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LJIL Symposium: A Response to Professor Eeckhout and Professor de Wet

by Devika Hovell

[Devika Hovell is a Lecturer at the London School of Economics]

Academics should be in the business of proposing new ideas, though it is only through close scrutiny that deep truths can be winnowed from deep nonsense. I am very grateful to the LJIL and Opinio Juris blog editors for providing the opportunity for closer scrutiny of the ideas in my article, ‘A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-making’. I am particularly grateful to Professor Eeckhout and Professor de Wet for their generous and insightful engagement with these ideas. I respond to their comments below.

The main idea motivating the article is that it may be necessary to re-conceptualize the judicial function of domestic and regional courts when courts engage in the review of decision-making by international institutions such as the Security Council. Never has this been more evident than in the wake of the decision by the European Court of Justice in Kadi II where the Grand Chamber assumed the power to engage in the ‘full review’ of sanctions listings by the Security Council Sanctions Committee, including a determination as to whether the reasons for sanctions listings by the Council were well founded in fact. I argue that the assumption of such authority by courts to review decisions sourced in international institutions could be regarded as a move as revolutionary as Marbury v Madison and equivalent kairotic moments across domestic jurisdictions. It is not a move that should be made without significant thought being given to the legitimizing foundations of judicial authority in this context. When domestic and regional courts engage in such review, they cannot ignore the broader system in which they operate and the powers and limitations of the domestic judiciary as defined within that broader system. In particular, I argue that two traditional features of the domestic judicial function, namely (1) the notion of bindingness (restricting courts to the application of existing binding law) and (2) the use of hierarchy (as a description of the relationship between judicial and political organs as in judicial supremacy or parliamentary sovereignty) can prove problematic when applied to the review of international decision-making. I argue for a reconceptualization of the judicial function in these circumstances: in brief, domestic courts should recognize that they have enhanced power in this context stretching beyond law enforcement to law-making, though more limited authority in the sense that the persuasive value of their decisions is more important than their binding nature. Domestic courts engaging in review of Security Council decision-making play a valuable role, but their role is not the traditional one of acting as ‘transmission belts’ for domestic law. Instead, domestic courts act as ‘junior partners’ in a broader collaborative enterprise to determine legal principles applicable to international decision-makers.

LJIL Symposium: A Comment on Devika Hovell’s “A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making”

by Erika de Wet

[Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law, University of Pretoria, as well as Professor of International Constitutional Law, Universiteit van Amsterdam.]

The article has a refreshing perspective on the relationship between courts and the UNSC in a decentralized international legal order. Devika aptly notes ‘that the reliance by (domestic) courts on a public law model of the judicial function has served to distort and fragment applicable international law’ [p 580]. She tries to find middle ground and an appropriate place for the judicial function through what she refers to as the ‘dialogue model’ [p 590]. In accordance with this model, domestic courts can either (i) invalidate UNSC resolutions, (ii) interpret them in a human rights friendly way (iii) declare resolutions incompatible with human rights, or (iv) abstain from review [p 594]. She favors option (ii) and submits that the ECtHR’s Nada-decision in 2012 is ‘the best example to date of a court acting to harmonize conflicting obligations through interpretation rather than invalidation of Security Council resolutions’.

My current response tests this assertion and is based on a more extensive appraisal of the Kadi and Nada decisions entitled: ‘From Kadi to Nada: judicial techniques favoring human rights over United Nations Security Council sanctions’. The response concludes that while a human rights friendly interpretation indeed has the potential of being less fragmentary it also has its limitations in this regard. At the outset, it needs to be pointed out that no court or other governmental organ can ‘invalidate’ UNSC decisions. All that a domestic state organ (or regional organ in the case of the EU) can do is to invalidate the implementing measures, as a result of which UNSC measures will not apply (in an unqualified manner) within a specific jurisdiction. The measures themselves remain binding on the international level until such a time as the UNSC chooses to amend or withdraw them. In such a situation one is left with a ‘limping decision’.

