[The invasion of Goa] is a question of getting rid of the last
vestiges of colonialism in India. That is a matter of faith
with us. Whatever anyone else may think, Charter or no
Charter, Council or no Council, that is our basic faith
which we cannot afford to give up at any cost. . . .1
- C.S. Jha, Indian delegate to the Security Council,
December 8, 1961
And the first step is to get the United Nations to prove to
the world whether it’s going to be relevant or whether it’s
going to be a League of Nations, irrelevant.2
[T]he purposes of the United States should not be
doubted. The Security Council resolutions will be enforced
. . . or action will be unavoidable. And a regime that
has lost its legitimacy will also lose its power.3
- George Bush, September 2002
Experience brings us to consummated transgression, successful
transgression, which preserves prohibition – preserves
it in order to derive pleasure from [its violation].4
- Georges Bataille, 1957
I. INTRODUCTION
“Speaking law to power” – the title of our conference implicitly
evokes a valiant image of the international lawyer, striving
to turn the ear of power away from the appeals of realpolitik
and towards the claims of normativity. In this image, lawyers present legal ways of framing political problems and those with
power either collaborate with them or treat them with disregard.
Such legal framing may conform to classical notions of law as a
set of formal constraints on power or to Legal Realist-inspired
notions of legal policy as structuring the exercise of power.5 In
either case, “speaking law to power” suggests that international
norms are either seriously considered by political decisionmakers,
invariably leading to adherence to law, or ignored by
them, invariably ensuring violation of law.
In this talk, I want to focus on a very different set of phenomena,
which I think recent events compel us to consider: those
moments when those with power seek to legitimate violations of
international norms, not by disregarding international law but
rather by virtue of the very fact that their actions violate international
law. This relationship between law and power would be
directly contrary to that described in the preceding paragraph: in
the moments to which I refer, those who violate international
norms listen very attentively to the voice of law, indeed explicitly
cite the law’s requirements, but they do so in order to justify
their actions precisely because those actions depart from those
requirements. This relationship may be very difficult for international
lawyers to accept; the notion that public awareness of international
norms may serve to legitimate their violation puts
lawyers in a difficult bind indeed. Nonetheless, I think it is undeniable
that a wide variety of international actors over the past
century have explicitly presented their actions as departures from existing law and that they have sought thereby to gain legitimacy
for their actions.
Far from signifying ignorance of international norms, such
justificatory attempts are only possible in a law-saturated world.
Only in a world keenly aware of legal requirements can such justificatory
attempts gain their “edge” – their startling project of
gaining approbation for their bold defiance of international law,
of bidding for legitimacy through defiance. Those who seek legitimacy
through defiance endeavor to turn their legitimacy-deficit,
the deficiency of their actions when measured against the requirements
of international law, into a surplus-legitimacy, a
super-legitimacy gained through eliciting admiration of their
courage in proceeding despite legal strictures.
I believe that bids for legitimacy through defiance have not
been uncommon over the past century, particularly at moments
of the highest importance for the international community. Such
attempts have spanned the political spectrum – as suggested by
my epigraphs, pairing an Indian diplomat at the peak of militant
anticolonialism with an American president at the height of imperial
unilateralism. Indeed, I think that the appeal of bold defiance
of existing norms is one to which most of us are susceptible
under the right circumstances – circumstances, to be sure, that
will vary radically depending on each person’s ethical and political
persuasions. Only those who adhere to a strict code of fiat
jus, pereat mundus will be absolutely immune to such appeals.
Nevertheless, despite their importance, range, and appeal, bids
for legitimacy through defiance have not been well understood
by international lawyers – who mostly continue to adhere to the
notion that the attention of the powerful to law leads almost invariably
to some degree of collaboration by them with its
demands.
When international lawyers have described actors who deliberately
violate international norms while nonetheless seeking
international approval, they have generally missed the point of
bids for legitimacy through defiance. To be sure, attempts to understand
intentional violation have proliferated in recent years,
along with the increase in deliberate flouting of international
norms. A variety of notions have emerged that try to capture the meaning of recent developments, such as that of “illegal but legitimate”6
actions or even of the “loss of meaning”7
of a whole body
of international norms. While such notions may accurately describe
some recent phenomena, they fail to comprehend the legitimacy
bids I have in mind – bids more accurately captured by
notions such as “legitimate because illegal” or “legitimate because
of the meaningfulness of the norms violated.”
My thesis, then, is that bids for legitimacy through defiance
constitute a crucial dimension of the role of law in international
relations – one that has been little studied in legal scholarship. In
order to bring out the distinctiveness of this dimension, I will
compare bids for legitimacy through defiance with some more
moderate attempts to gain an international imprimatur for actions
that violate existing norms. Unlike bids for legitimacy
through defiance, these more moderate attempts, which I call
“legal innovation through violation” and “legitimation through
competing normative coherence,” have been debated by international
lawyers. The examples of bids for legitimacy through defiance,
to which I will contrast these more moderate bids, will be
drawn from the Indian invasion of Goa in 1961 and the American
invasion of Iraq in 2003. However, these examples are only
illustrative. In fact, I think that once the phenomenon of legitimacy
through defiance is recognized, a large field of research will
be opened up into a key aspect of the role of international law.
I note at the outset that, in the examples that follow, I will
often locate both “defiant” and “moderate” justifications of violation
in pronouncements by the same government or even the
same government spokesperson. Indeed, the pronouncements of
the Indian diplomat C.S. Jha will appear as a veritable encyclopedia
of possible justifications. I will turn to an explicit consideration
of the meaning of this kind of cohabitation of heterogeneous
forms of justification in Parts IV and V.
II. INNOVATION THROUGH VIOLATION VERSUS
LEGITIMACY THROUGH DEFIANCE
International lawyers have long discussed the impact of deliberate
violation on normative validity. In relation to treaties, a
number of situations may permit a state to violate its obligations,
such as material breach by another party, impossibility of performance,
and fundamental change of circumstances.8 In addition,
when numerous states adopt practices and legal views
contrary to those embodied in their treaty obligations, it may be
said that new principles of customary law, contrary to the treaty,
have developed – and that the incompatible treaty obligations
may be “deemed to have expired by mutual agreement or by desuetude.”9
A similar set of dynamics takes place in the context of
customary law.
