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 ....
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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.” ...
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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? ...
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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. ...
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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. ...
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