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28Jun/11Off

Law, Legitimacy, and Libya: Tyrants and Customary Law

Muammar Qaddafi – a warrant for whose arrest for war crimes was issued yesterday by the International Criminal Court – needs little introduction.  He took over as Libya’s dictator in a 1969 coup, and has ruled with an iron fist ever since – imprisoning and torturing political prisoners, assassinating exiled opposition leaders, supporting (and engaging in) international terrorism for decades, and for some years also endeavoring to build nuclear weaponry in violation of his country’s obligations under the Nuclear Nonproliferation Treaty.  He is one of the longest-serving rulers in the world.

Sometime over the past few months, however, a number of influential leaders around the world suddenly decided that Muammar Qaddafi has no “right” to rule Libya.  As the Libyan civil war erupted, U.S. Secretary of State Hillary Clinton declared in February that “[i]t is time for Qaddafi to go.”  Addressing the United Nations, Clinton averred that his regime’s attacks upon the Libyan people “are unacceptable and will not be tolerated.”  Accordingly, she proclaimed, “Qaddafi has lost the legitimacy to govern.”  Not to be outdone, her boss, President Barack Obama, declared a few days later that, indeed, “Muammar Qaddafi has lost the legitimacy to lead, and he must leave.”

By the end of May, this had become something of a chorus, with a joint communiqué by the leaders of the G-8 countries – Canada, France, Germany, Italy, Japan, the United Kingdom, the United States, and Russia – stating that Qaddafi and his government “have failed to fulfill their responsibility to protect the Libyan population and have lost all legitimacy.”  To drive the point home, Russian President Medvedev’s envoy to Africa told the press that Qaddafi had lost his “moral right” to govern Libya.

Leaving aside all the easy and frequently-heard criticisms of these proclamations – after all, there are quite a few other dictators and dictatorships also guilty of massacring their own people, though one has yet to hear the G-8 complain much about most of them – it is surely correct to state that Qaddafi has no moral right to govern Libya.  How remarkable it is, however, to assume that he ever had one in the first place.

In fairness, such luminaries’ implications that Qaddafi once did have any sort of “legitimacy” isn’t entirely fantastical.  Morally distasteful, yes.  But it is true that international law has for many decades now struck a kind of Faustian bargain with expediency, in deeming all sorts of brutes and strongmen to be the legitimate rulers of their countries because it seemed too problematic to do otherwise.

The classic formulation of international standards for the existence of state may be found in the Montevideo Convention on the Rights and Duties of States, signed in 1933.  Article 1 of that treaty provides that a state, as an object of international law, should possess four qualifications: “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”  This is quite a dryly functional definition: if it quacks like a state and walks like a state, one might say, it is one.

The political existence of a state is said to be independent of whatever recognition it receives, or fails to receive, from other states, a fact which Article 3 of the Montevideo Convention makes explicit.  This hasn’t stopped countries from playing all sorts of games with each other over the years, of course, by pretending that some states don’t exist, or that others do.  (As a case in point, think of Taiwan and Palestine.  Which do you think has a better claim to exist under Montevideo standards?  Hint: it’s not the one that everyone is currently lining up to recognize.)  Don’t forget, also, that during the Cold War, Ukraine and Belarus both enjoyed United Nations membership while existing only as enslaved sub-components of another U.N. member, the Soviet Union.  Politics not infrequently makes a mockery of principle.

That said, the implied corollary of the Montevideo standard is that whomever happens to run the government that enjoys the aforementioned control over the territory in question – and which thus exercises the state’s “capacity to enter into relations with other states” – is treated as its legitimate government.

(This is not entirely unlike the bargain of expediency struck long ago in dealing with many post-colonial states in Africa, and elsewhere in the developing world.  World leaders claimed to believe in “self determination,” but were content to treat arbitrary and ethnographically nonsensical borders as the legitimate and inalterable frontiers of countries whose newly independent dictatorships provided those boundaries with no democratically-grounded legitimization.  Why?  Because chaos might have ensued if we opened up the question of just who the relevant self-determining “self” really was.  One might pity the Biafrans whose effort at post-colonial self-governance was suppressed by Nigeria in the 1960s, for instance, but it was felt that one simply could not allow anyone to lift the lid of that Pandora’s Box in a region whose borders had been so whimsically drawn by European colonialists.  The split between Pakistan and present-day Bangladesh, the splintering of the Soviet Union, the fragmentation of the former Yugoslavia, and today’s ongoing divorce between North and South Sudan are conspicuous exceptions to this rule, of course, but in general it has held for a long time.  For the most part, we have chosen to deal with the units as we have found them, without looking too hard at whether or why they deserved to be units in the first place.)

In effect, the functional approach to recognition – international law’s bargain with expediency – engenders a kind of double-talk.  We speak of such rulers’ “legitimacy,” but we don’t really mean legitimacy in any strong sense.  We just mean that they’ve got enough control, under the circumstances, that we just don’t see much point in dealing with anyone else.  Critically, however, there is a difference between what I call “deemed legitimacy” and real legitimacy.  As a matter of course, we usually pretend there is no difference between these two concepts, because this reduces cognitive dissonance and makes our behavior seem more moral.  The distinction is important, however, and it remains lurking in the background.

