Legitimising the Use of Force in International Politics

Kosovo, Iraq and the Ethics of Intervention

Corneliu Bjola

• Publisher: Routledge
• Year: 2009
• eBook ISBN: 9781135256845
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

This book aims to examine the conditions under which the decision to use force can be reckoned as legitimate in international relations. Drawing on communicative action theory, it provides a provocative answer to the hotly contested question of how to understand the legitimacy of the use of force in international politics.

The use of force is one of the most critical and controversial aspects of international politics. Scholars and policy-makers have long tried to develop meaningful standards capable of restricting the use of force to a legally narrow yet morally defensible set of circumstances. However, these standards have recently been challenged by concerns over how the international community should react to gross human rights abuses or to terrorist threats. This book argues that current legal and moral standards on the use of force are unable to effectively deal with these challenges.

The author argues that the concept of 'deliberative legitimacy', understood as the non-coerced commitment of an actor to abide by a decision reached through a process of communicative action, offers the most appropriate framework for addressing this problem. The theoretical originality and empirical value of the concept of deliberative legitimacy comes fully into force with the examination of two of the most severe international crises from the post Cold War period: the 1999 NATO intervention in Kosovo and the 2003 US military action against Iraq.

This book will be of much interest to students of international security, ethics, international law, discourse theory and IR.

Corneliu Bjola is SSHRC Postdoctoral Fellow with the Centre for Ethics at the University of Toronto, and has a PhD in International Relations.

1
The concept of legitimacy in international relations

Introduction

How can we know whether a military intervention is or not legitimate? Why are, for instance, wars of self-defense deemed legitimate, but not interventions for stopping acts of genocide or mass killing? What rules, norms, or principles should one consider in making this judgment? Equally important, who has the power to make such judgments, on what basis, and how? In short, what conditions should a decision to use force meet in order to be reckoned as legitimate in international relations (IR)? The relevance of this question has only grown in importance within the past decade or so in consequence of the humanitarian crises from the Balkans and Africa and of the United States’ reactions to the tragic events of September 11, 2001. However, the implications of this question for international politics are more profound. Not only does legitimacy represent the moral and legal platform on which political authority is constructed and harnessed in international politics, but also it shapes the very structure of the international system by helping define its ordering principle – that is, its prevalent culture of anarchy (Wendt 1999). In sum, the idea of the legitimacy of the use of force is not empty rhetoric, but an important driving force in international politics.

The question about how to assess the legitimacy of the use of force in international politics lacks a coherent answer, however. The various positions expressed so far on this issue are not only ambiguous, but often conflicting. Supporters of international law claim, for instance, that adherence to the provisions of international treaties and conventions is sufficient for legitimating the use of force. On the other hand, scholars of international ethics argue that moral, and not necessarily legal, criteria are critical for securing the legitimacy of military interventions. Questions have been also raised about whether legitimacy should be determined by reference to substantive principles – that is, the legal or moral criteria used for justifying the decisions to use force – or to the processes and procedures by which participants arrive at their decision. Equally important, should the examination of the issue regarding the legitimacy of the use of force be driven by considerations of merely describing social reality or also of prescribing that reality? In other words, what exactly is the ontological and epistemological context of the concept, what kind of theoretical and methodological problems does this raise for the examination of the issue, and how can these challenges be best addressed?

The goal of this chapter is to review current theoretical approaches to the concept of legitimacy in international relations, to identify and discuss the ontological and epistemological tensions surrounding the term, and to examine the analytical contribution that two concepts, fairness and tractability, can make to the study of legitimacy in international politics. The chapter is divided into two main sections. The first will inspect the main points of debate surrounding the concept of legitimacy within the IR context in general, as well as in relation to the use of force. This discussion will focus on three key issues: the question of the impact of legitimacy on actors’ behavior, concern regarding the elusiveness of the legal and moral basis of legitimacy in international relations, and the epistemological debate on the descriptive/prescriptive tension underlying the definition of the concept. The second section will scrutinize the possibility of articulating a constitutive theory of legitimacy that combines both normative and explanatory arguments.

Theoretical approaches to the concept of legitimacy

International legitimacy

The debate in the discipline of international relations on the issue of international legitimacy revolves around two related, yet analytically distinct, questions: what exactly is legitimacy and how can the concept be most appropriately studied? In conceptual terms, international legitimacy is generally regarded as a key variable mediating the relationship between power, political authority, and global governance (Bernstein 2004), but the particular pattern of this theoretical relationship remains to be determined (Clark 2005; Risse 2004; Zürn 2004). A significant part of the theoretical confusion that besets the concept of legitimacy is the result of the conflation of two dimensions: legitimacy as a particular form of social action and legitimacy as a political construct. In other words, as a second-order question,¹ legitimacy refers to a condition whereby actors voluntarily follow certain rules, norms, or principles because they believe in them. As a first-order question, legitimacy refers to the political content of the rules, norms, and principles voluntarily observed by actors.

