Betting on Legitimacy

17 june 2016

Problems of Interpretation

Alexander Filippov - Doctor of Social Science, is Full Professor with National Research University–Higher School of Economics, Head of the Center of Fundamental Social Science of the Poletayev Institute of Humanitarian Historical and Theoretical Studies.

Resume: Every legitimacy dispute revolves around a special combination of the internal and the external. International or external legitimacy is a resource for self-assertion in the global community and it is also a resource for those who wish to challenge the state system.

The term ‘legitimacy’ has a prominent place in Russian political rhetoric. It has been on the lips of the country’s policymakers for the past 15 years. Over that period, its interpretation has undergone certain changes, but the core meaning is intact and can be found in all statements on Russia’s position. It saw shifts in emphasis now and then though. Initially, it was about the supreme legitimacy of international organizations and legitimacy as people’s confidence in politicians and institutions, and later on it was referred to in a narrow legal sense as the legitimacy of the existing institutions. However, the original sense of the word is still valid.

Opposing the legal sense is the axiological understanding of legitimacy by the United States, which tends to justify not only institutions or governments, but certain aspirations of those who fight against injustice and promote freedom. However, the matter lies deeper because legitimacy is a far more complex issue than it might seem at first glance. From the viewpoint of modern studies of international law, the matter cannot be confined to the acknowledgement of differences in the understanding of legitimacy at the level of states. Some other aspects need to be considered as well.

RUSSIA’S UNDERSTANDING OF LEGITIMACY

The presidential decree approving Russia’s new National Security Strategy came into effect on December 31, 2015. It cancelled the 2009 decree on the National Security Strategy Through 2020. The framework document was amended long before the preset date, as Article 18 of Federal Law 172-FZ on Strategic Planning in the Russian Federation, dated June 28, 2014, stipulates that the Strategy is to be updated every six years.

It was a major update of the Strategy introducing new topics and notions, such as legitimacy, which the previous document lacked, just as it lacked the term international law. Of course, the wordings are quite general, yet the fact of their appearance indicates important shifts in politicians’ rhetoric.

Prior to the publication of the decree, Security Council Secretary Nikolai Patrushev said: “It clearly states that the tactic of replacing legitimate regimes with the use of ‘color revolutions’ and ‘hybrid wars’ has resulted in the proliferation of terrorism, extremism and inter-ethnic hatred.” His comment follows up the understanding of legitimacy contained in Putin’s “Crimean speech”: “It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to.” Putin goes on to say that “our Western colleagues… agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate.”

The interpretation of legitimacy as a distinctive feature of stable and legitimate government has its own background. The Kremlin website contains more than 80 documents dating back to 2000 where this term is found. In 2003, Putin raised the issue of legitimacy of the military operation by Western forces in Iraq; in 2005, he reiterated on several occasions that “the very existence of the International Court of Justice is a most important condition for the UN’s stability and legitimacy;” in 2007, Putin introduced the term ‘unique legitimacy’ of the UN which he used again in his speech at the UN General Assembly in September 2015.

In 2008, President Dmitry Medvedev mentioned that “we need to improve the legislative foundation the international financial institutions base their work upon” and later in the same year he said at a meeting with members of the Council on Foreign Relations that “the legitimacy of any international system depends on how well adapted it is to responding to the challenges and threats that emerge.” In 2011, he said that “a parliament that represents the people’s various views is much more legitimate.”

But later on, as the focus of the Russian leaders’ attention shifted, they did not follow up the idea of effectiveness or broad representation of political forces as the basis of legitimacy.

At that time, the issue concerning insufficient legitimacy of a government that came to power as a result of revolutions and overthrows was only raised in connection with mass riots in Kyrgyzstan in 2010. “There is an Interim Government there now which is not legally legitimate enough but which tries to cope with the problems,” Medvedev said in an interview to The Wall Street Journal. In general, legitimacy had an increasingly broad interpretation during Medvedev’s presidency, in the sense of support and confidence.

