Syria Insta-Symposium: The “Law” in International Law: A Response to Carvin

Syria Insta-Symposium: The “Law” in International Law: A Response to Carvin

[Sondre Torp Helmersen teaches at the University of Oslo and is an LLM candidate at the University of Cambridge.]

Stephanie Carvin recently contributed to the Syria Insta-Symposium with a post titled “A Legal Debate Devoid of Consequences (or Bringing Practical Judgment Back In)”.

Her call for a practical perspective is timely. The decision of whether or not to attack must be necessarily be a political decision, on which political scientists such as herself may offer sound advice. However, she apparently does not take full account of the fact that international law is (at least supposed to be) law.

She “crudely paraphrases” her position as follows: “if 15 men sitting around a table in New York say it is okay to strike, then somehow it is fine. If 15 men do not, then it’s not okay. This seems to be an incredibly poor way to decide how to respond to the attack.”

This line of reasoning is applicable to any legal regulation, domestic or international. Try replacing “attack” with any other matter regulated by domestic or international law, e.g.:

If 100 senators and 435 representatives sitting in a chamber in Washington say it is okay to smoke marijuana, then somehow it is fine. If 100 senators and 435 representatives do not, then it’s not okay. This seems to be an incredibly poor way to decide whether to smoke marijuana.

If 650 men and women sitting in a chamber in London say that I should pay taxes on my income, then somehow I have to. If those 650 men and women do not, then I do not have to. This seems to be an incredibly poor way to decide whether to pay taxes.

The point is that law is binding. One reason why most people pay their taxes, and many do not smoke marijuana, is because the law says so. Additional reasons are, of course, that tax authorities may seize their assets, and that police and courts may fine or jail them. But that is beside the point, which is that people obey the law partly because they feel bound by it. Some rules have moral force independently of the fact that they are law, such as prohibitions of murder or theft, in which case their status as law is merely an additional reason to comply. But even rules that are perceived to have little independent moral justification have (or at least are supposed to have) independent moral force, by virtue of being law. The effect that this moral force has on behaviour is crucial to any well functioning legal system. It is especially important in international law, where there are comparatively few opportunities for third-party enforcement of legal rules.

Similarly to how the law says that the US Congress has the power to regulate drug use in the US, or that the House of Commons has the power to regulate tax obligations in the UK, the UN Security Council has the legal power to regulate international use of force.

Carvin is not alone, however. For example, when discussing the Iraq War and the UN Security Council in his autobiography, former UK Prime Minister Tony Blair (who is also a former barrister) wrote the following:

I understood the importance of the second resolution in terms of political survival and so forth. I confess I always thought it a bit odd in terms of the moral acceptability of the course of action or not. It bestowed more legitimacy, it was true, but whether we got a second resolution or not basically depended on the politics in France and Russia and their calculation of where their political interests lay.” (Blair, A Journey, 2010, Chapter Fourteen.)

France and Russia’s votes depended on political calculations? Of course they did. Just like Blair’s own votes as a member of the House of Commons, on matters such as drug policy and taxes, depended on political calculations of where his, his allies’, and his party’s interests lay. The legislation that he helped create was nonetheless law.

The legality of any course of action in Syria can only be one (more or less weighty) factor in a broader political judgement. This is similar to the situation in domestic law, where the existence of a legal rule can never be more than a factor in any decision about how to act. But the fact that people and states have free will, and ought to exercise it with sound judgement, is not incompatible with the notion that they are bound by law.

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Kevin Jon Heller

Hear, hear.