Wednesday, February 1, 2017

The United States is On the Verge of Delegitimizing International Law



"There are two important keys to international law, the principle of territorial integrity and the right to self determination." - Vladimir Putin

"I believe that the American administration of Iraq has been arrogant, has pursued policies that are illegal in international law, and has been ignorant and incompetent. - Juan Cole

"Under international law, widespread or systemic attacks against a civilian population are crimes against humanity." - Philip Alston

"The U.S. has always insisted on its right to use force, whatever international law requires, and whatever international institutions decide.....The U.S., of course, is not alone in these practices. Other states commonly act in the same way, if not constrained by external or internal forces." - Noam Chomsky

Introduction

As a Citizen, who values his rights, I worry that as time passes, I may be asked by my government to surrender rights that I am not willing to part with or to endure something that puts my family’s safety in extreme jeopardy. As a scholar, who seeks the most objective truth possible, I hope that my research will help to enlighten our people and help them to avoid any of the many disasters that are so commonly popularized in Hollywood thrillers. I am realistically, of course, settled with the idea that the world is faced with very real problems and is struggling to address them. The twentieth century saw an explosion of international organizations designed to address such issues. It saw mighty wars and vast new waves of global trade and cooperation. From the United Nations, to the North Atlantic Treaty Organization, to the European Union, the African Union, NAFTA, and the Asian Union, nations have been spending more and more time working together than working against one another. To seal these agreements and all of the cooperation, nations have established treaties and other agreements to commit to and to regulate the arrangements that they make.

In this article, I use the last sixteen years as the time frame for my discussion, and I argue that the legitimacy of international law has come into question. A very few nations have even brought forth series challenges to its enforcement, like Russia and its recent actions in the Ukraine, acting in their own economic and political interest despite threats and sanctions from the United States, among other nations (SB/AGB, “Kerry Threatens Russia With More Sanctions,” PressTV November 7, 2014). What then of the United States? How has its compliance record over these past sixteen years, related to Iraq, affected the legitimacy of international law? It will be the primary goal of this article to answer this question. To do so, I will first review the literature on International Law, Compliance, and Legitimacy to set the context of the paper. In the analysis, I will focus on the United States’ actions, along with related subjects, in three instances, the invasion of Afghanistan, Operation Iraqi Freedom, and the recent conflict with ISIS. I will conclude the article by postulating on the present state of international law, and its future. I will also offer a recent example of hard compliance that will tie into the theme of the article. Hard compliance will be identified in due course.

What is International Law?

The purpose of defining international law in this context is, in turn, to define the scope of the analysis. What is international law, and how does it apply to my research question? In “Law for States: International Law, Constitutional Law, and Public Law,” Jack Goldsmith and Daryl Levinson argue it is difficult to classify international law as a separate area of legal study because they feel that international law is little more than constitutional law applied to the international stage. They argue that despite evidence to the contrary, constitutional law provides for, much like international aw, confusion in a majorly decentralized system where the legislature, judicial system, and executive branches of government are normally limited in such ways that on many occasions it is difficult to see major national projects to completion. This then allows for the manipulation of loosely regulated loopholes that people with the appropriate resources are able to use for political gain. They also argue that the many flaws that people see in international law are identical to the flaws found in constitutional law and that the real differences lie between international/constitutional law and public law, which they define as a system of law where the state is not only the source of law but also a subject of the law (Jack Goldsmith and Daryl Levinson, “Law for States: International Law, Constitutional Law, Public Law,” Harvard Law Review Vol. 122, No. 7 (May, 2009), 1791-1868).

In, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis,” Mattias Kumm argues that international law exists in what can be called a crisis of definition. It is no longer sufficient to simply categorize it as a narrow domain of foreign affairs. He argues that this is so because international law no longer necessarily always depends on the consent, or lack there of, of any given state. Neither, he contends, is its interpretation or enforcement any longer solely the responsibility of any particular state. He argues that it is necessary to expand the scope of international law to those laws or regulations that have compulsory adjudication and enforcement mechanisms in place at the international level. He admits that this perspective erodes the effectiveness of domestic accountability constraints as a means to legitimate international law. He also points out that international law is continuously challenged at the domestic level in the name of democracy and self-determination and constitutional self-rule. He makes it his goal to face this challenge by developing a constitutionalist model that takes the commitments to constitutional democracy seriously and a model for assessing the legitimacy of international law. To frame this model, he establishes four principles based on legitimate concerns about international law. They are the formal principle of international legality, the jurisdictional principle of subsidiarity, the procedural principle of adequate participation and accountability, and the substantive principle of achieving outcomes that are not violative of fundamental rights, and thus, can be considered reasonable. He believes that such a model will bridge the gap between the interpretive frameworks of national and international law scholars (Mattias Kumm, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis,” The European Journal of International Law Vol. 15, No. 5 (EJIL, 2004), 907-931).

According to Anthony D’Amato, in “Is International Law Really Law?,” international law is not really law. He argues that it is only made so by those scholars whose life work depends on it being so. He maintains that very simply, international law is not law because there is neither a sufficient nor a safe way to enforce international law. He wondered, “How would one imagine enforcing the rule of law against an entire nation, especially the United States, or perhaps. the Soviet Union?” D’Amato wrote these words in 1985, less than a decade before the collapse of the Soviet Union in 1991 (Anthony D’Amato, “Is International Law Really Law?,” Northwestern University Law Review 79 (Dec. 1984/Feb. 1985), 1293-1314). What do we then draw from all of this? What is International Law? Drawing from these articles, and many many others that are very important to the discussion, one can postulate a sufficient definition: International Law is the body of law governing and regulating the interactions between different states as they compete for international prestige and power that they hope will give them the sway they need to achieve various national goals that they feel must be solved through international cooperation or domination.

