century. In one respect, American exceptionalism “takes the form of the veto power given to
the five permanent members of the Security Council, who were deemed back in 1945 to be the
most powerful among existing sovereign states. They were also the countries that prevailed in
World War II and claimed the authority to shape the future global constitutional order”
(Juergensmeyer & Falk, 6). Even if this concept of exceptionalism is not meant to imply an
inherent superiority to any other nation, it does refer to an assumed capacity or right to ignore
international law and instead rely on moral arguments of legitimacy as a function of sheer
political power. However, this self-proclaimed right to ignore international law is extremely
context dependent and should be noted that actions that garnered acclaimed success in one
country can result a polar opposite effect in another country with an entirely different set of
morals and beliefs.
The Kosovo War of 1999 serves as the first situation illustrative of the legality
and legitimacy distinction; and it realized and illuminated the deficiencies associated with
international legality as an “unconditional source of authoritative guidance for the international
behavior of governments representing sovereign states” (Juergensmeyer & Falk, 9). The Kosovo
War was an armed conflict in Kosovo from March 5th, 1998 to June 11, 1999. The two opposing
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forces were the Federal Republic of Yugoslavia that controlled Kosovo prior to the war against
the Kosovo Albanian rebel group referred to as the Kosovo Liberation Army (KLA). The KLA
instigated Kosovar independence through the use of armed conflict against Serbian forces, in the
latter’s campaign of ethnic cleansing. Serbian forces pushed 250,000 ethnic Albanian Kosovars
from their native land, with about 30,000 left to freeze to death without shelter within the forests
of the country amid a harsh winter.
On June 9th, 1998, United States President Bill Clinton decided to declare a
national state of emergency due to the “unusual and extraordinary threat to the national security
and foreign policy of the United States” imposed by Yugoslavia and Serbia over the Kosovo
War. The United Nation Security Council’s inability to authorize the use of force in order to
stop the ethnic cleaning was mainly due to Russia’s warning that it opposed any resolution
authorizing the use of force; this blockage in fact lead to the eventual origination of the principle
of “responsibility to protect.” On January 29, 1999, NATO finally facilitated a compromise
between the Serbian and Kosovar Albanian leaders at Rambouillet where they discussed
disarming the KLA, withdrawing Yugoslav forces, and Kosovo’s status. Unfortunately, this
compromise failed due to Serbia’s refusal to sign the agreement.
In response, NATO decided to authorize and initiate an air campaign against Yugoslavia
on March 24th. The Security Council meeting held immediately after the air campaign stated that
the intervention was necessary “to respond to Belgrade’s brutal persecution of Kosovar
Albanians, violations of international law, excessive and indiscriminate use of force, refusal to
negotiate to resolve the issue peacefully and recent military build-up in Kosovo” (U.N. Security
Council, (Provisional Verbatim Record). From this statement, it can be inferred that the
intervention was driven by humanitarian concerns of NATO members.
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According to Richard Falk, the United Nations is often reluctant to compromise
between geopolitical restraints and power, and refers to “the hypocrisy of the R2P diplomacy by
the failure to make a protective response of any kind to the acute vulnerability of such abused
minorities as the Uighurs in Xinjiang Province of China, the Rohingya in Rankhine State of
Myanmar, and of course the Palestinians of Palestine.” There are, of course, many other
victimized groups whose rights are trampled upon by the state apparatus of control that for UN
purposes is treated as their sole and unreviewable legal protector” (“Global Justice in the 21st
Century”). However, in the situation of the Kosovar War of 1999, other national interests
seemed to be more at stake than humanitarian interests for NATO member states. For example,
the US, which led the intervention, had a significant interest in ensuring an established credibility
of NATO within Europe, which essentially furthered NATO’s existence as an effective
institution that facilitated the United States’ continued dominance within the region.
Falk also cautions the legitimacy argument as an alternative to R2P, which he
perceives as a slippery slope due to the fear that any moral argument can be made to justify any
sort of intervention. The advantages associated with international legitimacy pertain to its
subjective nature, where there is no entirely authoritative way and matter of consensus; thus, the
attitude of public opinion is important. This further connects to the Kosovo incident: there was a
substantial international consensus supporting NATO’s actions during Kosovo’s political turmoil
that essentially led to NATO’s intervention and, for better or for worse, helped establish the
concept of international legitimacy as a proper means of humanitarian intervention by member
states.
But the slope is slippery. According to British sociologist, Robert Fine, “If the
legitimacy of international law lies in its capacity to humanize political conflicts, so that even the
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perpetrator of crimes against humanity or genocide is treated as a responsible and rational human
being, then it is imperative that we should resist the temptation to label those who commit such
crimes as inhuman monsters, that is, to dehumanize the de-humanizers. Those who commit
crimes of this nature typically dehumanize the people against whom their crimes are committed.