This interpretation of legitimacy has survived up to date. At a recent meeting with members of the Legislators’ Council, President Putin underlined the importance of the election “campaign to proceed without violations... as it is ‘a guarantee of public trust’ in the ruling bodies that are elected, and the foundation of these bodies’ legitimacy.” This largely coincides in letter and spirit with what President Medvedev said at a meeting with regional representatives in 2012: “Heads of municipalities, together with deputies, are elected too, and in this sense they represent people’s legitimacy as well.”  The focus on legitimacy began to shift several months later, with Putin, who had been elected president by then, speaking about “political opponents who try to cast doubt on the authorities’ legitimacy and ability to perform.” The following year, as at a meeting with representatives of the Civil 20, he in fact identified legitimacy with “moral force.”

This trend began to gain momentum from late 2013. On the occasion of the 20th anniversary of the Russian Constitution, Putin said that “the Constitution played a key role in strengthening our nation’s sovereignty and the legitimacy of our government, creating a sound legal foundation for building the entire Russian legislation framework.” The next remarks on legitimacy were made as he addressed this topic in connection with the situation in Ukraine: “Are the current authorities legitimate? The Parliament partially is, but all the others are not. The current acting President is definitely not legitimate. There is only one legitimate President, from a legal standpoint. Clearly, he has no power. However, as I have already said, and will repeat: Yanukovich is the only undoubtedly legitimate President. ”

Dmitry Medvedev, too, elaborated on legitimacy at that time: “Some of our Western partners believe that these [government bodies following the overthrow of Yanukovich] are legitimate authorities… I think this is some kind of mental aberration, when we call something legitimate when it is essentially the result of an armed rebellion.”

Putin detailed his vision of legitimacy at the 70th session of the UN General Assembly on September 28, 2015. First, he reiterated that “the United Nations is unique in terms of legitimacy, representation and universality.”  He then warned that “any action taken by circumventing this procedure is illegitimate and constitutes a violation of the UN Charter and contemporary international law.” Putin also said: “We consider any attempts to undermine the legitimacy of the United Nations as extremely dangerous.”

The Russian president stressed the need to clarify the terms ‘sovereignty’ and ‘legitimacy’: “…this brings us to the issue of the so-called legitimacy of state authorities. You shouldn’t play with words and manipulate them. In international law, international affairs, every term has to be clearly defined, transparent and interpreted the same way by one and all.”

It is noteworthy that having mentioned the so-called “legitimacy of state authorities” Putin did not follow up the issue and refrained from giving definitions. Nevertheless, it was his speech that finally clarified the idea of legitimacy he was guided by.

For the Russian leadership, legitimacy means confidence and sovereignty, and whenever confidence becomes a moot point, legitimacy implies a clean formal procedure established and supervised by sovereign authorities. Sovereign states form the existing world order represented by the UN and international law. The UN’s unique legitimacy is in that it personifies the procedure of mutual recognition of states as sovereign political entities.

Hence the legal system of every state is recognized as autonomous within its borders. Incumbent authorities, their institutions and procedures are made legitimate through compliance of government bodies’ actions with the laws they themselves adopt, which is completed by people’s confidence in the election rules established in a given country and a formally strict election procedure. To secure people’s confidence, elections should be an honest game as much as possible while the legitimacy of incumbent authorities cannot be questioned either within their country (reigning supreme here is the established setup, defined as legitimate, and the formal procedure from which incumbent authorities derive additional legitimacy) or outside it (because it would challenge the sovereignty of the state and the entire international legal order leaning on it).

This emphasis on the legal force of the existing world order often becomes a stumbling block in Russia’s dialogue with the West (though the Western concept is certainly quite relative).

For example, an important difference in the interpretation of legitimacy between Russia and the West is found in Putin’s recent interview with Germany’s Bild, before Russian troops stopped their operation in Syria. “Therefore one should try anything to support the legitimate rulers in Syria,” the Russian president said. The Bild journalists asked him: “Do you seriously think that al-Assad is still the legitimate ruler in Syria? He is bombing his own people.”