The idea is that such laws will be enforced by international institutions established in joint cooperation by member states of various international institutions, like NATO or the United Nations, or international NGOs, like the Red Cross or Amnesty International. D’Amato argues that international law cannot be enforced by such agencies, but what of joint actions like World War I, which was triggered by a series of secret treaties of alliance that the member nations felt obligated to fulfill? Those treaties, much like the treaty that created NATO, are international law. Member nations do as they are asked to retain the protection they desire; and so, the treaties stand. More recently, what of the present international coalition, commanded by NATO, that is fighting the ISIS threat in the Middle East, or the Coalition Against Trafficking in Women-International, which investigates and helps to stop cases of human sex slavery (More information on these organizations can be obtained from their websites: North Atlantic Treaty Organization (NATO), http://www.nato.int/; United Nations (UN), http://www.un.org/en/; International Federation of Red Cross and Red Crescent Societies, http://www.ifrc.org/; Amnesty International, http://www.amnesty.org/; Coalition Against Trafficking in Women-International (NATW), http://www.catwinternational.org/). What does this mean for this discussion? It lets us know that we are dealing with what is a really firm field of research and one to which many respected scholars have chosen to offer their wisdom. It also shows us that international law is legitimate because nations find themselves obligated to comply to it, and in many cases, must do so to the detriment of their own interests. This then leads to the need to define compliance and what it means to our discussion.

What is Compliance?

The purpose of defining compliance in this context is, in turn, to define the subject area of international law that this discussion is related to. In “Who Keeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements,” Judith Kelley uses the creation of the International Criminal Court (ICC) in July of 2002, by the Rome Statute, to analyze compliance to international law and international organizations. She also looks at the Bilateral Nonsurrender Agreements that the United States made with other nations, some of which were made under conditions of extreme duress. Her most related outlined goal was to advance two classic arguments that typically are difficult to substantiate; namely, state preferences are indeed partly normative, and international commitments do not just screen states; they also constrain them. A close reading of this text will find that in the case of the treaty, as well as, the side agreements, many nations were both compliant and noncompliant in one of two ways. They either complied with the treaty, and thus, refused to comply with the United States’ demands for a nonsurrender agreement, or they complied with the United States’ demands for a nonsurrender agreement, and thus, failed to comply with the treaty. The United States was the primary nation overtly failing to comply with the treaty by working with other members of the treaty to make it impossible for U.S. citizens to be surrendered to the ICC, located in The Hague, Netherlands (Judith Kelley, “Who Keeps International Agreements and Why? The International Criminal Court and Bilateral Nonsurrender Agreements,” The American Political Science Review Vol. 101, No. 3 (August, 2007), 573-589).

To further understand compliance, one might also refer to Emilie M. Hafner-Burton and Kiyoteru Tsutsui’s article, “Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most.” In this text, one finds that a nation agreeing to a treaty, as in the case of multiple Human Rights treaties and certain repressive regimes around the world, does not necessarily mean that legitimate compliance will be forthcoming. Nations agree to be bound by the treaties for the legitimacy that is supposed to be awarded to nations who have chosen to hold themselves to such high standards of behavior. The author’s argue that these particular regimes just do not have the requisite experience with constitutional democracy that would allow them to properly understand the benefits of actually complying with such treaties. Here, one also notices that compliance, as well as non-compliance, can be seen and even used as a political tool designed to increase a nation’s chances of obtaining positive political or social rewards (Emilie M. Hafner-Burton and Kiyoteru Tsutsui, “Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most,” Journal of Peace Research Vol. 44, No. 4 (July, 2007), 407-425).

In “Measuring Compliance,” Jose Alvarez introduces us to the concepts of “hard law” and “soft law,” which are a measure that is used by political scientists to determine whether a nation will comply with an international accord and then also to determine the degree to which that national will comply with the given international accord (Jose Alvarez, “Measuring Compliance,” Proceedings of the Annual Meeting (American Society of International Law Vol. 96 (March 13-16, 2002), 209-213). The definition of compliance one might glean from these texts then is, compliance is altering your nation’s natural behaviors or laws to match the regulated conditions of a treaty to which it, or its legal representatives, have voluntary and legally bound the nation, its people, and its overall reputation. It, however, is also a conditional concept, as in the present international system, certain treaties allow member nations to opt out of certain conditions of the treaty, to which they are supposedly legally bound to comply, if the requirements do not meet with their approval. They can even do so and still maintain a compliant status with the other members of the treaty. This is a process that Beth A. Simmons outlines in, “International Law and State Behavior: Commitment and Compliance in International Monetary Affairs,” where she explains how a nation goes about the process of deciding whether or not to commit to a treaty, whether to completely comply with the treaty, or whether to only agree to the treaty in part. This, of course, also ties in with the concepts of hard law and soft law outlined by Alvarez in “Measuring Compliance” (Beth A. Simmons, “International Law and State Behavior: Commitment and Compliance in International Monetary Affairs,” The American Political Science Review Vol. 94, No. 4 (December, 2000), 819-835).

So what does this mean for our discussion? We have first gained an understanding of compliance and how it can vary depending on the nature of the law or treaty that has been agreed to, the likelihood of its enforcement, and whether or not a nation will fail to comply, comply completely, or comply only in part, which introduced us to the concepts of hard law and soft law. We also defined compliance as altering behaviors to comply with the stipulations of a treaty to which a nation has voluntarily committed to or is being compelled to adhere to from some outside force. It, however, is also a conditional concept that applies back to the degree to which a nation actually complies with an agreement, the concept of hard versus soft law/compliance. It also outlines what we are looking for in the analysis. As the goal of this article is to assess damage done to the legitimacy of international law, the next section will briefly review the literature on legitimacy.

What is Legitimacy?

