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Friday, December 02, 2005

On International Legal Process

Let’s face it it: we lawyers like process. If there’s a voting or other social decision mechanism out there, we lawyers are inclined to say that it must be followed. In international law, for example, most lawyers believe that the use of force must almost always be authorized by the United Nations Security Council (self-defense is the only exception.) That is the right process, they think.

The issue is more complex, however. One could say that the legitimacy of process depends on the pedigree of the participants. For example, we would not say that decisions adopted by majority vote by the governing board of the Maffia are entitled to respect. I do not suggest that the UN Security Council is like the Maffia (although at times the UN General Assembly comes close) but the truth is that life or death decisions, such as rescuing people from genocide, may be blocked by governments that lack democratic legitimacy (either China, though veto, or undemocratic nonpermanent members by voting against the resolution). This does not seem right. A principled defense of process trades on the political legitimacy of majority vote in a democracy. The United Nations, however, is not a democratic legislature, and while it should not be unduly trashed, it should not be unduly romanticized either.

And, if as Eric Posner and John Yoo have argued (LA Times,  April 19, 2005) the UN is a forum where countries band together to counter United States hegemonic power, and if (two big ifs) the United States is trying to do the right thing, then abiding by process doesn’t seem such a good idea. (The same reasoning applies, of course, to any other country.)

Contrast this suspect international legal process with the one established by NAFTA (or the European Union.) It was unforgivable for the United States to ignore the NAFTA ruling in the Canadian lumber case (and I’m relieved that the administration has reversed course). That is a dispute settlement system agreed upon by three democratic nations, and it is therefore validated by appropriate principles of political legitimacy.

Posted by fteson on December 2, 2005 at 10:19 AM in Fernando Teson | Permalink

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Comments

I would have thought that since the U.S. has voluntarily signed both NAFTA and the U.N. Charter, the "appropriate principles of political legitimacy" that underly the former underly the latter as well. Are you arguing that the U.S. should withdraw from the U.N.? Or just that the U.N. Charter should be amended to permit humanitarian intervention without Security Council authorization? Must the U.S. abide by the Charter until those amendments take effect?

Posted by: Adil Haque | Dec 2, 2005 10:56:38 AM

I'm also confused by your reference to democracy. NAFTA panels are not themselves democratic bodies, so the fact that "The United Nations . . . is not a democratic legislature" can't be dispositive. Is the problem that the U.N. has nondemocratic members while NAFTA does not? Does that mean that the U.S. need not abide by trade agreements with (to use your example) China? Does that mean that the U.S. should be forbidden from engaging in humanitarian intervention if opposed by NATO? Or by a U.N. purged of nondemocracies?

Posted by: Adil Haque | Dec 2, 2005 11:03:58 AM

I do not advocate withdrawal from the U.N. My point is this: the moral currency of a vote by a government depends on whether that government represents its people. Because some of the governments (to my mind) do not represent their people, they are best seen as usurpers, and therefore their vote does not count. It's illegitimate. True, my view requires a rather robust notion of international legitimacy. It excludes, for example, the position that whoever is in power has international legitimacy. At the very least, undemocratic governments should not have a say on the question whether or not the UN Security Council should authorize force to avert or stop a humanitarian crisis.

Posted by: Fernando Teson | Dec 2, 2005 11:04:40 AM

We seem to be talking over one another. See my second post above.

Posted by: Adil Haque | Dec 2, 2005 11:08:04 AM

Those are good questions. Let me address the issue of treaties. My view is that treaties in force between a democracy and an undemocratic regime must be followed if doing so has good consequences (there is an issue, of course, about the appropriate computation of good consequences). Trade treaties tend to be mutually beneficial, we want to help the Chinese people raise above poverty, etc., so there are strong consequentialist reasons to observe that treaty, even if the co-signatory lacked legitimacy. There are often prudential reasons to observe agreements reached with bad people. In contrast, treaties among democratic nations must be observed for principled reasons, whether or not doing so has good consequences. Those agreements satisfy the pedigree test of democratic legitimacy.

Posted by: Fernando Teson | Dec 2, 2005 11:22:51 AM

Fernando: I've always thought that the U.N. isn't about legitimacy so much as it is about stablity and peace. Stability and peace are, I'd suggest, best achieved where all nations have a voice and influence, regardless of the legitmacy of their government.

Posted by: Paul Gowder | Dec 2, 2005 11:27:16 AM

Yes, Paul, except that where a dictator speaks it's not "the nation's" voice. I didn't feel that I or my nation (Argentina) were speaking when dictator Videla said the things he said in the UN and elsewhere.

Posted by: Fernando Teson | Dec 2, 2005 11:30:48 AM

Fernando:
Trade treaties tend to be mutually beneficial, we want to help the Chinese people raise above poverty, etc., so there are strong consequentialist reasons to observe that treaty, even if the co-signatory lacked legitimacy.Presumably, by this logic, you back the lifting of the U.S. embargo on Cuba, then?

Posted by: Simon | Dec 2, 2005 8:06:22 PM

Simon: Yes, I do.

Posted by: Fernando Teson | Dec 2, 2005 9:25:12 PM

Yay.

Posted by: Will Baude | Dec 2, 2005 9:35:27 PM

Given Professor Tesón's unquestionable commitment to the ideals of democratic legitimacy, I'm sure he will be more than happy to tell us, in his next blog post, how strongly he favours immediate withdrawal of American troops from Iraq, and how the fact that fewer than one per cent of the Iraqi population thinks US military involvement is helping to improve security in their country makes that the only legitimate course of action.

Posted by: Pablo Stafforini | Dec 4, 2005 1:19:40 AM

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