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COMMENTARY
The US and the UN:
Legitimacy vs sovereignty
By Criton M
Zoakos
The current tension between the United
States and the United Nations arises from the fact that
the UN as an organization is based on a legal principle
that is continental European in origin and not
ecumenical, as is usually and mistakenly assumed. This
is the principle of the 1648 Peace of Westphalia which
asserts that sovereignty is superior to legitimacy. It
is a principle that the United States not only never
accepted, but actively opposed throughout the course of
its formation from 1620 to date.
Non-European
powers, especially in resurgent Asia, rather than
blindly follow this European tradition in international
law, could seize the opportunity to make contributions
from their own legal traditions if the UN is to be
reformed in any meaningful and workable fashion. For
this, a review of the US-UN issue would be useful.
The fundamental organizing principle of the
United Nations is enshrined in the UN Charter as Article
2, Paragraph 1, which states: "The Organization is based
on the sovereign equality of all its members." It is
this article that defines the UN as a "Westphalian"
system. And it is this "Westphalian" character of the UN
system that makes it inoperable, impotent and
irrelevant.
The Westphalian principle of
sovereign equality is intended now, as it was intended
at its inception in 1648, to sidestep the issue of the
legitimacy of a regime and to uphold the sovereignty of
states (their supremacy in law) irrespective of their
legitimacy. The clause of "sovereign equality" in the UN
Charter asserts that all states have equal supremacy in
law, regardless of whether their rule is legitimate or
not. This legal arrangement was deemed necessary after
the Thirty Years War because anything else would have
invited disagreement over the question of what is meant
by "legitimate", the ultimate sources of legitimacy, and
so forth.
Until the Thirty Years War
(1618-1648), the Western world believed that the
legitimacy of government derived from one source, namely
the concept of "universal Christian monarchy" embodied
in the person of the "Holy Roman Emperor" in the West,
and the Roman Emperor in the East (Constantinople). The
style of the "Holy Roman Emperor" in the West was
instituted by Charlemagne in the year 800 AD, presumably
in protest over the fact that the office of the actual
Roman Emperor in Constantinople was occupied by a woman.
By reason of direct succession, the Roman
Emperor in the East had been in continuous possession of
all the legal titles and regalia of the Roman emperor
ever since Constantine the Great designated Christianity
as the official "cultus" of the Roman Empire in 313 AD,
and transferred its capital from Rome to Constantinople
in 330 AD. Yet despite the fact that from the year 800
AD onward the legitimizing principle of "universal
Christian monarchy" was embodied in two different
emperors, this split was a matter of contest between two
claimants to one and the same legitimizing principle.
The legitimizing principle itself had remained one.
This ambiguity ended with the collapse of the
Roman Empire in the East and the capture of
Constantinople by Muslim armies in 1453, leaving only
one claimant to the legitimizing principle of "universal
Christian monarchy". This claimant was whichever
potentate the Pope chose as "Holy Roman Emperor". By the
time of Martin Luther's Reformation in 1517, this title
had securely settled on the head of the House of
Habsburg, the largest landlords on the Continent. (The
Roman Catholic Church was the second largest landlord,
with 25 percent of European landownership, mostly prime
farm and grazing lands).
The Thirty Years War
was a war of Protestant princes against the legitimizing
principle of the "universal Christian empire" and its
representative, the Habsburg Holy Roman Emperor. These
Protestant princes were joined by numerous Catholic
princes (most notably the King of France), who saw
profit in challenging the legitimizing principle of the
time. Some of the profit was political - freedom from
Papal political interference in their administration.
Some was economic - freedom to expropriate and
secularize vast church lands.
Since both Papacy
and Emperor were too weak at the beginning of the
Reformation, a temporary compromise was struck in the
1555 Treaty of Augsburg which for the first time
abandoned the legitimizing principle of "universal
Christian monarchy" and settled on "cujus regio, ejus
religio", roughly translated as "whoever reigns
imposes his religion in his realm". In plain English:
"Might makes right." The compromise failed when the
Catholic Church gathered forces and launched its
Counter-Reformation for the purpose of restoring the
original legitimizing principle of "universal Christian
monarchy".
This led to the Thirty Years War,
which devastated all sides. Drained of resources by the
war, near collapse but still roughly equally balanced
and without hope of decisive victory for either side,
the exhausted adversaries settled on the 1648 Peace of
Westphalia. In it, the parties agreed that if they were
to survive, the sovereignty of each was far more
important than any legitimizing principle on which that
sovereignty rested. "Cujus regio, ejus religio"
the old principle of 1555, was finally enforced.
