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American Law Institute Approves First Portions of Restatement on Foreign Relations Law (Fourth)

by Julian Ku

Big news (for international law nerds)! The full membership of the American Law Institute has approved the first three sections of the new Restatement of U.S. Foreign Relations Law (Fourth).  This is the first official change to the venerable Restatement (Third) that was approved by the ALI back in 1987.  Summaries of the changes to the newly approved sections on Jurisdiction, Treaties, and Sovereign Immunity are linked here.

The Restatements are supposed to “restate” the law in the United States.  But it is influential in shaping the law, especially in this area, since U.S. courts frequently cite the Restatement on questions of international law.  It is an important statement of where U.S. courts are, and will likely go, on questions of foreign relations and international law in the near future. As such, the Restatement should be interesting to non-US scholars as well.

The Restatement (Third) has been subjected to some pretty tough academic criticism over the years, but (from what I can recall), these three topics have not  been particularly controversial.  I am a member of the ALI and I have attended some of the meetings during this drafting process, but I haven’t been paying as much attention as I should have.

I will say that one general trend I have noticed in the new sections has been to cut back on statements in the comments of Restatement (Third) that may have gone beyond the caselaw at the time or no longer reflect current caselaw.  For instance, the new Restatement eliminates a comment in Restatement (Third) that suggested there are no subject-matter limitations on the treaty power (which itself departed from the Restatement (Second).  The Fourth Restatement says nothing about this point, which is probably the smart thing given there has been really no caselaw on this one way or the other from the Supreme Court or lower courts.

Having said that, I will note that Georgetown law professor Carlos Vazquez has already published a criticism of the newly approved sections on the self-execution doctrine.  I won’t go into his criticisms here, but they do suggest the new Restatement is unlikely to completely settle the continuing debate over the nature of this tricky doctrine.

There is a lot here to digest. At this point, I will simply salute the scholars who have made this project happen, all of whom I think we can count as prior contributors to and friends of the blog: Sarah Cleveland, Paul Stephan, Bill Dodge, Anthea Roberts, David Stewart, Ingrid Wuerth, Curt Bradley, and Ed Swaine. Of course, Duncan was also involved and I am sure other members of the OJ community.  There is more to do, of course, but what has been completed so far is a great achievement and one that will last for at least another thirty years, if we are lucky.

Evening Panel on International Law and National Security

by Deborah Pearlstein

Hope our New York-area friends will be around for this one – Cardozo Law School and the ICRC are hosting an evening panel discussion: “A View from Abroad on Current Trends in Targeting, Detention and Trials.” The panel will be at Cardozo Law School, 55 Fifth Avenue in New York, May 18, 6:00-7:30p.m., and features OJ’s own Kevin Jon Heller, along with Marko Milanovic, Noam Lubell, and Joanna Harrington — all moderated by the superb (and currently visiting Stanford professor of human rights) Beth van Schaack. RSVP here.

Nuremberg Prosecutor Ben Ferencz Profiled on 60 Minutes

by Chris Borgen

A great profile of an incredible man. When some people call his tireless work pursuit of the rule of law idealism, he responds that he is a realist who sees the actual progress we have made and that…

..you shouldn’t– you know– be despairing because it’s never happened before. Nothing new ever happened before.

The video and text are available via this link.

Congratulations, thanks to International Law Reporter

by Edward Swaine

Most readers are probably keenly familiar with International Law Reporter, the brainchild of Professor Jacob Katz Cogan (Cincinnati).  For those not aware, ILR provides notices of scholarship, conferences, calls for papers, and the like — and it’s available in RSS feeds and via Twitter.  (There’s even a tip jar!)  It’s invaluable for anyone in international law and, I expect, anyone entering the discipline or considering doing so. It’s a broad field, it’s fair to say, and given the diversity of subjects, sources, and places of origin (and, sometimes, limited university budgets), it’s really easy to overlook what others are up to . . . which is one reason ILR is so useful.

Next week brings us May and, in addition to May flowers, what I happened to notice is the 10th anniversary of ILR.  This represents quite an accomplishment and, I expect, a tremendous amount of effort. (Did I mention the tip jar?) Congratulations and thanks!