What is legitimacy? Before referring to a few articles to answer this question, based on the context of this article (How has the United State’s actions over the last fifteen years, related to Iraq, affected the legitimacy of international law?), what might it mean for something to have legitimacy, whether that something be a nation, a person, a law, or an institution? A nation is considered legitimate when other nations and institutions like the UN will receive their diplomats. A person elected to high political office is accepted as legitimate when they receive a majority of the vote in a fair and well monitored election. A law is accepted as legitimate after it has been through the legislative process, approved by the executive branch, and reviewed by the judiciary. An institution, like the United Nations, or the ICC, is considered legitimate when nations agree to be subject to their rulings. So, the logic might then follow that international law is legitimate because many nations have agreed to subject themselves to the rulings of these institutions, despite attempts by many to piece meal their consent by only agreeing to portions of agreements that suit their interests best and rejecting the rest. There is also, of course, consent or lack of consent to enforcement measures. This is a common debate in international law and one that is important to this discussion, as legitimacy of a certain thing has been affected by the actions of a person or an organization. It is necessary then to understand what counts for legitimate in this context, more plainly, a definition in the literature.

Going back to the Kumm article, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis,” there does not appear to be a distinct definition of legitimacy, so much as a framework by which to analyze legitimacy in the context of international law (Kumm, 907-912). However, in section one of the article, ‘The Legitimacy Challenge to International Law in Context,’ one can easily glean the author’s definition of legitimacy. The title of the article is also a dead giveaway on this one. Legitimacy is about consent and plausible accountability. Who has consented to a thing? How far does their consent to that thing go? Have they agreed to be subject to the rulings of the governing body? Can that governing body enforce its rulings? What is the process to arbitrate violations of its rulings? Has that process been agreed upon by all parties involved, placed into legal language, and written down for all to be held accountable to? This matches the assumption I made about legitimacy in the previous paragraph, in that, legitimacy is essentially based on consensus (Kumm, 909-917).

In “Locale and Legitimacy in International Environmental Law,” by Christopher D. Stone, enforcement is brought into the discussion of legitimacy. This matches the assumption I made about legitimacy in the previous paragraph that it is essentially based on repercussions. In a brief section of the article, he addresses the role of technological advances, such as seismic meters that can be set to detect the testing of a nuclear weapon to the approximate coordinates of the detonation, lasers that can measure the contents of an air column from a great distance, or satellite technology that can use photography from space to document violations, in assuring compliance to international environmental law. (Christopher D. Stone, “Locale and Legitimacy in International Environmental Law,” Stanford Law Review Vol.48, No. 5 (May, 1996), 1285). This adds another dimension to the definition of legitimacy; in that, it can be a matter of legitimate enforcement, as well. Essentially, a nation can make itself a signatory of an international treaty or law, but it is another thing for a nation to allow its citizens, its territory, or its government to be punished or confiscated by the governing body of that treaty or law.

Consider, then, a hypothetical case based on the United Nations Declaration on the Rights of Indigenous Peoples published in March of 2008. Article three of that document is of particular interest, “Indigenous peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development (United Nations, United Nations Declaration on the Rights of Indigenous Peoples, Article III (March, 2008), 4). In the case of Native Americans in the United States, how would the United Nations react to a petition for nationhood status from the Lakota Sioux, which contained a territorial request for much of the United States’ northern plains region? More importantly, how would the United States respond to the request? It is not feasible to assume, for even a brief period of time that the United States would allow such a thing to happen. If the United Nations was not then prepared to back the Lakota’s request against the United States with actual force, or legal actions of some sort, they would certainly find the faith of indigenous peoples around the world in this declaration to be low, which adds a secondary level to consent in the context of legitimacy at the international level, the confidence of the citizenry. This is a hypothetical scenario loosely based on, and slightly embellished, from a letter written by W. Ron Allen of the Jamestown S’Klallam Tribe to The Harvard Project on American Indian Economic Development, as well as, that very same reports’ coverage of Native Americans and international relations (Stephen Cornell and Joseph P. Kalt, Eds., “The State of the Native Nations: Conditions Under U.S. Policies of Self-Determination,” The Harvard Project on American Indian Economic Development (New York: Oxford University Press, 2007), 44-46, 88-95).This leads to a general concept of legitimacy that is dependent upon a consent that can be multi-faceted, in that, the consent of a nation or even a separate indigenous group may be required. The idea that a law or ruling is adequately enforceable is also a part of this concept of legitimacy.

 The Data

In early 2003, the United States engaged in a military conflict with Saddam Hussein and Iraq. I am going to follow the evolution of this situation from its beginnings, which will briefly take us into the late nineties to early two thousands to determine where this began, to the aftermath of the failure to find weapons of mass destruction upon declaration of victory. The United Nations passed a resolution stating that Iraq needed to comply with disarmament regulations or face repercussions, with no more leniency to be given. The United States then sought to violate Iraq on its agreement and prepare for war. The United States wanted a resolution from the council supporting immediate war but failed to get it. Failing to get the support of the Security Council, the United States formed its own loose coalition, ‘The Coalition of the Willing,’ to justify invading Iraq, without the support of the UN Security Council. After the initial invasion was over, the United States was unable to produce the evidence that would support their having chosen to invade Iraq. They sought solid proof that Saddam Hussein was harboring weapons of mass destruction with the intent of making use of them in war. In 2014, the United States began joint operations against ISIS in Iraq and Syria, and they did so with a great a deal of support from the international community. This is, of course, was in complete contrast to the manner in which the United States behaved in 2003.

In the context of how the United States’ actions have affected the legitimacy of international law, the hope will be to also answer a couple more particular questions. First, how has the United States’ actions in the last sixteen years, regarding Iraq, affected the legitimacy of international law? Second, how exactly has the United States’ non-compliance in events from 2001 to 2003 affected the subsequent legitimacy of international law? It has, in the short, done so negatively. Finally, has the United States’ compliance with the most recent international actions against ISIS in Iraq and Syria done anything to undo any previous damage that it may have inflicted upon the legitimacy of international law? I will use the 2002 resolution of the United Nations and the subsequent refusal of the Security Council to endorse any action that would lead to war in Iraq. I will also look at the United Nation’s position on the present issue against ISIS. In the analysis, I will focus on the United States’ actions, along with related subjects, in two instances, the US involvement in Iraq against Saddam Hussein and subsequent insurgents, and more recently, the recent conflict with ISIS. I will conclude the article by postulating on the present state of international law, and its future. There will, undoubtedly, be a number of items that have not been mentioned in this section that will also assist in answering the questions that this article seeks to answer.

