Are some eras crumbling as well ?
Assad's era might be crumbling, but some other eras may fare no better. The era of international legalism may well be past - without too many tears shed by too many. But, some sacred cows (such as the UN and EU-NATO) should feel threatened. In any event, no one seems to be making strong legalistic arguments for Syrian intervention; the arguments being made are very moralistic. Take the following three pieces, for example.
First, a very straight-forward article by Ian Hurd (scarcely a rightist), Bomb Syria, Even if It Is Illegal (NYT, August 27, 2013):
Quote:
EVANSTON, Ill. — The latest atrocities in the Syrian civil war, which has killed more than 100,000 people, demand an urgent response to deter further massacres and to punish President Bashar al-Assad. But there is widespread confusion over the legal basis for the use of force in these terrible circumstances. As a legal matter, the Syrian government’s use of chemical weapons does not automatically justify armed intervention by the United States.
There are moral reasons for disregarding the law, and I believe the Obama administration should intervene in Syria. But it should not pretend that there is a legal justification in existing law. ...
Hurd then goes on to make Assad's legalistic case, noting at two points:
Quote:
... the treaties rely on the United Nations Security Council to enforce them — a major flaw. ...
...
But the conventions also don’t mean much unless the Security Council agrees to act. It is an indictment of the current state of international law that there is no universally recognized basis to intervene.
But, of course, that is precisely how (and why) the UNSC was set up in the first place. Hurd knows that well; he wrote a recent article about it, The UN Security Council and the International Rule of Law (Chinese Journal of International Politics, May 2013). Or, as he states here, Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World (2011):
Quote:
The concept of humanitarian intervention has evolved as a subset of the laws governing the use of force and has very quickly come to occupy an institutional position alongside self-defense and Security Council authorization as a legal and legitimate reason for war. It is both widely accepted and yet still highly controversial.
This article considers whether humanitarian intervention is legal under international law. This is a common question but one that produces an uncertain answer: humanitarian intervention appears to contradict the United Nations Charter, but developments in state practice since 1945 might have made it legal under certain circumstances. Those who argue for its legality cite state practice and international norms to support the view that the prohibition on war is no longer what it appears to be in the Charter.
The debate suggests that humanitarian intervention is either legal or illegal depending on one’s understanding of how international law is constructed, changed, and represented. Since these questions cannot be answered definitively, the uncertainty remains fundamental, and the legality of humanitarian intervention is essentially indeterminate. No amount of debate over the law or recent cases will resolve its status; it is both legal and illegal at the same time.
Rick Pildes, Creating New International Law “Justifications” for Using Military Force Against Syria (Lawfare, August 29, 2013), sums up (without necessarily endorsing) the three principal moralistic arguments:
Quote:
As I noted in an earlier post, the newly emerging uses of multi-lateral military force for humanitarian intervention — such as to respond to states that gas their own citizens — raise profound issues about the relationship between “the rule of (international) law” and morality/political judgment. Under existing international law, it is difficult to justify legally use of military force against Syria; there is no self-defense justification and no approval from the Security Council. And try to imagine the process of revising the governing legal text — the UN Charter — to permit force in new circumstances not contemplated when the Charter was created.
National political leaders in these situations have three options.
First, they can conclude, with tragic sorrow, that even though they believe the most compelling moral and political reasons exist for using military force, they cannot act because international law prohibits it: military force would be illegal.
Second, they (and notice, of course, the prior question of who the “they” are, or must be, to justify this) can acknowledge that they are violating international law, but that they believe their actions are justified for reasons more important than the “rule of law.” ...
...
Third, they can do what the British government now appears to be doing: turn the compelling moral reasons in which they believe into new “legal” justifications for the use of force. This creates a kind of illusion (perhaps necessary, perhaps justified) that they are complying with existing international law — when the truer account is that they are creating new legal arguments outside the framework of existing law. ...
Finally, we have Jack Goldsmith, UK Legal Position On Humanitarian Intervention in Syria (Lawfare, August 29, 2013), taking down the UKG on its legal logic:
Quote:
The UK “legal position” contains not a bit of legal analysis. It does not explain how humanitarian intervention as it describes it is consistent with the U.N. Charter’s clear prohibition on the use of force absent Security Council authorization or in self-defense. Presumably to be lawful in the face of the Charter, the doctrine of humanitarian intervention must be supported by customary international law. Yet the UK does not try to explain why it believes that humanitarian intervention as it describes it represents the general and consistent practice of states followed from a sense of legal obligation. It does not try to do this, I think, because there would be no basis for such a position. So in the end this is just a UK ipse dixit that (as the paper puts it in the end) intervention is justified as an “exceptional measure on grounds of overwhelming humanitarian necessity.” I.e. the UK thinks the ends justify the means, including non-compliance with the U.N. Charter.
And so it goes.
Regards
Mike
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Statement by the President on Syria
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