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The Jus ad Bellum’s Regulatory Form

  • Monica Hakimi (a1)
Abstract

This article argues that a form of legal regulation is embodied in decisions at the UN Security Council that condone but do not formally authorize specific military operations. Such decisions sometimes inflect or go beyond what the jus ad bellum permits through its general standards—that is, under the prohibition of cross-border force and small handful of exceptions. Recognizing that this form of regulation is both part of the law and different in kind from regulation through the general standards should change how we think about the jus ad bellum.

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1 UN Charter Art. 2, para. 4.

2 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 ICJ Rep. 14, para. 246 (June 27) (recognizing that an outside state's intervention “is already allowable at the request of the government of a State”).

3 UN Charter Art. 39.

4 Id. Art. 51.

5 See, e.g., Military and Paramilitary Activities in and Against Nicaragua, supra note 2, para. 268 (“[T]he use of force could not be the appropriate method to monitor or ensure … respect [for human rights].”); Group of 77, Declaration of the South Summit, para. 54 (Apr. 14, 2000), at http://www.g77.org/summit/Declaration_G77Summit.htm (“We reject the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law.”); Randelzhofer, Albrecht & Dörr, Oliver, Article 2(4), in The Charter of the United Nations: A Commentary 200, 223 (Simma, Bruno, Khan, Daniel-Erasmus, Nolte, Georg & Paulus, Andreas eds., 3d ed. 2012) [hereinafter Charter Commentary] (“[T]here is no room for the concept of [unilateral] humanitarian intervention being deduced from the UN Charter … .”); Gray, Christine, The Use of Force for Humanitarian Purposes, in Research Handbook on International Conflict & Security Law 229, 253 (White, Nigel D. & Henderson, Christian eds., 2013) [hereinafter Research Handbook] (“It is difficult, if not impossible, to make a legal case for the existence of a right of unilateral humanitarian intervention today.”).

6 E.g. U.K. Prime Minister's Office, Chemical Weapon Use by Syrian Regime: UK Government Legal Position (Policy Paper, Aug. 29, 2013), at https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legal-position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position-html-version; UN SCOR, 54th Sess., 4011th mtg., at 12–13, UN Doc. S/PV.4011 (June 10, 1999) (statement of Netherlands).

7 To say that little attention has been paid is not to say that there has been none. See infra notes 10, 20–23, and accompanying text.

8 Some states have made claims on anticipatory self-defense that are extremely elastic, but these claims have not been widely endorsed, and even they would not swallow the blanket prohibition. As an extreme example, they would not permit forcible annexations of foreign territory. For more on them, see Monica Hakimi & Cogan, Jacob Katz, The Two Codes on the Use of Force, 27 Eur. J. Int'l L. 257, 283–86, 288–90 (2016).

9 A few international lawyers have suggested that the jus ad bellum is highly contextually variable; their views remain outside mainstream legal thinking. As an example, see Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 151–52 (1961).

10 Two recent articles address the jus ad bellum’s regulatory form, and both reflect this conventional account. First, Matthew Waxman has analyzed various debates between those who define the jus ad bellum with relatively “clear and rigid rules that admit little case by case discretion” and those who prefer more “flexible standards that call for weighing contextual factors.” Waxman, Matthew C., Regulating Resort to Force: Form and Substance of the UN Charter Regime, 24 Eur. J. Int'l L. 151, 152 (2013). Waxman notes that, although international lawyers disagree about whether the jus ad bellum’s directives operate more like precise rules or like elastic standards, very few claim that they fall at an extreme end of the rule-standard spectrum. Id. at 158–59. I use the word “standard” in this article not in contradistinction to “rule” but to refer to the range of possibilities in the middle of that spectrum. Waxman's study confirms that, despite debates about their pliability, almost everyone accepts that the jus ad bellum consists of a handful of generally applicable substantive standards. See id. at 167. Second, Ashley Deeks has analyzed the multi-part standards that some states and scholars have advanced to justify or appraise certain kinds of cases. Deeks, Ashley, Commentary: Multi-part Tests in the Jus ad Bellum, 53 Hous. L. Rev. 1035 (2016). For example, Deeks discusses efforts to specify the standard on self-defense for situations in which force is used in anticipation of an armed attack, in response to a cyberattack, against nonstate actors, or to protect a state's nationals. Id. at 1050–57. Compared to the generic standard on self-defense, these sub-standards would govern narrower categories of cases. Still, they would define the jus ad bellum by reference to certain, generally applicable substantive criteria. So, they would increase the number of general standards that comprise the jus ad bellum but would not fundamentally change that regulatory form. I return to this point and its implications for my argument in Section III.A.2 of the article.

11 See Michael R. Gordon, Helene Cooper & Michael D. Shear, Dozens of U.S. Missiles Hit Air Base in Syria, N.Y. Times (Apr. 6, 2017), at https://www.nytimes.com/2017/04/06/world/middleeast/us-said-to-weigh-military-responses-to-syrian-chemical-attack.html?emc=edit_na_20170406&nl=breaking-news&nlid=47276260&ref=cta&_r=1.

12 Text: Trump Statement on U.S. Military Strikes in Syria, Reuters (Apr. 6, 2017), at http://www.reuters.com/article/us-mideast-crisis-syria-text-idUSKBN1790A1.

13 The current U.S. position on self-defense is a good example. See Hakimi & Cogan, supra note 8, at 278–86 (2016).

14 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States Relating to International Law, 111 AJIL 781, 783–84 (2017).

15 See infra notes 162–166 and accompanying text.

16 E.g., Ryan Goodman, What Do Top Legal Experts Say About the Syria Strikes?, Just Security (Apr. 7, 2017), at https://www.justsecurity.org/39712/top-legal-experts-syria-strikes (quoting Michael Glennon & Derek Jinks); Julian Ku, Trump's Syria Strike Clearly Broke International Law—and No One Seems to Care, Vox (Apr. 19, 2017), at https://www.vox.com/the-big-idea/2017/4/19/15345686/syria-un-strike-illegal-un-humanitarian-law (“In the view of most international lawyers, the U.S. strike on Syria is a crystal-clear violation of the UN Charter.”); Marko Milanović, The Clearly Illegal US Missile Strike in Syria (Apr. 7, 2017), EJIL:Talk!, at https://www.ejiltalk.org/the-clearly-illegal-us-missile-strike-in-syria; Nancy Simons, The Legality Surrounding the US Strikes in Syria, Opinio Juris (Apr. 25, 2017), at http://opiniojuris.org/2017/04/25/the-legality-surrounding-the-us-strikes-in-syria (“The only conclusion from an international law standpoint is that the missile attack that occurred on the Syrian airfield is illegal.”).

17 E.g., Harold Hongju Koh, Not Illegal: But Now the Hard Part Begins, Just Security (Apr. 7, 2017), at https://www.justsecurity.org/39695/illegal-hard-part-begins; Jens David Ohlin, I Agree with Harold Koh, Opinio Juris (Apr. 8, 2017), at http://opiniojuris.org/2017/04/08/i-agree-with-harold-ko; Michael Schmitt & Chris Ford, The Use of Force in Response to Syrian Chemical Attacks: Emergence of a New Norm?, Just Security (Apr. 8, 2017), at https://www.justsecurity.org/39805/force-response-syrian-chemical-attacks-emergence-norm; cf. Goodman, supra note 16 (“The strikes might constitute an important precedent—and perhaps a watershed moment—driving the emergence of a new rule permitting humanitarian intervention in some circumstances … [, but] the Trump administration would need to provide a fully articulated defense of the strikes on humanitarian grounds … [and] some non-trivial fraction of the international community would need to react to the strikes in such way as to make clear its endorsement or acceptance of this defense.”) (quoting Derek Jinks).

18 E.g., Goodman, supra note 16 (“The use of force in Syria underscores the ongoing erosion of UN Charter norms on the lawful use of force under international law.”) (quoting Fionnuala Ni Aolain); id. (“The real question that's raised—yet again—is whether the Charter restraints haven't been violated so many times by so many nations that they no longer constitute good law.”) (quoting Michael Glennon); Ku, supra note 16 (“The uncomfortable answer seems to be that, at least with respect to this question—can a state use military force against a regime that uses banned weaponry against citizens?—international law simply doesn't matter very much.”).