Analysis

The goal of this section of the article will be to answer the three questions asked in the beginning of the article. First, how has the United States’ actions in the last sixteen years, regarding Iraq, affected the legitimacy of international law? Second, exactly how did the United States’ non-compliance in 2003 effect the subsequent legitimacy of international law? It has, in the short, done so negatively. Finally, has the United States’ compliance with the most recent international actions against ISIS in Iraq and Syria done anything to undo any previous damage that it may have inflicted upon the legitimacy of international law? I will use the 2002 resolution of the United Nations Security Council and the subsequent refusal of the Security Council to endorse any action that would lead to war in Iraq. I will also look at the United Nation’s position on the present issue against ISIS. I will also use a couple of monographs, some news reports, and some journal articles, all in an effort to tie everything together towards learning how the United States’ compliance record in three particular cases, one in Afghanistan and the others in Iraq, affected the legitimacy of international law. I will also look at the approval rating, both domestic and foreign, of the U.S. Presidency from just before the beginning of our time frame to the present day. The most logical place to begin to answer these questions is, without a doubt, the United States. The best time to begin is the 2000 Presidential Election.

The election itself is not the target of this discussion. The time frame best suited to work with to begin this section of the article is November of 2000 to March of 2001. The goal of the present discussion is to target the beginning of any change in the legitimacy of International Law that may have been caused by the United States’ actions regarding Iraq and Saddam Hussein in 2003, and again, in 2014 but this time with ISIS and Syria involved, as well. The outcome of the 2000 election is obvious. George W. Bush was elected President of the United States after two terms as Governor of Texas. This was not achieved, however, until after a hard and lengthy court battle. On December 12, 2000, the United States Supreme Court ruled in the case of United States Supreme Court, Bush vs. Gore 531 U.S. 98 (2000), declaring the winner after a great deal of controversy (Admin., “Media Recount: Bush Won the 2000 Election,” PBS News Hour, (January, 2000). At the time of his election, George Bush’s approval rating was polled by Gallup to be in the mid-sixties; just after September 11, 2001, it was at over ninety percent. However, by the time Bush left office, two massive wars were being fought, and the United States’ international reputation was suffering, and his approval rating took a dive, bottoming out in the high twenties (Gallup, "Presidential Approval Ratings – George W. Bush" (January, 2009). The connection of this information to the legitimacy of international law will be discussed later. The idea is that a dip in the ratings of the President of the United States will reflect a dip in the legitimacy of international law, which can be measured by presidential approval ratings, international opinion polls, and the actions of other nations when faced with similar circumstances.

On September 11, 2001, the United States was attacked by a very different kind of enemy than they were used to, and they were attacked on their own home soil. There was no invasion, there was no public posturing; an entire nation simply woke to a borderless attack. No nation state claimed responsibility for the attack, as the conventional conflicts of the early to mid-twentieth century would have seen. Instead, it was a non-state actor, Al-Qaeda, under the leadership of Osama bin Laden, a former U.S. ally in Afghanistan’s war against the aggression of the Soviet Union (Staff Writer, “Who is Osama bin Laden?” BBC News (September 18, 2001). The World Trade Center in New York City, with both towers sustaining direct hits, was completely demolished, the Pentagon was damaged, and a fourth plane, rumored to be targeting Chicago’s Sears Tower, was taken down by insurrection, mid-air, over Pennsylvania. Interestingly enough, most of the flights were scheduled for destinations on the West Coast (Thomas H. Kean, Chair, “The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States,” National Commission on Terrorist Attacks Upon the United States (USGPS: July, 2004), 4-14). 

The domestic reaction to the event was understandably varied and confused. Many people experienced a very strong vulnerability towards personal safety and security. Another observation, however, is that many people, while they were shocked at first, were later more concerned with the inconveniences that the attack had brought upon them, rather than the continued threat from Al-Qaeda. In the initial stages after the attack, there was also a great deal of animosity towards Muslims, of any kind, no matter their status (Michael Traugott, et al., “How Americans Responded: A Study of Public Reaction to 9/11/01,” Institute for Social Research, The University of Michigan (Summer, 2002), 2-4; John G. Mabanglo, “Muslim’s Praying in San Francisco,” AFP/Getty Images, The Vancouver Sun (August 23, 2002). This happened, of course, despite the prayers and support of the mass majority of the United States’ Muslim population (Riad Z. Abdelkarim & Jason Erb, “How American Muslims Really Responded to September 11,” Mediamonitors.net (August 20, 2002). A particularly amazing scene was the number of candle light vigils where Muslims sang ‘God Bless America’ in support of the United States (Lucy Nicholson, “Muslims Holding a Candle Light Vigil,” AFP/Getty Images, The Vancouver Sun (August 23, 2002).

The international reaction to the attacks, among others, was also one of shock and horror. There were scenes similar to those in the United States around the world. In Sydney, Australia, people stood still staring at the downtown big screen, halting traffic (Greg Wood, “Lunch Workers in Martin Place,” AFP/Getty Images, The Vancouver Sun (August 23, 2002). In other places, around the world, people held demonstrations and prayer vigils in support of the United States. There was a pro-US rally in London, England and another in Pristina, Kosovo. There were also rallies in Central and South America and in Cambodia in Southeast Asia. There were memorials set up in Russia, Belarus, Tokyo, the Philippines, Germany, Israel, Croatia, Poland, South Korea, Taiwan, and many Muslim countries, like Bangladesh (Dave Jorgenson, “How 23 Places Around the World Showed their Solidarity with America After 9/11,” Independent Journal Review (September, 2014). On September 29th, the Canadian Prime Minister, Jean Chretien, visited the site of the attack and could only stand and stare at the wreckage (Jeff Christensen, “Canadian Prime Minister,” AFP/Getty Images, The Vancouver Sun (August 23, 2002). Another reaction to the attacks on the international stage was tightened onboard security in the airline industry, reflecting a similar measure in the United States. This was done with the hope that it would work to help prevent another 9/11 style attack (Staff Writer, “Reaction-9/11,” FlightGlobal (September, 2001). The focus of the issue of Flight International for September 18-24 was focused entirely on the 9/11 attacks and what they would mean for the worldwide commercial airline industry. The cover art for the main article was particularly chilling, as it shows United Airlines Flight 175 banking sharply for a direct hit on Tower 2 of the World Trade Center (Staff Writer, “Turning Point: How 11 Sept 2001 Will Change Civil Aviation Forever,” Flight International (September 18-24, 2001).

