Evan Criddle and Evan Fox-Decent\u2019s Fiduciaries of Humanity<\/em> brings insights from the field of \u201cfiduciary political theory\u201d to the study of international law.[1]<\/a> 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 \u201crigorous culture of justification [does not] appl[y] to the international legal realm,\u201d[2]<\/a> which they contend is instead concerned primarily with \u201chow states behave.\u201d[3]<\/a> This critique overlooks that, in international law as in domestic law, the why<\/em> of state action matters, not just the what<\/em> of state action. The \u201cculture of justification\u201d 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]<\/a> In a variety of contexts, states are expected\u2014and seek\u2014to explain their international acts.<\/p>\n 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 \u201ctransparency\u201d 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\u2019s opinio juris<\/em>\u2014that is, a belief that international law required or prohibited those acts. Public explanations of a state\u2019s international legal understandings can help clarify and crystallize the content of legal norms. Scholars and practitioners should not discount the \u201cculture of justification\u201d that exists at the international level, even outside international courts and tribunals.<\/p>\n The expectation of reason-giving serves important functions.[5]<\/a> As former US State Department Legal Adviser Abram Chayes observed, \u201cthe requirement of justification provides an important substantive check on the legality of action and ultimately on the responsibility of the decision-making process.\u201d[6]<\/a> 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.<\/p>\n International legal rules shape and constrain policy options in the conduct of foreign affairs.[7]<\/a> 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]<\/a> Articulating public justifications for their international acts enables states to shape the understandings and expectations of other actors in the international legal system.<\/p>\n 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\u2019s 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 \u201cprovid[ing] good legal advice, drawing on the right expertise\u201d and \u201cengag[ing] with the outside world to explain what the law is and why that is the case.\u201d[9]<\/a> 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.<\/p>\n 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, \u201clawful but awful.\u201d[10]<\/a> 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 \u201cillegal but legitimate,\u201d[11]<\/a> 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.<\/p>\n 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<\/em>\u2014a sense of legal obligation. 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]<\/a><\/p>\n Publicly articulating the international legal rationales that underpin a state\u2019s 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 \u201c[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.\u201d[13]<\/a> In his account, explaining the international law basis of a state\u2019s actions helps foster self-restraint and, in turn, underpins compliance:<\/p>\n 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]<\/a><\/p>\n Root\u2019s description of a virtuous circle of public explanation and behavior modification anticipates UK Legal Adviser McLeod\u2019s reported emphasis on the importance of \u201cengag[ing] with the outside world to explain what the law is and why that is the case.\u201d[15]<\/a><\/p>\n This \u201coutside world\u201d includes a legal adviser\u2019s counterparts in other governments, as well as the broader public. US State Department Legal Advisers have long engaged in \u201clegal diplomacy\u201d vis-\u00e0-vis US partners, and have also endeavoured to explain the international legal framework governing US actions to a wider audience. For example, in 2016, State Department Legal Adviser Brian Egan stated that \u201c[l]egal diplomacy plays a key role in building and maintaining the counter-ISIL military coalition. … Legal diplomacy builds on common understandings of international law, while also seeking to bridge or manage the specific differences in any particular state\u2019s international obligations or interpretations.\u201d[16]<\/a> Egan cited the example of letters submitted by states to the UN Security Council under Article 51 of the Charter of the United Nations<\/em>,[17]<\/a> setting forth self-defense rationales for non-consensual uses of force against ISIL on Syrian territory. He indicated:<\/p>\n Public explanations of legal positions are an important part of legal diplomacy. The United States is not alone in providing such public explanations. Over the last eighteen months, for example, nine of our coalition partners have submitted public Article 51 notifications to the U.N. Security Council explaining and justifying their military actions in Syria against ISIL. Though the exact formulations vary from letter to letter, the consistent theme throughout these reports to the Security Council is that the right of self-defense extends to using force to respond to actual or imminent armed attacks by non-State armed groups like ISIL. Those States\u2019 military actions against ISIL in Syria and their public notifications are perhaps the clearest evidence of this understanding of the international law of self-defense.[18]<\/a><\/p>\n In Egan\u2019s account, public articulations of international legal rationales\u2014and other states\u2019 reactions to those rationales\u2014create a feedback loop to ascertain and help ensure the international lawfulness of a state\u2019s behavior.<\/p>\n Egan also offered thoughts on the broader significance of a state\u2019s public explanation of how it interprets international legal obligations:<\/p>\n It is not enough that we act lawfully or regard ourselves as being in the right. It is important that our actions be understood as lawful by others both at home and abroad in order to show respect for the rule of law and promote it more broadly, while also cultivating partnerships and building coalitions. Even if other governments or populations do not agree with our precise legal theories or conclusions, we must be able to demonstrate to others that our most consequential national security and foreign policy decisions are guided by a principled understanding and application of international law<\/em>.[19]<\/a><\/p>\n In the United States, the role of setting forth such explanations often falls to the State Department Legal Adviser, whose ability to speak authoritatively on behalf of the US government is buttressed by his or her status as a Senate-confirmed official.[20]<\/a> Although the task of public explanation may fall to different officials in different countries,[21]<\/a> states routinely describe their own actions, and characterize other states\u2019 behaviour, in legal terms.[22]<\/a> Even if some of this \u201cinternational law talk\u201d is strategic, reference to international law has become embedded in national decision making, and shapes states\u2019 assessment of legally available courses of conduct, whether or not that conduct is judicially reviewable.