A few weeks ago, Australia’s chattering classes were gripped in an unedifying discussion about the Rule of Law. The new head of the Australian Council of Trade Unions, Sally McManus, was asked by ABC’s Leigh Sales if she believed in the Rule of Law (she did) and if that belief was inconsistent with the amount of law-breaking undertaken by unions. It was an asinine series of questions and the resulting conversation covered nobody in glory. I pointed to it as yet another example of legal theorists letting down the wider community.
What might surprise some people, perhaps, is that the same discussion points raised by the questioning of Sally McManus also arise in the recent decision to smack Assad with the tomahawk missiles.
To get to that point, we need a little bit of background and a big disclaimer. I have no experience at all in US domestic law. I am in no way engaging the question of whether or not Trump’s decision was lawful under US law.
I want to turn instead to international law. Article 2(4) of the UN Charter states that member states (which includes the US) ‘shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ This seems to be open and shut: don’t smack each other with missiles.
But Article 51 adds a bit more depth to Article 2: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’ This depth is where the disputes arise. What is the inherent right? What does individual self-defence mean? What does collective self-defence mean? What does self-defence mean when joined with the statement ‘if an armed attack occurs’? Surely self-defence means that you can prevent an armed attack from occurring against you? If somebody comes at me with a knife, I don’t need to wait for them to stab me to claim that I punched them in self-defence.
It is here that we tend to see the greatest divergence between academic lawyers and government lawyers. Academic lawyers read this area narrowly — some even skirt perilously close (IMO) to denying that there is an inherent right of self-defence, and believe only in some kind of limited right to prevent additional attacks. Government lawyers, on the other hand, have been much more creative, and have arguments that this inherent right of self-defence is elongated to cover a wide range of exciting possibilities.
But let us, at this point, be extremely conservative international lawyers and let us imagine that the rules here are strict and unambiguous: no smacking.
It is here that we can reenter the Sally McManus debate from earlier. There, we had people arguing that you might have a moral reason to break a law. Workplace laws might be oppressive and breach some kind of mystical right of a worker; it would therefore be legitimate — according to this view — for unions to break the law. Some boring people even turned to St Augustine for support: ‘Lex iniusta lex non est — An unjust law is not a law.’
But St Augustine was writing back before the Muslims reinvented proper legal philosophy, and much, much earlier than H.L.A. Hart’s landmark work, The Concept of Law. Hart’s big idea was to iron out legal positivism: the idea that law is a social fact and, therefore, not necessarily linked to transcendent ideas of morality. In other words, unjust laws might, indeed, be laws.
It is Hart’s concept of law (and not Augustine’s) that supports McManus’ views best. McManus does not mean to deny that unjust workplace laws are not laws — far from it, her point is that they are laws and those laws need to be challenged and changed, even if that means breaking those laws.
We find it easier to undertake this kind of reasoning when we’re talking about domestic law. It fits our intuitions better that governments can make bad laws and, therefore, we might find moral reasons to deny obedience.
But it feels like we struggle to engage in similar reasoning about international law. What if Article 2 of the UN Charter results in an immoral outcome (like, for argument’s sake, not smacking Assad with a tomahawk missile)? What would we think of a government’s argument that they had a moral reason to ignore international law?
The difficulty here is that international law is popularised in public reasoning as a moral form of law. The United Nations is noble, created in response to the horrors of WWII and designed to limit the destructive capacity of states. Conversely, everybody who publicly speaks out against the UN is characterised as some kind of kook.
The fact that so many of them are kooks doesn’t help.
But, in our argument, we can avoid kookishness. We can say: ‘Russia and China both have veto power over the Security Council, and therefore we are very likely to encounter situations where moral interventions in other countries are unlikely to be lawful.’ Or, if you’re an academic at the University of Sydney’s Department of Political Economy, you might say: ‘The US and the UK both have veto power of the Security Council, and therefore we are very likely to encounter situations where moral interventions in other countries are unlikely to be lawful.’
Either way, we can clearly see that there might be situations that we consider moral which would be (under international law) illegal. That being the case, why shouldn’t governments be permitted to claim that international law should take a back seat to morality?