The legitimacy of international law suffers to the extent that it is put into the service of
reproducing the cycles of demonisation that preceded it” (Legality and Legitimacy: Normative
and Sociological Approaches, 2010). Thus, problems with legitimacy within international law
necessitate an existence of universal human rights. However, interpretations of human rights and
humanitarian norms vary extremely, depending on ulterior motives pertaining to political
interests and supposed claims of altruism.
As a result, the pursuit of human rights and humanitarian norms is futile in nature
due to the inevitability of conflicting moral differences that exist between nations. According to
Falk, one could easily argue that “the Kosovo precedent made it easier for the United States (and
its far thinner new ‘coalition of the willing’) in 2003 to embark on an invasion of Iraq despite the
absence of any credible claim of self-defense and in view of the refusal of the UN Security
Council to provide authorization despite strenuous diplomatic maneuvering by the United States.
The combined impact of the Kosovo and Iraq precedents seem to have eroded respect for the
authority of international law and the UN Charter, at least for the time being” (11). Overall, one
can assess legitimacy and its success by looking at what the intervening side does afterward, and
the level of economic progression or lack thereof that follows.
Contrary to the legitimacy and relative success of NATO’s intervention in the
Kosovo War of 1999, the legality of the invasion and occupation of Iraq in 2003 has been widely
contested. In Article 39 of the UN Charter, the UN Security Council technically has the ability
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to rule on the legality of the Iraq War, but has yet to do so. Although Kosovo’s case for
intervention was exceptionally compelling in light of Serbia’s repeated reliance on sever
violence and ethnic cleansing, “in Iraq, these results were supposed to be the coupling of the
removal of a brutal, dictatorial, and dangerous regime led by Saddam Hussein, and its
replacement by a constitutional democracy that upheld the human rights of the Iraqi people.”
The fact that in each instance it was the United States, the dominant geopolitical
actor in the current global setting, that led the effort to circumvent international law added doubts
about the net benefits of the Kosovo operation even if the majority historical judgment is
accepted that it did almost certainly prevent a humanitarian catastrophe from befalling the
Kosovars” (Falk, 13). Thus, the invasion created a second catastrophe and essentially tarnished
the previously established Kosovo precedent by intervening in Iraq at a time when there was no
perceived humanitarian concern or imminent danger.
The debate over the 2003 Iraq War offers an excellent example of an instance
where one course of action works relatively well and is met with significant success (Kosovo
1999), while that same course of action in an entirely different country with a different set of
prevailing beliefs and morals is met with disaster and catastrophe (Iraq 2003). Contrary to the
prevailing belief that the Iraq war was caused by over exaggerated misperceptions and Saddam
Hussein’s irrational behaviors during the George W. Bush Administration, it is argued that the
2003 US-led invasion of Iraq can be justified within a surprisingly rationalist framework. In
light of this war, Kosovo is credited for creating a pretext to Iraq, where using force when
circumventing the United Nations is perceived to be a rational course of action. Although
legitimacy talk allows for a more prominent presence for morality to be taken into consideration,
it should always be noted that it does “loosen the constraints of legality, while being mindful of
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process constraints. Legitimacy does weaken the constraints of legality by giving restricted
forms of permission to other principled ways to justify and regulate controversial policy”
(Juergensmeyer & Falk, 15).
Thus, an obvious advantage for international legality is its written nature and its
basis on authoritative grounds. There are three established legal disciplines: public international
law, private international law, and supranational law. The first, public international law,
concerns itself with the manner in which states and international entities operate, which includes
treaty law, international criminal law, international humanitarian law, international human rights
law, refugee law, and law of the sea. Private international law confronts questions pertaining to
where certain jurisdictions fall and where it is applicable to certain issues within a case. Lastly,
supranational law pertains to regional agreements where a nation-states’ law be deemed
inapplicable if it conflicts with a supranational legal system. For the sake of this paper, I focus
on public international law.
However, it should also be noted that international law widely varies form statebased legally established systems where laws are primarily applicable and imposed on countries
rather than its private citizens. The distinction between legality and legitimacy is important in
light of the Kosovo War. The Kosovo War is treated as an illegal, but legitimate course of action
because “it was acknowledging the incompatibility between the use of force and international
law, but it was affirming a beneficial outcome by pointing to the humanitarian results of military
action, as constrained by a second-order legal framework that sought to regulate how force was
used, taking particular account of international humanitarian law” (Juergensmeyer & Falk, 20).