Two Visions of the UN Charter

by Jens David Ohlin

As I write this, the ASIL annual meeting is conducting a well-timed, previously unannounced panel discussion about the legality of the missile strikes against Assad’s airbase in Syria. In addition to Harold Koh (Yale Law School), who has argued in support of humanitarian intervention, the speakers include moderator Catherine Powell (Fordham Law School), Jennifer Daskal (AU Washington College of Law), Steve Pomper (US Holocaust Memorial Museum), and Saikrishna Prakash (UVA School of Law).  I’m sure that it is/was a terrific panel and I’m sorry to have missed it.

I want to take this opportunity to step back and collect some thoughts about why I disagree with so many of the arguments against humanitarian intervention. I have already articulated the specific legal arguments about article 51 here, but there is a deeper issue about the nature of the UN Charter and the goal of international law itself.

Many writers speaking out against humanitarian intervention have noted, as one piece of their argument, that humanitarian interventions will weaken the prohibition on the use of force and will likely lead to more international conflict. They view humanitarian intervention as a destabilizing force.

In these arguments, the goal of reducing international conflict, or reducing the number of cross-border military interventions, is elevated to the most important principle in the UN Charter and the international legal system as a whole. The goal is, in other words, to eliminate or reduce war as much as possible.

On deeper inspection, however, this asserted goal is really about reducing only one kind of war, international armed conflicts. The Charter regime on the use of force (article 2 combined with Chapter VII and article 51) is designed to reduce or eliminate the number of sovereignty violations caused by international war.

This articulated goal has deep roots in World War II. Indeed, one could point to Nuremberg and the tribunal’s conclusion that crimes against peace (aggression) were the supreme international crime because they contained within them the seeds of the other international crimes. The lesson, apparently, is that stopping international conflicts is the most important goal of the international legal system.

Unfortunately, I think this principle, which is just one principle among many, has been taken to an extreme level, and fetishized to the point where other noteworthy principles are devalued.

We should never forget that preserving international peace has mostly instrumental value. Protecting the integrity of states and their domestic arrangements has little value in and of itself.  If the states and their domestic arrangements are fundamentally unjust, then preserving international peace is merely protecting those unjust arrangements.

To make my point, consider a “perfect” world without a single article 2(4) violation. Every state respects the borders of all other states and never launches a military assault against them.  Each state is inwardly directed.  But internally, each state is viciously repressing and killing its own civilians and subjecting them to unimaginable horror.  Would this be a “perfect” world from the perspective of the UN Charter or from the perspective of international law generally? From the sole perspective of article 2(4), this world is indeed perfect.  But it is far from perfect — it is a disaster.  Protecting the sovereignty of each state has instrumental value because it allows states to flourish.  But if sovereignty is simply preserving injustice, we need to consider that there are other values at stake, other values that are promoted by international law.

My point is that many of these other values or principles are embodied in the UN Charter.  When I read the Charter, I see a document that cares about preserving international peace, but it also cares about international security--which is something far broader.  And I don’t think that international security is promoted and enhanced when we give a free pass to allow governments to mistreat their own citizens, and treat this as a “lesser problem”–subject only to non-military measures– than the problem of international conflict, which is subject to unilateral military measures.

It may be time to rethink the Nuremberg “assumption” that crimes against the peace are the supreme international crime. World War II was the era of the IAC, which was responsible for most of the evils of the world.  We now live in a different era, the era of the NIAC, which are responsible for most of the evils in the world. This second vision of the UN Charter recognizes that NIACs pose a greater threat to international security.

The UN Charter must do more than simply ensure that soldiers do not cross international borders. Even when every soldier stays within their own state, all is not well in the world.

More on the Inherent Right of Self-Defense

by Jens David Ohlin

In a comment to my earlier post on humanitarian intervention and natural rights, Adil Haque asks me the following question:

Can States voluntarily make binding agreements that curtail their natural rights of legitimate defense for the sake of greater collective security?

Here’s my answer. The positive law can expand the natural right but cannot curtail it.  To explain my answer, let’s think a little bit more about domestic law.

Consider the right of self-defense under domestic criminal law.  Suppose a state decided to repeal its criminal law defenses of self-defense and defense of others. Imagine that the state had an extensive policy discussion about it and determined that the police should be the exclusive vehicle for the deployment of protective force, in order to maintain security within the state.  Here is the explicit consequence of that legal decision: if an attacker comes to your door and starts attacking, you are required to notify the police so that they may come to exercise protective force on your behalf. If the police refuse to come, or do not come in time, you are not legally permitted to exercise defensive force on your own behalf.