19 E.g., John Bellinger, What Was the Legal Basis for the U.S. Air Strikes Against Syria?, Lawfare (Apr. 6, 2017), at https://www.lawfareblog.com/what-was-legal-basis-us-air-strikes-against-syria (“[I]t would be better if the Administration attempts to explain its actions as lawful, or at least justified, under international law.”); Goodman, supra note 16 (“It is essential that the United States articulate its international law justification for the strikes … .”) (quoting Brian Egan); id. (“Does the United States really want to convey to other international stakeholders is that there is an undefined, extra-legal grey zone where they can use force without regard to Charter principles?”) (quoting Stephen Pomper); Rebecca Ingber, International Law Is Failing Us in Syria, Just Security (Apr. 12, 2017), at https://www.justsecurity.org/39895/international-law-failing-syria (“[By] ask[ing] states to disregard international law because it fails to meet our sense of what is legitimate … we risk eroding these legal rules.”); Shane Reeves, The Problem of Morally Justifying the United States Strike in Syria, Lawfare (Apr. 11, 2017), at https://www.lawfareblog.com/problem-morally-justifying-united-states-strike-syria (“Here lies the problem with these types of moral-based use of force decisions: they are inherently subjective and, consequently, easily abused.”); Anthea Roberts, Syrian Strikes: A Singular Exception or a Pattern and a Precedent?, EJIL:Talk! (Apr. 10, 2017), at https://www.ejiltalk.org/syrian-strikes-a-singular-exception-or-a-pattern-and-a-precedent (“[T]he lesson that other great powers are likely [to] take from this action is that, if the United States doesn't think international law applies to its own actions, neither should they.”); Ben Saul, US Missile Strikes Expose the Untenable Status Quo in International Law, Chatham House (Apr. 26, 2017), at https://www.chathamhouse.org/expert/comment/us-missile-strikes-expose-untenable-status-quo-international-law (“The US strikes were remarkable for the conspicuous absence of any serious effort by the US or supporting states to reconcile them with international law.”).

20 Reisman, W. Michael, The Quest for World Order and Human Dignity in the Twenty-First Century: Constitutive Process and Individual Commitment, 351 Recueil des Cours 1, 91, 377403 (2012) [hereinafter Reisman, The Quest for World Order and Human Dignity].

21 Id. at 90.

22 Id. at 89.

23 There are two possible differences between Reisman's theory and my own. First, in his account, the myth system is available to and governs most actors, while the operational code is known to and used by only key decisionmakers. Id. at 303–22. I am not sure to what extent that distinction holds for the phenomenon that I am describing. The two forms of jus ad bellum regulation do not appear to be directed at different audiences, and though the informal regulation is regularly discounted or overlooked, it is more or less hiding in plain sight. Second, to the extent that Reisman defines the content of the operational code, he does so in generally applicable substantive terms. Id. at 377–403. I emphasize that the law's content sometimes manifests in a more procedural and particularistic form.

24 For excellent overviews, see José E. Alvarez, The Impact of International Organizations on International Law 53–141, 366–69 (2017); Johnstone, Ian, The Security Council and International Law, in The UN Security Council in the Twenty-First Century 771 (von Einsiedel, Sebastian, Malone, David M. & Ugarte, Bruno Stagno eds., 2016).

25 UN Charter Art. 2, para. 4.

26 E.g., GA Res. 2131 (XX), at 11–12 (Dec. 21, 1965) (positing that armed interventions “for any reason” are unlawful); Randelzhofer & Dörr, supra note 5, at 211.

27 UN Charter Art. 51.

28 Id. Arts. 24, 39.

29 For more details, see Christian Henderson, The Centrality of the United Nations Security Council in the Legal Regime Governing the Use of Force, in Research Handbook, supra note 5, at 120.

30 UN Charter Art. 43.

31 See generally Henderson, Christian, International Measures for the Protection of Civilians in Libya and Côte D'Ivoire, 60 Int'l & Comp. L. Q. 767, 778 (2011) (“[T]he problem of ambiguity, intentional or otherwise, in the mandates of Chapter VII resolutions of the UN Security Council, along with the possibilities for unilateral and potential controversial interpretations that this provides, is one that still persists.”); Lobel, Jules & Ratner, Michael, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 AJIL 124, 125 (1999) (“This ‘contracting out’ mode leaves individual states with wide discretion to use ambiguous, open-textured resolutions to exercise control over the initiation, conduct and termination of hostilities.”).

32 E.g., Lobel & Ratner, supra note 31, at 125 (arguing that fidelity to the Charter “require[s] that the Security Council retain strict control over the initiation, duration, and objectives of the use of force.”); Nico Krisch, Article 42, in Charter Commentary, supra note 5, 1330, 1342 (“The Charter seeks centralization of the use of force… . If this warrants a general rule in favour of restrictive interpretation, it also supports the proposition that a resolution has to give clear indications if it is to be interpreted as mandating the use of force.”).

33 For a fuller defense of this claim, see Hakimi & Cogan, supra note 8.

34 Compare, e.g., Bethlehem, Daniel, Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors, 106 AJIL 770 (2012), with, e.g., Akande, Dapo & Liefländer, Thomas, Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense, 107 AJIL 563 (2013), and Tladi, Dire, The Nonconsenting Innocent State: The Problem with Bethlehem's Principle 12, 107 AJIL 570 (2013).

35 Hakimi & Cogan, supra note 8; cf. Reisman, The Quest for World Order and Human Dignity, supra note 20, at 105 (“[U]norganized and non-hierarchical systems tend to mirror the power process, in which the quintessential grundnorm is Thucydides’ ‘The strong do what they will and the weak suffer what they must.’”).

36 See, e.g., Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law 5–29 (2012); Christine Gray, International Law and the Use of Force 6–24 (3d ed. 2008).

37 To be clear, the other standards also have procedural components, but the processes for making decisions under them are more decentralized.

38 See Statute of the International Court of Justice, Art. 38, para. 1, annexed to UN Charter; Thirlway, Hugh, The Sources of International Law, in International Law 91, 9293 (Evans, Malcolm D. ed., 4th ed. 2014) (“The generally recognized formal sources are identified in Article 38 … but the two most important sources in practice are treaties and international custom.”).

39 Military and Paramilitary Activities in and Against Nicaragua, supra note 2, para. 34 (“There can be no doubt that the issues of the use of force and collective self-defence … are issues which are regulated both by customary international law and by treaties, in particular the United Nations Charter.”).

40 Vienna Convention on the Law of Treaties, Arts. 11, 14, May 23, 1969, 1155 UNTS 331.

41 See, e.g., Military and Paramilitary Activities in and Against Nicaragua, supra note 2, para. 207 (“[F]or a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice,’ but they must be accompanied by the opinio juris sive necessitatis.”).

42 E.g., id., paras. 175–76; Oil Platforms (Islamic Rep. of Iran v. U.S.), Judgment, 2003 ICJ Rep. 161, para. 42 (Nov. 6).

43 Murphy, Sean D., Protean Jus ad Bellum, 27 Berk. J. Int'l L. 22, 2223 (2009).

44 Id. at 51–52.

45 See Koh, Harold Hongju, Why Do Nations Obey International Law?, 106 Yale L.J. 2599, 2645–58 (1997); Koh, Harold Hongju, The 1998 Frankel Lecture: Bringing International Law Home, 35 Hous. L. Rev. 623, 626 (1998) (“By transnational legal process, I mean the process whereby an international law rule is interpreted through the interaction of transnational actors in a variety of law-declaring fora, then internalized into a nation's domestic legal system.”).

46 Koh, Harold Hongju, Address, The War Powers and Humanitarian Intervention, 53 Hous. L. Rev. 971, 1012 (2016) [hereinafter Koh, The War Powers and Humanitarian Intervention].