[23]<\/a><\/p>\n International law\u2019s practice of justification extends beyond foreign ministries. As UK Legal Adviser McLeod has reportedly emphasized, \u201cinternational legal issues are increasingly no longer the preserve of foreign ministries alone, but necessarily engage various government departments.\u201d[24]<\/a> A number of countries assign a policy coordinating role to a national security council or equivalent body.[25]<\/a> Government lawyers across agencies may also coordinate directly regarding their respective legal interpretations, and craft public communications setting forth shared legal views.[26]<\/a> International law thus not only shapes\u2014and is shaped by\u2014interactions and negotiations among states, but also by interactions and negotiations among different agencies within states, each with its own institutional culture, equities, perspective, and personnel. Although such interactions are more likely to characterize intra-governmental deliberations in liberal democracies than in authoritarian states, they illustrate a convergence between domestic and international decision-making processes, and the role of law in each, across a range of issue-areas.[27]<\/a><\/p>\n When a state engages in acts that are not self-evidently reconcilable with accepted international legal rules, that state has three basic options with regard to public explanation: (1) offering a legal rationale and attempting to persuade relevant audiences that its actions can be accommodated within existing legal rules, and\/or that the legal rules should be modified; (2) offering a policy rationale, while attempting to preserve the integrity and binding force of potentially conflicting legal rules; or (3) remaining silent.<\/p>\n By way of illustration, the United Kingdom and the United States adopted different approaches in justifying their respective participation in the NATO bombing campaign in Kosovo in 1999. The United Kingdom chose the first option, embracing humanitarian intervention as internationally lawful in certain circumstances, even absent Security Council authorization.[28]<\/a> The United States, by contrast, chose the second option. As Acting Legal Adviser Michael Matheson explained, \u201c[t]here was broad consensus within NATO that armed action was required to deal with intolerable atrocities by the Federal Republic of Yugoslavia (\u2018FRY\u2019) in Kosovo, but also a shared concern that the chosen justification not weaken international legal constraints on the use of force.\u201d[29]<\/a> As a result, \u201cNATO decided that its justification for military action would be based on the unique combination of a number of factors that presented itself in Kosovo, without enunciating a new doctrine or theory.\u201d[30]<\/a> He acknowledged that \u201c[t]his process was not entirely satisfying to all legal scholars,\u201d but, in his view, \u201cit did bring the Alliance to a position that met our common policy objectives without courting unnecessary trouble for the future.\u201d[31]<\/a><\/p>\n The problem of \u201ccourting unnecessary trouble for the future\u201d is difficult to avoid in a legal system in which norms are shaped by behavior. This problem is underscored by Jack Goldsmith\u2019s later assessment of \u201cthe precedential value of the Kosovo non-precedent precedent for Crimea.\u201d[32]<\/a> Regardless of accompanying disclaimers, the rationale offered for past actions will, predictably, be invoked by other actors in defense of their own conduct. This does not, however, mean that precedents are infinitely malleable. When Vladimir Putin cited the \u201cwell-known Kosovo precedent\u201d[33]<\/a> to justify the annexation of Crimea, many observers rejected this comparison as spurious.[34]<\/a> As with any system of argumentation and legitimation, the mere ability to advance an argument does not dictate that the argument will be accepted as valid by other participants in the system.<\/p>\n This brings us back to the thorny question of humanitarian intervention\u2014not, for the purposes of this discussion, as a substantive legal matter, but rather as an illustration of the range of approaches to justifying state actions that do not fall squarely within established legal parameters. As a matter of \u201cblack letter law\u201d, as indicated above, the UN Charter<\/em> regulates the non-consensual use of force in another state\u2019s territory by requiring Security Council authorization under Chapter VII and\u2014in exceptional circumstances\u2014by allowing a state to act in self-defense, and then report such action to the Security Council under Article 51.[35]<\/a> On its face, military intervention absent Security Council authorization falls outside these parameters, even if conducted on humanitarian grounds. Nevertheless, in August 2013, the United Kingdom[36]<\/a> and Denmark[37]<\/a> maintained that military action would be lawful in response to the use of chemical weapons by the Syrian regime. As set forth in a UK policy paper:<\/p>\n If action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided three conditions are met:<\/p>\n (i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;<\/p>\n (ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and<\/p>\n (iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).[38]<\/a><\/p>\n This attempt to articulate a legal rationale prompted withering criticism, including from Jack Goldsmith, who observed that \u201c[t]he UK \u2018legal position\u2019 contains not a bit of legal analysis.\u201d[39]<\/a> That said, he opined that \u201cit is always better for nations to offer a poor or weak legal justification than no justification at all,\u201d[40]<\/a> since the absence of a proffered legal justification may be taken as signifying \u201cindifference to international law.\u201d[41]<\/a> Taking a different approach, Monica Hakimi opined that the United States, after striking a Syrian airfield associated with a chemical weapons attack in April 2017, should \u201cissue a bland statement supporting the jus ad bellum but should not try to present a legal justification for the strikes\u201d because \u201c[a]ny legal justification would be novel and a stretch\u201d and \u201cwould increase the risk of \u2018opening the door\u2019 in future cases (especially because several other states have already endorsed the strikes).\u201d[42]<\/a><\/p>\n US President Donald Trump announced on April 6, 2017, that he had ordered \u201ca targeted military strike on the airfield in Syria\u201d from which Bashar al-Assad had launched a chemical weapons attack, and that \u201c[i]t is in [the] vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.\u201d[43]<\/a> Commentators quickly jumped in to opine on the international legality, or lack thereof, of the US action.[44]<\/a> Senator Tim Kaine of the Senate Foreign Relations Committee requested \u201cthat the Administration provide Congress with its detailed legal analysis for this action under domestic and international law,\u201d[45]<\/a> and a nonprofit advocacy group brought a lawsuit under the Freedom of Information Act<\/em>[46]<\/a> \u201cto obtain the Trump administration\u2019s legal justification behind the US airstrikes in Syria during April 2017.