EXPLAINING INTERNATIONAL ACTS.

• Author: Keituer, Chimene I.

This contribution to the symposium on Evan Criddle & Evan Fox-Decent's "Fiduciaries of Humanity" pushes against the strong claim by some critics that international legal norms are concerned solely with outcomes, rather than with processes of deliberation and justification more commonly associated with certain areas of domestic law. It explores this proposition by looking at examples including the 1999 Kosovo intervention, the April 2018 Syria strikes, and the results of the Chilcot Inquiry in the United Kingdom. Although deliberative processes that lead to international acts may not be judicially reviewable to the same extent as those that lead to purely domestic acts, the push for "transparency" among domestic constituencies, as well as other oversight mechanisms, create ex ante incentives for integrity in decision-making processes and rationales in the conduct of foreign affairs. In addition, ex post explanations of international acts may themselves carry legal significance as expressions of a state's opinio juris. Scholars and practitioners should not discount the "culture of justification" that exists at the international level, even outside international courts and tribunals.

Cette contribution au symposium portant sur l'ouvrage de Evan Criddle et Evan FoxDecent, >, se positionne a l'encontre de la revendication de certains critiques voulant que les normes juridiques internationales se preoccupent uniquement des resultats, plutot que du processus de deliberation et de justification plus souvent associe a certains domaines du droit interne. L'article explore cette proposition en se referant a des exemples, notamment l'intervention au Kosovo de 1999, les frappes en Syrie d'avril 2018 et les resultats de la Commission Chilcot au Royaume-Uni. Bien que les processus de deliberation menant a l'elaboration de lois internationales ne puissent etre assujettis a une revision judiciaire au meme titre que les lois purement internes, la volonte d'assurer une forme de > au sein des constitutions interieures ainsi que les autres mecanismes de surveillance creent des incitatifs ex ante pour assurer l'integrite des processus de decision et des justifications dans la conduite des affaires etrangeres. De plus, les explications a posteriori des lois internationales peuvent elles-memes contenir une signification juridique en tant qu'expression de l'opinio juris de l'Etat. Les academiciens et les praticiens ne devraient pas ignorer la > qui existe au niveau international, meme hors des cours et tribunaux internationaux.

Introduction I. Forms and Functions of International Legal Justification II. Justifying Uses of Force III. Pressures for Public Explanation: The Chilcot Inquiry IV. Lawyers, Policymakers, and Public Discourse Evan Criddle and Evan Fox-Decent's Fiduciaries of Humanity brings insights from the field of "fiduciary political theory" to the study of international law. (1) While their analysis focuses primarily on substantive legal norms, it also prompts consideration of whether process-oriented norms exist, or should exist, in public international law. Ethan Leib and Stephen Galoob have questioned the relevance of fiduciary norms to international law on the grounds that, in their view, a "rigorous culture of justification [does not] appl[y] to the international legal realm," (2) which they contend is instead concerned primarily with "how states behave." (3) This critique overlooks that, in international law as in domestic law, the why of state action matters, not just the what of state action. The "culture of justification" that exists at the international level includes an expectation that states will articulate the legal and policy bases for their actions, particularly when such actions depart from accepted norms of state behavior. (4) In a variety of contexts, states are expected--and seek--to explain their international acts.

This contribution pushes against the strong claim that international legal norms are concerned solely with outcomes, rather than with the processes of deliberation and justification more commonly associated with certain areas of domestic law. Although deliberative processes that lead to international acts may not be judicially reviewable to the same extent as those that lead to purely domestic acts, the push for "transparency" among domestic constituencies, as well as other oversight mechanisms, create ex ante incentives for integrity in decision-making processes and rationales in the conduct of foreign affairs. In addition, ex post explanations of international acts may themselves carry legal significance as expressions of a state's opinio juris--that is, a belief that international law required or prohibited those acts. Public explanations of a state's international legal understandings can help clarify and crystallize the content of legal norms. Scholars and practitioners should not discount the "culture of justification" that exists at the international level, even outside international courts and tribunals.

The expectation of reason-giving serves important functions. (5) As former US State Department Legal Adviser Abram Chayes observed, "the requirement of justification provides an important substantive check on the legality of action and ultimately on the responsibility of the decision-making process." (6) This is so both from the perspective of ensuring the integrity and legality of decision-making processes, and from the perspective of fostering cooperative relations among states who collectively create, and are bound by, international legal norms. The norm of justification helps ensure that state conduct flows from reasoned decision-making processes, even where there is room for disagreement about the precise contours of applicable legal rules.

1. Forms and Functions of International Legal Justification

   International legal rules shape and constrain policy options in the conduct of foreign affairs. (7) In government, as in the private sector, policy clients want to understand what the rules are, why and how they apply, and what courses of conduct are legally available. They may also seek to identify opportunities to shape the legal environment in which they operate, in order to maximize the material and non-material benefits enjoyed by stakeholders. (8) Articulating public justifications for their international acts enables states to shape the understandings and expectations of other actors in the international legal system.

   Foreign ministry legal advisers act as intermediaries between the domestic and international legal realms by translating international law for domestic decision-makers, and by conveying a state's international legal positions to its foreign counterparts. Iain McLeod, Legal Adviser at the UK Foreign and Commonwealth Office, has reportedly described the role of the foreign ministry as both "providing] good legal advice, drawing on the right expertise" and "engaging] with the outside world to explain what the law is and why that is the case." (9) These tasks represent the internal and external, or ex ante and ex post, dimensions of international legal justification, in which foreign ministry legal advisers play a central role.

   Internally, foreign ministry legal advisers identify what actions a state can take consistent with its international (and, at times, domestic) legal obligations. Certain actions may be, in the words of former US State Department Legal Adviser Harold Koh, "lawful but awful." (10) Others fall squarely within the range of legally available options, and legal advisers can help policy clients map out the potential implications and repercussions of different approaches. Yet other actions may, in rare circumstances, be deemed "illegal but legitimate," (11) such as the NATO air campaign in Kosovo in the spring of 1999, discussed further below. The legal reasoning underpinning this ex ante advice is generally shielded from public view, at least at the time it is issued, to promote comprehensiveness and candor.

   Customary international law derives its legitimacy and binding force largely from state consent expressed in the form of behaviour, but this does not mean that international law lacks a culture of justification. The classic understanding of customary international law norms is that they are formed through the consistent practice of states accompanied by opinio juris--a sense of legal obhgation. Certain legal norms, such as the prohibition on torture, are reinforced by what states say as much as by what they do, since persistent affirmation of a conduct-regulating norm enables the international community to characterize deviant practice as a legal violation. (12)

   Publicly articulating the international legal rationales that underpin a state's actions may serve a variety of functions, in addition to clarifying and crystallizing the content of customary international law. Elihu Root posited in 1907 that "[t]he more clearly and universally the people of a country realize the international obligations and duties of their country, the less likely they will be to resent the just demands of other countries that those obligations and duties be observed." (13) In his account, explaining the international law basis of a state's actions helps foster self-restraint and, in turn, underpins compliance:

   In every civil community it is necessary to have courts to determine rights and officers to compel observance of the law; yet the true basis of the peace and order in which we live is not fear of the policeman; it is the self-restraint of the thousands of people who make up the community and their willingness to obey the law and regard the rights of others. (14) Root's description of a virtuous circle of public explanation and behavior modification anticipates UK Legal Adviser McLeod's reported emphasis on the importance of "engaging] with the outside world to explain what the law is and why that is the case." (15)

   This "outside world" includes a...