A Few Points on Syria

So many people have written about the looming Syria intervention that it’s hard to add much to the conversion, but I’d like to make a few quick points. First, regardless of what happens, international law has been a (surprisingly?) big part of the discussion, both among the public and high-level officials, including the President. That fact seems to suggest that the realist critique of international law is overstated; it’s hard to conclude that treaties and customary norms are irrelevant when they are such salient rhetorical tools in the arguments for and against intervention. If the recent discussion is any indication, the law has a certain gravity that pulls states toward compliance and forces them to develop compelling explanations for deviation. Which is something.

The second point is that I’m happy to see that President Obama will seek congressional authorization for the use of force. The decision constitutes a welcome break from decades of executive unilateralism in military affairs. At the same time, I disagree with those who think that this is anything like a watershed moment. Why? Because the President clearly stated that he chose this route on the basis of policy rather than constitutional law. As long as he reserves the right to attack without congressional authorization, I don’t see how his decision to seek authorization can be viewed as anything other than a non-constitutional precedent.

Finally, one argument I haven’t really seen is that U.S. intervention might be justified on the theory that it’s consistent with the purposes, even if not the letter, of Security Council control over the non-defensive use of force. One purpose seems to be that the Council’s control substantially decreases the likelihood of purely aggressive or otherwise unjustified war by ensuring prior approval or at least acquiescence from all of the major powers. The other is avoidance of war between those same powers. You can make a case that intervening in Syria is not inconsistent with either purpose: Given the nearly universal acceptance of the legal prohibition on the use of chemical weapons and obvious immorality of use, it’s hard to argue that punishing the perpetrators is unjustified. And the limited nature of the intervention will substantially reduce the risk of great-power conflict. I’m not necessarily in favor of intervening, and I recognize that this argument has limits, including the precedent that intervention might set for other states to pursue their own non-defensive wars without approval, but the argument also suggests that the U.S. intervention will not be a flagrant violation of the UN Charter.

This entry was posted in Foreign Affairs Constitution, International Law and tagged , , , , . Bookmark the permalink.

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