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The End of Legitimacy

Professor Falk tells us this is not a defining moment for international law. He believes that because the use of force in Iraq was so blatantly unlawful nothing has been defined or redefined as a result of it. I suggest, however, that it is a critical moment—a moment to end the erosion in legal rules that has brought us to the point where it was not so clear to many that using force in Iraq was blatantly unlawful. The decision by four nations to use force in Iraq last year, with the positive support of about two dozen more, has created a crisis for international law on the use of force. It is a crisis out of which, however, I am confident we can forge a renewed international law. We must, as part of the renewal, end the erosion of law caused in part by the assertion that some uses of force are legitimate even if they are unlawful. Last night during the presidential panel, one of the former legal advisers to the State Department said we really do not have rules on the use of force. It was no great surprise to hear a comment like that, but it should have been. Out of a renewal movement we should have the goal that no one disputes the existence of real, binding international law rules on the use of force. We should have the goal that when such a rule is violated, few remain in doubt. An important step toward attaining widely accepted, real-law status for these rules is to reject the approach that some uses of force are still legitimate even if they are unlawful. I am in full agreement with Professor Franck about the danger of such thinking. It invites us to decide on personal moral grounds rather than community-based legal grounds the acceptability of a use of force. Instead of community-authorized decision-making bodies assessing uses of force on the basis of existing rules, national leaders can decide on the basis of their own personal moral views. The abandonment of the legal approach in the Kosovo crisis created a strong precedent for the moral approach in Iraq. The individual moral decisions of coalition leaders were viewed by many as just as important as the views of authorized decision-makers on the Security Council. We need to return to legal process and legal rules on use of force. Philip Allott described to me a few days ago what the goal should be: We international lawyers need to be able to insist to a leader that a rule really exists, that it cannot be ignored. It may still be violated, but no one will be confused that a real violation has occurred. In the words of James Hathaway: we will no longer provide "camouflage for the exercise of unilateral action in defiance of legal authority." While I am certain the "unlawful but legitimate" approach will not get us to real law, I also wonder whether Professor Franck's approach will. In his book, Recourse to Force, he raises some concerns for the rule of law that are posed by pronouncing actions legitimate even if unlawful. He warns against undermining the clarity of illegality. In a case like Kosovo, he