The literature on legitimacy has reached a tentative consensus about the first part of the definition (Clark 2003:79–80; Franck 1990:19; Hurd 1999:381; Steffek 2003:255), but it remains strongly divided over the second part. The source of confusion has to do with questions regarding the impact, source, and epistemological profile of legitimacy. First, how exactly does legitimacy affect the behavior of actors? Put differently, how can one know whether actors believe in the normative rightfulness of the rule, or simply obey it because of coercion? All methods most commonly invoked to address this question – rate of compliance, reasons given for compliance/non-compliance, external support, logical necessity – present serious limitations, which in turn makes it very difficult to assess and validate empirically the degree of internalization of the respective norm (Hurd 1999:390–392).

Second, what exactly is the basis on which actors form their belief regarding the legitimacy of international norms? While firmly established at the state level, the sources of legitimacy at the international level are less clear. Three distinct conceptions of legitimacy inform current approaches to global governance: (1) principled legitimacy rooted in democratic politics, which demands an extension of the democratic rules of representation and accountability at the international level;² (2) legitimacy as law or legalization, which deals with the institutionalization of legal constraints on governments;³ and (3) a sociological model of legitimacy rooted in the intersubjective beliefs and practices about appropriateness of the relevant community⁴ (Bernstein 2004). The extent to which any of these three conceptions of legitimacy is capable of inspiring compliance depends, though, on the type of constraints set by the relevant interpretative community – that is, the group of actors capable of defending the meanings and interpretations associated with a particular definition of legitimacy. Unfortunately, the relationship between principles of legitimacy and interpretative communities has enjoyed scant attention in IR so far,⁵ a fact that inhibits a clear understanding of the scope, intensity, and impact of the legitimacy of various international norms.

Third, should the examination of international legitimacy focus only on describing social reality, or also on prescribing it? Put differently, should social scientists remain loyal to a Weberian type of reasoning, for which the important aspect of the study of legitimacy is not the truth of the philosopher, but the general belief held by the people concerned (Schabert 1986:102), or should they support a normative theory of legitimacy that provides grounds for an independent evaluation of the political order? The explanatory version has the merit of providing a framework for understanding legitimacy within a given system of power relations: where legitimacy originates, how the principles and beliefs that comprise it are maintained and reproduced, why consent is continually renewed, and what social forces are responsible for the erosion of legitimacy (Beetham 1991:101). On the other hand, a strict separation of facts and values reduces legitimacy to a routine submission of authority (Grafstein 1981:456), fails to address the problem of the legitimation crisis of modern political orders (Habermas 1975), entails moral relativism, justifies tyranny, and is theoretically inconsistent (Coicaud and Curtis 2002:89–94). A combination of the explanatory and normative approaches thus emerges as the logical solution, but the substance of this compromise remains to be established.

Legitimacy of the use of force

Now that we have identified the main problems facing the concept of legitimacy from a second-order perspective, the next step is to take a closer look at it from a domain-specific perspective, namely the use of force. What rules, norms, or principles do actors follow when they regard a military intervention as legitimate? The answer is not easy to pin down since what actors have traditionally deemed to be legitimate grounds for military action have varied significantly, both historically and geographically, a point that will be examined in more detail in the next two chapters. Suffice it to say here that the quest for essentialist and homogeneous standards of legitimacy constitutes a futile exercise since the evolution of the substantive principles that have historically informed states’ positions on legitimacy has closely mirrored the gradual transformation of actors’ identities and interests (Hall 1999), a process that continues to unfold.

For example, war was considered legitimate for the acquisition of a throne in the age of dynasties (1400–1559), for protection of religious fate in the age of religions (1559–1648), for promoting a state’s power in the age of sovereignty (1648–1789), and for achieving national independence in the age of nationalism (1789–1917) (Luard 1986:133–184). More recently, the transformation of war-justifying principles has been driven less by rational calculation of economic and political costs and benefits than by ethical arguments containing normative beliefs about what was good and right to do to others. The legitimacy of wars for colonial acquisition was undermined, for instance, by a growing belief in the equality of others and increased respect for the rights of the colonized people (Crawford 2002:4, 133). Similarly, the adoption of the Hague Conventions on the laws of war was made possible by the development of a humanitarian notion that international society had responsibilities for the welfare and well-being of humankind that extended beyond the traditional concerns of individual states (Clark 2005:61).

