By Edward Grodin, Journal of Transnational Law & Policy Articles Selection Editor

Two wrongs don’t make a right.

Every child knows that axiomatic statement.  Responding to a wrong with another wrong will not vindicate your response.

Yet, this seems to be the path upon which the United States and select allies have set themselves in Syria.  Secretary of State John Kerry presented the Obama administration’s argument for “limited” strikes, even framing this as “our Munich moment.”  On September 10th, President Obama delivered his speech laying the groundwork for the use of force, should emerging diplomatic avenues fail.  In particular, he appealed to the humanitarian sensibilities of the American people: “[W]hen, with modest effort and risk, we can stop children from being gassed to death, and thereby make our own children safer over the long run, I believe we should act. That’s what makes America different. That’s what makes us exceptional.”

Both Secretary of State Kerry and President Obama have put forward the administration’s moral case for intervention, but what about the legal case?  As numerous legal commentators have pointed out, Article 2(4) of the UN Charter expressly forbids the threat or use of force, subject to the exceptions of collective or individual self-defense (Article 51) and Security Council-authorized actions (Chapter VII).  Since the Security Council has not authorized any strikes, and the self-defense argument is unsuitable for this internal conflict, the “letter of the law” remains clearly on the side of non-intervention.

Taking a “spirit of the law” approach instead of a “letter of the law” approach similarly leaves the Obama administration’s Syria plans on shaky legal ground.  Article 1 of the UN Charter makes clear that the United Nations shall, as its central governing principle, aim to collectively maintain international peace and security and to put an end to aggressive war.  Even limited strikes in Syria would undercut these principles by simultaneously depriving the Security Council of its role as the “enforcer” of international law and potentially exacerbating a “threat to international peace” through a non-authorized bombing campaign.

Regardless, a growing chorus of officials (including UN Ambassador Samantha Power) argue that while intervention may be illegal, it is legitimate and justifiable on moral grounds.  This “illegal but legitimate” approach should be alarming for those who believe in the rule of law in the international legal system.  Casually floating the idea of flouting international law sends a signal to the world that international law plays no role in this situation.

Whether or not you find the Obama administration’s moral case convincing, US intervention in Syria raises the ever-present question (and problem) of enforcement and remedies in international law.  Supporters of strikes against Syria rightly point to Assad’s violation of the ban on chemical weapons (if proven) as a breach of an international norm deserving of punishment.  Yet, violations of international law do not bestow upon non-violator countries the legal right to subvert existing channels of enforcement and use unilateral force as a remedy.  Even if Syria uses chemical weapons and the United States faces opposition from other P5 members, the United States does not have the option of refusing to resort to the Security Council for strikes.  Unlike many other areas of international law, international crimes have well-established remedies, chiefly through the International Criminal Court (ICC) and the Security Council.  If the enforcement of international criminal law and the laws of war cannot be achieved through these channels, and violations of international law can be answered with further violations, then the Syria situation will seriously undermine the need for an international legal regime in any policy arena.  It would perpetuate the stereotype of international law as a façade for Great Power policy preferences rather than a tool for collectively tackling critical international challenges.

Which brings me to the title of this blog post: the application of efficient breach to international law.  The theory of efficient breach in contract law posits the following pattern: a promisor finds out he can make more money from someone other than the promisee and proceeds to “buy” a breach of contract from the promisee.  According to the theory, this “buy-out” leads to an economically-efficient outcome.  However, one of the criticisms of efficient breach theory rests upon the fact that reallocation could occur with the promisee selling to the third party; as such, the promisor’s efficient breach does not necessarily lead to a net social benefit.