47 Id. at 971, 980, 1011–16.

48 Id. at 1011.

49 Jutta Brunnée & Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account (2010).

50 Id. at 7.

51 Id. at 7, 75.

52 Id. at 349.

53 This section draws on insights in Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991).

54 Compare, e.g., John Dugard, Special Rapporteur on Diplomatic Protection, First Rep. on Diplomatic Protection, para. 46, UN Doc. A/CN.4/506 (Mar. 7, 2000) (articulating a standard on when states may use force to protect nationals abroad), and Yoram Dinstein, War, Aggression and Self-Defence 231–34 (4th ed. 2005) (claiming that such force is sometimes permissible), with, e.g., Gray, supra note 36, at 157 (claiming that “few states accept[] a legal right to protect nationals abroad”).

55 See infra Part V.D.1.

56 Compare Reisman, W. Michael & Armstrong, Andrea, The Past and Future of the Claim of Preemptive Self-Defense, 100 AJIL 525 (2006) (documenting that several states have advanced expansive claims on anticipatory self-defense), with Albrecht Randelzhofer & Georg Nolte, Article 51, in Charter Commentary, supra note 5, at 1397, 1424 (“[T]he object and purpose of the prohibition against the use of force can … be fulfilled by a narrowly circumscribed right of anticipatory self-defence.”).

57 See Oona A. Hathaway, Rebecca Crootof, Philip Levitz, Haley Nix, Aileen Nowlan, William Purdue & Julia Spiegel, The Law of Cyber-Attack, 100 Cal. L. Rev. 817, 845–48 (discussing the most prominent positions on defensive force in this context).

58 For evidence of the debates, see supra notes 34, 54–57 and accompanying text.

59 This is so for two reasons. First, these institutions infrequently apply the standard on self-defense. Second, when they apply it, they often avoid taking clear positions on its content.

60 See supra note 36 and accompanying text.

61 To appreciate the difference between precision and generality, imagine a standard that prohibits all unilateral force. This standard would be precise. It would clearly establish that such force is unlawful. The standard would also operate at a very high level of generality. It would subject to similar treatment many different fact patterns. Now imagine a standard that consists of fifty sub-standards, each delineating, with considerable specificity, when unilateral force is lawful. The sub-standards would still be precise so long as they establish whether particular operations are lawful. But compared to the first standard, they would operate at lower levels of generality. Each would govern a narrower set of cases.

62 However, African states have agreed to allow certain regional organizations to conduct such interventions. See Constitutive Act of the African Union, Art. 4(h); African Union, Protocol Relating to the Establishment of the Peace and Security Council of the African Union, Art. 4(j); Economic Community of West African States, Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security, Art. 25, ECOWAS Doc. A/P10/12/99 (Dec. 10, 1999). The proper relationship between these regional instruments and Article 53 of the UN Charter, which provides for the Council's primacy over regional organizations, is a matter of some dispute. See UN Charter Art. 53; Christian Walter, Article 53, in Charter Commentary, supra note 5, 1478, 1491–92.

63 See, e.g., Michael Byers, War Law: International Law and Armed Conflict 92 (2005) (reviewing incidents and concluding that there is an “absence of opinio juris”); Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law 84, 87 (2002) (same).

64 See generally Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (2000).

65 E.g., GA Res. 60/1, para. 139, 2005 World Summit Outcome (Sept. 16, 2005) (“[W]e are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis … should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”) (emphasis added); Group of 77, supra note 5, para. 54 (“We reject the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law.”).

66 See, e.g., sources at supra note 5.

67 E.g., Koh, The War Powers and Humanitarian Intervention, supra note 46; Richard B. Lillich, Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives, in Law and Civil War in the Modern World 229 (John Norton Moore ed., 1974); see also Jane Stromseth, Rethinking Humanitarian Intervention: The Case for Incremental Change, in Humanitarian Intervention: Ethical, Legal, and Political Dilemmas 232, 241–45 (J.L. Holzgrefe & Robert O. Keohane eds., 2003) (describing the dominant positions in this debate).

68 See, e.g., Trachtman, Joel P., The Economic Structure of the Law of International Organizations, 15 Chi. J. Int'l L. 162, 185–86 (2014).

69 This phenomenon is not particular to the jus ad bellum. See Harlan Grant Cohen, Finding International Law: Rethinking the Doctrine of Sources, 93 Ia. L. Rev. 65, 70 (2007) (“[There] is a disconnect between the rules identified as law by the doctrine of sources and the rules actually treated as law by the actors in the international system.”); Hugh Thirlway, The Sources of International Law, in International Law 115, 117 (Malcolm D. Evans ed., 2006) (recognizing that the doctrine “has attracted enormous amounts of … criticism” and “presents some anomalies and difficulties”).

70 The New Haven school of jurisprudence is particularly on point. This school defines international law not, like the sources doctrine, as a set of standards, but in processual terms—as a process for communicating policies that are controlling and authoritative. Michael Reisman, the longstanding “dean” of this school, see Koh, Harold Hongju, Michael Reisman, Dean of the New Haven School of International Law, 34 Yale J. Int'l L. 501 (2009), has emphasized that a policy can be law, even if it is not articulated in legal language, even if it is highly context-specific, and even if it deviates from the “law on the books.” See Reisman, W. Michael, Address, International Lawmaking: A Process of Communication, 75 ASIL Proc. 101 (1981) [hereinafter Reisman, International Lawmaking]; Reisman, The Quest for World Order and Human Dignity, supra note 20, at 95–97. The key, again, is that politically relevant actors communicate to one another that a policy decision is both controlling and authoritative. With the jus ad bellum’s informal regulation, a decision to use force is controlling in the sense that states broadly conduct, support, and tolerate it. However, because the decision lacks good justification under the general standards, it is on its own deficient in authority. The Council's stamp of approval helps cure that deficiency, making the decision not just controlling but also authoritative—or, under the New Haven approach, lawful.

71 UN Charter Art. 39; see also id. Art. 30 (“The Security Council shall adopt its own rules of procedure… .”); Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), Advisory Opinion, 1962 ICJ Rep. 151, 168 (July 20) (“[E]ach organ [of the United Nations] must, in the first place at least, determine its own jurisdiction.”).

72 Supra Part II.

73 See, e.g., Brunnée & Toope, supra note 49, at 317 (“[T]here is no plausible alternative to collective legitimation of the use of force through the Security Council… .”). I leave open the question of whether other institutions could ever occupy this position. The idea in the Uniting for Peace Resolution that the General Assembly may in certain circumstances authorize force, as a substitute for the Security Council, fell quickly out of favor when the Council became active at the end of the Cold War. See Uniting for Peace Resolution, GA Res 377 A (V), UN GAOR, 5th Sess., Supp. No. 20, at 10, UN Doc. A/1775 (Nov. 3, 1950); see also Christina Binder, Uniting for Peace Resolution (1950), in Max Planck Encyclopedia of Public International Law, para. 35, available at http://opil.ouplaw.com/home/epil (last updated June 2013) (“After the end of the Cold War, the … increased activity of the Council led to a certain loss of the resolution's importance.”). But one can imagine the Council again losing its standing and other institutions, like the General Assembly or regional organizations, filling the vacuum.

74 E.g., sources at supra note 24; cf. Reisman, International Lawmaking, supra note 70, at 110 (“It is the audience, whether or not its members realize it, that endows the prescriber with the authority that renders his communications prescription.”).

75 E.g., Corten, supra note 36, at 9 (“It is essential to take into account the decisions of [the Council], but also its silences, if we are to specify the meaning of the rule of law … .”); Gray, supra note 36, at 20 (“It may be argued that condemnation of a particular use of force by the Security Council … is conclusive or at least persuasive as to illegality.”).

76 Here is a good example: the day after the September 11, 2001, terrorist attacks, the Security Council adopted Resolution 1368, which did not purport to be binding but recognized “the inherent right of individual or collective self-defence in accordance with the Charter,” expressed the Security Council's “readiness to take all necessary steps to respond to the terrorist attacks,” and described all acts of international terrorism as “threats to international peace and security.” SC Res. 1368 (Sept. 12, 2001). There has been an extensive scholarly debate about whether the resolution reflected the Council's interpretation of Article 51 and, if it did, what that interpretation was. The entire debate assumes that any Council interpretation would be highly persuasive, if not conclusive, evidence of Article 51's content. See Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice 433–43 (2010) (reviewing the literature).

77 As a matter of practice, statements by the Security Council president are made either by consensus in informal consultations or through a “no objection” procedure; Council press statements are made by consensus. See UN Security Council: Working Methods Handbook, at 90, UN Sales No. 11.VII.1 (2011).