Now suppose that the attack occurs, and you exercise personal defense in order to save yourself from the unlawful assault.  However, self-defense was repealed. So the public prosecutor charges you with murder. You clearly committed a killing and the defense was repealed. You are facing a mandatory sentence of life in prison or the death penalty.

Now imagine that you are the trial judge hearing this case as a bench trial.  What to do?  If you convict the defendant, you are sending him to jail for the rest of his life–or worse yet condemning him to execution.

I think the correct answer to this puzzle is that the defender has an inherent right to defensive force, and the positive law cannot curtail this right.  I would acquit the defendant on that basis.  What would you do?  If you say, well, the positive law has eliminated self-defense, so the defendant must be convicted — my only response is that I hope I don’t get you as a judge if I’m ever in this situation.

One possibility to resolve this quandary is to think of it as a case of civil disobedience.  As Marko Milanovic and others have noted, the classic theory of civil disobedience (Gandhi, Thoreau, King) requires that the disobedient actor accept his or her punishment. I find this avenue most convincing when the disobedience is an act of protest and when the punishment is relatively modest. In the case I am describing, neither of these is true.  The punishment is draconian, and the crime was not an act of protest —  it was an act of survival.

Now you might say that the situation that I have described is fanciful and not likely to happen.  True.  But I think it yields two insights. There may be situations when the positive law runs out, and natural law begins. The second insight is that this only happens in truly extreme cases–cases that are at the margins of the law and rationality and sanity.

But if you think about it, the situation of humanitarian intervention is not all that different — it’s a truly extreme situation, where the positive law runs out and recourse to the inherent rights of defensive force ought to apply.  I think that as international lawyers, from the safe distance of the ivory tower, we are often too likely to see such horrible dilemmas as “normal” problems of international law. But if we imagine it from the other side, i.e. the victim of the Rwandan genocide pleading for outside assistance to repel a murderous rampage, you come to realize that the dilemma of humanitarian intervention is perhaps just as extreme a situation as my hypothetical criminal law case described above. Indeed, I think it is not radical to suggest that a genocide is, in fact, far more extreme than my hypothetical, which only involved the fate of a single homeowner struggling to defend himself against an unlawful attack. Multiply that dozens, hundreds, thousands, hundreds of thousands of times, and you get the real dilemma of humanitarian intervention for modern international law.

I agree with Harold Koh

by Jens David Ohlin

Everyone seems to have lined up against humanitarian intervention this week.  I’m not sure if the proponents of intervention have changed their mind, or if they are keeping quiet, or if they never existed in the first place. Either way, I want to be clear — if it isn’t obvious already from my prior scholarship — that I support a limited right of humanitarian intervention in certain contexts. So far, the few that have supported humanitarian intervention recently include Harold Koh, as well as Charlie Dunlap. (In the past, others have argued for it as well.) By my account, the Syrian situation can and should qualify as a lawful humanitarian intervention.

However, as I indicated in a series of tweets today, I think it is a mistake to focus humanitarian intervention arguments on so-called exceptions to the UN Charter regime on the use of force–exceptions flowing from customary international law. All of these arguments run into the same problem: how does custom amend the UN Charter? It makes the argument vulnerable to the objection that the customary exception is really a backdoor way of amending the Charter without going through the difficult process of amending the Charter.

A far better and more fruitful exercise is to examine article 51 of the UN Charter more closely. Article 51 preserves the inherent right of individual or collective self-defense, or what the French-language version of the Charter refers to as the droit naturel de legitimate defense. The right to legitimate defense (which covers both self- and other-defense) is a natural law right. It isn’t created by the UN Charter or by positive law at all. It is inherent because it flows from natural law, and article 51 simply refers to it.

Modern lawyers are not accustomed to answering uncomfortable questions about where natural or inherent rights come from.  They can’t come from the positive law, otherwise they wouldn’t be inherent.  The whole point of being inherent is that even if the positive law denied them, they would still exist. That’s what inherent means. In other words, there’s an area of the law that endures after the positive law runs out.  You might find this truth to be inconvenient or annoying or quaint — but it is right there in article 51. So even lawyers committed to positivism and the text of article 51 should admit that some rights under international law are so fundamental that they flow from beyond the positive law.  The positive law could try to take them away but the right would still endure.