Seen against this background, the history of the
formation of the United States - from the Mayflower
Compact of 1620, the revolution of 1776, the
ratification of the US Constitution of 1787, George
Washington's admonition against "foreign entanglements",
American neutrality during the Napoleonic Wars, the
Monroe Doctrine of 1821, the expansion to the Pacific
and the Gulf of Mexico Coasts - is best viewed as a
contrast to the Westphalian system, sometimes as
opposition, sometimes as mere counterpoint. The original
English and Dutch settlers of North America were men and
women who rejected the Westphalian agreement that gave
the local prince - the State - sole right to establish
and dis-establish religion. When these settlers
eventually wrote their constitution, its First Amendment
and anti-establishment clause was a clear, explicit
rebuff of cujus regio, ejus religio: "Congress
shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof."
In fact, and contrary to the Westphalian system,
the formation of the United States affirmed a new
principle from which government derives legitimacy: the
inalienable rights of the individual human being,
including the inalienable right to be governed by their
consent. The assertion of this new legitimizing
principle is evident from the Declaration of
Independence through the entire process of ratifying the
Constitution, in the course of the Federalist debates
and in the evolution of the Supreme Court under Justice
John Marshall.
While the Westphalian system is
strictly and absolutely agnostic on the matter of
legitimizing principle - in order to give primacy to the
principle of sovereignty of the State - the founding of
the American republic asserts the supremacy of its
legitimizing principle (inalienable rights of the
people) over the sovereignty of the State. In the
Westphalian system, sovereignty trumps legitimacy. In
the American system, legitimacy trumps sovereignty, with
legitimacy embodied in the US Constitution. The only
sovereign recognized in the American system is the
Constitution, ie, the legitimizing principle itself.
In contrast, continental Europe has maintained
the Westphalian system to this day, creating a
fundamental distinction that has produced two centuries
of sharply differing histories. America's insistence on
legitimizing principle produced the oldest continuously
functioning constitution for 226 years - the longest in
recorded history. Europe's principled agnosticism about
legitimizing principle produced endless local wars, the
Napoleonic wars, the Franco-Prussian War, two world
wars, innumerable colonial wars, fascism, Nazism,
communism, numerous social revolutions, and endless
successions of constitutions within each state (eg,
three French "empires" and five "republics" from 1789 to
date).
As the American republic grew, its
foreign affairs increasingly became missions to undo the
damage that Europe's Westphalian system was wreaking on
the world: the Spanish-American War to end the Spanish
Empire; intervention in World Wars I and II to end the
Austro-Hungarian, German, Czarist, French and British
empires and the slaughter and genocide they had wrought;
post-World War II diplomacy to contain the
Soviet/Russian empire (the Cold War) and prevent revival
of the French and British empires (the Suez crisis).
Numerous American diplomatic strategies - including the
Monroe Doctrine, President Wilson's "Fourteen Points",
the War Crimes Tribunals after World War II - were in
direct conflict with the Westphalian principle of
"sovereign equality". So was Congress's bipartisan
injection of the "human rights" agenda in the conduct of
US foreign policy dating from the administration of
Jimmy Carter.
After the fall of the Soviet
empire, ethnic and tribal ambitions rushed in to fill
the power vacuum left by the receding empire, bringing
to the fore the question of legitimacy versus
sovereignty of states. Bosnia and Kosovo are instances
in which the world, led by the United States, gave
precedence to the issue of legitimacy over the issue of
sovereignty. The Rwandan genocide is an instance in
which the world failed to give precedence to the issue
of legitimacy and ceded primacy to an empty construct of
"sovereignty", with tragic results.
The crisis
in international relations that arose from the war in
Iraq is a unique opportunity for the world community to
begin the long journey of reviewing what possibly could
be the legitimizing principle that justified
sovereignty. The United States, certainly, has made its
proposal to the world: consent of the governed who
possess certain inalienable rights. Other civilizations
may have alternative notions of legitimacy which they
may propose to the world. They would not think for a
moment of subordinating them to the UN's conceit of
being a legitimizing authority. China's historical
legitimizing principle, the "Mandate of Heaven", which
is much more sophisticated than its biased Western
caricatures, is something that China would not
subordinate to European "Westphalian" notions of
sovereignty.
It would be better for the world if
UN Secretary General Kofi Annan stopped claiming that
"There is no substitute for the unique legitimacy
provided by the United Nations." It is ludicrous for an
organization that requires absolute agnosticism on the
issue of legitimacy to pretend to be a source of
legitimacy. Moreover, its pretense hinders the healthy
competition among alternate visions and legal traditions
of legitimacy. There may be four or five such traditions
in the world today, including the American, the Chinese
one mentioned above, Japan's emperor- based notion of
legitimacy, and Thailand's notion of legitimacy centered
around the Buddhist-blessed kingship. A frank
acknowledgement of the differences among these
high-civilization traditions and patient work toward
their mutual enrichment will be much more fruitful that
excited agitation over a barbarous continental European,
"Westphalian" notion of sovereignty.
(Copyright
2003 Asia Times Online Ltd. All rights reserved. Please
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