78 I focus in this article on a legal legitimacy that is mostly sociological. Such legitimacy is different from, but ultimately related to, two other kinds of legal legitimacy: (1) jurisprudential legitimacy, which attaches to conduct that satisfies certain formal criteria of law; and (2) normative legitimacy, which goes to when or why the law ought to be followed. On these dimensions of legitimacy, see Roughan, Nicole, Mind the Gaps: Authority and Legality in International Law, 27 Eur. J. Int'l L. 329, 340–41 (2016). On the more general point that deliberation at the Security Council can legitimize decisions, see Johnstone, Ian, Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit, 102 AJIL 275 (2008).

79 E.g., Ian Johnstone, When the Security Council is Divided: Imprecise Authorizations, Implied Mandates, and the ‘Unreasonable Veto,’ in The Oxford Handbook of The Use of Force in International Law 227, 242–43 (Marc Weller ed., 2015) [hereinafter Johnstone, When the Security Council is Divided]; Scott, Craig, Interpreting Intervention, 39 Can. Y.B. Int'l L. 333, 348 (2001).

80 The only possible exception is the French intervention in Mali. See infra Section IV.A.2.a.

81 E.g., Independent International Commission on Kosovo 186 (2000); Johnstone, Ian, The Plea of “Necessity” in International Legal Discourse: Humanitarian Intervention and Counter-terrorism, 43 Colum. J. Transnat'l L. 337, 339 (2005) [hereinafter Johnstone, The Plea of “Necessity”]; Michael Byers & Simon Chesterman, Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law, in Humanitarian Intervention: Ethical, Legal, and Political Dilemmas, supra note 67, at 177, 198–201; Simma, Bruno, NATO, the UN and the Use of Force: Legal Aspects, 10 Eur. J. Int'l L. 1, 22 (1999).

82 Thomas M. Franck, Recourse to Force: State Action against Threats and Armed Attacks 186 (2002).

83 Id. at 186, 187.

84 Id. at 187.

85 Id. at 191 (“[T]he distinction between what is justified (exculpated) and what is excusable (mitigated) is so fine as to be of pure (yet also considerable) theoretical interest.”); see also Roberts, Anthea, Legality vs Legitimacy: Can Uses of Force Be Illegal but Justified?, in Human Rights, Intervention, and the Use of Force 179 (Alston, Philip & Macdonald, Euan eds., 2008) (arguing that, in the absence of a court or other institution to declare the action unlawful, the distinction is immaterial) [hereinafter Roberts, Legality vs Legitimacy]; Simma, supra note 81, at 22 (“[O]nly a thin red line separates NATO's action on Kosovo from international legality.”); but see Johnstone, The Plea of “Necessity,” supra note 81, at 385 (“[A]n interpretive community exists … [and] is capable of drawing precisely the distinction that the necessity excuse requires.”).

86 Franck, supra note 82, at 171–72 (arguing that recognizing a new exception to Article 2(4) “could launch the international system down the slippery slope into an abyss of anarchy.”); see also, e.g., Chesterman, supra note 63, at 231 (“[I]t is more dangerous to hand states a ‘right’—even of such a limited nature—than simply to assert the cardinal principle of the prohibition of the use of force and let states seek a political justification for a particular action if they find themselves in breach of that norm.”); Johnstone, The Plea of “Necessity,” supra note 81, at 387 (arguing that, rather than establish an exception that would justify such interventions in law and undercut the blanket prohibition, the interventions should be unlawful but excusable through case-specific pleas of necessity); Simma, supra note 81, at 22 (“To resort to illegality as an explicit ultima ratio for reasons as convincing as those put forward in the Kosovo case is one thing. To turn such an exception into a general policy is quite another.”); cf. Roberts, Legality vs Legitimacy, supra note 85, at 190 (“If there is no clear statement that unilateral humanitarian intervention is illegal, that opens the door to claims that there is or should be a legal exception to the prohibition on the use of force in extreme humanitarian crises.”).

87 See, e.g., Military and Paramilitary Activities in and Against Nicaragua, supra note 2, para. 246 (recognizing that an outside state's intervention “is already allowable at the request of the government of a State”); GA Res. 3314 (XXIX), Declaration on the Definition of Aggression, Annex, Art. 3(e), UN Doc. A/9631 (Dec. 14, 1974) (defining as unlawful “[t]he use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement … ”).

88 UN Charter Art. 2, para. 4.

89 For extensive discussions of this issue, see Doswald-Beck, Louise, The Legal Validity of Military Intervention by Invitation of the Government, 56 Brit. Y.B. Int'l L. 189 (1985); Gregory H. Fox, Intervention by Invitation, in The Oxford Handbook of The Use of Force in International Law, supra note 79, at 816.

90 See Brad R. Roth, Governmental Illegitimacy in International Law 4 (1999) (“The multilateral treaties, authoritative declarations, and ad hoc responses to crisis that constitute the source material of international legal doctrine exhibit tensions, paradoxes, and even contradictions with respect to the question of governmental illegitimacy.”); Nußberger, Benjamin, Military Strikes in Yemen in 2015: Intervention by Invitation and Self-defence in the Course of Yemen's ‘Model Transitional Process,’ 4 J. Use of Force Int'l L. 110, 131, 143 (2017) (asserting that, “in principle states have refrained from intervening in civil war situations,” but recognizing that “state practice within the field of the doctrine of intervention by invitation sometimes appears to be ambiguous, arbitrary and motivated by political reasons or, to quote Kolb, ‘chaotique.’”) (quoting Robert Kolb, Ius Contra Bellum. Le Droit International Relative au Maintien de la Paix 328 (2d ed. 2009)).

91 For background on this incident, see UN Human Rights Council, Rep. of the Indep. Expert on the Situation of Human Rights in Mali, at paras. 8–26, UN Doc. A/HRC/25/72 (Jan. 10, 2014); Bannelier, Karine & Christakis, Theodore, Under the UN Security Council's Watchful Eyes: Military Intervention by Invitation in the Malian Conflict, 26 Leiden J. Int'l L. 855 (2013); Maslen, Stuart Casey, Armed Conflict in Mali in 2013, in The War Report: Armed Conflict in 2013, at 147 (Casey-Maslen, Stuart ed., 2014).

92 See Mali Coup Leaders to Stand Down as Part of ECOWAS Deal, BBC News (Apr. 7, 2012), at http://www.bbc.com/news/world-africa-17642276.

93 Adam Nossiter, Jihadists’ Fierce Justice Drives Thousands to Flee Mali, N.Y. Times (July 17, 2012), at http://www.nytimes.com/2012/07/18/world/africa/jidhadists-fierce-justice-drives-thousands-to-flee-mali.html.

94 SC Res. 2085 (Dec. 20, 2012).

95 See Tzeng, Peter, Humanitarian Intervention at the Margins: An Examination of Recent Incidents, 50 Vand. J. Transnat'l L. 415, 446 (2017).

96 Permanent Rep. of France to the UN, Identical Letters Dated 11 January 2013 from the Permanent Representative of France to the UN Addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2013/17 (Jan. 14, 2013).

97 On self-defense, see infra note 104 and accompanying text. On Security Council authorization, see infra notes 126–129 and accompanying text.

98 UN Security Council Press Release, Security Council Press Statement on Mali Crisis, UN Doc. SC/10590 (Mar. 22, 2012), at http://www.un.org/press/en/2012/sc10590.doc.htm; see also UNSC, Statement by the President of the Security Council, at 1, UN Doc. S/PRST/2012/7 (Mar. 26, 2012) (same, with modest grammatical changes); SC Pres. Statement 2012/9 (Apr. 4, 2012) (same); SC Res 2056, pmbl. (July 5, 2012) (same).

99 SC Res 2056, supra note 98, para. 8 (July 5, 2012).

100 E.g., SC Res. 2071, para. 1 (Oct. 12, 2012); UN Security Council Press Release, Security Council Press Statement on Mali, UN Doc. SC/10741 (Aug. 10, 2012), at http://www.un.org/press/en/2012/sc10741.doc.htm; UN Security Council Press Release, Security Council Press Statement on Mali and Sahel, UN Doc. SC/10772 (Sept. 21, 2012), at http://www.un.org/press/en/2012/sc10772.doc.htm; UN Security Council Press Release, Security Council Press Statement on Mali, UN Doc. SC/10851 (Dec. 11, 2012), at http://www.un.org/press/en/2012/sc10851.doc.htm.

