Lurking behind international law arguments over a possible US armed intervention in Syria without Security Council authorization are fundamental divides over the nature of international law itself. These divides include its authority with respect to sovereign states, the sources of authority it draws upon and methods of interpretation, and the degree to which it is essentially a "closed" system of law that looks to itself for answers and legitimacy or an "open" one that does not exhaust all the possibilities of legitimacy and action. These deep differences in conception and approach to international law are not simply intellectual arguments without practical implication; on the contrary, they account for much of the sense that the several sides in these international law debates somehow fail to address each other's arguments. The President talks about the Security Council as an important but (in a sufficiently vital matter) ultimately dispensable authority; the Russian government and many others refer to the language of the Charter (in this situation) as though it were all that mattered.
In an American Society of International Law "Insight" essay published last Friday (online here, pdf here), I lay out several of the basic conceptual divides and pointed out ways in which their methodological and conceptual foundations can lead to very different arguments and conclusions about "international law" and proposed US action. This post (which is lengthy) elaborates on that essay to offer five distinct ways to argue about a Syria intervention and international law; block quotes are from the ASIL article.
The factual assumptions are those made in the ASIL essay: first, the now largely undisputed claim that the Assad regime engaged in a major chemical weapons attack; and, second, the United States will undertake some military response even if it has no authorization from the Security Council and even if reasonably certain that such authorization, if requested, would be blocked by Russia and possibly others.
1. Formalism as Positive Charter Law. Formalism looks to the "formal" law for answers and, moreover, tends to treat those answers as dispositive - a "closed" system in the sense registered above. Any other concerns of policy have to be drawn into the formal system in order to count as law, and law as such trumps policy. Moreover, there is a hierarchy of sources, and the UN Charter is at the apex. Thus, the clearest formalist argument is that US armed action against Syria, irrespective of the reason in morality, politics, or policy, without authorization of the Security Council, violates the plain language of the Charter:
The Charter says, in Article 2(4), that states shall refrain from the "threat or use of force against the territorial integrity" of any other member state. It goes on to say, in Article 51, that the Charter does not impair a state's "inherent right of individual or collective self-defense" - but only in case of an "armed attack." Otherwise, authority to use force is given over to the Security Council. Neither the United States nor its allies have themselves been attacked. There is thus no basis for invoking individual self-defense.
As Jack and others have said in many posts here since the Syrian crisis began, this is the plainest reading of law that is widely regarded as the fundamental law of the international system. In that case, any other conclusion - based, perhaps, on some policy or politics of "necessity" or "emergency" or "humanitarian imperatives," etc. - to be intellectually honest has to start from that formalist argument. There might be countervailing "justifications" grounded in one piece or another of international law, but the obvious formalist conclusion is inescapable, even if the US is resolved to go forward - it goes forward violating international law. From a formalist standpoint, however, "going forward" is an insupportable conclusion - formalism is what it is not only because it offers a way of describing what the law descriptively "is," but because it asserts a normative claim that the law trumps in guiding action by international actors, at least at the level of something so fundamental as Article 2(4) of the Charter.
2. Formalism Beyond Positivism. Formalism is not the same as strict Charter positivism, however. Positivism looks to the "positive" law, particularly as written in the Charter's provisions. But international law, even on a formalist view, includes customary international law, which is evidenced by state practice and the opinio juris of states indicating that their practices are driven by a belief that they act from a sense of binding legal obligation. This is part of formal international law, but important parts of it will always subject to interpretive debate. It is not beyond reason that even some "formalists" would be willing to go beyond strict Charter positivism and acknowledge that the Charter's wrapping of customary international law of "inherent" self-defense into Article 51 can be seen to create a certain question as to whether the "inherent" rights of self-defense, that the Charter purports not to "impair," is both formal international law but not necessarily qualified by the Charter's language of "armed attack."
It is a perfectly good response to say, at best such an interpretive argument is justification for avoiding the obvious command of the Charter and its requirement of an "armed attack" and at worst it's mere sophistry. But the point is that this can be seen as a version of a genuinely formalist argument. It matters to the US government at this moment because one of the positions offered by Secretary of State Kerry, among other officials, is that the use of chemical weapons is not only a violation of a humanitarian norm, but specifically a threat to the vital national security interests of the United States:
The United States in this case (persuasively to formalists or not) has asserted its own "vital national security interests" in not facing future foes willing to use chemical weapons, as part of its self-defense and not only as a generalized humanitarian interest.
