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.