All of this support then translated into swift and favorable actions at the United Nations. On September 12, 2014, UN Security Council Resolution 1368 was passed, condemning in the most absolute strongest terms, terrorist attacks against the United States (Security Council Press Release, “Security Council Condemns, ‘In Strongest Terms,’ Terrorist Attacks on United States,” United Nations (September 12, 2001); UNSCR 1368 (2001). Not long after, on September 28, 2001, UN Security Council Resolution 1373 was passed. This is where the legitimacy of International Law can be seen at its high point during this time frame, for this resolution from the Security Council was of a unique nature. They made it compulsory on states to freeze terrorist financing, pass anti-terrorism laws, prevent suspected terrorists from traveling across international borders, and ordered that asylum seekers be screened for possible terrorist ties. It did this all under the rubric of Chapter VII of the UN Charter (United Nations, “Chapter VII,” UN Charter (June 26, 1945), thereby making these dictates binding under international law. This was a step farther than the Security Council had ever gone before. This, and the fight against terrorism that it preceded, are still in effect to this day, and enforcement and obedience, despite the presence of minor complications, have been forthcoming around the globe (Mark Leon Goldberg, “How the U.N. Responded to the 9/11 Attacks,” UN Dispatch (September 11, 2012); Security Council Press Release, “Security Council Unanimously Adopts Wide-Ranging Anti-Terrorism Resolution: Calls for Suppressing Financing, Improving International Cooperation,” United Nations (September 28, 2001); UNSCR 1373 (2001). Not soon after this, the United States was in Afghanistan fighting against the Taliban in their effort to effect a regime change in a nation that was home to Osama bin Laden (Staff Writer, “Bush Condemns Taliban for Harboring bin Laden,” USA Today (September 29, 2001).

This begins to answer the question, “How exactly did the United States’ non-compliance in 2003 effect the subsequent legitimacy of international law?” After the 9/11 attacks, the United States was primed to engage the Taliban in Afghanistan. On September 20, 2001, President George W. Bush appeared before a joint session of Congress and declared a broad ‘War on Terror, and then demanded that “the Taliban hand over Osama bin Laden or suffer a similar fate.” (George W. Bush, “Emergency Address to a Joint-Session of Congress,” The Washington Post (September 2, 2001). He was, of course, referring to a desire to overthrow the Taliban. Here is the issue, in neither of the resolutions passed by the United Nations, will one find any mention of a need to authorize the invasion of Afghanistan or the overthrow of the Taliban. Furthermore, there were a number of instances where the United States could have negotiated for Osama bin Laden’s surrender. The first time, the Taliban’s ambassador to Pakistan, Abdul Salam Zaeef, indicated on September 13th that the Taliban would consider surrendering bin Laden if substantial evidence could be provided linking him to the attacks (Staff Writer, “Afghanistan’s Militia May ‘Consider’ Extradition of bin-Laden,” Radio Australia (September 13, 2001).

That very same day, nearly one-thousand Muslim clerics gathered in Grand Council, issuing a Fatwa that expressed deep sadness for the loss of life in the 9/11 Attacks. They also urged bin Laden to leave their country and asked the United Nations and the Organization of Islamic Cooperation (OIC) to conduct independent investigations that would clarify the nature of recent events and help to prevent the harassment of innocent people. It did also, however, warn the United States to refrain from invading their country, lest they unleash the most holy of Jihads ( Grand Council, “The Taliban Cleric’s Statement on bin Laden,” The Guardian (September 20, 2011). Completely ignoring the Cleric’s remarks, President Bush later stated publicly that “the Taliban must act and act immediately. They will hand over the terrorists, or they will share in their fate.” (Tyler Marshall, “Afghan Clerics Urge bin Laden to Go: Religious Council's Edict is Applauded in the Region. U.S. Dismisses the Move,” Los Angeles Times (September 21, 2014). He came off as if there was no real concern in his or his administration’s minds if there was a peaceful solution available. The Clerics were all too ready to reply. They made it clear that they were not afraid to fight and even warned the United States to study history to learn the fate of those mighty powers that seek to invade Afghanistan (John F. Burns, “A Nation Challenged: The Taliban; Clerics Answer ‘No, No, No!’ and Invoke Fates of Past Foes, “The New York Times (September 22, 2001). There was still another offer for the United States. The Taliban offered to try bin Laden in an Afghan court, provided the United States would provide the evidence required to warrant doing so (Staff Writer, “Taliban ‘Will try bin Laden if US Provides Evidence,” The Guardian (October 5, 2001).

