International lawyers give it the old college try

So Oona Hathaway and Scott Shapiro -- professors of international law at Yale University -- have an op-ed in today's New York Times in which they say... pretty much what you'd expect professors of international law to say about the prospect of an attack on Syria outside of U.N. auspices:

If the United States begins an attack without Security Council authorization, it will flout the most fundamental international rule of all — the prohibition on the use of military force, for anything but self-defense, in the absence of Security Council approval. This rule may be even more important to the world’s security — and America’s — than the ban on the use of chemical weapons....

Some argue that international law provides for a “responsibility to protect” that allows states to intervene during humanitarian disasters, without Security Council authorization. They point to NATO's 1999 intervention in Kosovo. But in 2009 the United Nations secretary general, Ban Ki-moon, rejected this view, finding that “the responsibility to protect does not alter, indeed it reinforces, the legal obligations of Member States to refrain from the use of force except in conformity with the Charter,” a position he affirmed on Tuesday. (The Independent International Commission on Kosovo found that the intervention was “illegal but legitimate.”)

Well... yes, but the New York Times write-up of Ban Ki-moon's statement contained a bit more ambiguity: 

Asked if Mr. Obama’s proposal would be illegal under the United Nations Charter, Mr. Ban answered, “I have taken note of President Obama’s statement, and I appreciate efforts to have his future course of action based on the broad opinions of the American people, particularly Congress, and I hope this process will have good results.”

He did not specify what he meant by “good results.”

Mr. Ban also reiterated, “We should avoid further militarization of the conflict, revitalize the search for a political settlement.”

This is likely part and parcel of Ban being diplomatic towards a P-5 member who is contemplating action outside U.N. auspices, but it's not exactly a stern warning either. 

Back to Hathaway and Shapiro. It's the part after this that I think suffers from a bit of, shall we say, monocausality:

Consider the world that preceded the United Nations. The basic rule of that system, one that lasted for centuries, was that states had just cause to go to war when legal rights had been violated. Spain tried to justify its conquest of the Americas by saying it was protecting indigenous civilians from atrocities committed by other indigenous peoples. The War of the Austrian Succession was fought over whether a woman had a right to inherit the throne. The United States largely justified the Mexican-American War, including the conquest of California and much of what is now the Southwest, by pointing to Mexico’s failure to pay old tort claims and outstanding debts.

The problem with the old system was not that no one could enforce the law, but that too many who wished to do so could. The result was almost constant war.

In the Kellogg-Briand Pact of 1928 and in the United Nations Charter of 1945, the world rejected this system. States were forbidden to enforce the law on their own and had to work through a system of collective security.

For all its obvious failings, the United Nations system has made for a more peaceful world than the one that preceded it. No leader may claim the right to collect debts or gain thrones by going to war. States may fracture into smaller pieces, but they don’t get conquered. Gunboat diplomacy is also out of the question.

OK, first of all, points to Hathaway and Shapiro:  this might be the first positive mention of the Kellogg-Briand pact in an op-ed that I've ever read.  I don't mean that in a snarky way, either -- I've honestly never seen that treaty talked about favorably. 

More importantly, however, methinks Hathaway and Shapiro might be confusing correlation with causation here.  It is certainly true that the United Nations has played an important role in making for a more peaceful world. So, however, has nuclear weapons and U.S. military hegemony -- and I say this as a skeptic of the latter's virtues.  More provocatively, I'm not sure I buy Hathaway and Shapiro's assertion that the norms they praise are a function of international law or the United Nations Charter.  Neither of these elements blocked the U.S. or U.S.S.R. from intervening willy-nilly during the Cold War.  

I get what Hathaway and Shapiro are trying to do here, but if this intervention were to work, the outcome would likely be the same as Kosovo -- an "illegal but legitimate" verdict from history that would have minimal long-term implications.  If the intervention is fated to fail, however... then it's a lose-lose proposition:  international law has been weakened with no positive result. 

What do you think? 

UPDATE:  Erik Voeten blogs along the same lines, but much more thoroughly and persuasively than I did here. 

Daniel W. Drezner

Why Obama needs to choose whether he's a liberal or a realist on Syria

As BuzzFeed's Miriam Elder has chronicled, the foreign policy community ain't too happy with Obama right now.  Your humble blogger hasn't been quite as unhappy, but that's mostly because I've been distracted by conferences -- and genuinely unsure about what the United States should do in Syria in the two weeks since blogging on it last.  This puts me in a decided minority.   

But in honor of the traditional start-of-school day in the United States, it's worth pointing out a hidden reason for why foreign policy wonks are so displeased with the Obama administration's last two weeks on Syria.  And believe it or not, it has to do with international relations theory. 

