Jack mentioned Eric Posner's new article in Slate announcing that US drone strikes in Pakistan are illegal under the UN Charter because, among other things, they lack genuine consent from Pakistan and the so-called "unwilling or unable" test, which the US government might propose to apply as an alternative theory to consent, and which Eric terms a "new" idea, runs counter to the language of the Charter. I've received a couple of emails from folks today suggesting to me that if someone such as Eric with a seemingly "hard realist" idea of what international law means concludes that the drone strikes are illegal, then that's a good reason that others with a view that international law is less realist and more constraining should find that a reason to think that they are illegal. A couple of quick thoughts.
First, I don't know how Eric comes to believe that the "unwilling or unable" test is "new." He treats it as a seemingly somewhat desperate innovation arising in the Bush administration and carried further in the Obama administration. But it's not, and I'm at a loss to understand how this is a new legal view for the United States government. On the contrary, lawyers for those administrations, so far as I'm aware, understood that they were merely asserting a view the US government has held for generations.
In particular, the language of Harold Koh's statements - and that of other national security general counsels in their speeches - with regards to unwilling or unable (and a host of other use of force issues) has obviously been chosen to reflect continuity of legal views and indeed close language to Abraham Sofaer's 1989 speech at the US Army JAG School in Charlottesville, Virginia. So, for example, on the question of territorial integrity, which is at the heart of Eric's claims about illegality by the US in Pakistan, Sofaer says (emphasis added):
The United States also supports the right of a State to strike terrorists within the territory of another State where the terrorists are using that territory as a location from which to launch terrorist attacks and where the State involved has failed to respond effectively to a demand that the attacks be stopped. On October 1, 1985,Israeli jets bombed the PLO headquarters in Tunis, asserting that it was being used to launch attacks on Israel and Israelis in other places. The United States denounced the bombing and abstained from voting on a Security Council resolution that, among other things, condemned "vigorously the act of armed aggression perpetrated by Israel against Tunisian territory in flagrant violation of the Charter of the United Nations, international law and norms of conduct.''
The United States opposed the Israeli action, however, on the basis of policy, not legal, considerations. The extent to which Israel had communicated its position in advance was unclear. The United States in fact supported the legality of a nation attacking a terrorist base from which attacks on its citizens are being launched, if the host country either is unwilling or unable to stop the terrorists from using its territory for that purpose.
The term unwilling or unable was surely chosen by successive administrations in order to emphasize its continuity with US legal views dating back to the Reagan administration and, as Sofaer has said in talks on the subject, well before that. In his view, the Reagan administration was merely restating long-standing US views on self-defense. Still earlier in the Reagan administration, in 1985, US Ambassador Vernon Walters stated to the Security Council regarding the Israeli attack on PLO headquarters:
We, however, recognize and strongly support the principle that a state subjected to continuing terrorist attacks may respond with appropriate use of force to defend against further attacks. This is an aspect of the inherent right of self-defense recognized in the U.N. Charter. We support this principle regardless of attacker and regardless of victim. It is the collective respon- sibility of sovereign states to see that terrorism enjoys no sanctuary, no safe haven, and that those who practice it have no immunity from the responses their acts warrant. Moreover, it is the responsibility of each state to take appropriate steps to prevent persons or groups within its sovereign territory from perpetrating such acts.
These views might conceivably be wrong or contrary to the UN Charter or any number of other things. But they are not a novel or ad hoc US position dreamed up lately to justify US attacks in Pakistan. Rather, the US legal position in its basic outline - either consent or some version of the unable-unwilling test - is what it has been for many decades.
Second, other states behave this way as well. Theresa Reinold, in her AJIL piece, "State Weakness, Irregular Warfare, and the Right to Self-Defense Post 9/11" (Vol. 105, April 2011), walks through actual state practice with regard to cross border interventions against non-state actors by a variety of states over several decades. As the abstract says:
This article explores the challenge for the jus ad bellum posed by “irresponsible sovereigns” such as weak states that are either unwilling or unable to control their territory effectively and thus become safe havens for terrorists and other irregular groups. Reviewing state practice post-9/11, the article concludes that the notion that sovereignty implies responsibility for effective territorial control has been used to support a more expansive interpretation of the right to self-defense in response to irregular warfare.