In a provocative formulation, Anthony D’Amato pointed to
the most intriguing aspect of these dynamics with his assertion
that “every violation” of customary international law “contains
the seeds of a new rule.”10 The persuasiveness of D’Amato’s
startling phrase derives both from the dual role of states in the
customary law process, at once legislators and addressees of
norms, and from the decentralized nature of the process. As a
result of these two factors, the development of new rules of customary
international law “must consist always of violations of
previous rules or else the rules would have been frozen many
centuries ago.”11 For D’Amato, as long as deliberate violations
of existing norms do not depart too radically from existing expectations
of acceptable conduct, they may be viewed as “interactions
that test the system”12 or, to rephrase slightly, as bids to
create new law.
The success of such bids will depend on whether other states
join with the violator in rendering the old rules obsolete. As
D’Amato explains: So, in one sense a state can violate international law but in
another sense it creates the law. Now, how can we reconcile
these two possibilities? Well, because of the reactions
of other states. You try to do certain things. The United
States might take a forceful military position and then
maybe back off if it turns out that it doesn’t wash with the
international community.
Thus, while such violations violate the law “in one sense,”
they are very much pro-law actions “in another sense” – attempts
to participate in the system by engaging in law reform, through
inviting other states to adopt a new rule. Only in retrospect, after
the “reactions of other states,” will we know whether the action
in question will be recorded as a violation or as the first such
action to be deemed legal under a new rule.
In the passage just cited, D’Amato gives an example of a
somewhat isolated attempt to “test the system” through a borderline
violation of the prevailing understanding of existing
norms. However, one may point to other examples in which
states have “tested the system” not to make incremental changes
in specific norms, but rather to make large-scale legal change.
Striking examples of such macro-bids to gain acceptance for
new legal norms may be found in the attempts, during the 1950s
and 1960s, to enshrine anticolonialism in international law – particularly
in relation to the use of force. Such attempts were, “in
one sense,” attacks on existing norms, attacks that took place
both in the realm of discourse and on literal battlefields throughout
the colonized world. And yet, “in another sense,” they were
very much attempts to participate in the legal process through
law reform.
International debate during the Indian invasion of the Portuguese
colony of Goa provides a rich trove of formulations of the meaning of deliberate violation of existing norms. In one formulation,
C.S. Jha, the Indian U.N. ambassador, articulated the relationship
between the Indian action and prevailing norms in terms
strikingly close to those of D’Amato: International law is not a static institution. It is developing
constantly. If international law would be static, it would be
dead driftwood, if it did not respond to the public opinion
in the world. And it is responding every day, whether we
like it or not. . . . [T]he process of decolonization is irreversible
and irresistible . . . . [embodied in] the principles in
resolution 1514 (XV). . . . That is the new dictum of international
law. That is how international law is made . . . .
In response to well-founded charges of a prima facie violation
by India of Article 2(4), Jha thus described international law
as a set of norms that respond, willy-nilly, to “irreversible and
irresistible” forces such as decolonization. Actions that may
have once been considered violations of Article 2(4) may no
longer be so considered due to such forces. In the “new dictum,”
a state using force to seize territory it claims to have possessed
prior to colonization raises “no question of aggression”15 – even
when that colonial occupation has lasted for 450 years, during
which time the claim to sovereignty it embodied was fully endorsed
by prevailing international norms.
This argument can be viewed as reflecting a deep commitment
to law, a commitment to work within the legal process by
seeking to change international norms and to enshrine the new
norms in authoritative legal instruments. To be sure, the intense
passion with which such arguments were made derived from their
fierce opposition to prevailing norms. Far from advocating a
marginal adjustment to existing norms, Jha was arguing for the
killing off of a whole body of norms in favor of new ones. In one
of the many famous passages from his pronouncements in the
Security Council during the Goa invasion, Jha declared: If any narrow-minded legalistic considerations – considerations
arising from international law as written by European
law writers – should arise, these writers were, after all,brought up in the atmosphere of colonialism. . . .[W]e accept
many of the tenets of international law. . . . But the
tenet which . . . [supports] colonial powers having sovereign
rights over territories which they won by conquest in
Asia and Africa is no longer acceptable. It is the European
concept and it must die.
Nonetheless, despite the fierce imagery of this passage, it
may still be viewed as operating within the law reform context:
Jha was advocating the death of the customary law norms that
had legalized colonial conquest and their replacement by new
norms that legalize military anticolonialism. Rather than a deliberate
departure from international legal process, this passage
constitutes an argument, however passionate, within it. Specifically,
it is an argument that the prima facie violation will soon be
properly viewed as a wholly legal action – indeed, that the violation
is part of the process that will bring about that
transformation.
If this passage brings us to the limit of bids for legal innovation
through violation, another strand in Jha’s pronouncements
takes us to a very different kind of bid, a bid for legitimacy
through defiance.
[The invasion of Goa] is a question of getting rid of the last
vestiges of colonialism in India. That is a matter of faith
with us. Whatever anyone else may think, Charter or no
Charter, Council or no Council, that is our basic faith
which we cannot afford to give up at any cost.
In this explicit opposition between “faith” and law, Jha no
longer presents the invasion of Goa as a matter of participation
in the evolution of customary international law. Rather, it becomes
a matter of transcendent belief incommensurate with legal
requirements. Indeed, Jha’s expression of anticolonial faith is intextricably
tied to a passionate and eloquent denigration of law:
“Charter or no Charter, Council or no Council, that is our basic
faith.” This contempt for law, or at the very least, its subordination,
is just as crucial to the rhetorical force of this passage as its
proclaimed commitment to the anticolonial creed.
Krishna Menon, Indian Defense Minister during the Goa
crisis, gave his own take on the affair in later years – still making
the defiance of international norms the explicit keystone:
Had the Security Council intervened, we would not have
stopped the action [to take Goa by military force]. We had
learned some lessons. . . . The nation that behaves well is
always in a bad position.
Like Jha, Krishna Menon thus explicitly declared India’s deliberate
intention to violate its obligations under the Charter.
In some contrast to Jha, though, the more roguish Menon’s
rhetoric was not principally one of lofty commitments to a faith.
