Posted 11:04 AM by Robert

Independence Day and A Problem With International Law

Today is Independence Day, and the Man Without Qualities hopes this post will mostly be read tomorrow by people having a good time at a picnic this afternoon and watching fireworks tonight!

It also seems an appropriate day to consider some principles which events of this day not really so many years ago helped to establish. One very odd aspect of international law is its failure to incorporate some basic eighteenth century political insights. For example, political thinkers of the eighteenth century (including the signers of the Declaration) recognized the universal principle that the only source of governmental legitimacy is the consent of the governed. And "consent of the governed" means frequent, free and fair elections - not some dictator telling the world that if an election were held he would win. And "consent of the governed" doesn't mean some dictator or oligarchy explaining that their country is not "ready" for full electoral democracy. These are universal democratic principles, not details subject to ad hoc consideration on the basis of cultural relativism. There is room, however, for various uneasy "virtual representation" theories which disenfranchise some classes of people (children, criminals and others), and for significant constitutional variations.

But most forms of international law continue to inhabit some pre-Enlightenment sphere in which even a simple dictatorship can claim to be the legitimate government of a nation with rights to defend itself and the nation. This form of international law dominates the United Nations. And it is completely anacronistic and wrong.

One consequence of these universal principles - a consequence which is not openly vetted in what E.B. White called the little green glass shee-bang on the East River - is that all governments that do not conform to such principles are illegitimate.