Points of departure

What follows is an attempt to acknowledge the complexity and relevance of debates about the relation between legality and legitimacy as it bears on political behaviour. The opening section is intended to orient these international policy debates in wider traditions of political theory, particularly as they bear on the nature of sovereignty and the state. On this basis, the two prominent, recent instances of controversial recourse to war (Kosovo and Iraq) are considered from the perspective of legality and legitimacy, first as a matter of juridical evaluation and then from the perspective of international reputation. The focus throughout reflects a concern with the qualities of American global leadership since September 11th, and how this leadership should or should not be guided by canons of legality.

Throughout the period between the end of World War II and the present there have been periodic challenges directed at the core commitment of the United Nations Charter that prohibits unconditionally recourse to force other than in instances of self-defence strictly construed. These challenges have commanded major attention in the last several years in the settings of two sets of global circumstances: alleged humanitarian emergencies, and expanding claims of defensive necessity. In the first instance, the legal debate tends to be focused on the propriety of ‘humanitarian intervention’, while in the second instance, the emphasis has been upon American claims and security policy since 9/11 that are associated with recourse to ‘preemptive war’, or what is better known as anticipatory self-defence.

These developments have important policy and jurisprudential implications, and have been sharply contested in practice and doctrine.