The distinction reemerges more openly in times of crisis, for this kind of dissimulation can only take us so far, and the recognition afforded by the functional approach to state and government recognition can sometimes become embarrassing.   Clearly, when an undemocratic ruler’s behavior becomes egregious enough, it can make us sufficiently uncomfortable – on moral and humanitarian grounds – that we feel compelled to re-examine our prudential bargain and rediscover a fundamental illegitimacy in that tyrant’s rule that we had previously been willing to ignore.  This is what happened when Qaddafi’s air force began bombing and strafing pro-democracy demonstrators in the streets early this year.  Such atrocities may be said to result in a dictator forfeiting his deemed legitimacy, with the result that he thereafter has no legitimacy of any kind upon which he can fall back.

Famously, of course, our leaders’ moral outrage at this sort of thing has sharp limits, and is itself powerfully conditioned by expediency.  (That’s presumably why NATO is bombing Tripoli right now, and not also Damascus, or elsewhere where tyrants also have gone to war against their people and – one must admit – rather deserve such treatment.)  The idea that there can be a point at which behavior delegitimizes, however, is an important one.

But perhaps we have been putting too much faith, all along, in our bargain with expediency.  I accept that there is a prudential logic in dealing with some strongman simply because he is the strongman, and in juggling the distinction between deemed legitimacy and the real variety.

But maybe it’s time that we strengthened this distinction, and provided a little more clarity about the sup-with-the-Devil aspects of state and government recognition that have always been there.  It may be unavoidable to treat with dictators from time to time, but why do them the favor, and tarnish ourselves, by seeming to conflate the two types of legitimacy at issue?  We should be more clear that although we are willing – for some purposes and only up to a point – to treat tyrants as if they were the legitimate rulers of their country, this does not mean that they really are.  Real legitimacy can only be freely and democratically conferred by their own people, and power-seizing thugs like Muammar Qaddafi most emphatically lack it.

Crucially, moreover, we must remember that this isn’t just a question of whom we are willing to deal with in navigating prudently through a messy and troubled world.  There is no shame in all the time foreign government officials spent negotiating with Qaddafi’s henchmen in order to achieve the extradition of the Libyan intelligence officers who planted the bomb aboard Pam Am Flight 103, or in order to dismantle the Libyan regime’s WMD programs.  (I have no problem deeming Qaddafi’s goons to represent “Libya” for such purposes.  With whom else would we have held such talks?)  But the expediencies of recognition doctrine also can have an important impact upon how the international community sets up its most basic rules – and here there may be good reason to draw a more scrupulous line.

The problem in this regard is that those who are recognized as the leaders of states are thereby privileged to make international law.  While there have developed, since the mid-20th Century, legal doctrines holding that there exist certain bedrock rules that form a core of international law not dependent in some way upon state consent – specifically, the so-called jus cogens norms of peremptory international law, representing in effect a modern incarnation of ancient Natural Law thinking – these are few and far between.  (Most scholars agree that genocide is prohibited by such peremptory norms, for example, but while hobbyhorse advocates sometimes try to claim jus cogens status for their favorite would-be rules, general agreement doesn’t go terribly far beyond genocide.)  The overwhelming majority of rules that are taken to exist in the international system today, therefore, are ones that owe their origins, one way or the other, to state consent.

Such consent, of course, can be expressed through treaties or international conventions, which are simply contracts states undertake with each other.  Treaties are the most fundamental and obvious form of international lawmaking.  Their operation as a source of law can be fairly complicated – with mandatory Security Council decisions under Chapter VII of the U.N. Charter looking like a form of legislation, for instance, but owing their authority to basic contract relations among Members of the organization, who by signing the Charter agreed to abide by its rules about follow-on rulemaking – but their source is pretty straightforward.  Countries are bound to act as they have formally agreed to act.

A second type of law is sometimes also important, however.  Customary international law is said to develop more organically and informally than treaty law, through state practice over time.  (Not just any state practice counts, however.  Customary law grows out of consistent state practice that is informed by what is called opinio juris – that is, customary law analysis looks for actions undertaken because of a belief that such conduct is legally required.  Acting in a certain way because it is convenient or expeditious, or even because it is moral, isn’t enough.)  Yes, this is a somewhat fuzzy, vague standard.  But lest you think customary law unimportant, remember that much of the law of armed conflict as it is known today has its origins in customary prescriptions for civilized conduct in time of war that were only later, and only incompletely, codified.

In pondering Muammar Qaddafi’s purported – though now forfeited – “right” to rule Libya, one should remember that from this “right” necessarily flowed the ability to participate in making international law.  If he is accorded legitimacy as speaking for Libya, he can sign treaties, contribute to Chapter VII resolutions by casting votes as a rotating non-permanent member of the Security Council, and contribute his record of foreign policy choices to the corpus of state practice out of which grows customary law.  Is this really something, however, that a legitimate system of law can afford to permit on the basis merely of deemed legitimacy?