Furthermore, the most influential decisions in which the implementing measures of UNSC decisions were at issue generated from regional courts and not domestic courts, namely the ECJ and the ECtHR. Whereas the former’s approach in the Kadi decisions to the conflict between the right to judicial protection and obligations resulting from UNSC decisions are comparable to that of a domestic and dualistically inclined court, the ECtHR in the Nada case attempted to find a solution through harmonious interpretation of conflicting obligations under international law.

While Devika refers to the technique of human rights friendly interpretation as ‘judicial dialogue’, I prefer to describe it as the technique of systemic integration. (more…)

LJIL Symposium: Dialogue Without Hierarchy?

by Piet Eeckhout

[Piet Eeckhout is a Professor at University College London and a leading authority in EU Law and international economic law. He notes that he has been involved in the Kadi litigation on the side of Sheikh Kadi.]

Devika Hovell’s paper is an excellent attempt at conceptualising the relationship between the domestic judge and the UN Security Council (UNSC).  That relationship has come about as a consequence of the UNSC’s smart sanctions policies, which intrude in the daily lives of those which are subject to them.  Most of the significant case law is in the sphere of counter-terrorism, but the policies are wider, and also target regime members.

The attraction of Hovell’s dialogue model is that it tries to plod a much-needed middle course – or to find a sweet spot – in a triangle of three unsatisfactory options: (a) the domestic judge declines to review UNSC Resolutions or their implementation; (b) the judge reviews domestic implementation, thereby jeopardising the implementation of the resolutions; or (c) the judge arrogates to herself the power to review the resolutions under international law.  The sweet spot consists of rejecting bindingness and hierarchy, which are features of a public-law model, to the benefit of a dialogue model which urges domestic courts to employ tools of consistent interpretation and of declaration.  At most, UNSC resolutions ought to be interpreted consistently with human-rights norms, and where that is impossible the judge should do no more than issue a declaration of incompatibility, to allow the UNSC to react and adapt.

The paper is perceptive and clear, and a major contribution to the literature.  A dialogue is of course needed, and its merits are undisputable.  To craft a dialogue model, however, is less straightforward.  (more…)

LJIL Symposium: A Response to Professor Gregor Noll and Professor Roger O’Keefe

by Maarten Den Heijer

[Maarten den Heijer is assistant professor of international law at the Amsterdam Center of International Law and member of the editorial board of the European Human Rights Cases (EHRC) and contributor to the Dutch Journal for Human Rights]

Praise is due to the collaboration between Leiden Journal of International Law and Opinio Juris in providing this platform for reflection and discussion – in this instance on my paper on diplomatic asylum and Julian Assange. I much enjoyed reading the responses of Gregor Noll and Roger O’Keefe and am greatly appreciative for their genuine and refreshing engagement with my arguments. I take the liberty to just briefly reflect on what I consider their most provocative points.

Although threading on different paths of reasoning, both Gregor and Roger caution against presenting the 1950 Asylum Case as still reflecting the international law on diplomatic asylum as it stands today. The primacy accorded to territorial sovereignty by the ICJ judges at that time and their framing of a grant of asylum to a fugitive from the authorities of the receiving state as necessarily constituting an intervention in the domestic affairs of that state, so they argue, beg further reflection at the least.


LJIL Symposium: Roger O’Keefe’s comment on Maarten Den Heijer’s “Diplomatic Asylum and the Assange Case”

by Roger O'Keefe

[Dr. Roger O’Keefe is a University Senior Lecturer at the University of Cambridge and the Deputy Director of the Lauterpacht Centre for International Law]

Maarten Den Heijer’s excellent and enjoyable article ‘Diplomatic Asylum and the Assange Case’ provides a welcome account of an area of international law in which vagueness and uncertainty have too long been the order of the day. On its own terms, which accept as read the International Court of Justice’s statements in the Asylum case, it is coherent and by no means unpersuasive. Whatever one might say as to the merely subsidiary role of international judicial decisions in the determination of rules of international law, it takes a certain doctrinaire obduracy or plain arrogance to dismiss out of hand what the ICJ has declared. All the same, the Court is not beyond unreflective restatement of the received wisdom, and it is not impertinent to engage in the heuristic exercise of proceeding from first principles on any point pronounced upon by the Court. One point that might profit from just such an exercise is the question of the lawfulness of the grant of diplomatic asylum by a sending state, by which is meant that state’s grant of harbour within its inviolable diplomatic premises to a fugitive from the competent authorities of the receiving state.