This is not a case of the US saying it is acting for the sake of the community of nations - it says that, too, but as a separate argument - but instead that it acts in own self-defense. This raises many other issues, such as the imminence of a threat, etc., where the nature of the threat (someday facing chemical weapons in war) is long run, but also arguably addressed most effectively and efficiently by using a relatively small amount of force today to reinforce respect for a universal normative rule with compliance effects compounding into the future. But most of all this view asserts something about the nature of "inherent" self-defense in customary international law: irrespective of the Charter's language about "armed attack," customary law has always recognized, and continues to recognize now, that states embrace a wider list of legal and legitimate casus belli than simply an armed attack upon a state's territory. That's what the US government presumably means when it refers to vital national security interests of the United States. Whether one is persuaded by this or not, and whether it is fundamentally just post-hoc justification, the methodological point is that this need not be treated as a policy argument, but instead as a variety of "formalism" that is not wedded to Charter "positivism." The interpretive materials of formalism are wider than that.
3. Responsibility to Protect (R2P). Neither formalist positivism nor formalism-beyond-positivism yields that sought by those seeking intervention on the basis of humanitarian concerns. They offer an argument that is essentially morality and policy - humanitarian necessity. The best formal legal argument is a descriptive claim offered as justification under the moral argument; mass atrocities are indisputably a gross violation of international law, and that command of law justifies a response under international law itself. It is expressed as a responsibility to protect, and it is - on this argument - both compelled as a legal conclusion arising from the underlying prohibition on mass atrocities and, moreover, something that has gained sufficient acceptance in the community of international law to qualify as, if not necessarily "law," at least not contrary to international law. The question is where international law locates the "remedy" called for by R2P - cabined within the Security Council's authority exclusively or not?
It is true that some important states accept R2P, even engaged in unilaterally by states, as lawful. Britain's parliament might have rejected actual Syrian intervention, but the debate does not suggest overwhelming disagreement with the government's underlying position that it could in principle be lawful. It was largely a debate about prudence. France takes roughly the same position, at least to judge by its statements, including Prime Minister Hollande's remark that international law has to evolve with changing conditions. The debate over R2P is less, however, a question of whether mass atrocities are illegal - certainly they are - but who can authorize a remedy that involves forcible intervention in the territory of a state:
[T]o the extent that one can point to any formal legal acceptance of R2P as a lawful remedy, it appears to be only by authorization of the Security Council, not unilateral action by concerned states, even accepting that they act benevolently and in good faith. This legal state of affairs did not come about by accident. On the contrary, cabining of a gradual, cautious evolution toward R2P strictly within the Security Council was a deliberate move by states who, far from celebrating the new humanitarianism that the United States and NATO believed they found in the 1999 Kosovo intervention, were gravely worried by it. Their concerns are reflected in the closest thing to a "formal" acceptance of R2P in international law – the UN reform document adopted by the General Assembly as a resolution in 2005. While this "Final Outcome Document" mentions the concept of responsibility to protect, it puts it strictly into the hands of the Security Council. The formal legal argument on this basis cuts against unilateral action by states.
In my view, the US government doubts - far more than Britain, for example - that R2P today allows for a remedy under international law outside of the Security Council's authorization. But if so, that is no doubt in part because the US accepts other paths to lawful intervention in international law that Britain would likely not. But if R2P is accepted as not being lawful today unilaterally, without Security Council authorization, what is the response?
4. "Illegal but legitimate." One approach that has gained a certain traction is to frankly acknowledge that intervention is illegal under international law, but assert that international law is trumped in such a case by emergency and necessity, in this case humanitarian emergency and necessity. This might be understood as a peculiar form of the strong formalist position - which, recall, had two distinct conditions, first, that one looked to "formal" sources to determine the law and, second, that this formal law take normative precedence over everything else. This "illegal but legitimate" claim is one that, since first offered in the Kosovo intervention, has had peculiar attraction to otherwise formalist international lawyers; it allows them to continue to accept formalism's "descriptive" condition while abandoning its second, normative claim that the formal law trumps. "Illegal but legitimate" was offered most prominently following the Kosovo war in The Kosovo Report (free pdf) of the International Independent Commission on Kosovo (Oxford UP 2000) and was revived in the Syria debate by the prominent scholar Ian Hurd in an op-ed last week in the New York Times (though Hurd has noted that the NYT's title for his op-ed, "Bomb Syria, Even if It Is Illegal," was very far from an accurate statement of his actual text, which he has re-stated and clarified in a post noting that he is not calling for bombing, in the outstanding Opinio Juris "Insta-Symposium" on Syria).
