I thank the Federalist Society for the opportunity to address this year s
annual lawyer s convention. With so many challenges to American actions around
the world, and so many criticisms of our foreign policy, I think it important
that we establish for ourselves, and, perhaps more importantly, for our
critics, how and why we consider our actions around the world as legitimate.
While this may sound like a perilously abstract issue, in fact it daily affects
our ability to secure American national interests in a wide range of
circumstances. Since many voices question the legitimacy of our policies, it
is
essential that we both understand and articulate the often unspoken premises
on
which America typically rests its foreign and national security actions.
Let me take three current examples of important American policies where our
legitimacy has been questioned: first, key elements of our Iraq policy; second,
President Bush s new Proliferation Security Initiative; and third, our efforts
to protect American persons against the assertion of jurisdiction over them
by
the International Criminal Court. Of course, the wisdom of these policies has
also been criticized, but I hope to treat here not the substantive merits of
these issues -- although I would be more than happy to do so at the drop of
a
hat -- but more fundamentally, and ultimately more damaging, the assertion that
we are basically doing something illegitimate.
Iraq
There are two recent case studies involving Iraq where the legitimacy question
has emerged most sharply. First is the question of the authority for -- and
hence the legitimacy of -- the U.S.-led Coalition s recent military action in
Iraq. Let me say immediately, for those who wonder, that we had ample Security
Council authority under Resolution 678, which authorized the use of all
necessary means to uphold the relevant Security Council resolutions and to
restore international peace and security in the region. Resolution 687 provided
for a formal cease-fire but imposed conditions on Iraq, material breaches of
which left member states with the responsibility to enforce those conditions
operating consistently with the underlying authorization contained in 678.
Resolution 1441 contains the Council s specific decision that Iraq was and
remained in material breach, and provided a final opportunity, which Iraq
clearly failed to avail itself of.
Significantly, UN Secretary General Kofi Annan has specifically said, Unless
the Security Council is restored to its preeminent position as the sole source
of legitimacy on the use of force, we are on a dangerous path to anarchy. But
these sorts of statements, which the Secretary General and others have made
repeatedly over the past several years, are unsupported by over fifty years
of
experience with the UN Charter s operation. The case of Kosovo in the previous
Administration alone proves this point. Since the decision to use military
force is the most important decisions that any nation-state faces, limiting
its
decisions or transferring them to another source of authority is ultimately
central to a diminution of sovereignty.
Importantly, there is no doubt in light of the October 17, 2002 Congressional
resolution supporting the use of American force that the President had full
authority, and therefore full legitimacy, to disarm the Iraqi regime under the
Constitution. We should not shrink from the debate on legitimacy through
concern that following our own Constitutional procedures on the use of force
is
somehow not enough to justify our actions. Indeed, there is a fundamental
problem of democratic theory for those who contend, implicitly or otherwise,
that the proper operations of America s institutions of representative
government are not able to confer legitimacy for the use of force. And make
no
mistake, not asserting that our Constitutional procedures themselves confer
legitimacy will result, over time, in the atrophying of our ability to act
independently.
Second is the fundamental issue, still in dispute, of where the legitimacy
of
the next government of Iraq will come from. (I distinguish here legitimacy
from actual political power or political impact. They are two separate things,
and one can certainly have legitimacy without power, and vice versa.) For
Americans, the basis of legitimacy for governments is spelled out in the
Declaration of Independence: the just powers of government are derived from
the
consent of the governed. It is, therefore, unequivocally the U.S. view that
the
legitimacy of Iraq s next government must ultimately derive from the Iraqi
populace, and not from other individuals, institutions or governments, not from
theologians, not from academics, not from the United States, and not from the
United Nations. This is a fundamental precondition for understanding the
legitimacy of the use of any governmental power, and yet it has been
fundamentally misunderstood in the UN system.
Many in the UN Secretariat, and many UN member governments, in recent Security
Council debates, have argued directly to the contrary. Increasingly, they place
the authority of international law, which does not derive directly from the
consent of the governed, above the authority of national law and constitutions.
