Initial Takes on Syria: International-Domestic Synergies

by Edward Swaine

There are lots of initial takes on the legality of the Syria strike.  (I see, just now, a great compendium of short takes at Just Security.)  Some ask for a legal justification, and other experts are holding (for a bit) until one is proffered.  As the posts below by Deborah Pearlstein and Julian Ku helpfully indicate, one thing to watch for is assumed or disputed equivalencies between the positions of the United States as it contemplated these questions in 2013 and as it now confronts them. Other unfolding differences, naturally, include the reactions of other states and of the U.S. Congress.

In addition, watch for explicit or implicit claims about the relationship between international law and U.S. domestic law.  International lawyers are free to ignore the latter.  Thus, for example, Marko Milanovic (via EJIL:Talk!) concludes that the strike was “clearly illegal” under international law, but ventures no particular position on U.S. law.  Whether one agrees or disagrees with the rest of the analysis, focusing on this one question is entirely proper, since a violation of international use of force principles does not depend on whether domestic law is satisfied (and it would be very bad if it did).  Maybe, but only maybe, constitutional lawyers can reciprocate by ignoring international law.  For example, Jack Goldsmith (via Lawfare) largely does, though in his case it could be because he confines himself to looking at the issue of constitutionality through the lens of the Office of Legal Counsel’s 2011 Libya opinion, which did not even use the term “international law” at all.  (It did define promoting the credibility and effectiveness of Security Council resolutions as part of the “national interest” inquiry, but that related only indirectly and partially to international law.)  However, as indicated below, and unlike the international law perspective, this runs the risk of offering an incomplete analysis even as to the domestic law perspective.

For those opining about both international law and U.S. domestic law, the ground is treacherous. The safer course, usually, is simply to assume for purposes of discussion that the legal constraints are independent and potentially sufficient.  Thus, for example, John Bellinger (via Lawfare) states that legality under U.S. law is dependent on the scope of Article II, and that as a matter of international law, the United States was lacking “clear authority.”  In contrast, however, Marty Lederman (via Just Security) concludes that the United States is “probably” violating international law, and “therefore” violating U.S. law.  Both have expertise and views that go far beyond these posts.  But one thing that stands out is how they hedge on legality, relative at least to non-U.S. views.  I don’t think that’s due to nationality.  It also reflects complicating assumptions about the right analytical approach entailed by grappling with the two questions, as might too a more recent post by Harold Koh (via Just Security).

John Bellinger begins with domestic law and then asks whether international law is a separate cause for concern.  Marty Lederman begins with international law and explains why that bears on the domestic war powers question.  His view depends, as he explains, on the relationship between the war powers and the position of treaties (like the U.N. Charter) under the Constitution.

Either order may pose complications.  Approaches like that of Marko Milanovic are simpler, not just because he is focusing on the international law question, but also because he could bring all of international law—not just Article 2(4) of the Charter, but anything else that might be derived from customary international law (if it might qualify the Charter, perhaps, or add limits on humanitarian intervention or reprisal not fully reflected in the Charter)—to bear on the question.  John Bellinger’s approach is also fairly straightforward, but likely to result in a hedged position on domestic law questions, because he deliberately does not address how an international law breach would factor in.  Marty Lederman’s approach is also likely to hedge, but for completely different reasons.  His makes the international law analysis carry much more weight than either of the others (because a violation translates into violating another set of norms, with more consequences), perhaps inspiring greater caution. It also takes a view only as to prohibitions flowing directly from the Charter, because (within the confines of his blog post) he does not address whether separate international law restrictions, in the form of custom, would also inhibit presidential authority.

Harold Koh follows yet a different course.  He concludes—as he also explains in a law review article linked in his post—that the strike is “not illegal” under international law (per the title), or (as the body of the post clarifies) at least not definitely illegal at this point, with some uncertainty due to the unfolding state of the facts (including on collective action) and perhaps also due to the emerging law concerning humanitarian intervention.  The post and underlying article suggest that Article 2(4) is subject to an implied exception for humanitarian intervention (subject, he notes, to satisfying certain specified conditions which may or may not be present here, beyond policy concerns) that is, at least if properly recognized, “a customary international law ‘affirmative defense’ against a claim of Article 2(4)” and an “ex post exemption from legal wrongfulness”; this is not, he explains, in the nature of an amendment to Article 2(4).

The post naturally does not address counterfactuals, so Koh does not there account for the consequences under domestic law were one to disagree with his international law analysis. But the precise character of the international law test might worry someone who thinks that Article 2(4) is a binding part of U.S. law, with constitutional salience, but that a later-developing exemption (or amendment) at least has to meet an exacting standard before it could be incorporated alongside the treaty . . . . or so Marty Lederman’s post suggests.  That is, their divergent approaches convert a potential difference about international law (what emerging customary international provides, and how it bears on Article 2(4) as a matter of international law) into a more definite difference about legality under U.S. domestic law.

A more immediate question is whether Koh’s more favorable view in the abstract of permissibility under domestic law depends on another, somewhat different international law predicate: as he begins the inquiry in his article, “[i]f the United States were to adopt my proposed international law test for R2P.”  If the United States does not embrace this view of what international law permits, could it still persuade critics that the strike is legal under either international law or domestic law?  We will most likely see.  But as a political matter, one suspects that the feasibility of obtaining international and congressional support for the strike may vary inversely with how direct the United States is in asserting this broader position, further complicating one path for the potential reconciliation of international and domestic law.

http://opiniojuris.org/2017/04/07/33062/

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