Syria Insta-Symposium: Marty Lederman Part II–Will the U.N. Charter Be Part of the Forthcoming Congressional Debate?

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. This is the second part of a two-part posting.]

In my previous post, I explained that the difficult and unresolved constitutional question has (thankfully) been avoided—at least for now—by virtue of President Obama’s decision to seek congressional authorization for his proposed use of force in Syria.

That decision does not, however, affect the question of whether such an operation would violate Article 2(4) of the U.N. Charter.  To be sure, if Congress approves the operation, the statute in question will supersede the constraints of the Charter for purposes of U.S. domestic law.  But the U.S. remains a party to the Charter for purposes of international law, and international law is indifferent as to whether the U.S. legislature has or has not approved a particular use of force.

I think the vast majority of commentators on OJ and elsewhere—see, e.g., Dapo Akande on EJIL:Talk! –are correct:  The use of force in Syria would violate Article 2(4) of the Charter.  On the merits, I don’t have a great deal to add to what others have said, for there’s not much of an argument on the other side.  (One of my colleagues has suggested to me that perhaps there is a “plain meaning” and purposive reading of Article 2(4) that might be available—namely, that since the Charter prohibits use of force “against the territorial integrity or political independence of any state,” any use of force that is motivated by an aim other than violating the territorial integrity or political independence of a state (such as preventing future uses of chemical weapons) does not violate Article 2.  (Jordan Paust has suggested likewise in comments to several posts here.)  My understanding, however, is that no nation, including the United States, has ever adopted this reading of Article 2(4), which would radically narrow the scope and effect of the prohibition.  I would not expect the U.S. to float such a reading with respect to Syria.)

What about the “humanitarian intervention” rationale advanced by the U.K.?  It almost certainly will not even be the subject of debate in this country.  The U.S. has long been resistant to that theory, not only because it is almost impossible to defend on its merits—even if such a norm of humanitarian intervention had developed as a matter of custom (and it hasn’t), the U.K. offers no basis at all for why such a custom would be a defense under the Charter, a binding treaty—but also for fear that it would be exploited by other nations in a manner that we could not endorse and that would significantly undermine the Charter.  So, for example, after the U.S. agreed to join the operation in Kosovo in 1999, the State Department Acting Legal Adviser, Michael Matheson, was at pains to publicly emphasize that the U.S. “had not accepted the doctrine of humanitarian intervention as an independent legal basis for military action that was not justified by self-defense or the authorization of the Security Council.”

It is therefore not surprising that the President’s proposed AUMF for Syria does not so much as mention a humanitarian intervention rationale.  Instead, it expressly identifies a single “objective of the United States’ use of military force in connection with this authorization”—namely, “to deter, disrupt, prevent, and degrade the potential for, future uses of chemical weapons or other weapons of mass destruction.”

Even more striking is that the draft AUMF does not even suggest that the use of force for such an objective (deterring, and degrading the potential for, future uses of chemical weapons) would be consonant with the Charter.  There is no effort, in other words, to explain why, or even assert that, the operation would not violate Article 2(4).

There are surely compelling reasons why perhaps Congress should be wary of approving an operation that would breach the Charter.  Over in the U.K, such concerns are a central component whenever such a use of force is contemplated.  The public and parliamentary debates over intervention in Iraq in 2003, and in Syria this week, for example, were dominated by discussion about compliance with the Charter.  Such questions rarely play much of a role in U.S. public and legislative debates, however—I don’t recall the question being raised at all, for example, during the long and contentious debate concerning authorization of the Iraq War in 2003.  Thus I’ll hazard to predict that the forthcoming congressional debate in the U.S. on the proposed Syria AUMF will be virtually silent on the question of whether the operation would or would not violate the Charter.

Indeed, I doubt the Executive will even offer an argument that the operation would not violate the Charter (just as it did not do so in 1999 respecting Kosovo).  This is in part because there is no good argument; but, more importantly, it is a function of the fact that the question of Charter compliance is unlikely to sway many votes in Congress, in any event.  If Congress and the President decide to go forward with the Syria operation, it will be with the full knowledge that we will be violating the Charter.  If past such debates are any precedent, this will not give the lawmakers much pause, especially in light of the widespread view that the operation would be Charter-compliant were it not for Russia’s threat to use its veto, without justification, to prevent what the UNSC would likely otherwise approve.