\u201d[47]<\/a> It appears that, to combine Jack Goldsmith\u2019s and Monica Hakimi\u2019s observations, the United States was willing to risk the appearance of \u201cindifference to international law\u201d to avoid \u201cthe risk of \u2018opening the door\u2019 in future cases.\u201d In these circumstances, other considerations appear to have outweighed pressures to conform to the norm of explanation.[48]<\/a><\/p>\n One year later, when the United States, the United Kingdom, and France bombed Syrian targets in response to the regime\u2019s alleged repeated use of chlorine and sarin to attack civilians in April 2018, the United Kingdom explicitly characterized the operation as lawful humanitarian intervention.[49]<\/a> Many expert observers rejected this position as a legal matter.[50]<\/a> France, meanwhile, issued a statement affirming that its actions conformed to the \u201cgoals and values\u201d of the U.N. Charter<\/em>.[51]<\/a> The United States has maintained a long-standing position of not \u201cenunciating a new doctrine or theory\u201d of humanitarian intervention.[52]<\/a> Instead, US Ambassador to the United Nations Nikki Haley indicated that the strikes were \u201cjustified, legitimate, and proportionate,\u201d and that the US action formed \u201cpart of a new course charted last year to deter future use of chemical weapons.\u201d[53]<\/a> US Secretary of Defense Jim Mattis explained the strikes as defending \u201can important national interest in averting a worsening catastrophe in Syria, and specifically deterring the use and proliferation of chemical weapons.\u201d[54]<\/a> Mattis further characterized the strikes as \u201cdemonstrat[ing] international resolve to prevent chemical weapons from being used on anyone, under any circumstance, in contravention of international law,\u201d[55]<\/a> and maintained that \u201c[w]e did what we believe was right under international law, under our nation\u2019s laws.\u201d[56]<\/a> As in 2017, other states did not broadly condemn this use of force against Syrian targets notwithstanding the lack of Security Council authorization or an argument of self-defense.[57]<\/a><\/p>\n The unresolved question remains what effect these actions and reactions will have on the international law governing the use of force. Given that the United States and France did not join the United Kingdom\u2019s legal explanation, the limiting principles guiding their respective interventions remain unclear. This has led former US State Department Legal Adviser John Bellinger to opine that \u201cin the absence of a clearly articulable international legal basis, administration officials should explain in more detail why the strikes were \u2018justified\u2019 and \u2018legitimate\u2019.\u201d[58]<\/a> The use of these adjectives to characterize the attack suggests that, in other circumstances, unauthorized uses of force might not<\/em> be justified or legitimate. One could infer a set of limiting principles from the specific facts of the Syria interventions, but it remains unclear how fact-bound the apparent exception to the requirement of Security Council authorization should be. Should we only countenance an exception n cases of chemical weapons attacks suspected of including sarin (rather than only chlorine), when used by a regime backed by a veto-wielding member of the UN Security Council?[59]<\/a> Or in other circumstances as well?[60]<\/a><\/p>\n There have been unsuccessful proposals to restrain the use of the Security Council veto in situations of mass atrocities.[61]<\/a> Where interventions are not authorized by the United Nations in such situations, and where states are unwilling to forego the use of force, this creates pressure either to craft theories of humanitarian intervention, or to expand the definition of permissible acts of self-defense. Some states articulate ex ante legal rationales, whereas others may let the ex post reactions of other states (whether in the form of condemnation or acquiescence) serve as a barometer of the perceived conformity of an act with the applicable legal framework.[62]<\/a> Although the constraining function of law and its accompanying culture of justification are certainly more visible where actors offer legal rationales explicitly, actors\u2019 sensitivity to the reactions of other community members also attests to the character of the international community as one governed by norms, and not just sheer power.<\/p>\n A range of domestic and international actors can create pressures for public justification in situations where government lawyers and national security decision-makers might not otherwise offer one.[63]<\/a> For example, in 2009, UK Prime Minister Gordon Brown established a committee of privy counsellors to review the United Kingdom\u2019s policy on Iraq since 2001.[64]<\/a> This entailed a public examination of the legal basis of the United Kingdom decision to participate in military action in Iraq in 2003, absent explicit authorization by the Security Council.[65]<\/a> The Chilcot Inquiry declined to opine on \u201cwhether military action was legal,\u201d which it determined could \u201conly be resolved by a properly constituted and internationally recognised Court.\u201d[66]<\/sup><\/a> It described those circumstances as follows:<\/p>\n In mid-January 2003, Lord Goldsmith [the Attorney General] told [Prime Minister] Mr Blair that a further Security Council resolution would be necessary to provide a legal basis for military action. He did not advise [the Prime Minister] until the end of February that, while a second resolution would be preferable, a \u201creasonable case\u201d could be made that resolution 1441 was sufficient. He set out that view in written advice on 7 March.<\/p>\n The military and the civil service both asked for more clarity on whether force would be legal. Lord Goldsmith then advised that the \u201cbetter view\u201d was that there was, on balance, a secure legal basis for military action without a further Security Council resolution. On 14 March, he asked Mr Blair to confirm that Iraq had committed further material breaches as specified in resolution 1441. Mr Blair did so the next day.<\/p>\n However, the precise basis on which Mr Blair made that decision is not clear.<\/p>\n Given the gravity of the decision, Lord Goldsmith should have been asked to provide written advice explaining how, in the absence of a majority in the Security Council, Mr Blair could take that decision.[67]<\/a><\/p>\n The emphasis on process (\u201cshould have been asked to provide written advice\u201d) and legal analysis (\u201cexplaining how … Mr. Blair could take that decision\u201d) in this statement enabled Sir John Chilcot to criticize the United Kingdom\u2019s actions without characterizing them as unlawful. This approach resonates with fiduciary theory\u2019s emphasis on process rather than outcomes. The paramount failure identified by this part of the inquiry was an absence of adequate justification<\/em>, particularly \u201c[g]iven the gravity of the decision\u201d that, \u201cfor the first time since the Second World War,\u201d led the United Kingdom to \u201c[take] part in an invasion and full-scale occupation of a sovereign State.