The starting point of any such analysis from first principles must be the Lotus presumption. A state is at liberty to do what it is not prohibited by a positive rule of international law from doing. In this light, there is no need to identify a positive right on the part of the sending state to accord diplomatic asylum. Rather, one needs to point to a positive prohibition on the practice. The two most likely sources of any such prohibition are, first, diplomatic law and, secondly, the prohibition on intervention in the affairs of another state. But it is not self-evident that either prohibits a sending state from according diplomatic asylum, at least as a general rule.

It is difficult to identify in diplomatic law a positive prohibition on the use by the sending state of the inviolability of its diplomatic premises to prevent the authorities of the receiving state from securing custody of a wanted individual. The VCDR contains no specific prohibition on the practice. Nor do the inconsistency of state practice and the ambivalence of its accompanying opinio juris suggest any such rule. Any prohibition on the practice of diplomatic asylum, insofar as it derives from diplomatic law, must be deduced from other rules of this body of international law.

The rule regularly highlighted in this regard, as it is by Maarten [at 413-4], is article 41(3) VCDR, which provides in relevant part that the premises of the mission ‘must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law’. In this regard, pace Maarten [at 413], ‘incompatible with’ plainly means ‘inconsistent with’ or, synonymously, ‘contrary to’: incompatibility is not a question simply of whether the impugned conduct ‘falls outside the scope of ordinary diplomatic functions’, whatever ‘ordinary’ may mean. In turn, the functions of a diplomatic mission within the meaning of article 41(3) VCDR are the subject of article 3(1) VCDR, which states that these functions ‘consist inter alia in’ the activities specified in subparagraphs (a) to (e). As indicated by the words ‘inter alia’, the list given in subparagraphs (a) to (e) is not exhaustive, and it is not utterly inconceivable that one of the functions of a diplomatic mission may, in appropriate cases, be the furnishing of diplomatic asylum. But be that as it may. More to the point is that the only one of the five functions of a diplomatic mission specified in article 3(1) with which the grant of diplomatic asylum could be considered incompatible is that mentioned in article 3(1)(e), namely ‘promoting friendly relations between the sending State and the receiving State’. But, contrary to what Maarten considers arguable [at 413-4], it is evident from the consistent practice of states that not every act on the part of a foreign diplomatic mission of which the receiving state disapproves is to be characterised as incompatible with the promotion of friendly relations between sending and receiving states. Something positively inimical to the interests of the receiving state is seemingly required. To this end, it is of course perfectly plausible that harbouring a fugitive from the criminal justice system or other authorities of the receiving state is to be considered an inimical act. Yet it is hard to admit that this is so unless such harbouring is itself contrary to international law. In other words, it is not easy to accept that an act in itself internationally lawful is incompatible with the promotion of friendly relations between the sending and receiving states.

This brings us to the prohibition on a state’s intervention or interference in the internal or external affairs of another state. (more…)

LJIL Symposium: A Comment on Maarten Den Heijer’s “Diplomatic Asylum and the Assange Case”

by Gregor Noll

[Gregor Noll is a Professor of International Law at the Faculty of Law at Lund University in Sweden, and is an expert in International, Theory of International, and Refugee and Migration Law.]

With admirable calm and clarity, Maarten den Heijer’s text considers the relationship between territorial sovereignty and diplomatic inviolability played out in diplomatic asylum. Describing both poles as ‘legal trump cards’ in their own right, he argues the insolubility of their conflict in law. He writes ‘that the status quo, although not guaranteeing a uniform of “just” practice of diplomatic asylum, provides a befitting equilibrium between the right of the receiving and sending states’. This equilibrium, befitting or otherwise, ‘puts incentives into place for avoiding and resolving disputes by diplomatic means’. As it were, the international law of diplomatic asylum is incapable to offer more at this historical stage.

I greatly appreciate den Heijer’s ability to keep that conflict alive throughout his eminently readable text. At large, I have no quarrel with his conclusion. Yet I feel a bit hesitant to align myself fully with it yet. This is mainly for two reasons, both related to the way he tells the story of diplomatic asylum.