Thus, although neither Congress nor the President is likely to say it publicly in so many words, an affirmative vote on the Syria AUMF, if it occurs, will almost certainly reflect the view that sometimes there are national and international interests even more important than technical treaty compliance—particularly where, as here, the treaty-prescribed process itself has been obstructed without good cause.  In this respect, André Nollkaemper is undoubtedly correct when he writes that “[t]he failure of the Security Council to take its responsibilities and to act therefore is for more than one reason deplorable. Not only does it leave the people in Syria without protection, but it also induces unilateral action that, whichever it proceeds inside or out, leaves the international legal system worse off.”

In his extremely interesting and important post, Nollkaemper wonders whether the United States will, or should, publicly characterize any strikes on Syria as “part of an attempt to reconstruct the law on the use of force,” rather than as a simple deviation from the law of the Charter.  That is to say, might the United States make an argument of the following nature?: “Present international law may prohibit it, but international law is not static and can change by its being breached.  The unlawful act may contain the seeds of a new rule allowing for humanitarian intervention.”

Whatever the merits of such a public justification, I doubt we will see Congress, or the President, offering any such explanation.  Such a “reconstructionist” account might be plausible—indeed, likely—if merely a customary norm were at stake.  But I would be surprised if the United States were willing to suggest that a treaty obligation might evolve by virtue of planting the “seeds” of a new customary norm, either in favor of humanitarian intervention without Security Council approval (a rationale that the United States has disclaimed), or even intervention for purposes of reinforcing a categorical prohibition on the use of certain weapons or methods of warfare.  This is, however, a very interesting question, and I’d be interested to hear what other OJ posters think of the prospect of the U.S. articulating such a “reconstructivist” account of what is permissible under the Charter.

Finally, a few words are in order in response to Michael Dorf’s recent post arguing that the United States should not violate the Charter.  First, Michael argues that “the need to maintain U.S. credibility in light of President Obama’s earlier statement that the use of chemical weapons would be a ‘red line’” would not be an adequate justification for the use of force in violation of the Charter.  I agree.  One can certainly believe there is a significant value in maintaining U.S. credibility when it has threatened to act; but I don’t see the case for that being an adequate reason to breach a treaty.  As far as I know, however, although such face-saving is a prominent topic of discussion among cable talking heads, it has not been “a big chunk of the justification for force offered by the Administration”—or any part of the justification, for that matter.  Not in the official statements of the President and the Secretary of State, in any event.

Second, Michael is simply not convinced by the justification the Administration has offered for the use of force—namely, that the missile strikes “will cause enough damage to the Assad regime that it will be deterred from further use of chemical weapons.” “When the use of military force is at least as likely to widen suffering as it is to curtail it,” he writes, “the moral justification for that use of force [in violation of a legal obligation] can hardly be said to be strong.”  That is certainly correct.  And any member of Congress who concludes that the use of force will more likely cause more harm than good should not vote to authorize it.  But my sense is that the President and the Secretary genuinely believe that such strikes are much more likely than not to accomplish the goals they have set forth—and they are prepared to make the case in support of that view.  I have no expertise that would allow me at present to decide who is right about this predictive question.  And I think it’s a bit premature for Michael simply to assume that the use of military force “is at least as likely to widen suffering as it is to curtail it.”  But he correct that that is the right question that we all should be asking.

 

http://opiniojuris.org/2013/09/01/syria-insta-symposium-marty-lederman-part-ii-whither-u-n-charter-forthcoming-congressional-debate/