But the practical weakness at the heart of the "illegal but legitimate" argument is not so much its view of international law so much as whether, regarding Syria today, an intervention would command, or over time even acquire, political legitimacy. This seems unlikely at best:
To the extent that [political legitimacy alone] had resonance at that time, it was likely because international politics were in a different place from today. Despite the horrors of Rwanda and the Yugoslavia wars, there was a residual, hopeful belief left over from 1990 that the great powers (which effectively meant the United States along with NATO) were in essential agreement on such things as mass atrocities. In retrospect, it would probably be more accurate to say that Russia correctly perceived that it lacked the real power to contest Kosovo and simply let it go – without, however, much forgiving or forgetting. In today's world of rising great powers, BRICS, resurgent China and Russia, the extra-legal political legitimacy that once made this argument plausible as an alternative to a formal legal one is not really evident. Should the United States or its allies act alone, they cannot depend on the same general sense of political legitimacy that NATO could in Kosovo as late as 1999.
Indeed, the argument over the Kosovo precedent as the core issue is oddly misplaced. It is the source from which some - though not the US government - derive a precedent for R2P without Security Council authority, but the precedent that actually appears to drive the debate for most of the world, and Russia above all, is Libya. Russian foreign ministry spokesman Alexander Lukashevich was caustic in his remarks about Syria a week ago, denouncing "attempts to bypass the Security Council, once again to create artificial, groundless excuses for a military intervention." I am frankly surprised that there has not been more engagement by the US and others to seek to show Russia and much of the rest of the world that even an authorization by the Security Council, in the area of R2P, won't be taken by the Western powers' clever, though in this view, sophistical international lawyers as license to do whatever they like. The problem, I suppose, is that there is no easy way to engage on that question without essentially admitting what much of the rest of the world thinks about NATO's interpretation of the Security Council's Libya resolution:
[T]he view of many other countries in the world—that NATO took a distinctly limited license by the Security Council for humanitarian intervention in Libya and turned it into unlimited license for regime change—has almost certainly altered the willingness of Russia and China to grant any formal authority through Security Council authorization. They simply do not appear to trust the Western powers to respect what they believed were the limited terms on which it was granted in the past. Libya, it might be said, has poisoned the well of political legitimacy for humanitarian intervention, through overreach beyond the terms of formal law. Thus, the assertion of a moral obligation standing beyond and above formal international law might well be the right thing to do – but its political legitimacy, if that is what finally matters in the absence of legality, depends as well on how others regard it. It is unlikely that an armed action for the sake of humanitarian intervention, in the reasonable certainty that the Security Council would not authorize it if asked, would have the political legitimacy claimed for it or that it would gradually acquire it over time, sufficient to overcome its acknowledged illegality.
5. "Pragmatic" International Law. Perhaps out of implicit recognition of the methodological and conceptual difficulties in arguments for intervention based in R2P and humanitarian intervention, along with a political desire to confine the "war aims" of an intervention as well as its actual scope, the US government has made the issue not humanitarian intervention, emergency, or necessity, but instead the violation of what Secretary of State Kerry, President Obama, and other officials have described as the long-standing international norm against the use of chemical weapons. The central argument as it stands now is not that the chemical weapons sharply worsen the humanitarian situation - though of course that is true - but instead the defense of the norm against any use of chemical weapons. It is described as a "norm" rather than as "law" in the formalist-positivist sense:
The international community finds itself in a very troubling situation. From the horrors of World War I until now, chemical weapons have gradually come to be seen as an unacceptable weapon. This has been a gradual and partly informal change of norms – from the Cold War period in which both sides contemplated the use of chemical weapons to now. The relatively few modern uses by governments, such as Saddam Hussein's, have not altered their pariah status. But now, after the gradual evolution of a norm both legal and political over nearly a century, it seems the world might accept a profound alteration of that status quo. Who would have thought, a mere year or two ago, that the status quo norm against the use of such weapons would be so fragile, and if breached might draw down upon the user merely token or perhaps even no consequences? The use of chemical weapons in an internal armed conflict against civilians thus not only might incur few or no real world consequences – but might incur few or no consequences in large part because of legal arguments that those who might respond to preserve an important humanitarian norm could not lawfully do so under the formal law of the UN Charter.
This is the heart of the arguments that US officials currently make. To get there requires, I suggest, a quite different view of the nature of international law than formalism alone, particularly its strongest of positivist formalism. But it is also what I would regard as the long-standing approach to international law taken by the United States government and the State Department - as well as that taken by Britain, France, and other great powers since 1945.
Law among nations, [the "pragmatic" approach] asserts, is necessarily and inevitably intertwined with politics, policy, diplomacy, and real world consequences of actions – that is, the facts of power. This approach to international law differs from the "illegal but legitimate" way of seeing international law, in that the pragmatic approach views these other factors as part of international law itself, and indeed a vital way of ensuring that international law remains relevant as law to the harsh realities of international politics. It rejects formalism because it wraps these consequences-based, real world concerns into the law itself – and hence offers a view of the law that is still about law, but goes well beyond strict formalism. Both approaches are contested but plausible understandings of international law, each with long pedigrees and no easy way of reconciling their fundamentally different approaches.