101 E.g., SC Res. 2085, supra note 94, at para. 4; Security Council Press Statement on Mali and Sahel, supra note 100.

102 See Tzeng, supra note 95, at 447 n. 192 (noting that Belgium, Canada, Chad, Denmark, Germany, the Netherlands, Spain, Sweden, the United Arab Emirates, the United Kingdom, and the United States all provided logistical or military support for the French operation, and that Israel, Colombia, and Chile publicly endorsed it); France Confirms Mali Military Intervention, BBC News (Jan. 11, 2013), at http://www.bbc.com/news/world-africa-20991719 (“British Foreign Secretary William Hague said … that the UK supported the French decision to help Mali's government against northern rebels. The US and African Union have also expressed support for the mission.”).

103 UN Security Council Press Release, Security Council Press Statement on Mali, UN Doc. SC/10878 (Jan. 10, 2013).

104 In an earlier article, I claimed that, notwithstanding what France and the Security Council said about consent, the intervention seemed more defensive than consensual. After all, Dioncounda Traoré’s consent was evidently imperfect, and France was almost certainly motivated, at least in part, by its concern that the jihadi groups in Mali would affect its own national security. See Afua Hirsch & Kim Willsher, Mali Conflict: France Has Opened Gates of Hell, Says Rebels, Guardian (Jan. 14, 2013), at http://www.theguardian.com/world/2013/jan/14/mali-conflict-france-gates-hell. But in discounting the claims on consent, I myself overlooked the informal regulation and thus the role that the Security Council played in this incident. See Hakimi, Monica, Defensive Force Against Non-state Actors: The State of Play, 91 Int'l L. Stud. 1, 1112 (2015) [hereinafter Hakimi, Defensive Force Against Non-state Actors]. Fortunately, this error does not detract from the article's main point, which was that the law on defensive force against nonstate actors was in flux, with multiple legal positions in play.

105 Mark Doyle, Mali Conflict: UN Backs France's Military Intervention, BBC News (Jan. 15, 2013), at http://www.bbc.com/news/world-africa-21021132.

106 SC Res. 2100, pmbl. (Apr. 25, 2013).

107 For detailed accounts of the situation, see International Crisis Group, Yemen at War, Middle East Briefing No. 45 (Mar. 27, 2015); Nußberger, supra note 90, at 112–18.

108 The UN Security Council had not authorized it, and despite some loose rhetoric, the intervening states did not try to advance a credible theory on self-defense. See Permanent Rep. of Qatar to the UN, Identical Letters Dated 26 March 2015 from the Permanent Representative of Qatar to the UN addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/217 (Mar. 27, 2015) (quoting Hadi's invitation and transmitting the explanation for the intervention on behalf of five GCC states). The most that was said was that Houthi militants were active “near the Saudi Arabia border,” that they “carried out a bare-faced and unjustified attack on the territory of Saudi Arabia, in November 2009, and [that] their current actions make it clear that they intend to do so again.” Id. at 5; cf. 26th Arab League Summit, Final Communique of the 26th Arab League Summit (Mar. 29, 2015) (invoking Hadi's invitation and self-defense). If those grounds suffice to justify defensive force, it would be under an expansive application of an already very controversial interpretation of Article 51. For example, even the United States claims that an attack must be, in some way, imminent in order to trigger the right to use defensive force anticipatorily. See U.S. White House, Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, at 9 (Dec. 2016). No claim or showing of imminence was made in the Yemen case. Further, even if Article 51 licensed some defensive force against Houthi militants in Yemen, it probably would not have licensed an intervention of this scale.

109 SC Res. 2014, pmbl. & para. 7 (Oct. 21, 2011).

110 SC Res. 2051, paras. 4, 6 (June 12, 2012) (recognizing Hadi as president and “demand[ing] the cessation of all actions aimed at undermining” his government); SC Pres. Statement 2012/8 (Mar. 29, 2012) (“welcom[ing] the Yemeni-led peaceful transition process … [and noting] the 25 February transfer of power to President Abd Rabbuh Mansour Hadi, as per the Gulf Cooperation Council [process]”).

111 SC Res. 2140, pmbl. & para. 1 (Feb. 26, 2014) (“Commending the engagement of the Gulf Cooperation Council … [and] the leadership of President Abd Rabbo Mansour Hadi” and “Reaffirm[ing] the need for the full and timely implementation of the political transition … in line with the GCC [process].”); SC Res. 2201, paras. 1, 4 (Feb. 15, 2015) (“Strongly deplor[ing] actions taken by the Houthis to dissolve parliament and take over Yemen's government institutions, including acts of violence,” and “[s]trongly call[ing] upon all parties, in particular the Houthis, to abide” by the [GCC-led transition mechanism].”).

112 SC Pres. Statement 2013/3 (Feb. 15, 2013) (“The Security Council welcomes President Abed Rabbo Mansour Hadi's announcement of the launch of the National Dialogue Conference” and “expresses concern over reports of interference in the transition by individuals in Yemen representing the former regime, the former opposition, and others who do not adhere to the … transition process.”); SC Pres. Statement 2014/18 (Aug. 29, 2014) (“The Security Council welcomes the recent progress in Yemen's political transition, in line with the Gulf Cooperation Council [process,] … supports President Abd Rabbo Mansour Hadi in his efforts… . [and] note[s] with concern that the Houthis and others continue to stoke the conflict in the north in an attempt to obstruct the political transition.”).

113 UN Security Council Press Release, Security Council Press Statement on Fighting in Yemen, UN Doc. SC/11470 (July 11, 2014) (“express[ing] support to President Abdo Rabbo Mansour Hadi as he leads the political transition” and “demand[ing] that the Houthis, all armed groups and parties involved in the violence withdraw and relinquish control of Amran and hand over weapons and ammunition pillaged in Amran”); UN Security Council Press Release, Security Council Press Statement on Yemen, UN Doc. SC/11578 (Sept. 23, 2014) (“The members of the Security Council underline that President [Abdrabuh Mansour] Hadi is the legitimate authority … . All parties and political actors in Yemen must unite behind President Hadi to keep the country on track to stability and security.”) (modification in original); UN Security Council Press Release, Security Council Press Statement on Yemen, UN Doc. SC/11743 (Jan. 20, 2015) (same); Security Council Press Release, Security Council Press Statement on Yemen, UN Doc. SC/11826 (Mar. 20, 2015) (same).

114 UN SCOR, 70th Sess., 7411th mtg., UN Doc. S/PV.7411 (Mar. 22, 2015).

115 E.g., id. at 6 (“[T]he solution to the situation in Yemen is through a peaceful, inclusive, orderly and Yemeni-led political transition process … .”); UN SCOR, 70th Sess., 7426th mtg., UN Doc. S/PV.7426 (Apr. 14, 2015) (statements of multiple countries underscoring the need for a political and/or consensual solution to the crisis).

116 See also SC Res. 2216, pmbl., para. 1 (Apr. 14, 2015) (“[r]eaffirming its support for the legitimacy of the President of Yemen, Abdo Rabbo Mansour Hadi,” and “demand[ing] that all Yemeni parties, in particular the Houthis, … refrain from further unilateral actions that could undermine the political transition in Yemen”) (emphasis in original).

117 SC Pres. Statement 2015/8 (Mar. 22, 2015).

118 SC Res. 2216, supra note 116.

119 See Nußberger, supra note 90, at 118, 121–23; Ruys, Tom & Ferro, Luca, Weathering the Storm: Legality and Legal Implications of the Saudi-Led Military Intervention in Yemen, 65 Int'l & Comp. L. Q. 61, 6768 (2016).

120 But cf. Ruys & Ferro, supra note 119, at 98 (concluding that the incident illustrates “the risk of abuse” and that the intervening states and their supporters “have undermined the primary role of the UN Security Council for the maintenance of international peace and security, and set a dangerous precedent”).