Perhaps the distinction between deemed and real legitimacy is a conceptual and legal frontier that the genuinely legitimate states of the world should police better.  Prudence may oblige us to accept tyrants as speaking for “their” country for many purposes.  But why must it require us to do this for all purposes?  Specifically, while it may often be expedient to treat with monsters, why must we let them contribute to making rules that will be binding upon states whose leaders derive their authority from the consent of the governed?

To my eye, customary international law creation is perhaps most troubling in this respect.  After all, we submit ourselves by choice to treaties with tyrannies, or to participate in voting-based international institutions like the United Nations, knowing full well that their membership (alas!) includes vicious dictatorships.  Such choices may, or may not, be wise, but it’s not unreasonable for us to be held to rules to which we have ourselves explicitly agreed.  Customary law, however, does not form so clearly and openly, or through such direct mechanisms of consent, and it seems less justifiable to give dictators a role in shaping the rules that bind legitimate governments in this way.

I have no particular difficulty with holding dictatorships to rules of customary international law.  Rather, my interest here goes more to how such laws are deemed to have arisen in the first place.  In this respect, I wonder whether we should not debar tyrannies from being considered part of customary law creationTheir state practice, in other words, should not be considered when evaluating whether a customary rule has come into being.

This is not meant to be a specifically punitive thing.  I do not suggest dictatorial governments’ debarment from customary law creation because they “deserve it” – though one could surely make this point compellingly.  As I see it, it’s really more that they haven’t earned the right to make such rules in the first place.  Laws binding upon democracies should not be derived – even in part – from the choices of autocrats, and if the “international community” is to make binding rules in obscurely gradual ways, the corpus of decisions that produce such norms must consist of choices that are themselves grounded in the democratic legitimacy of their makers.

I urge, in other words, a conception of customary international law formation that finds its own legitimacy in notions of democratic governance and popular sovereignty.  Legitimate rules require legitimate rule-makers, and customary international law deserves to be more than simply a byproduct of the aggregated behavior of random thugs who have shot their way into power.  We should respect international law enough to insist that global rules be the result of decisions made by those who have a real right – and not just a prudential, “deemed” one – to speak on behalf of their countries.

Some readers may remember that U.S. Senator John McCain (R-AZ) once suggested the need for a “League of Democracies” that would “bring[] democratic peoples and nations from around the world into one common organization,” to “form the core of an international order of peace based on freedom” and thus complement the United Nations by serving as a place “where the world’s democracies could come together to discuss problems and solutions on the basis of shared principles and a common vision of the future.”

I find much that is attractive in McCain’s idea, but such a plan is not my suggestion here.  I urge a simpler approach here, one that is not dependent upon the diplomatic heavy lifting of establishing a new organization and steering its deliberations toward wise and salutary goals.  Let all governments who believe in international law take steps to augment its legitimacy by articulating and demanding adherence to a conception of customary law creation that looks only to the practice of states whose leaders owe their authority to democratic and law-governed internal mechanisms of governance.  And let all of us be much clearer, in speaking about the tyrants of the world, that whatever we may do in dealing expediently with them in the absence of more acceptable alternatives, these choices cannot retroactively legitimate their acquisition of power in ways that are fundamentally illegitimate.

President Obama and his fellow G-8 leaders are right that Qaddafi has no right to rule Libya, but wrong to suggest that it is Qaddafi’s recent behavior that has led to his illegitimacy.  It has led only to their willingness to admit that he has no real right to rule, for he never did, and to the revocation of whatever deemed legitimacy they previously afforded him.  Even if we are comfortable having deemed Qaddafi to represent “Libya” before last February, we should surely think twice before endorsing a conception of customary international law creation that treats the decisions of brutes like him as being the juridical equivalent of those made by democratically-elected leaders.  Such customary law, one might say, is not worth the paper it’s not written on.  If we want customary law to have legitimacy, we must insist that it have legitimate foundations.

-- Christopher Ford

About Dr. Ford

Dr. Christopher Ford presently serves as Republican Chief Counsel to the U.S. Senate Committee on Appropriations. From 2008-13, Dr. Ford was a Senior Fellow at the Hudson Institute in Washington, D.C. Before that, he served as U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the U.S. Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard College (summa cum laude), Oxford University (as a Rhodes Scholar), and Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage Soto Zen Buddhism. He is also a student of Grandmaster Dong Jin Kim in Japanese jujutsu (black belt 2nd Dan) and Hapkido (also 2nd Dan), and served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve. The author of the books "The Mind of Empire: China's History and Modern Foreign Relations" (2010) and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005), as well as co-editor of "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012), Dr. Ford has written dozens of articles and essays in international and national security affairs. For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628. The views he expresses here are entirely his own, and do not necessarily reflect the perspectives of anyone else in the U.S. Government.
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