Closely mirroring the distinction advocated by Max Weber between empirical and normative theories of legitimacy,⁶ legitimacy of the use of force (LUF) has thus far been theorized in international relations from two epistemological positions, analytical versus normative, revolving around two complementary questions: (1) Does LUF matter in international relations? And (2) what kind of rules, norms, or principles does the international community need to adopt with respect to the use of force in order to create a more peaceful and just international order? The analytical approach addresses the LUF concept in an explanatory fashion. Its main concern is not how the use of force ought to be legitimated, but whether LUF has any bearing in international politics at all – that is, whether moral or legal norms of legitimacy exert any significant influence on the definition of states’ interests and foreign policies, or on the nature of the international order. The normative approach takes these arguments a step further by evaluating the morally added value of the rules, norms, or principles involved in various definitions of legitimacy. In other words, the main goal of the normative approach is to understand what substantive definitions of legitimacy better serve the interests in peace and justice of the international community.

The analytical approach

The question regarding the impact of legitimacy on the international system has prompted two types of reactions within the IR community. On one side, realist scholars argue that the international system is primarily governed by considerations of material power, not ideas, norms, or moral principles, and hence the concept of the legitimacy represents only an irrelevant, if not dangerous, intrusion into the convoluted and conflict-ridden realm of international affairs. The central realist argument is that the ethical principles commonly invoked for legitimating the use of force are actually “the unconscious reflexions of national policy based on particular interpretations of national interest at a particular time” (Carr 1956:87). According to Carr, the contingency of normative principles is rooted in the fact that “morality can only be relative and not universal. Ethics must be interpreted in terms of politics; and the search for an ethical norm outside politics is doomed to frustration” (ibid.: 21).

Hans Morgenthau, on the other hand, acknowledged a certain role for moral norms in international politics, but only for those inspired by the imperative of national survival: “the state has no right to let its moral disapprobation […] get in the way of successful political action, itself inspired by the moral principle of national survival” (1973:10). Another leading realist scholar, George Kennan, claimed that core national needs such as military security, integrity of the political life, and the well-being of the people allegedly have no moral quality and hence, the argument goes, all political and military means are legitimate in defending them (McElroy 1992:27). In other words, for realists the international system represents basically a Hobbesian world driven by an instrumental logic of action in which states must always be prepared to defend themselves against power-driven enemies, ruthless dictators, and fanatics who have little regard for international norms and rules.

The doctrine that captures best the realist creed is that of “the national interest,” according to which states assure their survival through the accumulation and rational use of power, defined primarily in military terms. Threats to international order are basically the result of balance of power disparities, which can best be addressed through a foreign policy that skillfully combines different forms of the use of force. International organizations are useful to promote state interests and reduce transaction costs, but they do not have the authority to constrain states’ actions. International legitimacy therefore has little or no bearing on the use of force. On the contrary, by submitting themselves to this requirement, states might even undermine their own efforts to defend themselves effectively and promptly. In short, in the realist view, the use of force is a necessary instrument for states to defend themselves in an anarchic, self-help system, and this “right” cannot be transgressed by international norms of legitimacy.

This view is contested by scholars with a liberal or a constructivist orientation, who argue that LUF actually plays an important role in international pol-itics, primarily by influencing the structure of incentives and constraints to which international actors may react (Hall 1999; Price 1995; Tannenwald 1999). The representatives of this school of thought are more reserved about the realist claim regarding the Hobbesian nature of international system, and they actually insist that anarchy is what states make of it (Wendt 1992). States and other international actors interact with each other not within an international system devoid of any normative content, but within an international society that bounds them by a set of rules, shared interests, values, and common institutions (Bull 1995; Kratochwil 1989). The type of international society prevalent at a particular moment in time could well resemble a Hobbesian world, but that is not necessarily the case. More cooperative and peaceful world orders are not only possible, but also more likely, given the larger payoffs that state actors gain by entering into such agreements (Wendt 1999).

In addition, states not only act instrumentally in international politics, but often follow a logic of appropriateness that associates particular identities with particular situations (Olsen and March 1998). This implies that ethical principles and international institutions are not epiphenomenal to state interests, as...

Table of contents

• Contemporary security studies
• Contents
• Tables
• Acknowledgments
• 1 The concept of legitimacy in international relations
• 2 The moral legitimacy of the use of force
• 3 The legal legitimacy of the use of force
• 4 The deliberative legitimacy of the use of force
• 5 Humanitarianism revisited
• 6 Defensive necessity versus war of choice
• 7 Conclusions
• Notes
• References
• Index