\u201d[68]<\/a><\/p>\n Although the Chilcot Inquiry faulted Blair for failing to ask Goldsmith to provide a full legal analysis, Dapo Akande suggests, perhaps counterintuitively, that the inquiry actually revealed the central role of international law in policy deliberations: \u201cAs would be expected, the legal advisers at the Foreign Office (FCO)\u00a0and the Attorney General devoted much time and paper to advising on the legality of the war. However, what is perhaps more important here is\u00a0the relevant policy makers also devoted much time and attention to the question of legality of the conflict.\u201d[69]<\/a> Moreover, \u201c[a]ll the main players at the time\u00a0were of the view that it was essential that the Attorney General be able to say that the use of force would be lawful under international law. No one took the view that legality was irrelevant\u00a0or that it would be right to go to war\u00a0if the Attorney General came to the conclusion that\u00a0it would be unlawful to do so.\u201d[70]<\/a> In Akande\u2019s view, \u201cinternational law mattered because it was seen as essential in providing legitimacy to the policy on Iraq.\u201d[71]<\/a> This raises the question of whether international law governing the use of force imposes meaningful constraints on decision makers, or whether it emboldens political leaders to act by cloaking their decisions in the mantle of legality, or at least \u201clegitimacy\u201d.<\/p>\n The answer must be that international law does both. As FCO Legal Adviser Sir Michael Wood wrote in a subsequently declassified 2002 memo, \u201c[i]t would be inconceivable that a Government which has on numerous occasions made clear its intention to comply with international law would order troops into a conflict without justification in international law.\u201d[72]<\/a> However, policy-makers did not insist on a high threshold of plausibility for the requisite international law justification (whether characterized, in Lord Goldsmith\u2019s words, as \u201ca reasonable case\u201d or the \u201cbetter view\u201d).[73]<\/a> As Foreign Secretary Jack Straw wrote to Attorney General Goldsmith in February 2003, \u201c[i]t goes without saying that unanimous and express Security Council authorisation would be the safest legal basis for the use of force against Iraq. But I have doubts about the negotiability of this in current circumstances.\u201d[74]<\/a> Consequently, he continued, \u201c[w]e are likely to have to go for something less.\u201d[75]<\/a> He lamented that \u201cthe culture of government lawyers\u201d is such that the advice proffered on questions of international law \u201cis more dogmatic, even though [in his view] the range of reasonable interpretations is almost always greater than in respect of domestic law.\u201d[76]<\/a> In contrast to such \u201cdogmatic\u201d interpretations, Straw\u2019s assessment of Resolution 1441\u2014in whose negotiation he had been \u201cimmersed\u201d\u2014was that it provided a sufficient basis for the use of force in conjunction, at a minimum, with a material breach by Iraq and \u201cconsideration\u201d of reports of further breaches by the Council.[77]<\/a><\/p>\n As has become well known, FCO Deputy Legal Adviser Elizabeth Wilmshurst left her government position in 2003 because she \u201chad no doubt the war in Iraq was unlawful.\u201d[78]<\/a> She later recounted: \u201cThe process of getting advice from Goldsmith, and the advice that eventually came, gave me the impression that international law was regarded simply as an impediment to be removed before military action was possible.\u201d[79]<\/a> When asked by Sir John Chilcot whether \u201cit ma[d]e a difference that Jack Straw himself is a qualified lawyer?\u201d Wilmshurst responded simply: \u201c[h]e is not an international lawyer.\u201d[80]<\/a> In her assessment, the view that the United Kingdom could use force absent an additional Security Council authorization fell outside the range of reasonable interpretations, as defined by the relevant interpretive community\u2014in this case, the community of international lawyers.[81]<\/a><\/p>\n Former Prime Minister Tony Blair offered a different perspective in his Chilcot Inquiry testimony. Stressing the importance of taking a strong public position in order to assemble a multinational coalition to use force in Iraq, Blair told the House of Commons in January 2003: \u201cThere are circumstances in which a UN resolution is not necessary, because it is necessary to be able to say in circumstances where an unreasonable veto is put down that we would still act.\u201d[82]<\/a> When asked about the apparent inconsistency between this statement and the legal advice he had been given at that time, Blair indicated that \u201cI was saying it not in a sense as a lawyer, but politically,\u201d[83]<\/a> and also clarified that he was envisioning a situation where there had been a material breach by Iraq. Sir Roderick Lyne pushed back on Blair\u2019s attempt to draw a distinction between legal justification and political resolve, asking: \u201cCan you really distinguish when you are speaking to the House of Commons as Prime Minister between making a political point and a legal point when you are making a point about legal interpretations of UN resolutions?\u201d[84]<\/a> Regardless, Blair\u2019s January 2003 statement directly linked the analysis of legal requirements (\u201ca UN resolution is not necessary\u201d) with political imperatives (\u201cbecause<\/em> it is necessary to be able to say … that we would still act\u201d).[85]<\/a><\/p>\n The Chilcot Inquiry revealed a division in perspectives between lawyers who had been involved in negotiating prior Resolution 1441 on behalf of the United Kingdom and the United States, and those who were charged with interpreting whether this Resolution authorized the future use of force. The negotiating lawyers maintained that they had been tasked with\u2014and accomplished\u2014securing agreement on language that would not require an additional resolution in order to authorize the use of force in response to a material breach by Iraq.[86]<\/a> But some who were not part of the negotiations, relying on solely on the text as adopted, maintained that it did not, in fact, provide the requisite authorization. Blair, who was politically committed to engaging in military action, thus told the House of Commons that \u201cit is necessary to be able to say in circumstances where an unreasonable veto is [or would be] put down that we would still act,\u201d and that this political imperative meant that the United Kingdom could not <\/em>take the position that a second Security Council resolution was required.[87]<\/a><\/p>\n Charlotte Peevers offers a different interpretation of Blair\u2019s 2003 statement to the House of Commons. In her view, Blair was attempting to make \u201ca representation of legal authority in the absence<\/em> of having political authority … [in the form of] majority public support\u2014a democratic mandate\u2014for using force without UN backing.