LJIL Symposium: A Response to Professor Gabby Blum and Professor Chris Kutz

by Janina Dill

[Dr. Janina Dill is a Hedley Bull Fellow at the Department of Politics and International Relations and Research Fellow in Politics at Merton College, Oxford]

I am very grateful to Gabby Blum and Chris Kutz for their thoughtful comments on my paper. We agree on the fundamental challenge: killing combatants in accordance with the principle of distinction under International Humanitarian Law (IHL) is morally problematic. In my paper I engage the preferred remedy of a growing number of philosophers, which is to distinguish between individuals who are liable to being killed and those who are not. I show why it is impossible for IHL to regulate warfare accordingly. Nonetheless, I accept such an individual rights-based approach to justifying killing as morally appropriate in war. Professor Blum disagrees on the grounds that “killing in battle is not designed to be an execution”. That is, of course, true. Acts in war are an appropriate means to mete out neither moral nor legal punishment. But can we therefore dismiss as irrelevant the moral status of the individuals whose deliberate killing IHL sanctions?

The impetus behind Blum’s own proposal is the conviction that combatants’ lives are no less valuable than others’. From this acceptance that all human life is of prima facie equal value generally springs the notion that individuals have a right to their own life that they can forfeit only through their own conduct. Blum holds that in war posing a threat is enough to be subject to the threatened combatant’s right to (presumably lethal) self-defense. It has to be an actual, immediate threat, not the kind of presumed potential threat that IHL is satisfied with, but it “does not matter if someone threatening is also morally guilty, because we have a right to defend ourselves even against the morally-innocent attacker,” or so Blum argues. I do not have the space to problematize the terms innocent and guilty here, but even if the would-be defender had no involvement in bringing about the situation in which he is threatened, his right to use lethal force against a likewise completely innocent attacker would at least be questionable.

Crucially, this innocent threat/innocent defender scenario is rarely encountered in war. What if the would-be defender was guilty himself of posing a threat? The likeliest case in war is that the combatant supposedly exercising self-defense at the same time poses a threat to his attacker. Normally, in this case we decide who actually has a right to self-defense by making a judgement about the difference in moral status. That the victim of an assault uses force to fight back does not give her attacker a moral right to defend himself. If we refuse to take moral status into account and insist on the symmetry between combatants on both sides, such cases of “mutual self-defense” reduce the principle to absurdity.

I do not argue that we should change IL either to reflect the liability approach or to challenge the symmetry between belligerents. Moreover, I wholeheartedly agree with Blum that it would be legally and morally preferable if IHL allowed the killing of fewer combatants and demanded that those who can be are spared. While such proposals have met with criticism by military practitioners, they certainly raise fewer concerns of practicability than distinction according to individual liability. Yet, they do not solve the problem this paper grapples with: the fact that IHL does not and, I argue, cannot vouchsafe the protection of individual rights in war.

In his considered engagement with my paper Professor Kutz raises two questions that, in the kindest possible way, query my grasp on reality. (more…)

LJIL Symposium: A Comment on Dr. Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

by Christopher L. Kutz

[Christopher L. Kutz is a Professor of Law at University of California, Berkeley, and is the Director of the Kadish Center for Morality, Law and Public Affairs]

Janina Dill has written a smart and provocative paper, providing a powerful argument against what one might call “naive moralism” in the ethics of war.  In this, she is responding to a body of recent and influential work, of which American philosopher Jeff McMahan’s writing forms the core, which has offered an individual-centered moral analysis of the rules of war, meant to supplant the state-centered view of classical Just War Theory (JWT).  Against some of the natural conclusions one might draw from a moralized theory, Dill argues that the essentially collective nature of the ethics of war should be preserved, on epistemic grounds.  In particular, the collective liability of combatants, and immunity of civilians, is best explained by the difficulty of refining a moral analysis in many plausible cases of conflict.