The use of legitimacy in this instance emphasizes the importance of taking into
account a nation’s moral responsibility when it comes to protecting another nation against
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imminent danger, threats, and vulnerability. As a result, “we are left with the haunting question
of whether it is better to encourage a principled framework for exceptional uses of force in
circumstances of humanitarian urgency or to leave the disposition of such situations to the play
of contextual forces in each instance” (Juergensmeyer & Falk, 23).
There is an ongoing question in regards to whether there is a solution for the
ongoing tension between whether it is preferential to utilize international legitimacy or to rely on
delayed, but authoritative legality. Falk states that “international law should always have the last
word with respect to identifying acceptable behavior by states, and other international actors, or
whether additional criteria of acceptability derived from moral and political considerations
should be brought to bear in exceptional circumstances” (18).
According to Falk, there is an existing presumption in favor of international law,
where the implementation of international legality brings discipline to the states involved. He
prioritizes legality over legitimacy because legitimacy creates the burden of persuasion if there is
no intervention or use of force. This is an important element, because if persuasion is used too
broadly, then this creates an open space for geopolitical manipulation—where humanitarian
intervention can be used as a default excuse for nations to impose ulterior motives on more
vulnerable and susceptible nations in need of aid due to pressing circumstances at the time of
intervention. Moral and political arguments can easily be fashioned to justify a nation’s decision
to intervene.
The United States stands as a global state and has projected its interest onto all
corners of the globe. US exceptionalism has become a legitimate dilemma with which many
nations have found themselves struggling to deal. US exceptionalism allows the United States to
operate based on the concept of legitimacy; whereas, other countries are confined by their
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already established and accepted terms of legality. Many scholars believe that international law
is meant for the weak—not the United States. However, Iraq serves as a concrete example of the
type of chaos that can erupt as a result of being unable to distinguish between whether legality or
legitimacy should take precedence.
Finally, there is the issue of transformation. According to Falk, the first issue is
structural, which concerns itself with the dilemma of having to overcome a state system that
accepts and operates with both the theoretical idea of political equality and the reality of
inequality between states. The second issue is psycho-political and deals with a state
participating in foreign affairs solely out of their own personal interest with little to no regard for
humanitarian morality and justification. However, Falk concludes with the realistic notion that
there is actually no way of solving this dilemma without fully coming to terms with the powerful
and diverse global interests that are constantly at work, sometimes in clandestine fashion.
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PART TWO: Princeton’s Richard Falk and the Epistemology of the International Legality
v. International Legitimacy Debate
Richard Falk, an intellectually methodical and invariably thought-provoking
expert, is Professor Emeritus of International Law at Princeton University. Falk is a significant
expositor associated with the dilemma on whether international legality or international
legitimacy should take priority over the other. In March I went to Santa Barbara to meet with
him for an interview that resulted in a synthesis of the thoughts and questions during a three hour
session organized and sponsored by Asia Media International. In many eyes, Dr. Falk is one of
the world’s most active and distinguished international lawyers.
Falk was born on November 13, 1930, into a New York family. His academic
career began to take off when he obtained a Bachelor of Science in Economics from the Wharton
School at University of Pennsylvania in 1952. Not long after, he completed his Bachelor of Law
degree at Yale University and received a Doctorate in Law from Harvard University. Falk
quickly gained an impressively prestigious reputation pertaining international law.
As a student, Falk, in the interview session, notes that Karl Jaspers and Jean-Paul
Sartre served as direct influence on his political philosophies. Karl Theodor Jaspers is perceived
as a prominent advocate for existentialism in Germany. Jaspers focused on maintaining a system
of that attached ultimate importance upon the human rather than a divine being or supernatural
matters—known as humanism. In addition, he warned against society’s increasing inclination
towards a technocracy, where humans become regarded as a means of achieving science or
ideological gains. His opposition to a totalitarian despotism and majoritarian democracy led to
his support of a form of government that encompassed individual freedom and limited
government. However, he makes sure to note that he also values a strong root in authentic
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traditions and that “the human polity must be supported and guided by reasonable persons or
responsible elites” (“Karl Jaspers”, The Stanford Encyclopedia of Philosophy (Spring 2011
Edition).
Furthermore, Jean-Paul Sartre, a French philosopher, playwright, political activist,
novelist, and literary critic, was another key figure in the philosophy of existentialism—similar
to Jaspers. Growing up, Sartre challenged the cultural and social expectations associated with
their childhood lifestyles that they termed “bourgeois.” Sartre’s primary focus was on the belief
that humans have no essence prior to their existence, because he believes there is no Creator,
which is why he believes that “existence precedes essence.” (Sartre). This influence is
particularly noteworthy because it delves further into Falk’s political and ideological beliefs:
Sartre is a strong supporter of the assertion that all humans are entirely responsible for their own
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