\u201d[88]<\/a> Paradoxically, in her view, Blair sought \u201cto claim an excessive sovereign right to wage war on the premise of an internationalized legal<\/em> authority, avoiding the strictures of democratic mandates, or indeed international authority vested in the UN Security Council\u2019s authorization of force.\u201d[89]<\/a> This was especially problematic because \u201c[t]he boundaries of that legal authority were, at the time, entirely subject to secrecy and could therefore be publicly represented in any way deemed justifiable by the government; and then later as merely a political argument that did not in fact rely upon legal authority!\u201d[90]<\/a> All of this turned on whether or not a second resolution was \u201cnecessary\u201d, with the term \u201cnecessary\u201d sounding in both legal and political registers, both contemporaneously and in subsequent retellings. More broadly, this example encapsulates the difficulty of disentangling legal and policy justifications for international actions, particularly when such actions involve novel contexts or contested legal interpretations. Like the concept of \u201cnecessity\u201d, the concept of \u201clegitimacy\u201d has both normative and political overtones. As the language of legitimacy creeps into the international legal lexicon, the tenor of public justification becomes increasingly political.[91]<\/a><\/p>\n The distinction between what countries say and do as a legal matter<\/em>, and what they say and do as a matter of policy<\/em>, carries significant weight in a system of customary international law built on evidence of state practice accompanied by opinio juris<\/em>. In December 2016, the US government published a document entitled Report on the Legal and Policy Frameworks Guiding the United States\u2019 Use of Military Force and Related National Security Operations<\/em>.[92]<\/a> The report compiled eight years\u2019 worth of \u201cspeeches, public statements, reports, and other materials,\u201d[93]<\/a> articulating the \u201clegal and policy frameworks\u201d that had guided US actions in the military and national security arenas. Taking as an example the 2013 Presidential Policy Guidance (PPG) on uses of force outside active areas of hostilities, Laura Dickinson notes that \u201cfor the purposes of international law, the 2013 PPG did not purport to establish legal rules. Instead, it imposed, via policy, a set of limitations on the use of force by the United States over and above all existing limitations under the law of armed conflict (LOAC), also known as international humanitarian law (IHL).\u201d[94]<\/sup><\/a> As Dickinson further notes, the adoption of a \u201clegalistic\u201d policy such as the PPG, which \u201cmay require government lawyers to interpret it, even if those lawyers are not the ultimate decision-makers,\u201d can have the effect of \u201cblur[ring] the boundaries between law and policy itself.\u201d[95]<\/a> This, in turn, may contribute to the view that, in Jack Straw\u2019s words, \u201cthe range of reasonable interpretations [of international law] is always almost greater than in respect of domestic law.\u201d[96]<\/a> In domestic as in international law, however, the test of an interpretation\u2019s \u201creasonable[ness]\u201d lies in the reactions of the relevant interpretive community. Reactions by other governments may be communicated bilaterally (for example, in the course of diplomatic exchanges), or via public channels. \u00a0<\/em><\/p>\n Members of civil society also belong to the interpretive community of international lawyers. In the absence of voluntary public release of legal and policy justifications, governmental entities may be compelled to make certain documents public under applicable provisions of national freedom of information acts. There are, however, strict limits on compelled disclosure. For example, in Corderoy & Ahmed v. IC, A-G & CO<\/em>, the UK Upper Tribunal upheld the Information Commissioner\u2019s (ICO) decision to deny requests for legal advice given to the Attorney General about a Royal Air Force drone attack in Syria in 2015 that killed two British citizens.[97]<\/a> The event was significant in part because it was \u201cthe first time in modern times that a British asset ha[d] been used to conduct a strike in a country where [the United Kingdom] [was] not involved in a war.\u201d[98]<\/a> Yet, although the court ultimately upheld the result reached by the ICO, it criticized her for relying on the government\u2019s representations regarding the requested documents rather than looking at them herself.[99]<\/a> The court also grappled with conflicting imperatives under the Freedom of Information Act<\/em>, noting that \u201c[t]he importance of the issue and the public interest in the issue works both ways because it supports the need for frankness and confidentiality between client and lawyer on the one hand and the arguments in favour of transparency and fully informed debate on the other.\u201d[100]<\/a><\/p>\n The Corderoy<\/em> court appended to its opinion the April 27, 2016 Report of the Joint Committee on Human Rights of the House of Lords and House of Commons<\/em>, which disavowed any desire \u201cto see the Governments\u2019 confidential legal advice,\u201d while insisting that \u201cconsiderations of transparency and democratic accountability require the Government to explain publicly its understanding of the legal basis on which it takes action which so seriously affects fundamental rights.\u201d[101]<\/a> In the Joint Committee\u2019s view:<\/p>\n When dealing with an issue of such grave importance, taking a life in order to protect lives, the Government should have been crystal clear about the legal basis for this action from the outset. They were not. Between the statements of the Prime Minister, the Permanent Representative to the UN and the Defence Secretary, they were confused and confusing.[102]<\/a><\/p>\n The Joint Committee\u2019s request for clarification from the government represents another contribution to international law\u2019s culture of justification, embedded within a domestic culture of legal justification and consultation of Parliament.<\/p>\n The examples described above illustrate the continuing relevance, and limits, of Abram Chayes\u2019s observation that \u201cthe requirement of justification provides an important substantive check on the legality of action and ultimately on the responsibility of the decision-making process.