According to classical JWT, the ius ad bellum and the ius in bello are strictly separated, in the sense that the legality or legitimacy of the war as a whole rides independently of the liability of the individual participants in the war.  On this view, whether or not a belligerent state (and its leaders) are fighting a legal or illegal war, soldiers of those states are liable to be targeted just in virtue of their membership in the armed forces; by contrast, civilian non-combatants are immune from deliberate targeting whatever political support they have manifested for even an aggressive war.  Thus, in World War II, British and Wehrmacht soldiers stood on the same legal footing (attackable, and only liable for individual war crimes), as do pacifist British citizens and Nazi-supporting German civilians (immune from attack).  This collective, status-based approach to targetability is notably different from the individualized assessment of liability to attack that characterizes the criminal law, in which individuals are only targetable when they present particular threats to the lives or vital interests of others; and the permission to use lethal force is only granted to those defending vital interests (of themselves or others), and often not when that defense is the result of the defendant’s own wrongdoing (p. 8).

In a number of recent books and papers, Jeff McMahan has argued that there are no plausible direct moral foundations for JWT, because on any compelling moral analysis — that is, any analysis sufficiently compelling to make claims about liability to lethal attack plausible — liability must be determined by individual culpability.  And when we take individual culpability into account, it is hard to avoid the conclusion that many individual soldiers — namely those permissibly defending themselves and others — are not so liable, while many non-combatants are.  McMahan himself avoids any direct action-guiding conclusion from his analysis, because of the prospect that absent clear rules of collective distinction, too much horror will result from an attempt by combatants to make the relevant distinctions.

Dill accepts the McMahanian moral analysis, but she rejects the revisionary conclusion, that we should seek to tune our doctrines of war to more individualistic determinations.  Instead, she looks to alternative moral foundations for the collective character of war. To my mind, the most interesting aspect of a very interesting and perceptive article is her working through these alternatives.  She considers first the idea that war might nonetheless be given a consequentialist justification: that the gross principle of distinction, if applied in good faith by just and unjust belligerent nations alike, would be a “lesser evil” resulting in net fewer unjustified deaths.  But as she argues, there is no reason to think the material outcomes of current JWT do a better job than any alternative in minimizing unjustified deaths, since military victory is a consequence of material rather than moral factors.  More importantly, an individual moral analysis would result in the conclusion that aggressor soldiers should simply “keep still,” and cease presenting any threat to others.  Whatever one might say on behalf of JWT, one cannot think it approximates an outcome whose ideal case is the sudden pacifism of all of one side’s combatants, plus all of the others who are no longer at risk.

The conclusion she draws is subtle.  Dill treats as central the “epistemically cloaked” nature of the choices presented by war, where the fog of war makes individual liability determinations implausible, and the tendency of even aggressors fighting (wrongly) in good-faith belief of permissibility makes war inevitable.  In such cases, when nations turn to war, IHL properly guides actors towards morally superior outcomes, even if it does not make those outcomes defensible in absolute terms. As she says, if something is indefensible, it cannot be made defensible by epistemic considerations.  But the benefits of a rule-of-law approach to war, with over- and under-inclusive bright lines, may itself be morally valuable, in serving to constrain the overall enterprise while recognizing its systematic, i.e. Collective, character.  This is, essentially, a Razian analysis of the value of using non-moral norms to coordinate a complex multi-personal enterprise, rather than the sort of full-bore collectivist analysis that some of us have gestured at.  Regular war is less evil than irregular war, but this is a distinction to tolerate, not to celebrate.

I am in great sympathy with Dill’s discussion and conclusion, but might raise a couple of questions.  (more…)

LJIL Symposium: A Comment on Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

by Gabriella Blum

[Gabriella Blum is the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School.]

In her rich and sophisticated essay, Janina Dill takes on the principle of distinction in international humanitarian law (IHL). She finds that while the principle obscures questions of justness (or unjustness) of cause or individual contribution to the war effort, and thus digresses from an ideal moral vision which accords each individual her dues, it is the best practicable principle in times of war. A more morally just targeting doctrine may have distinguished just combatants from unjust combatants or else ignored the combatant/civilian distinction altogether and just focused on individual contribution to the war. Yet, (un)justness of cause is mired in uncertainty (what Dill terms “an epistemically-cloaked forced choice”) and the complexity of the battlefield makes it impossible to determine individual contribution to the war. Consequently, any attempt to design a more nuanced doctrine of targeting will end up being impossible to administer and too vague to offer real guidance for belligerents, thereby violating the rule of law – a moral principle of its own. The simple principle of distinction under IHL thus ends up being, in Dill’s view, morally just on its own terms.