The United States was unable to get a resolution from the United Nations backing any invasion of Afghanistan. Undeterred by the international reaction, the United States Congress turned to its own legislative authority. On September 14th, Congress passed S.J. Resolution 23, Authorization for Use of Military Force. The bill gave President Bush the authorization to use military force against any nation known to be harboring persons involved in or responsible for the terrorist attacks on September 11th. On September 18th, the President signed the bill into law (115 STAT. 224 Public Law 107-40—September 18, 2001, “Authorization for Use of Military Force,” United States Congress (September 18, 2001). The United States was also acting with NATO’s support. On October 7, 2001, a combined US/NATO force began the incursion into Afghanistan to unseat the Taliban government in Kandahar and eliminate Osama bin Laden (Jim Arkedis, “Why Al-Qaeda Wants a Safe Haven,” Foreignpolicy.com, (October 23, 2009). According to Article 2(4) of the UN Charter, a law that signatories of the charter must enforce as the ‘law of their land,’ nations are not authorized to invade another nation without the authorization of the United Nations Security Council (UN Charter, Article 2(4), “Charter of the United Nations and the Statute of the International Court of Justice,” (San Francisco, 1945), 3). The Allies did not have this authorization. They instead claimed that their actions were justified under Article 51, “Self-Defense,” of the UN Charter, as they argued that the invasion of Afghanistan was a collective act of self-defense (Ibid, 10-11).

Here is a conundrum, which international organization, both recognized as legitimate, is in charge? The United States ignored the authority of the United Nations and got another international organization to help justify the invasion. Thus, the legitimacies of both the United Nations and NATO, both recognized international enforcement entities, are in question. The United Nations looks as though it cannot enforce its own regulation when faced down by a powerful nation, and NATO begins to look like the United States’ faithful minion. Interestingly enough, the overall view of the international community was that the invasion did have a measure of justification. They felt that it did so in terms of international law, human rights, and national security. Despite the charter violation, little further was done to argue against the invasion (Ben Smith and Arabella Thorp, “The Legal Basis for the Invasion of Afghanistan,” House of Commons Library – International Affairs and Defense Section, (Last Updated February 26, 2010), 3-5). As a matter of fact, the United Nations, though it did later relinquish command to NATO, set up the International Security Assistance Force (ISAF), to help maintain security for Afghanistan’s civilian population UNSCR 1386 (2001), December 2001). This discredit to international law, however, was not the worst of it. What came, just around a year later, would do much more damage.

In October of 2002, the United States Congress passed the Iraq War Resolution. In this document, Congress outlined the various reasons for invading Iraq and for committing the U.S. military to total regime change. They offered such reasons as Iraq’s, now unproven, capability to use weapons of mass destruction on other nations and its own people, their harboring members of Al Qaeda, or its ‘continuing’ effort to develop biochemical weapons (116 STAT. 1498 Public Law 107-243—October 16, 2002, “Authorization for Use of Military Force Against Iraq Resolution of 2002,” United States Congress (October 16, 2002). Less than a month later, on the November 8th, the UN Security Council passed its own resolution. UNSCR 1441 offered Saddam Hussein and Iraq one final opportunity to conform to the disarmament obligations of previous UN resolutions. It declared Iraq to be in material breach of cease-fire conditions and weapons development projects regulated under previous agreements. They were required to submit to UN weapons inspectors and were to offer a full report of all their munitions. They were also required to answer for several reports of human rights violations. It was also deemed that should it be necessary, the Security Council could authorize the use of force against Iraq (UNSCR 1441 (2002), November 8, 2002).

However, the United Nations Security Council, despite Iraq failing to account for several chemical weapons, some of which, like old bombs containing unexpelled mustard gas had been highlighted at the end of the first Iraq War (Irene Gendzier, “Democracy, Deception, and the Arms Trade: The US, Iraq, and Weapons of Mass Destruction,” Middle East Report No. 234 (Spring, 2005), 34-39), never approved any plans to invade Iraq. President Bush, however did not accept the United Nations determination of the situation, and in November, at a NATO Summit, announced that he was going to lead a ‘Coalition of the Willing’ against Saddam Hussein and Iraq, despite the UN’s failure to act (Staff Writer, “Bush: Join ‘Coalition of the Willing,’” CNN.com (November 20, 2002). As of April of 2003, the United States had nearly fifty signatories to its coalition; however, only four other nations ended up donating troops to the invasion, England, Spain, Australia, and Poland. To not miss them, thirty-seven other nations did donate troops for security after the invasion was complete. Some have considered the list of the coalition to be somewhat farcical, as it included nations like Micronesia and the Solomon Islands, two nations very limited in the range of their military capabilities (Scott Althaus and Kalev Leetaru, “Airbrushing History, American Style,” University of Illinois, Cline Center for Democracy (November 25, 2008).

The second US invasion of Iraq commenced on March 19, 2003 and lasted until May 1st. This put the United States in direct violation of Article 2(4) of the UN Charter, which covered the rule regarding invading the territory of another sitting member of the UN General Assembly. According to this article, violating the territorial integrity of another member of the Assembly, without the approval of the Security Council, is forbidden (UN Charter, Article 2(4), Ibid). Here, the United States’ actions have clearly damaged the legitimacy of International Law. Since the United States does have a powerful military, and since it is a permanent member of the Security Council, what can the United Nations do to enforce its regulations against them? Any resolution meant to answer that question would be immediately vetoed by the United States, and it’s not like any of those other nations envision standing in the United States’ way as it enters Iraq. Thus, Article 2(4) is unenforceable, in this regard, and its legitimacy suffers, as other nations now have precedent to challenge the system further.

After the defeat of the Hussein Regime, and his subsequent capture and execution, the United States failed to uncover the evidence supporting its weapons of mass destruction claims against Iraq. A positive in the situation is that the United Nations did not support the action, and Kofi Annan, the UN General Secretary, declared that the United States’ invasion of Iraq failed to conform with the UN Charter, and was therefore, simply illegal (Staff Writer, “Iraq War Illegal, Says Annan,” BBC News (September 16, 2004). But their position was still very obviously damaged. The United Nations was essentially powerless to do anything to physically stop the United States. This can and has since opened the door for others to behave the same way. This can be evidence in the present day with the ongoing Russia/Ukraine issue, and the crisis over the Crimea. Russia can actually be said, if one looks to it, to be following an already established precedent of challenging the legitimate limits of international law. They may be entwined with the Ukraine for years to come, and that would fit the program perfectly, as the United States did not finally remove the last of its combat troops from the Iraq War until December of 2011 (Moni Basu, “Deadly Iraq War Ends With Exit of Last U.S. Troops,” CNN News (December 18, 2011). Worse, the United States now finds itself sending troops to Iraq, yet again (Zack Beauchamp, “American Troops Going Back to Iraq,” VOX.com (November 17, 2014). To finally tie international opinion polls back into the situation, and to see if they compare to George Bush’s numbers, one can look to the Pew Research Center’s Global Attitudes Project. The center polled people from around the world, from 2002 to 2014. At the very same time that George Bush’s approval rating was at its lowest point as he was leaving office in 2008, the United States’ international reputation, among nations from Angola to Vietnam, was also at its very lowest for the measured time period (Pew Research Center, “Opinion of the United States: Do You Have a Favorable or Unfavorable View of the U.S.?” Global Attitudes Project, 2002-2014). This could, conceivably, ensure that the United States will experience more difficulties as it navigates the international legal system with fewer allies to turn to.