Menon explicitly emphasized the importance of violation as violation
– the importance of “not behaving well.” This emphasis,
implicit in Jha’s rhetoric, is stated bluntly by Menon, a practitioner
of hardball political strategy. The advantage gained by India’s
actions, the attempt to gain a “good position” in
geopolitical maneuvering, depends on appearing as a nation that
does not adhere to prevailing rules. Indeed, it might only be a
slight exaggeration to say that, for Menon, the more disapprobation
expressed by the Security Council, the stronger India’s position
would have been.
III. COMPETING COHERENCE OF NORMS VERSUS
LEGITIMACY THROUGH DEFIANCE
I now turn to consider the relationship between legitimacy
through defiance and a very different set of bids for international
approval for actions that appear as prima facie violations of existing
norms. These other bids advocate a reordering of the hierarchy
of international norms and argue that, within this
reordered normative hierarchy, the actions at issue will no longer
appear as violations. Such bids share with those for innovation
through violation the quest to legalize actions that appear as violations
under the prevailing understanding of existing norms.
Unlike innovation through violation, however, bids for a reordered
normative hierarchy do not require the replacement of old norms by new and incompatible norms. Rather, they seek to legitimate
a competing account of how existing norms cohere
within the overall doctrinal structure.
In thinking about such bids, I take as my starting point Tom
Franck’s important insight that the coherence of international
norms often play an important role in their legitimacy19 – but I
would lay greater stress on the fact that a number of incompatible
accounts may plausibly be given of that coherence. Those
who seek to legitimate an alternative account of the coherence of
international norms argue that their actions only appear to be
violations because of the inferior, prevailing account. The alleged
violators contend that a better account of the coherence of
the norms would reveal their actions to be in compliance with
existing norms.
Such legitimation through competing coherence may take a
variety of forms. In what follows, I discuss two of these forms,
which I call the “teleological interpretation” and “synergy” variants,
and contrast them with my main concern, bids for legitimacy
through defiance.
A. TELEOLOGY VERSUS DEFIANCE
The militant anticolonialism of the decades that followed
World War II also provides important historical examples of bids
for legitimacy through a competing account of the coherence of
existing norms. During these decades, anticolonialists sought to
legitimate the use of force in the face of Article 2(4) through this
technique – as well as through the technique of innovation
through violation as described in the preceding section. Plausible
opposing positions in debates about the legality of anticolonial
armed force were made possible by the text of the Charter itself.
The Charter contains both rules limiting the use of force and
passages that may be read as favoring the elimination of colonialism,
such as the Preamble and Article 73.
The latent conflict between these two values continually
came to the fore during the decolonization decades, as in the elaborate debates during the Goa crisis. In these debates, delegates
offered a variety of competing views about how these values
should be hierarchically arranged in order to give the most
coherent reading of the Charter. Overtly pro-colonial states denied
that the drafters of the Charter had any intention of abolishing
colonialism. The United States, by contrast, proclaimed its
anticolonialism, but contended that the correct reading of the
Charter dictated giving priority to force-limitation norms. In the
words of Adlai Stevenson, the U.S. delegate, “[w]e are against
colonialism and we are against war: we are for the Charter.”
Militant anti-colonialists, by contrast, sought to legitimate
the use of unilateral armed force by offering a different account
of the hierarchy of the values they asserted were embodied in the
Charter. Indeed, C.S. Jha contended that the pro-colonial and
U.S. readings were bad accounts because they did not even try to
make the various Charter values cohere, but simply privileged a
literal interpretation of isolated provisions: [T]oo literal an interpretation of the Charter would
mean . . . the permanent denial of freedom. . . .A large
part of the Charter is devoted to the attainment of selfgovernment
or independence by dependent peoples. . . .
[T]he Charter is, indeed, silent as to the remedies . . . .
[M]any colonial powers and their friends . . . made use,
when it suited them, of the provisions of the Charter relating
to the non-use of force . . . . To people under colonial
rule, this was . . . a misuse of the Charter. They considered
that the Charter provisions . . . should not be used for
preventing or delaying the freedom of peoples from suppression
and foreign domination.
For Jha, the presence of anticolonial values in the Charter
meant that Article 2(4) could not be read in isolation. Rather, he
argued that the Charter’s valorization of self-determination and
its silence about remedies for colonialism left room for reasoned
argument about the relative priority to be given to self-determination
and the non-use of force. And given that the probable outcome of giving priority to the latter would be the perpetuation
of domination, the Charter as a whole would be a more coherent
document if force-limitation were subordinated to
anticolonialism.
To be sure, Jha’s charge of literalism against his opponents
was unfair. Pro-colonialists could plausibly argue that the Charter
did not intend to bring about the end of colonialism. The
U.S. could plausibly offer teleological arguments to support its
notion that the Charter gave priority to the non-use of force –
especially given the specificity of the force-limitation provisions
and the generality of the passages that might be read as disfavoring
colonialism.
Nonetheless, Jha would have been on very solid ground if he
had not framed the issue as teleological interpretation versus literalism,
but rather as a debate between competing ways of giving
a coherent teleological reading of the Charter. All the contending
readings, the Indian, colonialist, and American, were plausible
ways of making the Charter cohere. Yet, the reading offered by
the militant anticolonialists offered a new and compelling account,
an account that gained the assent of much of the world,
even if it remains highly controversial.
Successful or not, such bids for legitimacy through competing
coherence are very much at odds with bids for legitimacy
through defiance. When Jha was seeking to establish the legality
of the invasion of Goa by offering a competing way of making the Charter read coherently, he was doing something quite different
than when he was declaring, “Charter or no Charter,
Council or no Council, that is our basic faith which we cannot
afford to give up at any cost.” Similarly, when Menon declared
that India would not have stopped the invasion even “had the
Security Council intervened,” he was not offering a better reading
of the balance of Charter values. Rather, he was demonstrating
an understanding of the legitimacy to be gained through
defiance, an understanding that “[t]he nation that behaves well is
always in a bad position.” The “lessons” that Menon tells us that
India “had learned,” were precisely the lessons of the strategic
use of bold defiance of existing norms, not their reinterpretation
or reordering.
B. SYNERGY VERSUS DEFIANCE
A set of arguments structurally similar to those found in the
military anticolonialism debates may be found in discussions of
humanitarian intervention in international law, particularly during
the 1990s. Such debates were made possible by the coexistence
in current international law of fundamental norms about
both force-limitation and ending large-scale human rights violations.