\u201d[103]<\/a> On the one hand, government lawyers must, as a general matter, be able to articulate a \u201creasonable\u201d account of a proposed action\u2019s international lawfulness in order for that action to be considered. On the other hand, as the Chilcot Inquiry illustrates, legal advice is rarely insulated from perceived policy imperatives, and lawyers will often (although not invariably) endeavor to accommodate political decision makers\u2019 desired courses of action within available legal frameworks. Public debate about the lawfulness of particular actions, both within other branches of government and among members of civil society, can help create pressures for more robust legal justifications\u2014for example, raising the threshold for what counts as a \u201creasonable\u201d interpretation\u2014and impose additional costs on decision-makers for taking actions that deviate too widely from accepted norms of behavior. International law does not, as a general matter, require states to offer affirmative public justifications for their actions. However, as illustrated above, states routinely offer explanations (and respond to others\u2019 explanations) in various fora in response to community expectations, and in order more effectively to influence the evolution of standards of behavior within the community.<\/p>\n In the end, international law\u2019s culture of justification\u2014comprised of the exchanges prompted by the public interpretation and elucidation of applicable rules\u2014provides the context within which international legal actors operate. This account resonates with the idea of law as process, which is often associated with the New Haven School.[104]<\/a> From the perspective of fiduciary theory, the core insight is that an account of compliance that focuses exclusively on outcomes misses an important part of what makes international law law<\/em>: namely, the ex ante and ex post processes of justification and explanation that shape actors\u2019 collective understandings of what constitutes internationally permissible conduct.<\/p>\n In the international arena, the farther away an action falls from the agreed core of legally available options, the more likely it is to generate international condemnation, and to lead to the imposition of diplomatic and other costs on the offending actor. In the domestic sphere, at least in liberal democratic states, the absence of an acceptable international legal justification provides constituents with a basis for challenging and scrutinizing governmental actions. As Criddle and Fox-Decent note, \u201c[t]he compulsion of legality, of course, provides no assurance against an executive determined to breach its international legal obligations, or (what is more likely) to interpret them in an unreasonable manner.\u201d[105]<\/a> However, they continue, \u201cthe compulsion of legality is a necessary condition of constitutional democracy because it embodies the rule of law,\u201d including the state\u2019s \u201cunwillingness to reject openly the legal basis of its legal and political authority.\u201d[106]<\/a> While Criddle and Fox-Decent emphasize the important role of international courts, less formal mechanisms\u2014such as domestic and supranational committees of inquiry, diplomatic correspondence, and the \u201ccourt of public opinion\u201d\u2014also play a crucial role in setting the expectation that states will explain their international acts, and that their acts will, by and large, conform to generally accepted notions of legally justifiable conduct. By speaking the language of international law, states engage in conversations that help define the terms of, and create the conditions for, their continued coexistence.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/u><\/p>\n [1]<\/a> \u00a0\u00a0\u00a0 Evan J Criddle & Evan Fox-Decent, Fiduciaries of Humanity: How International Law Constitutes Authority<\/em> (New York: Oxford University Press, 2016) [Criddle & Fox-Decent, Fiduciaries of Humanity<\/em>].<\/p>\n [2]<\/a> \u00a0\u00a0\u00a0 Ethan J Leib & Stephen R Galoob, \u201cFiduciary Political Theory: A Critique\u201d (2016) 125:7 Yale LJ 1820 at\u00a01877. Criddle and Fox-Decent counter that Leib and Galoob\u2019s account relies on \u201ca crude caricature\u201d of international human rights law, and that \u201c[t]here are significant aspects of international legal order\u2014international adjudication and global administrative law\u2014with national analogues that Leib and Galoob endorse as fruitful sites for public fiduciary theorizing.\u201d See Evan J Criddle & Evan Fox-Decent, \u201cKeeping the Promise of Public Fiduciary Theory: A Reply to Leib and Galoob\u201d (2016) 126 Yale LJ Forum 192 at\u00a0195,\u00a0206, online: <www.yalelawjournal.org\/forum\/keeping-the-promise-of-public-fiduciary-theory-a-reply-to-leib-and-galoob>.<\/p>\n [3]<\/a> \u00a0\u00a0\u00a0 Leib & Galoob, supra <\/em>note 2 at\u00a01871.<\/p>\n [4]<\/a> \u00a0\u00a0\u00a0 The term \u201cculture of justification\u201d is associated with the work of Etienne Mureinik. See Etienne Mureinik, \u201cA Bridge to Where? Introducing the Interim Bill of Rights\u201d (1994) 10:1 SAJHR 31 at\u00a032. See also David Dyzenhaus, \u201cLaw as Justification: Etienne Mureinik\u2019s Conception of Legal Culture\u201d (1998) 14:1 SAJHR\u00a011 at\u00a011.<\/p>\n [5]<\/a> \u00a0\u00a0\u00a0 See Harold Hongju Koh, \u201cThe Legal Adviser\u2019s Duty to Explain\u201d (2016) 41:1 Yale J Intl L 189 at\u00a0195 [Koh, \u201cLegal Adviser\u2019s Duty\u201d].<\/p>\n [6]<\/a> \u00a0\u00a0\u00a0 Abram Chayes, The Cuban Missile Crisis: International Crises and the Role of Law<\/em> (New York: Oxford University Press, 1974) at\u00a042.<\/p>\n [7]<\/a> \u00a0\u00a0\u00a0 Of course, international law also plays an essential enabling role, allowing states to cooperate through treaties, international institutions, and other arrangements.<\/p>\n [8]<\/a> \u00a0\u00a0\u00a0 An additional series of questions, which animate aspects of Fox-Decent and Criddle\u2019s ambitious project, consist in identifying the relevant \u201cstakeholders\u201d in decisions made at the national level, but that may impact individuals well beyond a country\u2019s borders.<\/p>\n [9]<\/a> \u00a0\u00a0\u00a0 The Hague Institute for Global Justice, News Release, \u201cThe Hague Conference on International Legal Diplomacy\u201d (23 April 2015), online: <www.thehagueinstituteforglobaljustice. org>, archived at https:\/\/perma.cc\/HKS3-M79Y (reporting the conference paper delivered by Iain McLeod).<\/p>\n [10]<\/a> \u00a0\u00a0 Harold Hongju Koh, \u201cThe State Department Legal Adviser\u2019s Office: Eight Decades in Peace and War\u201d (2012) 100:5 Geo LJ 1747 at\u00a01758.<\/p>\n [11]<\/a> \u00a0\u00a0 See e.g. The Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned<\/em> (New York: Oxford University Press, 2000) (indicating that the military intervention \u201cwas illegal because it did not receive prior approval from the United Nations Security Council\u201d but that it was nevertheless \u201cjustified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule\u201d at\u00a04).<\/p>\n [12]<\/a> \u00a0\u00a0 See Chim\u00e8ne I Keitner, \u201c\u2018Cheap Talk\u2019 About Customary International Law\u201d in David L Sloss, Michael D Ramsey & William S Dodge, eds, International Law in the U.S. Supreme Court: Continuity and Change<\/em> (Cambridge: Cambridge University Press, 2011) at\u00a0494\u201395 (describing states\u2019 statements as evidence of customary international law, understood as \u201ccrystallized patterns of mutual expectations\u201d at\u00a0495).<\/p>\n [13]<\/a> \u00a0\u00a0 Elihu Root, \u201cThe Need of Popular Understanding of International Law\u201d (1907) 1:1 Am J Intl\u00a0L\u00a01\u00a0at\u00a02.