Proliferation Security Initiative
The question of legitimacy also arises as the United States seeks to defend
its
national interests using novel methods and loose coalitions. For instance, one
major new policy, the Proliferation Security Initiative ( PSI ), announced by
President Bush in Krakow, Poland on May 31st, has been developed with ten other
countries, each using its national-level efforts and capabilities. Without
question, the PSI is legitimate and will, I predict, be extremely efficient
in
its efforts against weapons of mass destruction ( WMD ).
PSI is an interdiction program. Where we cannot convince a state to stop
proliferant behavior, or where items are shipped despite our best efforts to
control them, we need the option of interdicting shipments to ensure this
technology does not fall into the wrong hands. Properly planned and executed,
interdicting critical weapons and technologies can help prevent hostile states
and terrorists from acquiring these dangerous capabilities. At a minimum,
interdiction will lengthen the time that proliferators need to acquire new
weapons capabilities, increase their cost, and demonstrate our resolve to
combat proliferation.
Accordingly, the United States and ten other close allies and friends have
created a more dynamic, creative, and robust approach to preventing WMD,
missiles, and related technologies flowing to and from states and non-state
actors of proliferation concern. PSI has been a fast-moving effort, reflecting
the urgency attached to establishing a more coordinated and active basis to
prevent proliferation. On September 4, just three months after the President
s
announcement, we agreed on and published the PSI "Statement of Interdiction
Principles." The response to the PSI and the Principles has been very positive,
with more than 50 countries already indicating their support and readiness to
participate in interdiction efforts. President Bush has made clear that the
PSI
will be broadened to all countries that have a stake in nonproliferation and
that have the will and the ability to take necessary action to address this
growing threat. Our long-term objective is to create a web of
counterproliferation partnerships through which proliferators will have
difficulty carrying out their trade in WMD and missile-related technology.
As PSI has been created, some critics have questioned its legitimacy, some
actually likening it to piracy. As PSI participant countries have repeatedly
stressed, however, our interdiction efforts are grounded in existing domestic
and international authorities. Participating countries have exchanged extensive
information about what we believe our respective national authorities are, and
the Statement of Interdiction Principles makes clear that the steps it calls
for will be taken consistent with those authorities. The governments of
participating countries have conducted thorough reviews of this initiative,
and
we are very confident that we have substantial legal authority to conduct
interdiction operations.
In the maritime interdiction area, for example, we can find a variety of ways
to interdict illegal shipments when the vessels carrying them come to port,
given that sovereign power is at its greatest in national waters. Other vessels
on the high seas may, under well-accepted principles of customary international
usage, be boarded by any navy if they do not fly colors or show proper
identification. That is not, of course, to say that we have the authority to
make any seizure that we want. The question of what is permissible for seizure
and what is not must be determined on a case-by-case basis. As a nation that
has consistently upheld the importance of free trade around the world, we will
not act capriciously. Where there are gaps or ambiguities in our authorities,
we may consider seeking additional sources for such authority, as circumstances
dictate. What we do not believe, however, is that only the Security Council
can
grant the authority we need, and that may be the real source of the criticism
we face.
Article 98 Agreements
My third example of challenges to U.S. legitimacy concerns our efforts to
seek
agreements with other countries to protect U.S. persons from the jurisdiction
of the International Criminal Court ( ICC ). These efforts have been disparaged
as contrary to the letter and spirit of the Rome Statute that created the ICC.
As President Bush has argued starting in the 2000 campaign, and as I detailed
here last year, numerous problems inherent in the ICC directly affect our
national interests and security, and therefore also affect the security of our
friends and allies worldwide. The ICC is an organization that runs contrary
to
fundamental American precepts and basic Constitutional principles of popular
sovereignty, checks and balances, and national independence.
Accordingly, we are engaged in a worldwide effort to conclude legally binding,
bilateral agreements that would prohibit the surrender of U.S. persons to the
Court. These Article 98 agreements, so named because they are specifically
contemplated under Article 98 of the Rome Statute, provide U.S. persons with
essential protection against the Court s purported jurisdictional claims, and
allow us to remain engaged internationally with our friends and allies.