The question of which set of norms should prevail in a
given situation requires, not negating one or the other, but deciding
which occupies a higher hierarchical position. The opposing
sides in such debates thus offer alternative accounts of how
force-limitation and rights-enforcement cohere in the overall legal
structure.
If the currently prevailing account gives priority to Article
2(4) at the level of substance and the Security Council at the
level of procedure, the competing account attempts to give priority
to human rights norms. This competing account argues for
the need to “weigh the prohibition of violence” against “other
values”25 and contends that a correct “balancing out of the major purposes of the Charter”26 would authorize humanitarian intervention
under existing norms. Such arguments would closely
parallel the kind of opposing teleological interpretations discussed
above in the anticolonial force context. Like advocates of
military anticolonialism, advocates of humanitarian intervention
would argue that provisions like Article 2(4) must not be read in
isolation but rather in a manner that gives coherence to the Charter
as a whole.
A quite different form of bids to legitimate a competing account
of the coherence of existing norms surfaced in relation to
Kosovo. The NATO intervention over Kosovo appeared to be a
prima facie violation of Article 2(4) and to lack Chapter VII authorization.
Some defenders of the intervention, including official
spokespeople, did something other than offer a competing
teleological interpretation of the Charter. Rather, they combined
arguments based on norms and processes embodied in the
Charter with those lying outside the Charter – including some of
controversial legal status. They sought to efface the Charterbased
prima facie illegality of the intervention by urging that attention
to an expanded notion of relevant normative elements
would yield a new normative hierarchy. Such elements included
the Security Council resolutions bringing the situation in Kosovo
under Chapter VII as well as a variety of extra-Charter factors –
the latter including non-U.N. institutions such as NATO and
norms about humanitarian intervention that most international
lawyers have always viewed as never quite “ripe” enough for customary
international law. From a strict Charter perspective,
these extra-Charter norms and processes have no validity outside
the legal hierarchy established by the Charter – as exemplified in
the ban on enforcement actions by regional organizations without
prior authorization by the Security Council under Chapter
VIII. Nonetheless, the defenders of the intervention argued that
Charter and extra-Charter values had interacted in such a way as
to reorder the normative hierarchy of the international law of
force as a whole. The defenders sought thereby to subordinate
some of the formal requirements of the Charter to more controversial
extra-Charter norms and processes.
In Bruno Simma’s concise description: Indeed, one is immediately struck by the degree to which
the efforts of NATO and its member states follow the
“logic” of, and have been expressly linked to, the treatment
of the Kosovo crisis by the Security Council. . . .U.S.
Deputy Secretary of State Strobe Talbott referred to an
“unprecedented and promising degree of synergy” in the
sense that the U.N. and NATO, among other institutions,
had “pooled their energies and strengths on behalf of an
urgent common cause”; as to the specific contribution of
the U.N., he saw this in the fact that “the U.N. has lent its
political and moral authority to the Kosovo effort.
Simma thus identified NATO as engaged in an attempt to
legitimate a competing coherence of the international law of
force through “synergy” between Charter and extra-Charter
norms and processes. Borrowing the authority “lent” by the
U.N., NATO sought to produce a new reading of an expanded
body of international norms, both those rigorously entrenched in
law and those, like humanitarian intervention and regional enforcement
action without Security Council authorization, that
have long led a kind of shadowy legal existence.
The success of both kinds of bids for legitimation through
competing coherence, like bids for innovation through violation,
will only be known in retrospect. Thus, despite his compelling
articulation of the “synergy” argument in relation to Kosovo,
Simma remained unpersuaded: “[D]espite all this ‘synergy,’
closeness and interrelatedness of NATO and U.N. engagements
in the Kosovo crisis, there is no denying the fact that a requirement
of Charter law has been breached.” Though Simma rejected
this bid, it did persuade much of the world – whether in
terms of a legal argument about humanitarian intervention or in
the form of the mitigation argument that Tom Franck has put
forward.
Again, whatever their ultimate success, such bids for legitimacy
through competing coherence are very much at odds with
bids for legitimacy through defiance. An attempt to blend prima facie extra-legal norms and processes with prevailing legal conceptions
is very different than an overt attempt to gain legitimacy
through defying the legal system. “Synergy” bids, no less than
bids for competing teleological interpretations, present actions
that look like prima facie violations of international law as actually
consistent with law, even if they argue for a substantial
reconfiguration of the normative hierarchy.
The contrast between bids for competing coherence and for
legitimacy through defiance clearly emerges when we turn to
U.S. pronouncements about the 2003 invasion of Iraq. A close
reading of such pronouncements reveals at least two major
strands of justification, a legality strand and a defiance strand. In
the legality strand, the U.S. and the U.K. tried to build an argument
under existing rules – either the rules as interpreted in the
prevailing view or as reordered through the competing coherence
technique. The first form of the legality strand consisted of an
argument that had been persistently advanced by the U.S. and
the U.K. during the dozen post-Gulf War years – an argument
based on the continuing validity of Resolution 678 of November
1990, the Gulf War use of force resolution. The argument was
that material breaches by Iraq of Resolution 687 of April 1991,
the Gulf War cease-fire resolution, served to reactivate Resolution
678 – and thereby to authorize states to forcibly compel
compliance. This argument was supplemented by the argument
that Resolution 1441 of November 2002, finding Iraq in material
breach of its obligations, implicitly provided Security Council approval
for such a reactivation of Resolution 678.
The second argument for the legality of the invasion focused
on the fact that Resolution 1441 not only found Iraq in material
breach of its obligations but also threatened it with “serious consequences.”
This argument somewhat displaced the centrality of
Resolution 678, on which the U.S. and the U.K. had relied for 12
years without any new threats by the Security Council. Reliance
on 1441’s “serious consequences” language made the pro-invasion
argument very much like the “synergy” argument in relation
to Kosovo. The U.S. and U.K. were arguing that the Security
Council had come as close to authorizing force as possible without
making that authorization explicit, and extra-Charter norms and processes would carry the justification to its ultimate conclusion.
Indeed, U.S. officials explicitly cited the Kosovo parallel.