As I've blogged previously, the Obama administration's approach towards the Syrian civil war has been pretty realpolitik

To your humble blogger, this is simply the next iteration of the unspoken, brutally realpolitik policy towards Syria that's been going on for the past two years.  To recap, the goal of that policy is to ensnare Iran and Hezbollah into a protracted, resource-draining civil war, with as minimal costs as possible.  This is exactly what the last two years have accomplished.... at an appalling toll in lives lost.   

This policy doesn't require any course correction... so long as rebels are holding their own or winning. A faltering Assad simply forces Iran et al into doubling down and committing even more resources.  A faltering rebel movement, on the other hand, does require some external support, lest the Iranians actually win the conflict. 

So far, so understandable.  The thing is, the use of chemical weapons in Syria has triggered the liberal internationalist impulses inside of the Obama administration.  The taboo against the use of chemical weapons has strengthened over time.  This is a good thing.  Humans are a pretty barbaric species, so on the whole I tend to approve of any small step towards more civilized behavior.  The chemical weapons taboo is one such small step, so I value it a bit more than my FP colleague Stephen Walt

The Obama administration clearly wants to segment intervening in Syria to enforce the chemical weapons taboo from intervening in Syria to aid the rebels.  As both Charli Carpenter and Stephanie Carvin has pointed out, in theory these are different and separate policy goals. 

I thought Carvin and Carpenter's distinction was an important one... until I read Adam Entous and Noru Malas' Wall Street Journal story

In June, the White House authorized the Central Intelligence Agency to help arm moderate fighters battling the Assad regime, a signal to Syrian rebels that the cavalry was coming. Three months later, they are still waiting.

The delay, in part, reflects a broader U.S. approach rarely discussed publicly but that underpins its decision-making, according to former and current U.S. officials: The Obama administration doesn't want to tip the balance in favor of the opposition for fear the outcome may be even worse for U.S. interests than the current stalemate....

The administration's view can also be seen in White House planning for limited airstrikes—now awaiting congressional review—to punish Syrian President Bashar al-Assad for his alleged use of chemical weapons.

Pentagon planners were instructed not to offer strike options that could help drive Mr. Assad from power: "The big concern is the wrong groups in the opposition would be able to take advantage of it," a senior military officer said. The CIA declined to comment.

The White House wants to strengthen the opposition but doesn't want it to prevail, according to people who attended closed-door briefings by top administration officials over the past week. The administration doesn't want U.S. airstrikes, for example, tipping the balance of the conflict because it fears Islamists will fill the void if the Assad regime falls, according to briefing participants, which included lawmakers and their aides....

Growing frustration with the slow pace of the CIA arming and training program has prompted calls from lawmakers and some Arab leaders to shift the effort to the Pentagon, said congressional officials who favor the move. White House and Pentagon officials had no immediate comment.

And here we get to the nub of the problem.  The trouble with Obama's liberal desire to enforce the chemical weapons taboo is running up against his realist desire to make sure that Al Qaeda doesn't have a friendly regime running Syria. 

The domestic politics of gaining congressional support make this even more complicated.  For Obama to secure support for his stance on chemical weapons, he needs the approval of full-throated neoconservatives like John McCain and Lindsey Graham.  They don't want Obama to stop with enforcing the chemical weapons taboo -- they want regime change in Syria on the table as well: 

The White House’s aggressive push for Congressional approval of an attack on Syria appeared to have won the tentative support of one of President Obama’s most hawkish critics, Senator John McCain, who said Monday that he would back a limited strike if the president did more to arm the Syrian rebels and the attack was punishing enough to weaken the Syrian military.

Except that, as previously noted, the Obama administration doesn't want to weaken the Syrian military too much.  This is an awfully hard balance to strike. 

There are a lot of areas of foreign policy where different paradigms can offer the same policy recommendation, and there are a lot of foreign policy issue areas where presidents can just claim "pragmatism" and not worry about which international relations theory is guiding their actions.  I'm increasingly of the view, however, that Syria is one of those areas where Obama is gonna actually have to make a decision about what matters more -- his realist desire to not get too deeply involved, or his liberal desire to punish the violation of a norm.  If he doesn't decide, if he tries to half-ass his way through this muddle, I fear he'll arrive at a policy that would actually be worse than either a straightforward realist or a straight liberal approach. 

[So which paradigm would you recommend that he choose?--ed.  I'm not completely sure yet, but I confess to be reluctantly leaning towards the realist play right now.]

What do you think?  Which paradigm will win out?