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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.

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Oct 21, 2003

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