However, there was a quite different strand in U.S. pronouncements,
the strand of defiance. In this strand, the failure of
the Security Council to authorize the invasion did not provide a
half-way justification that could then be supplemented by extraCharter
norms and processes. On the contrary, in the defiance
strand the Security Council’s failure to authorize was neither
glossed over nor minimized – for it served to underscore the
moral integrity of those who would undertake an invasion without
legal authority. In short, it was the very lack of Security
Council approval that provided legitimacy for the invasion, legitimacy
through defiance. As Bush declared on the eve of the
invasion: [S]ome permanent members of the Security Council have
publicly announced they will veto any resolution that compels
the disarmament of Iraq. These governments share
our assessment of the danger but not our resolve to meet it.
Many nations, however, do have the resolve and fortitude to act
against this threat to peace, and a broad coalition is now gathering
to enforce the just demands of the world. The United Nations
Security Council has not lived up to its responsibilities, so we will
rise to ours.
In a paradigmatic instance of a bid for legitimacy through
defiance, Bush thus sought to gain approbation for the position
of the U.S. precisely by contrasting it with the position of the
Security Council – rather than by any “synergy” with it. Bush
painted a tableau in which American “resolve and fortitude”
were intended to stand out by virtue of their contrast with the
irresponsible irresoluteness attributed to the Security Council.
This pronouncement followed a series of statements by Bush
in the same spirit. For example, on September 19, 2002, Bush declared that “the first step is to get the United Nations to prove
to the world whether it’s going to be relevant or whether it’s going
to be a League of Nations, irrelevant.” Again, this statement
did not use Security Council resolutions as halfway
measures toward a full justification, but rather clearly asserted
the right to violate the Charter – indeed, the right to ensure, by
undertaking action in defiance of the Security Council, that the
U.N. would follow the League of Nations to an untimely grave. This message echoed one that Bush had made before the General
Assembly a week earlier, on September 12, 2002: We will work with the U.N. Security Council for the necessary
resolutions. But the purposes of the United States
should not be doubted. The Security Council resolutions
will be enforced – the just demands of peace and security
will be met – or action will be unavoidable. And a regime
that has lost its legitimacy will also lose its power.
In this passage, Bush also asserted the resolve of the United
States to proceed without the United Nations if a use of force
resolution was not forthcoming. Moreover, while the last statement
in this passage (“a regime that has lost its legitimacy will
also lose its power”) may be read as referring to the Iraqi government,
it also may be read as directed at the U.N. – whose imminent
demise, in the manner of the League, Bush would explicitly
threaten to bring about a week later. While in this earlier
speech, Bush’s references to the League’s demise as foreshadowing
that of the U.N. were not quite as brutal, they were nonetheless
clear .
C. COMPARATIVE DEFIANCE
A comparison of the cases of Goa and Iraq can serve to
highlight differences among bids for legitimacy through defiance.
Like Jha and Menon, Bush asserted that his defiance would continue
in the face of explicit U.N. opposition; also like Jha and
Menon, his rhetoric implied that it was precisely the defiant nature
of illegal actions that would render them legitimate. Yet, in
a more radical bid than those of Jha and Menon, Bush raised the
ante by declaring that the U.S. would persist in its defiance even
though that defiance could bring about the destruction of the
U.N.
To be sure, the death of the U.N. in the manner of the
League of Nations was also invoked during the Goa crisis. During
that crisis, however, it was invoked by a vociferous critic,
rather than a defender, of the prima facie illegal use of force.
Ironically, it was an American, U.N. Ambassador Adlai Stevenson,
who raised the specter of institutional demise as a result of
the Indian invasion. If the U.N. were to “condone” the action,
Stevenson intoned, it would “die as ignoble a death as the
League of Nations.”The distance between the bids for legitimacy
through defiance in the two crises is encapsulated by the
fact that bringing ruin to the U.N. was the ultimate charge against
the defier over Goa, while it was made the ultimate rhetorical
flourish by the defier over Iraq. Taken together, Bush and Stevenson
show the power of bids for legitimacy through defiance,
experienced in the ecstasy of the defier and the anxiety of the
defied, to shake the international system to the core.
Of course, another striking difference between the two incidents
is the relative success of the bids for legitimacy. The Indian
bid won the approbation of much of the world. The U.S. bid, by
contrast, succeeded mainly in exacerbating tensions between the
U.S. and most of its most important allies, indeed, in making Iraq
a pawn in the struggle among powerful countries for international
leadership.
A variety of factors may account for the difference in the
success of these bids for legitimacy, though any such explanations
require a measure of speculation. First, the two bids may be distinguished
in terms of their relative attention to identifying their addressees – a key element in considerations of legitimacy. The
Indian bid was well-tailored for a large and growing international
constituency, the newly independent, formerly colonized states.
By contrast, it is unclear to what international constituency Bush
imagined he was playing in defying the U.N. over Iraq – assuming
one discounts the “old/new Europe” rhetoric as based more
on wishful thinking than on political reality.
It is intriguing in this context to mention some of the conjecture
about the “real motives” for the timing of the Indian invasion.
Indian rhetoric about Goa heated up shortly after other
post-colonial states had criticized India for insufficient anticolonial
ardor.37 The Indian action was thought by some to be a
response to this criticism and an effort to reassert Indian leadership
of the Third World. The framing of the invasion as defiance
of prevailing international norms could only have bolstered this
campaign.
A second reason for the relative success of the two bids may
be that the rhetoric of defiance is less appealing when coming
from a superpower than from a state that can plausibly present
itself as championing those historically deprived of power. To be
sure, effective defiance requires possession of a certain amount
of power. Nonetheless, the ability of India to present itself as
undoing a historical injustice and the unseemliness of the U.S.
presenting itself as a maverick may do much to account for the
divergent reactions to the two bids.
The fact that, at least according to realist theories of international
relations, a “single superpower” may be expected to regularly
serve its own interests by defying international norms does
not serve to make that defiance very attractive. Moreover, from
a more arational perspective, since the rhetoric of defiance depends
for its force on a flight of passion, such rhetoric is closely
tied to the charisma of its speaker. The charisma of the militant
anticolonialist, the guise in which Menon and Jha presented
themselves, has an appeal that the charisma of the overconfident
hegemon, the guise in which most of the world saw Bush, simply
does not.
As I stated in my introduction, this close analysis of two examples
of bids for legitimacy through defiance should serve to
open a whole new field of research into the role of law in international
relations. The period between the World Wars, to cite one
large research area, was rife with such bids, made by political
actors all over the political spectrum. These bids included pronouncements
from the left, notably from that portion of the
French left disgusted with international law due both to its past
use in justification of World War I as a “war of law” and its continued
use in defense of colonialism. They also included pronouncements
from the right, notably from those on the French
right who supported the 1935 Italian attack on Ethiopia by heaping
scorn on the “false juridical universalism” of the League.