(I should add that the concept of inherent rights was fundamental to the founding of America. One of the reasons the U.S. declared its independence from England was because England was violating the inherent rights of Americans. In the grand tradition of Locke and other social contract theorists, the colonists believed that the sovereign had a fiduciary obligation to its subjects and when that obligation was betrayed, the colonists could exercise a right of rebellion in order to ensure their inherent rights.)

Another piece of the puzzle is that international lawyers are too focused on state sovereignty to the exclusion of any other legal categories. Peoples have rights too under international law, and their most primary right is the right to self-preservation, a right that is protected not only by the concept of self-determination but also the right to be free from genocide and crimes against humanity. Nothing in the positive law can take away the right of the Syrian people, under natural law, to resist their own annihilation.  I’m not sure that anything in Article 51 automatically prioritizes the Syrian government’s claim to state sovereignty over the right of the Syrian people to self-preservation and the right of other states to exercise legitimate defense on their behalf.

I should also note that there are other avenues to explore in the Syrian case.  Assad only controls half of the country, so I don’t know why even under a strict “sovereignty” approach he should have a monopoly on deciding who gets to intervene in Syria. He only controls half of his country.  (Once you take into account ISIS controlled territory, it might be even less than half). So I don’t know why international law should privilege his speaking for the Syrian people when his de facto control over its territory is so degraded and he is gassing his own citizens.  It seems equally plausible to say that the Syrian rebels, given their control over territory and their exercising of inherently governmental functions, should be able to speak for themselves.

Of course, it would help the U.S. argument if it recognized the Syrian rebels as the legitimate government of Syria and then pursued a consent-based argument. This approach would no doubt anger Assad and the Russians, but launching Tomahawk missiles has already angered Russia, so that doesn’t appear to be a political or diplomatic constraint at this point in time.  I wish the State Department would pursue this initiative. I imagine that other states would welcome the approach and would follow our lead in recognizing the Syrian rebels as a legitimate government.

(A final approach would be to argue for partition and suggest that the Syrian rebels have created a de facto state, which could be recognized under international law, effectively transforming the Syrian conflict into an IAC. I understand that this option is disfavored for several reasons, in part because it concedes that Assad would remain in control of the legacy Syrian state).

Let me make a final point. All things considered, we should interpret the law to make sense. Interpreting article 51 to require everyone to sit on their hands while a dictator commits genocide or wipes out every last member of a protected ethnic group just doesn’t make sense.  And that’s the reading of article 51 that opponents of humanitarian intervention are advancing. International law disfavors existential annihilation.  Lawyers shouldn’t fetishize state sovereignty and elevate it to the exclusion of all other principles.  If the Syrian people have the right to resist their own destruction, we have the right to assist them.

Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments

by Julian Ku

The blogosphere is now so fast that we can get an enormous sampling of expert opinion in a very short time. So within 24 hours of President Trump’s military strikes on Syria, we have already heard from former Bush State Department Legal Advisor John Bellinger, former Obama State Department Legal Advisors Harold Koh and Brian Egan, former DOJ officials and law profs Jack Goldsmith and Ryan Goodman, as well as numerous law profs and other experts including our very own Deborah Pearlstein and Edward Swaine. The bottom line: Almost everyone (except for Harold Koh) thinks the strikes violate the U.N. Charter and many think it also violates the U.S. Constitution.

Most of what I have to say I said in 2012-13 on this issue, but I am struck by one group of important actors who seem relatively untroubled by the “illegality” of the U.S. strikes under the UN Charter: states.  With the notable exception of the Russian government, very few states have come out to criticize the U.S. strikes as a violation of international law. No one is saying it is illegal, but it is striking how few are willing to say it is illegal.  I’ve gathered a few statements and links below.

China’s Ministry of Foreign Affairs:

Q: Does China consider the missile strike on the Syrian airbase to be within the scope of international law? Or do you think it violates existing rules about intervention in other country’s sovereign territory?

A: The Chinese side has always stood for a political settlement of the Syrian issue. Under the current circumstances, we hope all parties can keep calm, exercise restraint and avoid escalating the tension.

The latest developments in Syria highlight once again the urgency of resolving the Syrian issue through political means. We call on all parties not to walk away from the process of political settlement.

 

France and Germany (President and Chancellor):

The joint statement by Mr Hollande and the German chancellor Angela Merkel said that “President Assad alone carries responsibility for these developments” with his “repeated use of chemical weapons and his crimes against his own people.”