<\/p>\n [14]<\/a> \u00a0\u00a0 Ibid<\/em>.<\/p>\n [15]<\/a> \u00a0\u00a0 McLeod, supra <\/em>note 9.<\/p>\n [16]<\/a> \u00a0\u00a0 Brian Egan, \u201cInternational Law, Legal Diplomacy, and the Counter-ISIL Campaign: Some Observations\u201d (2016) 92 Intl L Stud 235\u00a0at\u00a0244.<\/p>\n [17]<\/a> \u00a0\u00a0 See Charter of the United Nations<\/em>, 26 June 1945, 1 UNTS XVI, art 51 [\u201cUN Charter<\/em>\u201d].<\/p>\n [18]<\/a> \u00a0\u00a0 Ibid<\/em> (also noting that \u201cgovernments seek to understand each other\u2019s legal rationale for military operations\u201d most often through \u201cprivate discussions [that] help frame the public conversation on some of the central legal issues, and [that] are crucial to securing the vital cooperation of partners who want to understand our legal basis for acting\u201d at 244).<\/p>\n [19]<\/a> \u00a0\u00a0 Ibid<\/em> at\u00a0247 [emphasis added].<\/p>\n [20]<\/a> \u00a0\u00a0 See Koh, \u201cLegal Adviser\u2019s Duty\u201d, supra <\/em>note 10 (noting the \u201cresponsibility of government international lawyers to explain publicly their government\u2019s international law rationale for its actions […] a loyalty that government legal advisers owe not just to their clients and ministers but also to their publics and national citizenries\u201d; and discussing a \u201ctransparency norm\u201d under which \u201csenior government lawyers, and the Legal Adviser of the foreign ministry, in particular, should be expected not just to give legal advice in private but also to explain in public the international legal basis supporting the action that their government has taken\u201d at 189\u201390). See also John B Bellinger III, \u201cInternational Legal Public Diplomacy\u201d (2007) 83 Intl L Stud 205 (indicating that \u201cI and my staff talk about the law to help our counterparts in ministries of foreign affairs around the world, as well as international organizations, non-governmental organizations, opinion makers and the public, understand our legal rationales and, in nations that lack a strong rule of law tradition, to help people understand the importance of law in forming good policy\u201d\u00a0at\u00a0208).<\/p>\n [21]<\/a> \u00a0\u00a0 See Daniel Bethlehem, \u201cA Transatlantic View of International Law and Lawyers: Cooperation and Conflict in Hard Times\u201d in D Stephen Mathis, Anthea Roberts & Carlos M Vasquez, eds, International Law as Law: Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law, Washington, 2009<\/em> (2010) 103 Am Soc Intl L Proc 455 (Former FCO Legal Adviser Daniel Bethlehem explained: \u201cI do not speak publicly for the Foreign Office or the British Government. Within our system, that role is the preserve of ministers. So, while there is a representational role, it is not quite the same as that of my counterpart here in Washington\u201d\u00a0at\u00a0460). For detailed international legal expositions by other government representatives, see e.g. The Right Honourable Jeremy Wright, \u201cThe Modern Law of Self-Defence\u201d\u00a0(11 January 2017), EJIL: Talk!<\/em> (blog), online: <www.ejiltalk.org\/the-modern-law-of-self-defence>, archived at\u00a0https:\/\/perma.cc\/4X9C-WVST (where the UK Attorney General sets out \u201chow the UK applies the long-standing rules of international law on self-defence to our need to defend ourselves against new and evolving types of threats from non-state actors\u201d); George Brandis, \u201cThe Right of Self-Defence Against Imminent Armed Attack in International Law\u201d (25 May 2017), EJIL: Talk!<\/em> (blog), online: <www.dipublico.org\/106020\/ [22]<\/a> \u00a0\u00a0 Scholars have drawn different conclusions from this observation. See Jack L Goldsmith & Eric A Posner, The Limits of International Law<\/em> (New York: Oxford University Press, 2005) (noting that \u201c[i]nternational law rhetoric pervades international relations,\u201d and opining that, often, \u201cinternational legal rhetoric is used to mask or rationalize behavior driven by self-interested factors that have nothing to do with international law\u201d at\u00a0226). International law and international relations scholars with a more constructivist orientation emphasize that international law shapes states\u2019 endogenous preferences and redefines their self-interest to encompass rules-based behavior.<\/p>\n [23]<\/a> \u00a0\u00a0 See e.g. The Right Honourable Jeremy Wright, \u201cThe Importance of International Law for Government Lawyers\u201d (Keynote address delivered at the Government Legal Service International Law Conference, 15 October 2015),\u00a0online: <www.gov.uk\/government\/ [24]<\/a> \u00a0\u00a0 McLeod, supra <\/em>note 9.<\/p>\n [25]<\/a> \u00a0\u00a0 See Geneva Centre for the Democratic Control of Armed Forces, \u201cNational Security Councils (and Related Bodies)\u201d (November 2010) at\u00a01, online: <www.davidmlaw.com\/ [26]<\/a> \u00a0\u00a0 See John Bellinger, \u201cCharlie Savage and the NSC Lawyers Group\u201d (8 November 2015), Lawfare <\/em>(blog), online: <www.lawfareblog.com\/charlie-savage-and-nsc-lawyers-group>, archived at https:\/\/perma.cc\/M2CN-DV7V; Rebecca Ingber, \u201cInterpretation Catalysts and Executive Branch Legal Decisionmaking\u201d (2013) 38:2 Yale J Intl L 359 at\u00a0400\u201301.<\/p>\n [27]<\/a> \u00a0\u00a0 This observation is related to insights offered by the study of global administrative law (GAL). Benedict Kingsbury describes reason-giving in this context as follows:<\/p>\n A requirement that reasons be given for certain types of decisions, and for the adoption of certain norms, is found in many areas of global governance practice. Normative and functional reasons for this requirement are readily identifiable. Governance mechanisms can be arrayed along a spectrum between essentially political and essentially legal modes of operation, based upon the degree of commitment to deliberation and reason-giving in their decision-making.<\/p>\n Benedict Kingsbury, \u201cThe Concept of \u2018Law\u2019 in Global Administrative Law\u201d (2009) 20:1 Eur J Intl L\u00a023 at\u00a047; cf <\/em>Micah Schwartzman, \u201cJudicial Sincerity\u201d (2008) 94:4 Va L Rev 987 (observing that \u201cthe principle of legal justification is based on the idea that legal and political authorities act legitimately only if they have reasons that those subject to them can, in principle, understand and accept\u201d at 1004).<\/p>\n [28]<\/a> \u00a0\u00a0 The United Kingdom articulated the view in October 1998 that \u201cas matters now stand and if action through the Security Council is not possible, military intervention by NATO is lawful on grounds of overwhelming humanitarian necessity.\u201d United Kingdom, Foreign and Commonwealth Office, \u201cFRY\/Kosovo: The Way Ahead; UK View on Legal Base for Use of Force\u201d, note circulated to NATO allies (7 October 1998), cited in Adam Roberts, \u201cNATO\u2019s \u2018Humanitarian War\u2019 over Kosovo\u201d (1999) 41:3 Survival 102 at\u00a0106. See also UNSC, 54th Year, 3988th Mtg, UN Doc S\/PV.3988 (1999) (stating that \u201con the grounds of overwhelming humanitarian necessity, military intervention is legally justifiable\u201d at 12).