And they included pronouncements from the center, notably
from some who defended the 1938 Munich Agreement dismembering
Czechoslovakia. The Munich Agreement was a violation
of the substantive and procedural norms of the League of Nations.
Yet, in an editorial entitled “An Overshadowed Assembly,”
the Times of London applauded the agreement, arguing
that the international conclave in Munich embodied the “spirit of
Geneva” – implying that only international law’s dead letter remained
at the League’s Swiss headquarters. For this kind of
commentary, the a priori illegal diplomatic efforts of the late
1930s – such as the Munich Agreement and similar, abortive attempts
to deal with Italy’s claim to Ethiopia – rightfully snubbed the ossified League. Indeed, from this perspective, it was precisely
to the extent that such attempts defied the League’s formalistic
impasses that they would achieve legitimacy –
paradoxically aligning the “appeasers” of the 1930s with the
“preemptive attackers” of the 2000s.
Attention to legitimacy through defiance will serve to make
legal histories of international relations more complex than narratives
that rely on phrases like “the increasing (or declining) importance
of law.” Rather, violations of law may often serve as
evidence of the power of law in public opinion – even if it is the
power to give a super-legitimacy to violations. This new perspective
may also shed light on the fact that periods in which international
law rises to new heights of prestige may also be those in
which lawlessness appears to be everywhere – and we need look
no farther than the period since 1989 to verify this insight.
IV. DEFIANCE AND ITS MODERATE COUSINS
As I have noted, the rhetoric of defiance is often found in
the company of its more moderate cousins, such as bids for legal
innovation through violation and bids for legitimacy through
competing coherence. I would insist on the notion that the rhetoric
of defiance is of a radically different nature than these more
moderate bids, expressing a will to defy the legal system rather
than to reform it. Nonetheless, it is rarely found in isolation from
them. The divergent rhetorics may be found dispersed among
different spokespeople for the same government, they may be
found in the pronouncements of a single official or policy text,
and, finally, they may appear in a government’s rhetoric at different
moments of an unfolding crisis. I will consider each of these
cases.
A similar set of explanations may be provided for the first
two cases, in which contrasting rhetorics are divided among different
spokespeople of a single government or cohabit within the
pronouncements of a single official. In the case of differences
among spokespeople, it may be that the government is divided about which strategy to adopt; in the case of a single official’s
pronouncements, it may be that he or she is ambivalent about the
competing strategies. It may also be that, in the course of a single
speech, a spokesperson gets worked up into an ecstatic moment
of defiant faith and then, once the exuberant moment has
passed, returns to a more moderate rhetoric. Alternatively, in a
more rational vein, it may be that the government or the individual
spokesperson is attempting a calculated “good cop / bad cop”
strategy: either cooperate with us and we’ll attempt to work
within prevailing legal processes, albeit in the form of seeking to
reconfigure them; or oppose us and we’ll resort to outright defiance,
with grave and unpredictable consequences for the current
crisis and the system as a whole.
In the case of divergent rhetorics appearing at different moments
in the unfolding of a crisis, something else may be at work.
During the heating up of a crisis, a moderate, reformist rhetoric
may be supplanted by a rhetoric of defiance if the government
finds that its bids for reform are not finding a receptive audience.
Conversely, after a crisis has reached its boiling point, the government
may find that it needs the cooperation of other actors in
dealing with its aftermath. It may then move from a rhetoric of
defiance to a rhetoric of reform or even a rhetoric of submission
to prevailing notions of legality.
The Goa and Iraq crises presented a variety of these relationships
between defiance and reform. As I noted at the outset,
the pronouncements of C.S. Jha before the Security Council form
a veritable encyclopedia of rhetorics, including bids for innovation
through violation and for legitimacy through competing coherence,
as well as for legitimacy through defiance. It is telling
that when Jha reflected years later on his performance during the
Goa crisis, he declared that his statements of defiance – the very
statements for which he has earned a place in histories of law and
diplomacy – had been quoted “out of context.” I would argue,
however, that the rhetoric of defiance is essentially one that is
always “out of context,” for it seeks to rend the fabric of acceptable
discourse in its bid for a super-legitimacy. One might even
say that the central feature of this rhetoric is that it defies “context.”
That one who has employed this rhetoric would seek to domesticate it after the fact is not surprising. But that such domestication
would have robbed the statements of their power at
the time of their pronouncement is undeniable.
In the Iraq context, as I have noted, the U.S. issued arguments
for the legality of the invasion under prevailing legal conceptions
and under a competing coherence theory, in addition to
the rhetoric of defiance. Moreover, in the year following the fall
of Baghdad, the U.S. made a series of attempts to regularize the
occupation under prevailing legal conceptions – for example, by
seeking to put a Security Council imprimatur on the occupation.
Such an after-the-fact imprimatur would have resembled that
given by Resolution 1244 to the occupation of Kosovo. However,
the resolutions on the occupation of Iraq that resulted from
this effort stopped short of transforming the occupation into a
Chapter VII operation.44 This diplomatic disappointment for the
U.S. was due to its partial insistence on continued defiance in its
refusal to turn the occupation over to a U.N. body, as was done
in Kosovo with UNMIK.
In its conduct of the occupation, the U.S. also engaged in a
bid for legal innovation through violation. For example, the farreaching
overhaul of the Iraqi economy and polity undertaken by
the Coalition Provisional Authority would be impermissible
under the traditional rules of occupation – embodied in the mandate
of Article 43 of the Hague Regulations to “respect[,] unless
absolutely prevented, the laws in force in the country.”45 Rather
than engage in outright defiance of the legal system, the U.S. argued
that the traditional rules needed to be amended to take account
of situations like post-Saddam Iraq. Here the U.S. met
with greater success, even though the Security Council called on
the occupiers to conform to their obligations under traditional occupation law, including the Hague Regulations.46 Despite this
call, the international community consented to departures from
the traditional legal restrictions on occupiers – for example, in
such Security Council measures as its recognition of the American-appointed
“Governing Council and its ministers as the principal
bodies of the Iraqi interim administration”47 and in the
admission of occupied Iraq to observer status in the WTO.