121 Wet, Erika de, Reinterpreting Exceptions to the Use of Force in the Interest of Security: Forcible Intervention by Invitation and the Demise of the Negative Equality Principle, 111 AJIL Unbound 307 (2017) (citing the interventions in Mali and Yemen for support); Wet, Erika de, The Modern Practice of Intervention by Invitation in Africa and Its Implications for the Prohibition of the Use of Force, 26 Eur. J. Int'l L. 979, 996–97 (2015) (citing the intervention in Mali).

122 Bannelier & Christakis, supra note 91, at 873–74.

123 Nußberger, supra note 90, at 147.

124 E.g., Bannelier & Christakis, supra note 91, at 873 (“The attitude of the UNSC during these interventions clearly demonstrates that the Council accepted the validity of the legal basis of intervention by invitation … .”); Nußberger, supra note 90, at 147 (explaining that Council decisions endorsing a transitional process are “[o]f special relevance” to determining whether the “process and its leader are representative of the people's will” and thus whether the intervention satisfies the consent standard).

125 One might claim that the Council's decisions went only to the recognition of each country's government and did not have any bearing on the jus ad bellum. But in answering the recognition question, the Council plainly shaped the jus ad bellum’s content in these cases.

126 Johnstone, When the Security Council is Divided, supra note 79, at 242–43; see also ECOWAS Press Release, Statement of the President of the ECOWAS Commission on the Situation in Mali (Jan. 12, 2013), available at http://reliefweb.int/report/mali/statement-president-ecowas-commission-situation-mali (“welcom[ing] UN Security Council Press Release of 10th January 2013 authorising immediate intervention in Mali to stabilise the situation”); Fox, supra note 89, at 826 (using the Mali incident to suggest an analytic distinction between internal conflicts that are subject to the default rules on interventions by invitation and those in which the Council authorizes force).

127 Johnstone, When the Security Council is Divided, supra note 79, at 242–43.

128 See SC Res. 2100, supra note 106, para. 18.

129 The closest the Council came to authorizing France's action was in “[u]rg[ing] Member States, regional and international organizations to provide coordinated support to” the African-led force. SC Res. 2085, supra note 94, para. 14. In the event, France did not provide support to an African-led force. No such force had been deployed.

130 See UN SCOR, 45th Sess., 2974th mtg., UN Doc. S/PV.2974 (Jan. 22, 1991) (statement of Liberia “recall[ing] that seven months ago we made efforts to have the Council seized with the deteriorating situation in Liberia, which efforts were not approved”).

131 Letter from Samuel K. Doe to the Chairman and Members of the Ministerial Meeting of the ECOWAS Standing Mediation Committee (July 14, 1990), reprinted in Regional Peace-Keeping and International Enforcement: The Liberian Crisis 60–61 (M. Weller ed., 1994) [hereinafter The Liberian Crisis].

132 ECOWAS Standing Mediation Committee, Decision on the Cease-fire and Establishment of an ECOWAS Cease-fire Monitoring Group for Liberia, Banjul, Republic of Gambia, A/Dec.1/8/90 (Aug. 7, 1990), reprinted in The Liberian Crisis, supra note 131, 67–68.

133 BBC Monitoring Report: ECOWAS Peace-keeping Force to be Sent to Liberia; Foreigners Released by INPFL (Aug. 7, 1990), reprinted in The Liberian Crisis, supra note 131, at 66 (reporting that, upon leaving the ECOWAS meeting, the Guinean president claimed that the ECOWAS force “do[es] not need the permission of any party involved in the conflict” and would deploy “with or without the agreement of any of the parties”).

134 Ofodile, Anthony Chukwuka, The Legality of ECOWAS Intervention in Liberia, 32 Colum. J. Transnat'l L. 381, 413 (1994); Renda, Luca, Ending Civil Wars: The Case of Liberia, 23 Fletcher F. World Aff. 59, 6970 (1999).

135 ECOWAS Authority of Heads of State and Government, Decision Relating to the Approval of the Decision of the Community Standing Mediation Committee Taken During its First Session from 6 to 7 August 1990, Bamako, Republic of Mali, A/DEC.1/11/90 (Nov. 28, 1990), reprinted in The Liberian Crisis, supra note 131, at 111.

136 See Permanent Rep. of Nigeria to the UN, Letter Dated Aug. 9, 1990 from the Permanent Representative of Nigeria to the UN Addressed to the Secretary-General, UN Doc. S/21485 (Aug. 10, 1990) (informing Council of action); Permanent Rep. of Gambia to the UN Letter Dated Dec. 14, 1990 from the Permanent Representative of Gambia to the UN Addressed to the Secretary-General, UN Doc. S/22025 (Dec. 20, 1990) (updating Council on situation).

137 Permanent Rep. of Nigeria to the UN, supra note 136.

138 E.g., Neil Henry, Doctors’ Group Criticizes U.S. for Not Intervening in Liberia, Wash. Post, Aug. 16, 1990, at A17 (United States); The Massacres Continue in Liberia, Globe & Mail, Sept. 1, 1990, at D6 (“[T]he Secretary-General of the Organization of African Unity has given the current peace mission his blessing.”).

139 UN SCOR, 47th Sess., 3138th mtg., at 13, UN Doc. S/PV.3138 (Nov. 19, 1992).

140 UN SCOR, 45th Sess., 2974th mtg., supra note 130, at 8.

141 SC Pres. Statement S/22133 (Jan. 22, 1991).

142 SC Pres. Statement S/23886 (May 7, 1992).

143 See Permanent Rep. of Benin to the UN, Letter Dated Oct. 28, 1992 from the Permanent Representative of Benin to the UN Addressed to the President of the Security Council, UN Doc. S/24735 (Oct. 29, 1992) (“I have been instructed [by ECOWAS] to ask you to call an emergency meeting of the Security Council … in order to consider the Liberian crisis… .”).

144 See, e.g., UN SCOR, 47th Sess., 3138th mtg., supra note 139, at 11 (statement of Benin) (“This disastrous situation requires urgent effective action, which our Governments earnestly hope will be adopted and implemented by the Security Council.”); id. at 18 (statement of Liberian representative) (“call[ing] here for the Council's support of these measures” and insisting that the “Council must act decisively to buttress, support and sustain the leaders in West Africa”); id. at 23 (statement of Senegal) (“It was in order to receive the Council's help that we asked for this meeting, convinced that at the present stage that is the best way to contribute to a future of peace in Liberia.”); id. at 31 (statement of Côte d'Ivoire) (“[I]t is imperative that, with the support of the Security Council, an effective cease-fire be put into effect speedily in Liberia … .”); id. at 37 (statement of Gambia) (“The purpose of our presence here today is to seek further support and assistance from the Security Council in resolving the Liberian conflict.”).

145 SC Res. 788 (Nov. 19, 1992).

146 SC Res. 1116, pmbl. (June 27, 1997) (expressing appreciation to ECOWAS and commending the states that contributed to the ECOWAS force); SC Res. 1100, pmbl. (Mar. 27, 1997) (same), SC Res. 1083, pmbl. (Nov. 27, 1996) (same); SC Res. 1071, pmbl. (Aug. 30, 1996) (commending ECOWAS); SC Res. 1059, pmbl. (May 31, 1996) (same); SC Res. 1041, pmbl. (Jan. 29, 1996) (same); SC Res. 1020, pmbl. (Nov. 10, 1995) (same); SC Res. 1014, pmbl. (Sept. 15, 1991) (same); SC Res. 1001, pmbl. (June 30, 1995) (same); SC Res. 985 (Apr. 13, 1995) (not commending or expressing appreciation to ECOWAS); SC Res. 972, pmbl. (Jan. 13, 1995) (commending ECOWAS); SC Res. 950, pmbl. (Oct. 21, 1994) (same); SC Res. 911, pmbl. (Apr. 21, 1994) (same); SC Res. 866, pmbl. (Sept. 22, 1993) (same); SC Res. 856, pmbl. (Aug. 10, 1993) (same); SC Res. 813, pmbl. (Mar. 26, 1993) (same).

147 See infra Section IV.B.2. But cf. Ofodile, supra note 134, at 418 (“The ECOWAS intervention in the Liberian civil war does not have any solid anchor in international law.”).

