President Obama Cites International Law as Limitation on U.S. Response to Syria’s Chemical Weapons Attack

by Julian Ku

As regular readers may recall, I am skeptical that the use of chemical weapons, by itself, can justify the use of military force under current international law absent authorization from the U.N. Security Council.  Of course, I wouldn’t oppose the use of military force by the U.S. to stop the use of chemical weapons in Syria, I just doubt its legality under international law.  More importantly, so does President Obama. Although reports are out suggesting the U.S. is preparing to launch cruise missiles into Syria, President Obama also told CNN yesterday:

“If the U.S. goes in and attacks another country without a U.N. mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it, do we have the coalition to make it work,” he said in the interview on CNN’s “New Day” show. “Those are considerations that we have to take into account.”

And unlike me, he treats the questionable legality of a U.S. action (at least under international law) as a real constraint.  (Interestingly, the President doesn’t seem particularly concerned about whether Congress would approve his action, so I guess that legal bridge has already been crossed.)

I should also note here that Prof. Jordan Paust has offered a legal theory I hadn’t previously considered: that NATO might be able to strike into Syria pursuant to Art. 52 of the U.N. Charter, which may be interpreted to authorize regional organizations to act to maintain “peace and security.” I guess I have to side with Prof. (and former ICJ judge) Bruno Simma to reject this reading of Article 52, especially given Article 53′s plain language subordinating Art. 52 to Article 51′s broad prohibition on the use of force. (See Art. 53: “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”).

In any event, given President Obama’s comments, international law is going to matter here.  I expect his lawyers are working overtime to come up with a plausible legal justification for a Syria strike (too bad he has no confirmed adviser at State yet).  Maybe Turkey (a NATO member) can manufacture an incident of some sort to serve as a useful casus belli?  In any event, it will be interesting to see what they come up with.  Lots of luck!

http://opiniojuris.org/2013/08/24/president-obama-cites-international-law-limitation-u-s-response-syrias-chemical-weapons/

4 Responses

  1. Julian: thanks for the plug.  Re: U.N. arts. 52-53, my point is that “regional action” is different than “enforcement action,” especially from a textual as well as a policy-serving point of view.
    In any event, note that the President said that there would be “questions” presented if there is no “U.N. mandate,” not that he would doubt legality.  Moreover, he added a qualifier — if there is “no clear evidence that can be presented” re: use of chemical weapons (leaving much wiggle room). 

  2. Viewed in its context within the UN Charter, it’s difficult to assert that regional action under Art. 52 can avoid the strictures of Arts. 51 & 53.
    Having worked at NATO HQ, NATO Allies will NOT entertain another Kosovo-type action, without either UNSC authorization, or a clear justification for collective self-defense under Art. 5 of the Washington Treaty.

  3. nothing in my essay avoids the strictures of articles 51 and 53.

  4. Thanks Julian, and for me, i don’t think that the President’s lawyers will find it difficult to justify the US strike, according of the indeterminacy status of international law rules and , of course, the “perpetuum mobile” of means of interpretation . So the mission will be easy for them !

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