In both the Iraq and Goa cases, such moves back and forth
between defiance and reform, whether of the innovation through
violation or the competing coherence variety, highlight the intensely
ambivalent nature of bids for legitimacy through defiance.
On the one hand, such bids stake their success on
deprecation of the legal system. On the other hand, they only
derive their force from the existence of that system. Moreover,
even those who engage in such bids usually wish to return to the
normalcy of the legal system – once their passion wears off or
when the set of strategic motivations that impelled them toward
defiance are no longer pertinent.
A full understanding of this ambivalence and the force of
the rhetoric of defiance would take us out of the realm of law to
a broad interdisciplinary study, including such fields as psychology,
sociology, and linguistics. In the next section, however, I
seek to shed light on these issues not by turning to those realms,
but to that of religion.
V. THE THEOLOGY OF DEFIANCE
It is in religion, especially in religion’s most ecstatic expressions,
that we find the deepest articulations of the kind of human
desires that surface in international relations in legitimacy
through defiance. Such articulations may be found in a variety of
religious traditions. For example, the Jewish Talmud, a legal and
theological compendium completed around the sixth century,
contains a number of sayings that tend in this direction. Among
the more famous: “there are times when the annulment of the
Law is its foundation” and “it is time to act for God: thou shalt abrogate the Law.” A similar spirit can be found in some
strands of the Islamic tradition. In the words of Al-Junayd, a Sufi
mystic of the turn of the tenth century: “God brings upon those
that love him a kind of sudden and supernatural madness, in
which a man may act and speak against the directions of
religion.”
The idea of transgression as a mark of the highest religiosity
expressed in such pronouncements is well described in the following
passage: ’Transgressive sacrality’ within a religious tradition is
something completely different [from heresy] for, though
violating the interdictions and observances of the tradition
in question, it does not seek to replace the latter. Instead it
lays claim to a superior degree and second order of spirituality
derived precisely from the violation of socioreligious
interdictions whose general validity and binding force is
not at all questioned by the transgressor. In fact, transgressive
sacrality cannot operate without the existence of such
binding and powerful taboos, and often presents itself as
an esoteric form of the mother-religion, the latter serving
as the exoteric prerequisite and recruiting ground for it.
Such a “transgressive sacrality,” which draws its force from violations
of “binding and powerful” norms, is strikingly similar to the
phenomena I have identified in international relations under the
rubric of legitimacy through defiance.
In the twentieth century, one of the most important theorists
of these phenomena was Georges Bataille, novelist and heterodox
philosopher of religion. Bataille’s work took as its central
puzzle “the profound complicity of law and the violation of law.” He examined a variety of societies that engaged in periodic,
often collective, violations of some of their central prohibitions
– followed by a return to normalcy. A transgressive
moment of this kind does not constitute “a return to nature,” to a
pre-legal moment; rather, it “suspends the prohibition without
suppressing it.”53 Indeed, it “preserves the prohibition – preserves
it in order to derive pleasure” from its violation. This
kind of experience demands “as great a sensitivity” to the grave
concerns which motivate the adoption of prohibitions as to “the
desire which leads to their violation” – for only those fully
aware of the gravity of the prohibitions can achieve the ecstatic
religiosity derived from their violation. And only when the prohibition
is experienced in all its force can it serve to stamp its
violator with “an accursed glory.” Those who attain such
“glory” achieve in relation to a religious community what successful
bidders for legitimacy through defiance achieve in relation
to a legal community.
Turning to international relations, we can bring back a number
of insights from this brief religious excursus. First, those who
seek legitimacy through defiance, like those who participate in
“transgressive sacrality,” do not usually intend to bring about the
destruction of the system whose norms they are momentarily defying.
Rather, they need the system to be solidly in place in order
for their defiance to appear as such. Moreover, as with
transgressive sacrality, defiant international actors usually seek
both to defy the existing normative system and to return to that
normative system once the crisis has passed. In the international
relations context, to be sure, such a desired return to normativity
may include a desire for the system to accept some revision of its
pre-crisis norms.
Finally, while most participants in “transgressive sacrality”
seek to return to the normative system they defy, some religious
movements that begin with such exceptional transgressions may move toward a more permanent antinomian stance. For example,
the Talmudic sayings quoted earlier were intended by their
authors to apply to quite restricted circumstances, times of extraordinary
need. Yet, these restrictions did not prevent later antinomians
from citing them in support of a whole theology of
“redemption through sin.” Such a move from extraordinary
transgression to permanent antinomianism occurred in the Jewish
messianic movement led by Shabbtai Zvi in the seventeenth
century. Zvi originally engaged in public ritual violations at exceptional
moments as a way of demonstrating his elevated status. Eventually, though, he and many of his followers adopted a
full-fledged antinomian stance, installing permanent violation of
their normative system of origin as the foundation-stone of a new
religious community.
These alternative variants of transgressive sacrality find their
parallels in the case studies I have looked at here. Jha’s declamation
– “Charter or no Charter, Council or no Council, that is our
basic faith” – is a classic example of a defiant stance that depends
on the solidity of the normative system for its rhetorical force.
Moreover, it is clear, both from Jha’s own statements and India’s
diplomatic stance generally, that the ultimate agenda was a return
to the normative system – albeit a reformed normative
system.
The Iraq case is more complex. As I have noted, the U.S.
engaged both in the rhetoric of defiance and in normative and
reformist rhetorics. And yet, as I argued, if we look only at its
rhetoric of defiance, we find a more radical stance than that
taken by India over Goa – a stance that seems to threaten the
destruction of the normative system, or, more precisely, its institutional
embodiment, the U.N. This kind of stance resembles antinomian
religious movements – movements carried away by the
ecstasy of exceptional transgression to a desire for a permanent
suspension of the normative system.
Indeed, some commentators interpreted the implications of
the U.S. stance over Iraq in this antinomian sense. Richard
Perle, for example, declared the “death of the U.N.” and its replacement
by alternative communities, “coalitions of the willing” – particularly those willing to defy the U.N.’s rules. For
Michael Glennon, the antinomian implications of Iraq concern
not international law generally or the U.N. as a whole, but rather
a particular normative regime, the rules about the use of force.