148 E.g., Nolte, Georg, Restoring Peace by Regional Action: International Legal Aspects of the Liberian Conflict, 53 Zestschrift für Ausländisches Offentliches Recht und Völkkerrecht 603, 621–26 (1993); Wippman, David, Military Intervention, Regional Organizations, and Host-State Consent, 7 Duke J. Comp. & Int'l L. 209, 223, 227 (1996).

149 Id. at 224.

150 Id. at 226.

151 Nolte, supra note 148, at 633–34.

152 See supra notes 133, 136–137 and accompanying text; see also Wippman, supra note 148, at 226–27; Borgen, Christopher J., The Theory and Practice of Regional Organization Intervention in Civil Wars, 26 N.Y.U. J. Int'l L. & Pol. 797, 818 (1994) (explaining that ECOWAS “marginalized the Doe government and forged a future for Liberia that did not envision Doe at all”).

153 Franck, supra note 82, at 156 (asserting that the incident “seemed to signal that the Council, in appropriate circumstances, could retroactively sanitize an action that may have been of doubtful legality at the time it was taken”); Levitt, Jeremy, Humanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of ECOWAS in Liberia and Sierra Leone, 12 Temp. J. Int'l & Comp. L.J. 333, 347 (1998) (“[I]t can be said that Resolutions 788 and 866 placed a retroactive de jure seal on the ECOWAS intervention.”).

154 Walter, supra note 62, at 1501 (“Res. 788 (1992) may be interpreted as a subsequent (implicit) authorization.”).

155 Id.; see also Reisman, W. Michael, Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention, 11 Eur. J. Int'l L. 3, 16 (2000) (“One of the functions of organized and institutionalized decisionmaking is to insure that due deliberation precede action thereby minimizing the inevitable tendencies to impulsiveness and arbitrariness … .”); Krisch, supra note 32, at 1343 (“The possibility of ex post authorizations would … undermine the constraining effect of having to seek prior authorization by removing the only clear identifiable condition for military measures that go beyond self-defence.”); but cf. UN Secretary-General, A More Secure World: Our Shared Responsibility, para. 272(a), UN Doc. A/59/565 (Dec. 2, 2004) (“Authorization from the Security Council should in all cases be sought for regional peace operations, recognizing that in some urgent situations that authorization may be sought after such operations have commenced.”).

156 See UN SCOR, 45th Sess., 2974th mtg., supra note 130 (statement of Liberia “recall[ing] that seven months ago we made efforts to have the Council seized with the deteriorating situation in Liberia, which efforts were not approved”); Kathleen Best, U.N. Moves to Halt Liberian Arms, St. Louis Post-Dispatch, Nov. 20, 1992, at A13 (“Western diplomats, including those in the United States, have pushed to limit U.N. involvement to non-military support … .”).

157 E.g., Franck, supra note 82, at 162 (describing the Liberia incident as a “purely humanitarian” operation and suggesting that it stands for the general proposition that regional organizations may “use force, even absent specific prior Security Council authorization, when that seemed the only way to respond to impending humanitarian disasters”); Levitt, supra note 153, at 375 (“ECOWAS has strongly contributed to spurring what appears to be new norms of customary international law … permitting unilateral humanitarian intervention by groups of states and regional actors in internal conflicts.”).

158 See supra note 65 and accompanying text.

159 Indeed, a few years later, the dominant view of NATO's unauthorized humanitarian intervention in Kosovo was that it was unlawful. See Roberts, Legality vs. Legitimacy, supra note 85, at 182 (“Many commentators ended up adopting the ambivalent position that NATO's use of force was formally illegal but morally justified.”); Stahn, Carsten, Enforcement of the Collective Will After Iraq, 97 AJIL 804, 814 (2003) (“The prevailing opinion on Kosovo continues to maintain that the intervention was illegal under the Charter.”).

160 Text: Trump Statement on U.S. Military Strikes in Syria, Reuters (Apr. 6, 2017), at http://www.reuters.com/article/us-mideast-crisis-syria-text-idUSKBN1790A1.

161 See UN SCOR, 71st Sess., 7915th mtg., UN Doc. S/PV.7915 (Apr. 5, 2017); Richard Roth, Inside the Tense Closed-Door UN Security Council Deliberations on Syria, CNN (Apr. 10, 2017), at http://www.cnn.com/2017/04/10/politics/un-security-council-syria (reporting on the “‘exceptionally poisonous’” closed-door session that ended minutes before the U.S. strikes).

162 E.g., Russia Calls for Emergency U.N. Meeting After U.S. Strikes on Syria, Reuters (Apr. 7, 2017), at http://www.reuters.com/article/us-mideast-crisis-syria-russia-un-idUSKBN179112 (“Russia wants an emergency meeting of the U.N. Security Council to discuss U.S. missile strikes on Syria, the Russian Foreign Ministry said … .”).

163 The UN under-secretary general for political affairs set the tone of the meeting by focusing on the military strife and use of chemical weapons in Syria. UN SCOR, 71st Sess., 7919th mtg., at 2–3, UN Doc. S/PV.7919 (Apr. 7, 2017).

164 Id. (Australia, France, Germany, Italy, Japan, Netherlands, New Zealand, Saudi Arabia, Turkey, United Kingdom, and Ukraine). Several others and the European Union supported it in alternative arenas. See Syria War: World Reaction to US Missile Attack, BBC News (Apr. 7, 2017), at http://www.bbc.com/news/world-us-canada-39526089 (reporting on support from Canada, Israel, Poland, and the European Union); U.S. Allies Show Support for Strikes on Syria, Reuters (Apr. 6, 2017), at http://www.reuters.com/article/us-mideast-crisis-syria-reaction-idUSKBN1790M4 (reporting on support from Qatar, UAE, Bahrain, and Kuwait, and ambivalence from Indonesia); Madison Park, Who's with the US on Syria Strike and Who Isn't, CNN (Apr. 8, 2017), at http://www.cnn.com/2017/04/07/world/syria-us-strike-world-reaction/index.html (reporting on support from Jordan and Spain, and opposition from North Korea).

165 UN SCOR, 71st Sess., 7919th mtg., supra note 163 (Egypt, China, Uruguay, Senegal, Kazakhstan, Sweden, and Ethiopia).

166 Id.

167 See Shane Darcy, Retaliation and Reprisal, in Oxford Handbook of the Use of Force, supra note 79, at 879, 880–83.

168 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, para. 46 (July 8); Draft Article on Responsibility of States for Internationally Wrongful Acts with Commentaries, in Int'l Law Comm'n, Rep. on the Work of Its Fifty-Third Session, [2001] 2 Y.B. Int'l L. Comm'n 30, Art. 50(1)(a) & Art. 50, cmt. (4), UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2); GA Res. 2625 (XXV) (Oct. 24, 1970).

169 See supra note 16 and accompanying text.

170 E.g., Corten, supra note 36, at 550 (asserting that the jus ad bellum “institute[s] a ‘law against war’ principle”); Steven R. Ratner, The Thin Justice of International Law 70 (2015) (“[I]t is also clear that states bind themselves through international rules in part in order to prevent war and solidify peace.”); Bothe, Michael, Terrorism and the Legality of Pre-emptive Force, 14 Eur. J. Int'l L. 227, 238 (2003) (describing “international law as a restraint on the use of military force”); see also García-Salmones, Mónica, Walther Schücking and the Pacifist Traditions of International Law, 22 Eur. J. Int'l L. 755, 756 (2011) (“[I]nternational law has always been permeated with ideals of peace, … [so] war always constitutes a failure.”).

171 For a further defense of this claim, see Hakimi, Monica, The Work of International Law, 58 Harv. Int'l L. Rev. 1, 4345 (2017).

172 On the point that the jus ad bellum sometimes legitimizes force and makes it easier to implement, see Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (2013); Hurd, Ian, The Permissive Power of the Ban on War, 2 Eur. J. Int'l Sec. 1 (Aug. 9, 2016), available at https://doi.org/10.1017/eis.2016.13.

173 Cf. Thomas Franck, The Power of Legitimacy Among Nations 24 (1990) (explaining that noncompliance undermines a norm's “compliance pull” and make it less likely that other states will comply).