United Kingdom Defence Minister:

The UK says it “fully supports” the US missile strike in Syria and has urged Russia to put more pressure on the Assad regime to end the civil war.

The US targeted an air base it says was responsible for a chemical attack which killed dozens of civilians.

Defence Secretary Michael Fallon said the UK was not asked to take part but backed the “wholly appropriate” strike.

European Union, President of European Council:

“US strikes show needed resolve against barbaric chemical attacks. EU will work with the US to end brutality in Syria.

Turkey, Deputy Foreign Minister:

TURKEY: NATO ally Turkey, which is a key player in the Syria conflict and has endured choppy relations with Washington recently, welcomed the strikes as “positive.” The deputy foreign minister added: “We believe that the Assad regime must be punished completely in the international arena.”

Turkey called for a no-fly zone in Syria in the wake of the US strike.

Japan, Prime Minister

JAPAN: Prime Minister Shinzo Abe said that Japan “supports the US government’s resolve that it will never tolerate the spread and use of chemical weapons.”

This survey is not comprehensive and some large players, like India, have yet to weigh in.  But it seems only Russia and Iran have condemned the strikes vigorously.  The general support for the attacks in Europe, the Middle East, along withChina’s acquiescence, seems to show that many states are not very troubled by the violation of Article 2(4) most scholars think has occurred here.  Is this because it is a one-off attack? Or does it suggest Article 2(4) has very little pull with many foreign governments these days?

On the domestic US law front, FiveThirtyEight has counted 69 senators have already issued statements supporting the Syria Strikes and while there are critics on constitutional grounds, it doesn’t seem like close to a majority in Congress.

Of course, none of this means that the experts are wrong on the law. But it is at least worth noting the limited impact of the law so far on governmental actors, as the debate on the legality of the Syria Strikes continues.

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).

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The Strike in Syria – Is the International Law Calculation Different Now Than in 2013?

by Deborah Pearlstein

In 2013, there was I think broad agreement that the United States lacked any international law justification for the use of force against Syria following its initial use of chemical weapons: there was no UN Security Council resolution authorizing such force, and no assertion by the United States (or anyone else) that this was an action taken in national self-defense. The closest anyone came to a theory of international law legitimacy then was the UK’s suggestion that a post-chemical weapons attack was ‘illegal but legitimate’ for humanitarian reasons in the same way NATO’s un-authorized use of force had been in Kosovo in the 1990s. I detailed my reasons for concluding that illegal but legitimate argument seemed inapplicable to the proposed U.S. intervention following Syria’s use of chemical weapons in 2013 here.

There are two significant differences I can perceive between the state of affairs on the ground in Syria today and the state of affairs in 2013 that have some bearing on the success of any international law defense in support of the latest attack. The first is worth noting, but I think unpersuasive. The United States today has its own troops on the ground in Syria – troops that were not present in 2013, troops stationed (at least some of them) as close as 50 miles away from the site of the chemical weapons attack. In the abstract, one might imagine this could lead the United States to offer some sort of self-defense justification (in defense of our own nationals). But given our troops are in Syria (to fight ISIS) without Syrian consent, and given Syria’s apparent determination since 2014 to avoid engaging U.S. troops directly despite this state of affairs, there seems little objective grounds for concern that Assad would soon train his chemical weapons on U.S. forces.

The second difference goes to the relative strength of the illegal-but-legitimate theory – the view that the use of force against the territorial integrity of another country is technically illegal, but should be viewed as ‘legitimate’ under certain limited circumstances (a view I could describe at best as a still nascent norm of international law). In 2013, the UK Prime Minister’s Office put it in the following terms. A state could 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…”

There can be little doubt of the horror of the recent chemical attack, albeit on a smaller scale than the attack of 2013. I can imagine few international complaints about the proportionality of a strike targeting only the airfield from which the chemical attack occurred. Where the current administration is in a stronger position than the last is on the question of the objective availability of a practicable alternative to the use of force – thanks to the diplomatic efforts of the past administration, it is far more persuasive now than it was then to argue that the international community has tried through peaceful means and failed to rid Syria of its chemical weapons.