Glennon asserted that we have witnessed nothing less than the
“death” of this body of rules. For Glennon, the permanent suspension
of these rules became undeniable with “the dramatic
rupture of the UN Security Council” over Iraq in 2003, when “it
became clear that the grand attempt to subject the use of force to
the rule of law had failed.
It is undoubtedly too early to tell whether Glennon’s obituary
for jus ad bellum is premature. The above analysis, however,
should suggest some caution. First, the U.S. has surrounded its
rhetoric of defiance with other, more moderate stances in relation
to the force-limitation rules. Secondly, and more fundamentally,
the analogy to transgressive sacrality suggests that we must
go beyond the very compelling realist analysis Glennon marshaled
to bolster his thesis.
For Glennon, the Security Council’s “fate” has been
“sealed” not by this or that crisis, but rather by a “shift in world
power” towards “American unipolarity.” Because the U.N.’s
rules on force no longer reflect the “underlying” power dynamics
of the international system, they have been simply “swept away.”
These realist theses are at the core of Glennon’s argument.
The analysis of trangressive sacrality, however, suggests that
it may well be the overt violator of fundamental norms who has
the most at stake in maintaining those norms. Even if we try to
maintain as realist a stance as possible, we may find that the U.S.
can only keep proving to the world its status as the “sole superpower”
if it is continually able to assert its prerogative to violate
international rules. Once those rules no longer exist, it will have
nothing to violate and no way to prove its transcendence of the
system. Moreover, the U.S. would seem to have too much at stake in maintaining the overall validity of international law and
of the U.N. in particular for it to use its 2003 attack on forcelimitation
norms as the basis for a permanent antinomianism.
We may recast this analysis in even more purely power-politics
terms. In order to maintain the distinctive form it has chosen
for its hegemony in security matters, the U.S. must keep insisting
that the rules are valid, but only for “normal” countries – that is,
all countries except the U.S. and those in league with it. In contrast
with normal countries, the U.S. transcends those rules; indeed,
it will violate those rules precisely in order to ensure that
others abide by them. In fact, was this not exactly the form taken
by the U.S. justification for its invasion of Iraq?
Nevertheless, the analogy to antinomian movements suggests
further complexities latent in the American position. The
“coalition” that followed the U.S. into Iraq—the “coalition of the
willing” or, in my terms, the “coalition of the defiant” – resembled,
at least for the duration of the crisis, an incipient antinomian
movement. It consisted of a group of states united by
virtue of their willingness to defy international law, at least international
law as interpreted by a majority of states and international
lawyers. To the extent that the U.S. has a strong stake in
maintaining the system it defied in relation to Iraq, the establishment
of such an antinomian community poses grave threats.
States inducted into such an antinomian community, and even
some other states who may take such a community as their
model, might well rely on the same defiance of jus ad bellum for
their own foreign policy interests – even when those interests do
not conform to those of the United States.
In the next section, then, I conclude by turning to a fuller
discussion of the risks of defiance for the defier itself to which
this discussion of the specter of antinomianism has led me.
VI. THE RISKS OF DEFIANCE
This talk has suggested a number of risks for those who
stake their legitimacy on defiance of prevailing norms. First,
there is the risk of failure of the bid, the risk that other states will
simply reject the appeal for super-legitimacy made by the defier.
The stakes of such bids are higher than those of more moderate,
reformist bids.
Those who engage in more moderate bids risk only being
perceived as violators of this or that norm, and perhaps only as
tentative violators or even quasi-innocent violators who were
mistaken about the law. Those who stake their legitimacy on defiance
of the system, by contrast, risk being relegated to the status
of pariahs. Instead of the super-legitimacy for which they had
hoped, they may find their international status as a whole, not
only the status of their specific actions, downgraded to a kind of
sub-legitimacy. An example of efforts at such stigmatization is
the ironic application of the term “rogue state” to the U.S. by
current critics of American power.
Another example was the reaction of President Kennedy to
the invasion of Goa, a reaction that makes an explicit link to the
religious themes discussed in the preceding section. Referring to
the perception, especially in the West, that the state that invaded
Goa had previously been lecturing the world about the virtues of
nonviolence, Kennedy declared, “People were saying, the
preacher has been caught coming out of the brothel.” In light
of the analysis here, such a statement is not surprising: bidders
for legitimacy through defiance, like those who engage in transgressive
sacrality, stake all on achieving a super-legitimacy. If
they fail, they will not be crowned with a halo of holiness but
tarred with the brush of sordidness. While Kennedy’s reaction
was not shared by much of the world, it does show the risks run
by a defiant state.
The second kind of risk is that suggested at the end of the
previous section, the risk that the defier will not be able to control
the consequences of its defiance. This may take the form of
unwittingly licensing other states to defy norms that the defier
wishes to preserve, at least for others. It may also take the form
of fatal damage to the normative system, rendering a return to
normalcy impossible.
One of the ways in which defiance can damage the normative
system is through its assault on normative reasoning. Such
an assault may have two dimensions. First, it suggests an unreal
image of normal legal reasoning. By taking a defiant stance, the defier implicitly projects the normal legal system as maintaining a
single and unequivocal position on the actions at stake in the crisis.
This image of legal reasoning, at least in the U.S., has been
rejected by most legal thinkers since Holmes. Such an ossified
image of legal reasoning can do much to contribute to the delegitimation
of law generally when its operational inadequacies become
all too obvious.
Conversely, bids for defiance do not easily accommodate
consensual criteria to determine when they are appropriate. The
essentially immoderate force of such bids consists precisely in an
assertion that the defier is unconstrained by such criteria. Yet,
if the appropriateness of defiance in each particular case must be
independent of criteria that command community consensus,
then the danger of full-fledged antinomianism, without limitation
in subject matter or time, seems ever-present.
In conclusion, to seek legitimacy through defiance is extremely
risky – legally, politically, morally, and cognitively. At the outset of this talk, I noted that the existence of successful bids
for legitimacy through defiance places international lawyers in a
most difficult bind. Such bids transform the admonitions of lawyers
into tools for the powerful to legitimate courses of action
that oppose international norms. If, however, we are all susceptible
to such bids at various times, then we will have to live with
them as part of the human condition. And if we are to give a full
account of the role of law in international relations, the role of
the lawyer in advising governments, or the paradoxical historical
vicissitudes of international law’s authority, bids for legitimacy
through defiance are a force with which we must reckon.