Dill’s arguments engage with some long-standing debates within the law and ethics of armed conflict, successfully navigating the disciplines of philosophy and law, seeking coherence within each while reconciling their potential conflict. It is impossible to do justice to the many nuances and moves in her argument in this short commentary.

Instead, I will attempt to defend my own proposal for amending the distinction principle within Dill’s framework, thereby engaging with her arguments.


LJIL Symposium Vol 26-2 and 26-3: Introduction

by dov jacobs

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

In the upcoming days, you will find food for thought with regard to four articles featured in issues 26-2 and 26-3 of the Leiden Journal of International Law, covering a wide range of contemporary discussions in international law.

The first discussion stems from Janina Dill’s article entitled “Should International Law Ensure the Moral Accountability of War?. In this piece, the author discusses recent just war theories that argue the need of international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability by moving away from the collective dimension of protected status. The author posits that such proposal is not realizable, and suggests ways to improve the current system. In their thoughtful discussions of the article, Gabriella Blum of Harvard Law School, and Christopher Kutz of Berkeley Law, invite the author to forward her argument yet further. Specifically, Gabriella Blum suggests that individual human rights can and should be taken into account in the context of war, while Christopher Kutz questions Dr. Dill’s premise that the collective approach to war in IHL is in contradiction with the general evolution of International Law towards taking into account individual rights.

The second discussion revolves around Maarten den Heijer’s article, Diplomatic Asylum and the Assange case, where he argues that granting such asylum contradicts a number of principles of international law. Gregor Noll, from Lund University, and Roger O’Keefe, from Cambridge University, challenge the author’s premises, both in relation to his historical analysis and in relation to his evaluation of the legal framework.

The third discussion focuses on Devika Hovell’s proposals in A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making. In the article, the author discusses the ways in which domestic and regional judges (EU, ECHR) deal with United Nations Security Council Resolutions and suggests the need to go beyond the classical notions of bindingness and hierarchy.  She proposes instead a more subtle and elaborate “dialogue model”. Erika de Wet, of the Universities of Amsterdam and Pretoria, and Piet Eeckhout, from University College London, draw attention to the limits of the author’s model within the current international law structure and in context of the states’ international legal obligations. In a nutshell, the professors argue dialogue is not always possible.

Finally, the fourth discussion is an interchange between Zoran Oklopcic and Brad Roth, from Wayne State University, on the former’s challenge in “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary to the latter’s allegedly “empty” concept of self-determination. Brad Roth defends his “empty” notion of self-determination, pointing out the difficulties of actually identifying the substance of such principle.

Aside from the in-depth and engaging appraisal of the specific issues contained in the articles, the various discussions all either directly or indirectly touch upon what has historically been at the heart of international law: (more…)

Syria Insta-Symposium

by Jessica Dorsey

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the ongoing situation in Syria. We also are going to follow in our own footsteps from our Kiobel symposium, by inviting young academics and practitioners to submit guests posts for possible publication.

We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new and emerging voices. So if you want to write a guest post for Opinio Juris about Syria of approximately 500 to 1000 words, please do so in the next couple days and send it to me and An Hertogen at opiniojurisblog [at] gmail [dot] com. Our editorial team will review the posts and publish as many as we deem appropriate.

Not Even the Brits Can Make the Case Bombing Syria Is Lawful

by Deborah Pearlstein

Good thing nothing much happened while I was away on summer vacation… So as I wrote here last spring, there’s no clear basis under international law for a U.S. use of force in Syria – no UN Security Council resolution, and no apparent claim at this stage that the United States is acting in self-defense. The only theory of legality in play seems to be the one put forward by the British government, right before Parliament voted to reject the use of force in Syria. Namely, that force may be justified as part of an emergent customary norm permitting humanitarian intervention (see, e.g., NATO intervention in Kosovo).

The statement from the UK Prime Minister’s Office says a state may take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

But it just can’t support U.S. action here. Here’s why.