Though the international law aspect of intervention does not entail the same economic considerations, I argue that the theoretical underpinnings of efficient breach theory are at play in the United States’ political calculus on Syria.  The United States (promisor) has promised its compliance with the UN Charter as a Member State of the United Nations (promisee).  While the United States derives value (some might argue disproportionately so) from the UN structure, especially its veto in the Security Council, the Obama administration has determined that the benefits of intervention outweigh the potential costs, namely (from a legal perspective) being hauled before the International Court of Justice (ICJ).  Since the ICJ cannot enforce its own decisions, and in fact relies on the Security Council to do so, the international legal consequences of intervention approach zero.  Moreover, because neither the United States nor Syria is a party to the Rome Statute (that established and governs the ICC), the prospect of any action before the ICC is bleak.

In the eyes of the Obama administration, the low cost of intervention from an international law point-of-view, when compared to the high moral and humanitarian cost of doing nothing, has led US policy at the moment to favor the possible “buy-out” from its obligations under the UN Charter to refrain from force.  Consequently, the United States has chosen to “contract” instead with the Syrian rebels and pursue the higher-value benefit of humanitarian intervention (again, should the diplomatic route fail).

However, as in the critique of efficient breach theory, the United Nations as the original promisee can also obtain the societal humanitarian value from Syria through collective action.  The United States could continue to put diplomatic pressure on the rest of the Security Council members to refer the situation to the ICC, impose sanctions, or authorize the collective use of force; the UN General Assembly could put further pressure on the Security Council by convening an emergency special session under the “Uniting for Peace” Resolution.  The ultimate irony is that the Security Council’s failure to act thus far, upon which the Obama administration has premised its push for “illegal but legitimate” military action, can be traced to the purposeful institutional design of the Security Council.  While the United States derides the inability of the Security Council to act with a looming Russian veto, it has formally exercised its veto power nearly twice as often as Russia since the end of the Cold War.

To prevent the resort to efficient breaches in international law, it would help to raise the stakes on all violators.  One such way forward would be to give the ICJ some level of independent enforcement powers.  This would increase the potential costs of noncompliance with international law.  Take the example of Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).  Though the ICJ found that the United States violated international law through the threat or use of force as well as its support of the Contras in Nicaragua, the decision remained consequence-free due to the US veto in the Security Council.

The political choice between strict adherence to international law and violating it in pursuit of a perceived moral imperative is no easy task.  But as Kenneth Anderson, professor of Law at American University, puts it, “Pragmatic approaches avoid turning international law into a suicide pact, yes, in the sense of being unable to respond to something like a chemical weapons attack on account of some formalist concerns about international law and the language of the Charter.  But reasonableness that allows, as it must, the reasonable yet opposed views of others risks turning international law not into a suicide pact, but into a path to war.”

Doing nothing at all may be a bad choice, but doing something contrary to law in response to a violation threatens to cause collateral damage.  The United States has a special responsibility to uphold the international legal system and institutions it helped to build; it should respect international law in its pursuit of justice.  Otherwise, like Walter White in Breaking Bad, the United States risks going full Heisenberg in Syria: breaking the law in pursuit of what it sees as a legitimate just cause.

For more information about this topic, see:

The text of the UN Charter – http://www.un.org/en/documents/charter/index.shtml

Russian President Vladimir Putin’s op-ed in the NYT – http://www.nytimes.com/2013/09/12/opinion/putin-plea-for-caution-from-russia-on-syria.html?pagewanted=all&_r=0

Kenneth Anderson’s full description of international law approaches to the Syria situation – http://www.lawfareblog.com/2013/09/five-fundamental-international-law-approaches-to-the-legality-of-a-syria-intervention/

An article by Richard Posner on the application of efficient breach theory to international law – http://www.michiganlawreview.org/assets/pdfs/110/2/Posner.pdf

Samantha Power’s argument for intervention – http://www.businessinsider.com/samantha-power-why-we-must-strike-syria-2013-9

FSU law professor Fernando Teson’s argument against intervention – http://bleedingheartlibertarians.com/2013/09/syria-and-the-doctrine-of-humanitarian-intervention/

As always, this and all other posts on this blog are only reflective of the views and opinions of their individual authors, and do not reflect the official views or opinions of Journal of Transnational Law & Policy, Florida State University College of Law, or any of its affiliates.

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