Thus far, the United States has concluded and signed Article 98 agreements
with
70 countries all around the globe, representing over 40 percent of the world
s
population. Each Article 98 agreement meets our key objective -- ensuring that
all U.S. persons are covered by the terms of the agreement. This broad scope
of
coverage is essential to ensuring that the ICC will not become an impediment
to
U.S. activities worldwide. Article 98 agreements serve to ensure that U.S.
persons will have appropriate protection from politically motivated criminal
accusations, investigations, and prosecutions. These straightforward agreements
commit partners, either reciprocally or non-reciprocally, not to surrender U.S.
persons to the International Criminal Court, not to retransfer persons
extradited to a country for prosecution, and not to assist other parties in
their efforts to send U.S. persons to the ICC.
Indeed, our current tally attests to the growing consensus worldwide that
Article 98 agreements with coverage of all U.S. persons are legitimate
mechanisms as provided in the Rome Statute itself. Of the 70 countries that
have signed Article 98 agreements with us, 50 are signatories or States Parties
to the Rome Statute. Based on our extrapolations from negotiations currently
underway, not only do we anticipate a rising number of total Article 98
agreements, but even more agreements from States Parties and signatories to
the
Rome Statute. Our ultimate goal is to conclude Article 98 agreements with every
country, regardless of whether they are a signatory or party to the ICC, or
regardless of whether they intend to be in the future.
The main opposition to our Article 98 efforts comes from some EU officials
and
from the presumptuously named civil society, which argue that the wording of
Article 98 limits the categories of persons that can be covered by bilateral
non-surrender agreements. On the contrary, Article 98 clearly allows
non-surrender agreements that cover all persons, and those who insist upon a
narrower interpretation must, in effect, read language into Article 98 that
is
not contained within the text of that provision.
Here is a real irony in the legitimacy debate. From our perspective, it is
difficult to see how following provisions of the Rome Statute to protect U.S.
persons would do unacceptable damage to the spirit of the treaty, when the
treaty itself provides for such agreements. Indeed, parties to the Rome Statute
have used Article 124 to exempt their nationals for a period of seven years
from the Court s war crimes jurisdiction, yet there has been no suggestion that
triggering these treaty provisions will undermine the Court. One EU member,
France, has already invoked that exemption in order to protect its citizens
from accusations with respect to war crimes.
Our detractors claim that the United States wants to use these agreements
to
undermine the ICC, or that these agreements as crafted lack legitimacy under
the terms of the treaty. To the contrary, we are determined to be proper in
our
relations with the Court, proceeding in a manner specifically contemplated by
the Rome Statute itself. Moreover, in each agreement, the United States makes
clear its intention to bring to justice those who commit genocide, crimes
against humanity and war crimes where appropriate. This is the stated goal of
ICC supporters, and a goal that the United States has and will maintain.
The real legitimacy issue here is the Rome Statute s purported claim that
the
ICC can exercise jurisdiction over U.S. persons even though the United States
is not a party to the treaty, and is no longer even a signatory to the treaty.
It is, to say the least, most ironic of all that a human rights treaty is
advanced on a theory that fundamentally rejects and seeks to override the
exercise of popular sovereignty in the United States by purporting to bind us
without our consent. One can only imagine the criticism we would receive if
we
tried something similar on other nations. Our efforts to secure Article 98
agreements are not only legitimate under the Rome Statute itself, but reflect
the basic right of any representative government to protect its citizens from
the exercise of arbitrary power.
Conclusion
The question of legitimacy is frequently raised as a veiled attempt to restrain
American discretion in undertaking unilateral action, or multilateral action
taken outside the confines of an international organization, even when our
actions are legitimated by the operation of that Constitutional system. The
fact, however, is that this criticism would delegitimize the operation of our
own Constitutional system, while doing nothing to confront the threats we are
facing. Our actions, taken consistently with Constitutional principles, require
no separate, external validation to make them legitimate. Whether it is
removing a rogue Iraqi regime and replacing it, preventing WMD proliferation,
or protecting Americans against an unaccountable Court, the United States will
utilize its institutions of representative government, adhere to its
Constitutional strictures, and follow its values when measuring the legitimacy
of its actions. This is as it should be, in the continuing international
struggle to protect our national interests and preserve our liberties.
[End]
Released on November 13, 2003
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