Again, one might regard this as wrong or contrary to the UN Charter, and many international law scholars do, but it is neither novel nor an American innovation. It is true that, as Ashley Deeks says in her article on the unable-unwilling standard, that one looks in vain for formal opinio juris in support of the practice. Part of this depends upon the standard to which one holds opinio juris - a formal declaration that the state acts, or refrains from acting, out of a sense of legal obligation? Well, Sofaer did not say so, and neither did Koh. On the other hand, they left no uncertainty that this was regarded as the US view of international law on the subject, law of both permission and limitation, even if they did not wave, so to speak, the magical words over the statements.
In any case, if one's view is that the ability to intervene in a sovereign's territory where it is unwilling or unable to address a terrorist threat is already part of inherent rights of self-defense, then it is not clear that one ought to see any reason to announce that this is opinio juris, because one is not making any new assertion of law that would require it or from which it would benefit. Indeed, announcing such as a matter of announcing formal opinio juris might open the way for the charge that, in that case, this is a declaration of new law or legal principles, and by implication weakening the strength of long held views. So perhaps it is unsurprising to find state practice, but no formal opinio juris on the matter. One need not regard this as some new custom standing in need of opinio juris; the lack of formal opinio juris, particularly with a long pattern of state practice, does not necessarily say anything one way or the other. (I see that John Dehn raises this point in a comment thread to a post by Kevin Jon Heller on this topic at Opinio Juris, and speaking broadly, I agree.)
Third, I don't think I'd agree that because a presumably tough skeptical realist about the ability of international law to constrain state behavior (given a certain reading of The Perils of Global Legalism), concludes that drone strikes are illegal, that should necessarily be thought persuasive by people who think that international law has more capacity on its own to constrain states. As Peter Spiro correctly remarked in an Opinio Juris blog tweet, this is more a way of saying interrnational law doesn't count for much. Put another way - and I exaggerate deliberately - if you are trying to defend the capacity and integrity of international law to restrain states as an independent force, this form of hard skeptical realism is not actually what you want to have on your side. Why? Because the skeptical realist view of international law, again in exaggerated form to make the point, says that the hard limits aren't established by law, they are established by conditions of power or other things. In that case, one can fill up the content of international law with anything you might like to regard as law - the idealist's dream world, so to speak - take it all as international law. The hard skeptical realist won't necessarily mind, or at any rate think it relevant, because it is neither the driver nor the constraint on state behavior, except perhaps at the margins; again I deliberately exaggerate to better reveal the contrast. Declare anything you like law, and then declare anything you want illegal.
Because the realist position (at least as I read The Perils of Global Legalism) as touching the status of international law is, ultimately, a pretty radical skepticism - it seems to me to come close to saying either there is no law here because is is not a command backed by a genuine threat, or else if it is law, it's irrelevant or only marginally a driver or constraint upon state affairs, particularly in core matters of national security, because it's not a command backed by a genuine threat. If the ability of international to constrain in crucial security matters is an empty set or nearly empty set, then the realist skeptic has little reason not to be indifferent or even cheerfully to go along with anything, however reaching or utopian, that an idealist about international law's ability constrain states might like to declare law or, in this case, declare illegal.
Moreover, from the skeptical, external point of view, it's not just a matter of indifference - it has the effect of showing the whole enterprise, considered as "law," to be ever more silly, because they won't be enforced, and so serve to illustrate just how chimerical the law-as-constraint really is. For those who take international law seriously as a some form of constraining enterprise upon states - as, perhaps some will find surprising, I do in a (very) modest, pragmatic way, always fused with politics, diplomacy and the facts of power - well, this way lies madness.
The point is that those who urged me in emails that Eric's article represents a hard limit on what international law can be, and so if he says there that the drone attacks are illegal, that must show they really have to be illegal - I'd say, think again. The skepticism not only provides no check at all; it seems to me quite the other way around.
(Note: I've revised this post this morning to adjust the tone - as is often the case on blogs, what I think is funny is not how everyone else takes it, and my apologies if anyone was offended by it. Apologies to all concerned.)