It is Russia’s belief that a legal president cannot be illegitimate. But many in Europe and the West in general think that the one who is bombing his own people cannot be legitimate. However, researching the issue can take us too far, so we will confine ourselves to official U.S. sources.

U.S. UNDERSTANDING OF LEGITIMACY

Legitimacy has a prominent place in the United States’ 2010 National Security Strategy. It says that it recognizes the legitimacy of all peaceful democratic movements: “America respects the right of all peaceful, law-abiding, and nonviolent voices to be heard around the world, even if we disagree with them,” and that “America will welcome all legitimately elected, peaceful governments, provided they govern with respect for the rights and dignity of all their people and consistent with their international obligations.”     

The U.S. 2015 National Strategy does not contain as many references to legitimacy, but the basic approach is quite clear: the use of force by the United States hinges on values and legitimacy: “Whenever and wherever we use force, we will do so in a way that reflects our values and strengthens our legitimacy.” 

The persistent and recurrent phrase “legitimate aspirations” deserves special attention. President Barack Obama used it in his speech at Cairo University in 2009.

Beginning from 2011, it is used repeatedly in White House press releases, mainly with reference to Middle East countries, for example “legitimate aspirations of ordinary people throughout the region”, “legitimate aspirations of the Egyptian people,” “legitimate aspirations of the Yemeni people,” “legitimate aspirations of all Bahrainis.”

Yet most references concerned Syria which eventually reflected in the 2015 National Strategy mentioning “legitimate aspirations of all Syrian citizens.” It also said that “we prefer to partner with those fragile states that have a genuine political commitment to establishing legitimate governance and providing for their people.”

The United States did not confine itself to these countries though. On February 20, 2014, U.S. Vice President Joe Biden, in a telephone conversation with Ukrainian President Victor Yanukovich demanded that the latter “take immediate and tangible steps to work with the opposition on a path forward that addresses the legitimate aspirations of the Ukrainian people.”

This is perhaps the most significant evidence of the difference in the interpretation of legitimacy—not merely in practical politics—between Russia and the United States. Russia always proceeds from what might be described as static vision of the world. It leans on the legitimacy, high or low, of the current setup, depending on effectiveness or people’s confidence.

In this case legitimacy can be assigned to international institutions such as the United Nations or the International Monetary Fund, or government bodies inside the country. Russia never recognizes liberation movements, mutinies or revolutions as legitimate. At present, the issues of legitimacy only focus on what is stable and fixed within the established borders. It is significant that international condemnation of the referendum that had taken place in Crimea was worded in terms of legitimacy, where it was called “illegitimate.” In certain cases, politicians resorted to stronger wording, such as illegal and illegitimate, for example, Prime Minister David Cameron says any referendum vote in Crimea “will be illegal, illegitimate and will not be recognized by the international community.”

While citing “people’s will,” Russia has never used the phrase “legitimate aspirations” or anything like that. It recognizes the act of the expression of will by Crimea residents, but it never said that the plebiscite had been preceded by “legitimate aspirations.” The same applies to the Ukrainian territories which proclaimed themselves the Donetsk and Lugansk People’s Republics. Even in the worst period of tensions, Russian officials never mentioned “legitimate aspirations” of people in these republics.

Any recognition of movements or aspirations as legitimate can become a pretext for international support of separatism in Russia. Therefore, there is just one unaccounted formula which could be used by both sides, i.e. Russia and its opponents in the West. It does not guarantee automatic consensus, yet it gives a chance to address events and problems in the same terms. Rather than discussing the legitimacy of procedures, purity of elections, freedom of political parties and compliance with legislation, one might consider the issue of who and under what circumstance can be regarded as a people with legitimate aspirations, and who and on what grounds makes this judgment.

LEGITIMACY AND INTERNATIONAL LAW

Regrettably, the situation has now taken a turn for the worse, meaning not the tone of official statements, but the propaganda trends shaping the approach to Russia as a criminal state, shut out of international discussions to the maximum. Major shifts in focus and new meanings of words probably need to be considered separately.  There is an old popular belief that Russia lacks what is known as “rule of law:” the innocent suffer in Russia, the criminals go unpunished or keep high positions.