Luckily, fast forwarding to the present day and the international response to the ISIS threat in Iraq and Syria, the United States’ international reputation has recovered a good measure ((Pew Research Center, “Opinion of the United States: Do You Have a Favorable or Unfavorable View of the U.S.?”, Ibid). This can be attributed to a more cooperative approach to diplomacy espoused by Barack Obama, who on September 17, 2014, openly negotiated over the phone with Iran’s new elected President, Hassan Rouhani (Daniel Halper, “Obama Talks on Phone With Iran’s Leader, Negotiates with Tehran,” WeeklyStandard.com (September 27, 2014). On September 24th, Obama made a speech, however, that may hurt this again. He made references like, “they only thing they know is force,” then followed them with criticism of Russia for doing the very same thing in the Ukraine that the U.S. did in Iraq (Carol E. Lee and Jay Solomon, “Obama Addresses Islamic State Threat in United Nations Speech: President Calls on Other Countries to Join U.S. Effort to Combat Extremism,” The Wall Street Journal (September 24, 2014). There were occasions during this section of his speech when he sounded vaguely reminiscent of George W. Bush from just a few years past. This attack against ISIS also smells of times past. There has been no UN resolution approving taking violent action against the Islamic state, or ISIS, and the United States has once again built a coalition of nations that are willing to help it go after ISIS.

It is also, now, fighting in the territory of two separate independent nations at once, with another group of people attempting to carve out a nation of their own, right in the middle of everything. Granted, the majority of the actions taken against ISIS have been committed in the air, with, initially, no troops planned for ground operations (Martin Pengelly, “Obama Repeats No US Troops on Ground Against ISIS as Egypt Offers Support,” The Guardian (September 20, 2014); however, as it is now evident that there will be some ground troops sent to Iraq (Kristina Wong, “Army Chief: More Ground Troops Headed to Iraq,” TheHill.com (September 19, 2014), the credibility of the United States will suffer on the international stage yet again, and once again, they will be in violation of Article 2(4) of the United Nations Charter. The only resolution passed by the United Nations, to date, regarding ISIS, has been UNSCR 2170 (2014), which was passed on August 15, 2014. Its main purpose was to encourage nations to condemn the actions of extremist organizations like ISIS and to do everything in their power within their own nations to stem the flow of foreign fighters from their nations to ISIS in the Iraq and Syria (Staff Writer, “Security Council Adopts Resolution 2170 (2014) Condemning Gross, Widespread Abuse of Human Rights by Extremist Groups in Iraq, Syria,” United Nations Press Release (August 15, 2014); USNCR 2170 (2014), August, 2014). Thus, once again, the legitimacy of the United Nation’s rules and regulations is under question.

What, then, if a majority of the Security Council decided to challenge U.S. involvement in the region against ISIS, what exactly could they possibly do to stop them? This could very possibly also lead to yet another protracted conflict involving the United States sending troops to a combat zone in the Middle East without sufficient data available to formulate an efficient and accurate exit strategy, a criticism that was also levied against Bush and the U.S. engagement against Saddam Hussein in Iraq (Staff Writer, “Bush Seeks an Exit Strategy as War Threatens His Career,” The Guardian (September 7, 2003). So it is, at present, reasonable for someone to predict that that United States’ reputation will suffer again. It would also be safe to assume that their actions in Iraq and Syria may do even more to damage the legitimacy of international law, as nations seek to defend their own perceived security threats aroused by the United States’ renewed conflict in Iraq and now Syria, ignoring any warnings, as precedent has made clear, issued by the United Nations Security Council. The situation with Russia’s political relationship could be such a situation (Staff Writer, “Russia Warns U.S. Against Strikes on Islamic State in Syria,” BBC News (September 11, 2014). With increased tensions between the major powers in the international system, and the increasing danger of ever more ruthless and strangely well funded non-state actors like ISIS, it will be more and more difficult to enforce international law, and will thus cause its perceived legitimacy to suffer, as well.

Conclusions

The goal of this article was to answer a few questions about the legitimacy of international law in the twenty-first century. How has the United States’ compliance record over the past sixteen years, related to Iraq, affected the legitimacy of international law? How exactly did the United States’ non-compliance from 2001 to 2003 affect the subsequent legitimacy of international law? Has the United States’ compliance with the most recent international actions against ISIS in Iraq and Syria done anything to undo any previous damage that it may have inflicted upon the legitimacy of international law? To begin to answer these questions, it was necessary to define some terms, International Law, Compliance, and Legitimacy. International Law is the body of law governing and regulating the interactions between different states as they compete for international prestige and power that they hope will give them the sway they need to achieve various national goals that they feel must be solved through international cooperation or domination. Compliance is altering behaviors to comply with the stipulations of a treaty to which a nation has voluntarily committed to or is being compelled to adhere to from some outside force. It, however, is also a conditional concept that applies back to the degree to which a nation actually complies with an agreement, the concept of hard versus soft law/compliance. Legitimacy is dependent upon a consent that can be multi-faceted, in that, the consent of a nation or even a separate indigenous group may be required. The idea that a law or ruling is adequately enforceable is also a part of this concept of legitimacy. I then explored a few events stretching from 2000 to 2014, and the reactions to those events, to explore the answers to these questions.