<\/p>\n [29]<\/a> \u00a0\u00a0 Michael J Matheson, \u201cJustification for the NATO Air Campaign in Kosovo\u201d in International Law in Ferment: Proceedings of the Ninety Fourth Annual Meeting of the American Society of International Law, Washington, 2000<\/em> (2000) 94 American Society Intl L Proceedings 301 at\u00a0301.<\/p>\n [30]<\/a> \u00a0\u00a0 Ibid.<\/em><\/p>\n [31]<\/a> \u00a0\u00a0 Ibid.<\/em><\/p>\n [32]<\/a> \u00a0\u00a0 Jack Goldsmith, \u201cThe Kosovo Precedent for Syria Isn\u2019t Much of a Precedent\u201d, (24 August 2013), Lawfare <\/em>(blog), online: <www.lawfareblog.com\/kosovo-precedent-syria-isnt-much-precedent>, archived at\u00a0https:\/\/perma.cc\/WAT7-CPCV (noting that \u201cthe United States tried to make sure that the NATO intervention into Kosovo would not be a precedent under international law for future interventions,\u201d but that this would depend on \u201chow the action is interpreted and used in the future\u201d). See also Jack Goldsmith, \u201cThe Precedential Value of the Kosovo Non-Precedent Precedent for Crimea\u201d (17 March 2014), Lawfare <\/em>(blog), online: <www.lawfareblog.com\/precedential-value-kosovo-non-precedent-precedent-crimea>, archived at https:\/\/perma.cc\/2CWP-Y9K4.<\/p>\n [33]<\/a> \u00a0\u00a0 President of Russia Vladimir Putin, News Release, \u201cAddress by President of the Russian Federation\u201d (18 March 2014), online: <en.kremlin.ru\/d\/20603>, archived at https:\/\/perma.cc\/CE7D-X79P.<\/p>\n [34]<\/a> \u00a0\u00a0 See e.g. Ilya Somin, \u201cWhy the Kosovo \u2018Precedent\u2019 Does Not Justify Russia\u2019s Annexation of Crimea\u201d, The Washington Post<\/em> (24 March 2014), online: <www.washingtonpost.com>, archived at https:\/\/perma.cc\/N4LL-SDWF; Daniel W Drezner, \u201cPutin\u2019s Excuse for a Referendum is Wrong: Crimea Isn\u2019t Kosovo\u2014at All\u201d, The Guardian<\/em> (17 March 2014), <www.theguardian.com>, archived at https:\/\/perma.cc\/Y9RG-WMLX.<\/p>\n [35]<\/a> \u00a0\u00a0 See UN Charter<\/em>, supra<\/em> note 17 at arts 39, 51.<\/p>\n [36]<\/a> \u00a0\u00a0 See UK, Prime Minister\u2019s Office, \u201cChemical Weapon Use by Syrian Regime: UK government legal position\u201d, Policy Paper (London: Prime Minister\u2019s Office, 29 August 2013), online: <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>, archived at https:\/\/perma.cc\/4EXB-QUDA [UK, \u201cChemical Weapon Use\u201d]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.<\/p>\n [37]<\/a> \u00a0\u00a0 See Denmark, Ministry of Foreign Affairs, \u201cGeneral Principled Considerations on the Legal Basis for a Possible Military Operation in Syria\u201d, UPN Alm del Bilag 298 (30 August 2013), online: <www.ft.dk\/samling\/20121\/almdel\/upn\/bilag\/298\/1276299\/index>, archived at https:\/\/perma.cc\/K4MA-8UEG. See also Anders Henriksen & Marc Schack, \u201cThe Crisis in Syria and Humanitarian Intervention\u201d (2014) 1:1 J Use Force & Intl L 122 at\u00a0127.<\/p>\n [38]<\/a> \u00a0\u00a0 UK, \u201cChemical Weapon Use\u201d, supra\u00a0<\/em>note\u00a036. See also Daniel Bethlehem, \u201cStepping Back a Moment: The Legal Basis in Favour of a Principle of Humanitarian Intervention\u201d (12 September 2013), EJIL: Talk! <\/em>(blog), online: <www.ejiltalk.org\/stepping- [39]<\/a> \u00a0\u00a0 Jack Goldsmith, \u201cUK Legal Position on Humanitarian Intervention in Syria\u201d (29 August 2013), Lawfare<\/em> (blog), online: <www.lawfareblog.com\/uk-legal-position-humanitarian-intervention-syria>, archived at https:\/\/perma.cc\/FJ5Q-JFWS (observing that the UK position \u201cdoes not explain how humanitarian intervention as it describes it is consistent with the U.N. Charter\u2019s clear prohibition on the use of force absent Security Council authorization or in self-defense\u201d and \u201cdoes not try to explain why it believes that humanitarian intervention as it describes it represents the general and consistent practice of states followed from a sense of legal obligation … because there would be no basis for such a position\u201d).<\/p>\n [40]<\/a> \u00a0\u00a0 Ibid<\/em>.<\/p>\n [41]<\/a> \u00a0\u00a0 Ibid<\/em>.<\/p>\n [42]<\/a> \u00a0\u00a0 Monica Hakimi (8 April 2017 at 5:35am), comment on Monica Hakimi, \u201cUS Strikes Against Syria and the Implications for the Jus Ad Bellum\u201d, EJIL: Talk! <\/em>(blog), online: <www.ejiltalk.org\/us-strikes-against-syria-and-the-implications-for-the-jus-ad-bellum>, archived at https:\/\/perma.cc\/MU3P-XB6L.<\/p>\n [43]<\/a> \u00a0\u00a0 US, The White House, Office of the Press Secretary, \u201cStatement by President Trump on Syria\u201d, (Mar-a-Lago, Florida: 6 April 2017), online: <uk.usembassy.gov\/statement-president-trump-syria>, archived at https:\/\/perma.cc\/5PAV-3G3P.<\/p>\n [44]<\/a> \u00a0\u00a0 See e.g. Ryan Goodman, \u201cWhat Do Top Legal Experts Say About the Syria Strikes?\u201d (7 April 2017) Just Security<\/em>, online: <www.justsecurity.org\/ 39712\/top-legal-experts-syria-strikes\/>, archived at https:\/\/perma.cc\/74YY-DQ9U.<\/p>\n [45]<\/a> \u00a0\u00a0 US, Tim Kaine, Letter from Senator Tim Kaine to the Honorable Rex Tillerson (Virginia: 8 February 2018), online: <assets.documentcloud.org\/documents\/4375419\/ [46]<\/a> \u00a0\u00a0 Freedom of Information Act<\/em>, 5 USC\u00a0\u00a7 552 (1967).<\/p>\nI.\u00a0 Forms and Functions of International Legal Justification<\/h1>\n
II. Justifying Uses of Force<\/h1>\n
III. Pressures for Public Explanation: The Chilcot Inquiry<\/h1>\n
IV. Lawyers, Policymakers, and Public Discourse<\/h1>\n
\nthe-right-of-self-defence-against-imminent-armed-attack-in-international-law>, archived at\u00a0https:\/\/perma.cc\/68W2-Q59K (where the Australian Attorney-General \u201cstate[s] publicly the Australian Government\u2019s position on the principle of imminence of armed attack as a ground for the use of force justified by the principle of self-defence\u201d and indicating that \u201c[s]ince customary international law places State practice at the heart of the law\u2019s development, we have a responsibility to proactively engage in debate, including public statement of the positions of governments\u201d).<\/p>\n
\nspeeches\/the-importance-of-international-law-for-government-lawyers>, archived at\u00a0https:\/\/perma.cc\/4X9C-WVST (indicating that \u201cI have been struck in my first year as Attorney General just how central [international law] is to the daily work of government,\u201d and that \u201c[a]s government lawyers who help ground decision-making in the international rule of law we have a crucial role to play in ensuring that the short-term and expedient solution to any given problem\u2014which may be legally arguable\u2014is set in the wider political and legal context that protects the UK\u2019s longer-term interests in having a responsive but robust international legal system\u201d).<\/p>\n
\nwp-content\/uploads\/2012\/01\/NSCs_2010.pdf>.<\/p>\n
\nback-a-moment-the-legal-basis-in-favour-of-a-principle-of-humanitarian-intervention>, archived at https:\/\/perma.cc\/4BJC-UWCF.<\/p>\n
\n371106063-Kaine-Calls-on-Trump-Administration-to.pdf>, archived at https:\/\/perma.cc\/
\n22GL-F7FQ.<\/p>\n