That said, there are at least three factors that persuade me against embracing the proposition that this exercise should be seen as akin to the Kosovo intervention in its relative international law ‘legitimacy.’ First, it was done with no apparent international support – neither from our allies, nor from other countries in the region. The response of foreign nations over the next few days will be significant and could change this calculus but for now, it is a glaring distinction from Kosovo. Second, precisely for the reason President Obama regularly cited against more aggressive U.S. intervention in Syria repeatedly during his administration, it is deeply unclear whether this highly limited attack will have any impact on the humanitarian situation on the ground. Finally, there is the explanation the President himself offered for why the United States undertook the action it did tonight. His reasons were threefold: (1) “It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” (2) “Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the UN Security Council.” (3) “The refugee crisis continues to deepen and the region continues to destabilize, threatening the United States and its allies.” I expect we will talk at length in the days ahead about each of these justifications. But while the speech was framed by the President’s own horror at the nature of the attack, none of the reasons given for the action bore any relation to speeding humanitarian relief to the people of Syria themselves.

The Syria Attacks: Haven’t We Had These Debates Already?

by Julian Ku

Reports of another horrific use of chemical weapons against civilians in Syria seems to have affected President Trump. In comments today, President Trump said the chemical attacks against civilians “crossed a lot of lines for me” and changed the way he views Syria and leader Bashar al-Assad. Although it is always hard to interpret the President’s comments, he did cite his “flexibility” to change his policies. One might interpret this to mean that the U.S. my change course and directly use military force against the Assad government in Syria.

As tragic as this latest attack is, I also feel like I am in a time-warp that has sent me back to 2012-13 when similar chemical weapons attacks led to similar global outrage which led to an American debate about whether to launch military attacks on Syria.  President Obama famously decided to launch such strikes (without Congress or the UN) and then changed his mind and sought congressional consent.  He never got that, but he did work out an agreement with Russia and the Assad government to remove Syria’s chemical weapons capability.  That didn’t work out as well as he hoped (to use a tragic understatement).  But the factual and legal issues are almost identical today.

So as a service to readers, let me just link to some of the legal analysis we posted back then, much of which still applies today. Updates of course will be necessary, but this is the right place to start.

I argued in 2012 that a strict reading of the U.N. Charter prohibited any U.S. strike on the Syrian government without consent from the U.N. Security Council.  This would be the case even if the Syrian government used chemical weapons against civilians during its civil war.  Former top UK legal adviser Daniel Bethlehem took issue with my formalist reading of the U.N. Charter.

Kevin wondered why the use of chemical weapons itself was so significant as opposed to the civilian deaths it caused.  Put another way, he pointed out that the use of chemical weapons, however horrible, was not necessarily any more of a war crime for legal purposes that the use of non-chemical weapons against civilians and non-combatants.  He also points out in a later post that the Rome Statute does not single out chemical weapons use alone as a crime, despite an initial proposal by drafters to do so.

Finally, we held an “insta-symposium” on Syria with many great contributions from scholars, legal and non-legal, on the difficult questions raised by the Syria conflict.  A list of those posts can be found here at the bottom of the first post in that symposium, from Stephanie Carvin.

Hopefully, this will help all of us refresh ourselves for the great Syria intervention debate, Round II (Donald J. Trump edition).

Can’t Britain Exit Brexit (Redux)?

by Edward Swaine

My earlier Brexit post noted the emerging rigidity of the United Kingdom’s position that its Article 50 notice was irrevocable – not just politically, but to all appearances, also legally.  As the post noted, that evolution has taken place notwithstanding indications that the UK once perceived itself to have the liberty to withdraw that notice.  There are downsides to this new position, particularly if one thinks that Brexit is a bad idea and that history (and the British public) will come to judge it a mistake.  It has also not been well explained, and coverage of the decision has obscured whether the UK is politically or legally committed to this course. Still, the psychology is one familiar to international lawyers, in that the UK is asserting its sovereign authority to bind itself to the mast . . . just in this case, the mast may not be one sailing past a dangerous island and into oceans of multilateral commitment, but rather one that the UK is busy scuttling and directing toward Davy Jones’ locker.

The EU, however, is joining the UK in obscurity.  In a recent press release, the Commission asked and answered the question:

Once triggered, can Article 50 be revoked?

It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification.

I do not think the irrevocability position is right, for reasons alluded to very briefly in the prior post, and persuasively elaborated in a timely paper by Aurel Sari that has since been brought to my attention. I want here to discuss narrower questions.  First, as with the UK, the EU’s present view is not necessarily the one it has previously had; second, however restrictive both their understandings, there is a potential, meaningful difference, since the EU view is not exactly one of irrevocability. (more…)