Finally, using newspaper articles, journal articles, books, international laws and regulations, national laws and regulations, photos, and tables, in combination with these theories, I came around to my answers to these questions. First, the United State’s actions over the last sixteen, regarding Iraq, have most definitely affected the legitimacy of international law. Second, from 2001 to 2003, the United States’ actions, regarding Afghanistan and Iraq, have most definitely affected the legitimacy of international law, and have done so in a negative fashion. And finally, the United States’ actions against ISIS in Iraq and Syria have done more to sustain the damage done to international law by the second Iraq War than they could possibly have done to improve the conditions created by that damage, despite an improved international reputation gained in recent international opinion polls (Pew Research Center, Ibid).

It is argued by some, however that the United States may still have a chance to improve the situation. Dr. Daniel Byman argued this past June that if the United States and Obama committed to a ‘hands off’ or ‘no ground troop’ policy in the fight against ISIS, the development of a new negative trend could be avoided. They should, he postulated, take more of a support role and offer to the combatant states in the region what they have come to be well known for, efficient and sophisticated supply and logistical services (Daniel Byman, “In Iraq, Obama Has a Choice: Bad Guys or Bad Government,” The Washington Post (June 13, 2014). We now know, of course, that the ‘no ground-troop’ policy has been set aside for the time being. Another small question that I sought to specifically answer in this article was, is the United States the only nation that behaves in the manner described in this article? The answer to this question has, of course, proven to be no. It has been shown that the United States has a really big friend/foe that has also done much to challenge the legitimacy of International Law, the former Soviet Union, and now Russia, under the leadership of Vladimir Putin.

If one were to ask that same question to Mark A. Martinez or Darren J. O’Byrne and Alexander Hensby, they may get a different answer. Both of these authors, in the cited works, have extensively reviewed the literature of people that argue that the United States has, in fact, been the primary agent responsible for the decline in the legitimacy of International Law in the last sixteen years, as regards their actions in Iraq, Afghanistan, and other Middle East hotpots (Mark A. Martinez, The Myth of the Free Market: The Role of the State in a Capitalist Economy (Sterling, Virginia: Kumarian Press, 2009), 53-77, 205-241; Darren J. O’Byrne and Alexander Hensby, Theorizing Global Studies (New York: Palgrave-McMillan, 2011), 80-103). I have also sought to determine if there was a correlation between the rise/decrease in a President’s approval rating and a rise/decrease in the United States’ international reputation in international polls, like those commissioned by the Pew Research Center. It was shown in this article that there is such a correlation, as can be proven by recent polls on President Obama’s approval ratings as he begins to send troops back into Iraq to fight against the new threat provided by ISIS. The poll, not surprisingly, was extensively covered by Fellowship of the Minds, a right wing Christian think tank (Opinion Poll, “President Obama’s Approval Rating on Foreign Policy,” WSJ/NBC News Poll (November 2011 to June 2014). His approval has dropped to a record low, as the majority of Americans, while they are justifiably concerned about the threat posed by ISIS, do not approve of his sending ground troops back into Iraq (Mark Preston, “Poll: Americans Back Airstrikes, but Oppose Use of U.S. Troops in Iraq, Syria,” CNN News (September 29, 2014), which is also reflected on the international stage by the tacit and limited participation of those nations that agreed to be part of the coalition against ISIS (Jethro Mullen, “U.S. Led Airstrikes on ISIS in Syria: Who’s in, Who’s not,” CNN News (October 2, 2014).

This is the perfect time to bring in the related case of hard compliance. Consider the actions of the United Nations. On three occasions, as it discussed in this article, the United Nations has complied with the United States’ desire to violate the territorial integrity of another nation. They have done so by simply not stopping the United States when it took it upon itself to act against Iraq, Afghanistan, and Syria, in their various circumstances, with the power of military force. They have taken action by taking no action, intentionally public declarations of opposition aside. If that does not please one’s logic, consider then, Russia’s conflict with Ukraine. Russia backed pro-Russian citizens in Crimea, and Ukraine wished to maintain the integrity of its territory, so would not recognize any vote or annexation (Mark Lowen, “Ukraine Crisis: Crimea Vote ‘Will Not be Recognized,” BBC News (March 7, 2014). Russia won. A referendum, under banners of ‘self-determination,’ was held in Crimea, and there has since been very little done, aside from sanctions, to prevent the annexation of Crimea (Staff Writer, “Crimea Referendum: Wide Condemnation After Region Votes to Split from Ukraine,” FOX News (March 16, 2014), which was approved by both the Crimean and the Russian legislative bodies, and publicly signed by Vladimir Putin, himself (Bridget Kendall, “Ukraine Crisis: Putin Signs Russia-Crimea Treaty,” BBC News (March 18, 2014).


To encourage further discussion, I would like to offer some additional questions for consideration. Is this really a question of the legitimacy of International Law or is it more a question of the United States running out of pull on the international stage and failing to adjust its behavior accordingly? Is the United States the only country that behaves this way? If there is another nation that behaves this way, who is it? Who will rule the twenty-first century as economic hegemon? There are also other factors to consider in exploring the legitimacy of international law. What of monetary policy? What would happen in the case of another global financial crisis? What happens when people or nations lose complete faith in it and cease to participate in the international system, should such a case ever occur? The legitimacy of International Law would likely dissipate completely, and the world would become something more reminiscent of the secret treaties of the late nineteenth and early twentieth centuries, which nearly destroyed human kind and have caused, as one might surmise, what we have to this day, a nation and world that is still seeking to define itself in a new century that seems to be advancing more quickly technologically than it is socially and politically. This renewal of political and social distrust could very well lead to a repeat of such bloody events, multiplied in severity by the various other technological and economic tools that now make themselves available, as if by some “invisible hand.”

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