The new meaning of the term ‘criminal state’ is quite different. It means a country violating international law. But this is a two-way street: The United States and its allies reproach Russia for violating international law, while Russia rebukes the U.S. for doing the same. There is nothing new in it. Violating international law does not automatically make an offending country a criminal or rogue state. The very attitude to international law varies greatly. In a simplified version of political rhetoric meant for the general public, international law appears as a body of principles and norms the commitment to which does credit to the state.

The declarative nature of many international legal documents contributes to this. In practice though, international law is a body of specific norms, mutual obligations and agreements vital to international life. Obviously, the accusatory rhetoric over breaches of international law is used in the first sense as described above, i.e. more abstract, declarative and value-conscious, which does not make it less important, because it is often associated with concrete obligations.

International law envisions a stable order, and it succeeds, to a greater or lesser extent, in treating the violation of this order as a breach of law. But what about changing the order itself? An important article written more than a decade ago opens with this notable statement: “International law’s legitimacy has become a central concern.” That’s lawyers’ department, and we can only say that the problem is still unresolved. Declarations about the commitment to principles or participation in international organizations or treaties never guarantee the effectiveness or even practical means to identify the legitimacy of international law in the event the world order is changed. Consequently, criminalization of a country within an international framework can prove to be less convincing or less effective. It’s about imputing crimes, not about a country refusing to recognize the legitimacy of international law. Criminalization implies a mode of political isolation, and certainly the refusal to see one’s enemy as enemy, as an agent of political action.

Unlike economic sanctions, political isolation can have an appearance of either military confrontation (when the opponent is regarded as the enemy, though it can be a “cold war”) or outright or not so obvious criminalization, i.e. relegating the enemy to the status of criminal. The enemy might have an agenda of his own, and fulfilling that agenda is incompatible with meeting the interests of his opponents, yet negotiations and concessions are still possible in that case. But a criminal has no legitimate interests, and no matter how strong or dangerous he is, he is non-negotiable.

A criminal is not merely a violator of law and order, but the one who cannot have legitimate interests in this situation. We see that the attempt to gear political rhetoric towards the balance of Russia’s legitimate interests is not succeeding. The near future does not hold many reassuring prospects as long as criminalization of the enemy continues. One might assume that Russia will respond in kind, but there is something else that is more important. Even if the focus is shifted from criminal enemy to political confrontation, the issue of legitimacy in international relations will persist. It is a problem of:

  1. Acknowledgement of “legitimate aspirations,” i.e. the demands brought forward by groups or movements seeking to change the existing order so as to be able to reach their goals, rather than improve their positions within the established system;
  2. Re-legitimization of the world order which is re-configured every time  major territorial changes take place in the world;
  3. Re-foundation of the institutions of international law whose status has raised doubts recently, such as the notorious International Criminal Court which continues to function despite the fact that many influential countries have not signed or ratified the Rome Statute.

One way or another, issues concerning the value aspect of legitimacy and the status of existing borders, institutions and agreements will be raised again. They cannot be solved in the existing setup, i.e. by proclaiming supreme legitimacy of what has historical origin: borders have not always been inviolable, and never will. Nor can values serve as a reliable criterion because it is not a matter of values as such but their interpretation. Who will interpret? Whose interpretation will prevail? What about those whose interpretation was rejected? These questions are not for the future, they have to be addressed now; they are not new. But one has to know what values are in question.

Every legitimacy dispute revolves around a special combination of the internal and the external. International or external legitimacy is a resource for self-assertion in the global community and it is also a resource for those who wish to challenge the state system. These can be external opponents or persons representing domestic movements that challenged the institutional authorities. Thus the political system of a state can be weakened or undermined by the resources on which it initially relied for self-legitimization. In these conditions, the state is looking for other ways to legitimize its institutions from within. Peace instead of possible civil war, welfare policies and reliance on the tradition rather than appeals to universal values and international order would be logical solutions. Yet it is these solutions that undermine the legacy of the international legal system. It takes much effort not to lose more than one stands to gain.

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