6 Responses

  1. One thought is that the last in time rule – while venerated and possibly venerable – should not be the last point as a matter of domestic law.  This is building on your non-self-execution problematic.  To the extent rules of international law such as “no state can use its internal law to extract itself from its international obligations” in the VCLT and as a matter of broader customary international law, surely the Senate and House Armed Services, Judiciary, and Foreign Relations Committee can integrate this concept in its deliberations.  After all, one could argue that Assad has decided to breach as a matter of Syrian internal law, this international obligation taking his actions as the expression of last in time.  A battle between last in time visions between an ostensibly democratic regime to go after an ostensibly dictatorial regime does seem to be a strange place for us to get to.  As to the UN failing, the UN structure with the Security Council veto power of Russia and China is precisely as it is – we are stuck with that sovereign discretion implanted in the structure of that body.  Why then is a path not also being developed through the General Assembly (who is meeting in these days) for some type of United for Peace resolution as an alternative path to international legitimacy for such an action.  Given the horrendous nature of the Syrian leadership’s effort, it would seem that the kind of Truman like Korea United for Peace resolution would be a way of splitting the baby in two.  On the one hand, the blockage of the Security Council not providing that kind of direct international legitimacy to an operation.  On the other hand, a General Assembly resolution providing some form of legitimacy and possibly opening up to a more broader vision than the AUMF seems to be foreseeing to deal with the real concrete problem of the Assad regime’s descent into this kind of horror.  This approach might also encourage a look at both the chemical weapons AND non-chemical weapons based devastation that Assad is causing as well as the question of the nature of at least some of the rebel forces as Al-Qaeda and Al-Nusra bad guys.  Imperfect, but it does lead to something being developed within the Charter structure that reading 2(4) with the rules for the General Assembly would provide some international recognition of the need to address Assad as a threat to the broader international structure and community.  A Congressional debate is nice for purposes of US domestic consumption and decisionmaking, but I think Stephanie Powers should be on the game in both the Security Council and the General Assembly to help build a consensus minus Russia and China to underpin the action.  This, of course, all assumes that the “evidence” this time is not just ginned up misleading, but is reflective of genuine horrendous acts attributable to the Syrian state.
    I would take a moment to look back at the Iran-Iraq war in the 1980’s when Saddam used chemical weapons to change the tide.  All readers I am sure are aware (though I am still waiting for someone other than me to say this) that the US did at a minimum help him with his targeting of the Iranians at that time.  It seems to me that the imperatives of US policy vis a vis Iran led us in that setting to enable precisely the kind of horrors against Iranian soldiers that we are deploring Assad for doing at a smaller level to his own Syrian citizens.  That would suggest that the chemical weapons decrying that is going on now is situational rather than principled.  In the absence of principle of the Leviathan operating as sovereign, it would seem that the support of other states in a General Assembly type Korean conflict resolution might be a path to legitimacy and a way to side step the kind of international law illegality to some degree.  Is it worth it?  Well, it would put many sovereigns before their responsibilities in a way that has to be salutary for preserving the object and purpose of the chemical weapons ban.  If the sovereigns are willing to look the other way in the General Assembly, then the world has really devolved to the Hobbesian state of nature on this too.  We have gotten there ourselves on torture and the lie of War in Iraq – now this too?
    Talk about unintended consequences of the War in Iraq.  The damage of the Bush II War in Iraq keeps on giving.
    Best,
    Ben

  2. Thanks Marty, for your thoughtful posts on this.    I’ve responded at some length in response to Jennifer Trahan’s post offering a somewhat unconventional argument in support of finding some interstitial right to HI in the Charter and PIL instruments.  I appreciate that there are many problems with reliance on HI, but wonder if it is right or wise to say there is no right to intervene for humanitarian purposes outside of the express allowance of force in the Charter.
    As I mentioned at the outset of my post, I hope the upcoming debate on what to do in Syria has the depth and gravity of the OJ symposium.  Thanks for a very illuminating discussion.
    –Charlie
     

  3. I’m not sure I correctly read Mr. Davis’s comment above. I thought he was saying that President Bush is to blame for Mr. Obama’s Syrian policy or lack thereof, but that surely cannot be the case.  

  4. An additional justification can focus on the fact that the SNC or opposition, as the entity that is substantially recognized as the legitimate representative of the Syrian people, has consented to the type of use of force contemplated, and would prefer an even greater use of force by the U.S.  This is not only relevant to a textually sound and policy-serving interpretation of Article 2(4) of the Charter in the context of an ongoing belligerency and the special status of the SNC, but can also provide an alternative basis for permissibility (and one that exists whether or not the U.S. acts to support the SNC, since consent exists independently of U.S. objectives).  This is what 34 U. Pa. J. Int’l L. 431, 443-46 (2013) addressed.

  5. Regarding the “domestic law” question addressed in the first para., I am not sure that the 19th Century “last-in-time” rule created by the Supreme Court should dictate whether a super treaty like the U.N. Charter (in view of Article 103 of the Charter, legal policies at stake, etc.) should be trumped as a matter of domestic law by a mere congressional authorization to use force.  The treaty is binding on the President under Article II, Section 3 of the Constitution and a particular “authorization” to use force may not be binding on the President.  Some authorizations might merely be joint resolutions that are not legislation.  In fact, the President might argue that an “order” from Congress to use military force can violate the separation of powers.  Further, the Charter-based obligation of the U.S. under Article 2(4) [whatever it actually is] has been expected to be part of jus cogens and, technically, the Supreme Court has not subjected norms jus cogens to a last-in-time ordering or primacy.  Additionally, there have been exceptions to the last-in-time rule recognized by the Supreme Court and other courts and one exception has involved a recognized primacy for the laws of war if not war powers.  See International Law and Law of the United States 102-107 (2 ed. 2003), noting in particular the views of Justice Field, Justice Chase, Justice Sutherland, and a famous 1865 Opinion of the Attorney General.

  6. sorry — meant to say a concurrent resolution that is not legislation.

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