The emphasis here is on what former State Department legal adviser Abraham Sofaer has often called a "reasonableness" approach - pragmatic, practical, concerned with legal formalism but not confined to it. We might say, in matters such as the norm against chemical weapons use, international law is not a suicide pact; wrapping attention to consequences into the framing of law itself helps protect international law from itself as it were, or at least from a tendency to gradually evolve into a marvelously refined, elegant, pure, but hopelessly utopian, prescription that becomes divorced from the realities of international politics. (This description also draws on Michael Glennon's excellent 2010 book, The Fog of Law: Pragmatism, Security, and International Law (Stanford UP 2010), though the traditionally pragmatic approach to international law of the US government and the State Department does not require signing onto Glennon's striking, but much more controversial, intellectual claims about pragmatism itself or his particular judgments on given issues.) The pragmatic approach says that international law, in its very conception, in its approach to sources of law, reasoning and conclusions, is far less rule-bound or positivist than a strongly formalist position would suggest.
Of course, the "reasonableness" approach to international law has to accept that answers to international law questions are not necessarily going to be conclusive or exclusive of all other positions, and much less so on deeply fraught or contested issues. Which is to say that Russia's position that these decisions all lie with the Security Council has to be regarded not only as reasonable - but a stronger position with respect to its formal aspects. That does not mean that the US has to give up its position - its attention to the consequences of the erosion of the international norm against chemical weapon use is not unreasonable, either - but it does mean that the US has only limited room to attack Russia or others with similar positions on international law grounds, and it also means that much of the activity necessarily shifts to the components of international law that attach to diplomacy and international politics.
But there's a very specific cash-out in relation to Syria. The Assad government, however much in violation of international law norms, remains on traditional legal criteria the lawful government of Syria:
[D]eclarations of political illegitimacy by the United States and some of its allies aside, the Assad government meets essentially all the formal requirements of international law to be the legal government. It remains in "effective control of the state," observers would likely conclude, and continues to be recognized as the legal government by states generally (and not just by Russia).
As Michael Schmitt has observed, in a draft paper on a related-but-different legal question, the legality of assistance to Syrian rebel groups, the legality of Russia or others supplying assistance to the still-legal Syrian government is lawful, and far more easily legally defensible than the US or others supplying assistance to rebel groups. One can make arguments that the use of chemical weapons, in violation of an international norm, as the US has described, alters the legal arguments somewhat - but as most observers would likely see it, not by very much. It might serve as a factor arguing that the Russians ought not to supply the Assad government, or as a factor arguing that the US and others can supply the rebels - but on formal or pragmatic arguments, the situation is not changed very much. The practical point, with regards to a unilateral US strike, is that it is a reasonable position for Russia to declare that the US is acting contrary to international law, or that the Russian position is also a "reasonable" one - and determine to supply the Assad regime with weapons to make a US strike more difficult or costly, or supply "advisers," or (in a purely hypothetical situation) declare itself co-belligerent. These are generally legal measures for one state to undertake in support of another.
At that point, of course, law has reached the limits of what it can address; it is by then an argument about international politics and prudence. But this is the downside of the flexibility that pragmatic approaches to international law offer. Pragmatic approaches avoid turning international law into a suicide pact, yes, in the sense of being unable to respond to something like a chemical weapons attack on account of some formalist concerns about international law and the language of the Charter. But reasonableness that allows, as it must, the reasonable yet opposed views of others risks turning international law not into a suicide pact, but into a path to war. Insofar as the disagreements are among the great powers, and among permanent five members of the Security Council, one might say that the architecture of the Charter is deliberately designed to impose a standstill on action insofar as permanent, P-5 great powers see their interests as being seriously threatened.
President Obama and American officials have said, in effect, that it's a flaw of the international order that the Security Council can become deadlocked on a vital issue such as Syria's chemical weapon's use. As I point out in my 2012 book, Living with the UN: American Responsibilities and International Order, however, from the standpoint of the institutional and historical design of the Security Council, that's a feature, not a bug. It's a deliberate design feature because it aims at bringing matters to a deadlocked standstill where the risk is great power conflict that might conceivably lead to war among them. No doubt that is not an issue here and now, but if the preservation of the norm against chemical weapon use is a pragmatic concern, it is also a pragmatic concern that the role of the Security Council not be undermined. "Bypassed," as the Russian spokesman said, in ways that might, over time, lead to war among the great powers - including those great powers that are not today permanent members of the Security Council.