174 Cf. UN Doc. S/2014/189 (Mar. 15, 2014) (vetoed Security Council resolution that, in the context of Russia's activities in the Crimea region of Ukraine, “reaffirm[ed] that no territorial acquisition resulting from the threat or use of force shall be recognized as legal”).

175 The exception is the Syria case. See supra Section IV.C.

176 Hakimi, Monica, Constructing an International Community, 111 AJIL 317 (2017).

177 For a similar argument in the context of the 2003 Iraq war, see Stahn, supra note 159, at 808.

178 Schauer, supra note 53, at 183.

179 See supra notes 121–125 and accompanying text.

180 See Hakimi & Cogan, supra note 8, at 288–89.

181 My analysis here builds on three earlier works: id.; Hakimi, Defensive Force Against Non-state Actors, supra note 104; and Monica Hakimi & Jacob Katz Cogan, A Role for the Security Council on Defensive Force?, EJIL:Talk! (Oct. 21, 2016), at https://www.ejiltalk.org/a-role-for-the-security-council-on-defensive-force.

182 See Peter Baker & Eric Schmitt, Many Missteps in Assessment of ISIS Threat, N.Y. Times (Sept. 29, 2014), at http://www.nytimes.com./2014/09/30/world/middleeast/obama-fault-is-shared-in-misjudging-of-isis-threat.html?_r=0.

183 Id.; Zeina Karam, A Look at the Islamic State Militants in Syria, Seattle Times (Aug. 28, 2014), at https://www.seattletimes.com/nation-world/a-look-at-the-islamic-state-militants-in-syria.

184 See David Brunnstrom & Randy Fabi, U.S. Seeks More from China, Asian Muslim Nations, on Islamic State, Reuters (Oct. 16, 2014), at http://www.reuters.com/article/us-mideast-crisis-kerry-asia/u-s-seeks-more-from-china-asian-muslim-nations-on-islamic-state-idUSKCN0I527920141016.

185 Eric Schmitt, Obstacles Limit Targets and Pace of Strikes on ISIS, N.Y. Times, Nov. 10, 2014, at A1.

186 Emma Rapport, Dutch Parliament Commits Soldiers, F-16s to Fight ISIS in Iraq, NL Times (Sept. 24, 2014), at www.nltimes.nl/2014/09/24/parliament-commits-troops-isis-fight (Neth.).

187 E.g., Permanent Rep. of the United States of America to the UN, Letter Dated Sept. 23, 2014 from the Permanent Rep. of the United States of America to the UN Addressed to the Secretary-General, UN Doc. S/2014/695 (Sept. 23, 2014); Permanent Rep. of Australia to the UN, Letter Dated Sept. 9, 2015 from the Permanent Rep. of Australia to the UN Addressed to the President of the Security Council, UN Doc. S/2015/693 (Sept. 9, 2015); Chargé d'affaires a.i. of the Permanent Mission of Canada to the UN, Letter Dated Mar. 31, 2015 from the Chargé d'affaires a.i. of the Permanent Mission of Canada to the UN Addressed to the President of the Security Council, UN Doc. S/2015/221 (Mar. 31, 2015); Chargé d'affaires a.i. of the Permanent Mission of Turkey to the UN, Letter Dated July 24, 2015 from the Chargé d'affaires a.i. of the Permanent Mission of Turkey to the UN Addressed to the President of the Security Council, UN Doc. S/2015/563 (July 24, 2015).

188 See, e.g., Chargé d'affaires a.i. of the Permanent Mission of Turkey to the UN, Identical Letters Dated June 27, 1996 from the Chargé d'affaires a.i. of the Permanent Mission of Turkey to the UN Addressed to the Secretary-General and to the President of the Security Council, UN Doc. S/1996/479 (July 2, 1996); UN SCOR, 36th Sess., 2292nd mtg., at para. 54, UN Doc. S/PV.2292 (July 17, 1981) (Israel).

189 For a recent survey of state positions on the unable or unwilling standard, see Brunnée, Jutta & Toope, Stephen J., Self-Defence Against Non-state Actors: Are Powerful States Willing but Unable to Change International Law?, 67 Int'l & Comp. L. Q. (forthcoming 2018).

190 E.g., Permanent Rep. of France to the UN, Identical Letters Dated Sept. 8, 2015 from the Permanent Rep. of France to the UN Addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2015/745 (Sept. 9, 2015); Permanent Rep. of the United Kingdom of Great Britain and Northern Ireland to the UN, Letter Dated Sept. 7, 2015 from the Permanent Rep. of the United Kingdom of Great Britain and Northern Ireland to the UN Addressed to the President of the Security Council, UN Doc. S/2015/688 (Sept. 8, 2015); see also Flasch, Olivia, The Exercise of Self-Defence Against ISIL in Syria: New Insights on the Extraterritorial Use of Force Against Non-state Actors, 3 J. Use of Force & Int'l L. 37, 64 (2016) (reviewing the opaque statements of Arab states that supported or participated in the strikes).

191 SC Res. 2249, pmbl. (Nov. 20, 2015).

192 Id., para. 5.

193 Dapo Akande & Marko Milanović, The Constructive Ambiguity of the Security Council's ISIS Resolution, EJIL:Talk! (Nov. 21, 2015), at https://www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils-isis-resolution.

194 Id.; see also Gross, Oren, Unresolved Legal Questions Concerning Operation Inherent Resolve, 52 Tex. Int'l L.J. 221, 233 (2017) (“For those who reject the position that the resolution authorizes member States to use force against ISIS, the resolution is nothing more than a restatement that member states may only use force against ISIS if, and only if, they are already permitted to do so legally, namely in exercising their inherent right of individual or collective self-defense in accordance with Article 51 of the Charter.”); Ashley Deeks, Threading the Needle in Security Council Resolution 2249, Lawfare (Nov. 23, 2015), at https://www.lawfareblog.com/threading-needle-security-council-resolution-2249 (“If UNSCR 2249 does not authorize force, then why did the French pursue it? The answer is politics.”).

195 Permanent Rep. of Denmark to the UN, Letter Dated Jan. 11, 2016 from the Permanent Rep. of Denmark to the UN Addressed to the President of the Security Council, UN Doc. S/2016/34 (Jan. 13, 2016); Permanent Rep. of Norway to the UN, Letter Dated June 3, 2016 from the Permanent Rep. of Norway to the UN Addressed to the President of the Security Council, UN Doc. S/2016/513 (June 3, 2016); Permanent Rep. of Belgium to the UN, Letter Dated June 7, 2016 from the Permanent Representative of Belgium to the UN Addressed to the President of the Security Council, UN Doc. S/2016/523 (June 9, 2016); Chargé d'affaires a.i. of the Permanent Mission of the Netherlands to the UN, Letter Dated Feb. 10, 2016 from the Chargé d'affaires a.i. of the Permanent Mission of the Netherlands to the UN Addressed to the President of the Security Council, UN Doc. S/2016/132 (Feb. 10, 2016); Letter Dated Dec. 10, 2015 from the Chargé d'affaires a.i. of the Permanent Mission of Germany to the UN Addressed to the President of the Security Council, UN Doc. S/2015/946 (Dec. 10, 2015); see also Permanent Rep. of the United Kingdom of Great Britain and Northern Ireland to the UN, Letter Dated Dec. 3, 2015 from the Permanent Rep. of the United Kingdom of Great Britain and Northern Ireland to the UN Addressed to the President of the Security Council, UN Doc. S/2015/928 (Dec. 3, 2015) (invoking Resolution 2249 to supplement earlier notifications of the use of force in Syria); Flasch, supra note 190, at 62 (“Following the unanimous adoption of UNSC Resolution 2249 in late 2015, multiple states made remarks endorsing and approving the strong, unified message the resolution sent.”).

196 Hakimi & Cogan, supra note 8.

I benefited greatly from comments on earlier drafts from Jacob Katz Cogan, Ashley Deeks, Don Herzog, Steven Ratner, the Journal's anonymous reviewers, and the participants in the February 2018 Faculty Workshop at William and Mary Law School, the December 2017 Cyber-Colloquium on International Law, and the December 2017 Workshop of the American Society of International Law Interest Group on International Law in Domestic Courts. John Ramer provided excellent research support.

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American Journal of International Law
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