139

FORCIBLE SELF-HELP

IN INTERNATIONAL LAW

James J- McHugh

INTRODUCTION rent milieu in the United States, we have wi tnessed discussions on the The Problcm of Force in Intcrna­ morality of capital punishment and the tional Relations_ The proper use of legitimacy of measures of private coer­ force has historically been a preeminent cion such as sit-ins and mass demonstra­ concern of mankind. In the domestic tions. environment the progress of centuries If domestic societies can still debate has evidenced the development of a the appropriate application of force highly structured order for the appropri­ internally, how much more difficult is ate application of this means of coer­ the solution of problems surrounding cion. Societies, bound together by com­ the use of force in the international mon heritage and a community of community. V{ith a multiplicity of interest, have, under the central au­ sovereign nation-states prosecuting their thority of the state, developed regula­ separate national interests and with no tions for the use of force covering a central authority to manage the expres­ broad spectrum of situational hypothe­ sion of these frequen tly competing in­ ses. terests, it is perhaps a testament to the But even in domestic society, signifi­ basic rationality of the human species cant deb~te has arisen as to the proper that man has not long since destroyed application oC force. Thus, in the cur- himself. 140

And yet he has not. Through centu­ apocalypse of thermonuclear power ries of cataclysm and accommodation, have kept leashed the dogs of world states have managed, although some­ war. times just barely, to preserve at least a The reasons for the failure of the semblance of order, even in circum­ United Nations to control the use of stances of great disorder, by developing force are to be found both in the minimum standards for the proper ap­ environment of its birth and the charac­ plication of force. 1 This essentially neu­ ter of its principal legislative instrument. tral energy has been all-pervasive in The U.N. was created during a period of international relations and very fre­ temporary consensus as a reflection of quently misused, but concern for its the chaotic upheaval of World War II. utilization has always been present, and As a result there was enacted in its it is this concern which prevails as a charter a body of aspirational interna­ bulwark against the challenge of chaos. tional law which depended for its effec­ tiveness on the continued consensus of The Current Conundrum. The ex­ the Great Powers of the world. The perience of the last 50 years has greatly United Nations had en esse arrogated to heightened the preoccupation of nations itself the competence to use armed with the application of force. World force to redress wrongs; but when the Wars I and II have seemingly convinced Great Power consensus evaporated, this men and nat\ons that at least the uni­ competence became a nUllity.2 lateral use of armed force by states This is the conundrum that has should be foresworn; that its application plagued the nations of the world ever should be surrendered to a central since: the riddle of an organization with authority whose dispassion and objec­ authority and no power; the paradox tivity, hopefully, could be counted on of a world where states have rights but to at once reduce the chances that force have ostensibly foresworn their reme­ would be resorted to and carefully dies to an institution that, by and large, circumscribe the mode of its application can insure no redress for wrongs; the when required. need to honor an instrument which has At both Versailles and San Francisco, become, for many states, the supreme men of goodwill attempted to create law of the land while at the same time such an authority: in the latter case recognizing that full honor and com­ with an even greater sense of urgency plete compliance with the spirit and than in the former. By 1945 the nations even the letter of that instrument are of the world had witnessed the horror of beyond the capability of sovereign two World Wars and the advent of states with conflicting and often selfish atomic power, and they were fully national interests. convinced that the control of force had become a sine qua non for the con­ State Response. Construing their ac­ tinued existence of mankind. tions most charitably, it can be stated Viewed from the perspective of that in the face of this dilemma the 1972, however, it can be stated that in several states of the United Nations have large measure the United Nations has done the best they could to strike an failed to minimize the use of armed accommodation between the mandates force. It is true that in the past 27 years of the charter and the requirements of there has been no worldwide conflag­ their own national interests. Ry and ration; but there have been many lesser l,tl"ge, they have Cldhered to the principle but very bloody conflicts and, by aod that armed force can no longer be large, only the residual horror remaining justified simply as an instrument of from 1945 and the universal fear of an national policy and that armed aggres· 141 sion, whatever its precise meaning, 3 is a law, that in the absence of a true criminal act. However, states have con­ international consensus the control of tinued, in practice, to resort to the use force must remain in a legal no man's of armed force. They have employed land.8 It has even been advanced that traditional measures of forcible self-help the function of international law in the short of war and have attempted to control of force is simply to provide the justify this action on the basis of the best possible justification for political charter, and too often this has become acts and in no way is it relevant as a purely a game of semantics.4 consideration in the development of Such a modus operandi would not policy. 9 necessarily bode ill for the creation of a Along with these counsels of despair, body of regulations for the realistic however, there is in evidence a growing management of international force. It realism concerning the appropriate func­ could even be envisaged as a dev.elop­ tion of the law in the application of ment somewhat parallel to that experi­ force by states under the charter: a enced in the United States and Great realism which neither admits of irrele­ Britain where common law evolved both vancy nor pretends to omnipotence but under and together with constitutional rather seeks the middle ground between instruments. However, with no central "the Charybdis of subservience to state authority for enforcement and no com­ ambitions and the Scylla of excessive pulsory jurisdiction to achieve objective pretensions of restraint." 1 0 interpretation, a distinct pattern of This school of realism views the developing legitimate/illegitimate state world as seeking at least a minimum practice is difficult to discern. If a body public order and conservation of human of international law on forcible self-help values and perceives the function of the is emerging under the charter, it is more law as a process of decision making to a random happenstance than a con­ the achievement of this end. 11 Rigid sidered development by dispassionate concepts of legality and illegality in the and objective judicial ratiocination. application of force, particularly in the absence of compUlsory jurisdiction, are Result of SLate Response. The state viewed as distinctly unhelpful. Rather, response of employing measures of empirical norms are sought which will forcible self-help and then attempting to provide at least a modest body of rationalize them under the charter has consensual regulation, and as the habit led to considerable confusion. Tortuous of consensus grows, so will the law. It is legal reasoning has been applied to contended that state conduct should be justify actions clearly beyond the pale justified or condemned on the basis of of the charter.5 Inconsistent Security its rationality and restraint under all the Council reaction has elaborated the con­ circumstances, rather than on the basis fusion,6 and finally, the dearth of judi­ of how said conduct comports with an cial pronouncements has compounded arbitrary standard of legality which does matters even further by precluding any not possess consensual content. real development of authoritative prece­ The net result of this approach does dent.? not afford the law as exalted a position As a consequence, frustration and in the order of international hierarchy cynicism have grown apace. Both de­ as some might desire, but its proponents cisionmakers and scholars have fre­ would contend that vis-a-vis the use of quently fa1len victim to one or the other force, international society is primitive of these twin devils. It has been con­ at best, and if the law is to thrive in tended that the use of force is an area such an environment it must not aspire beyond the competence of international to more than it can achieve. 12 142 Purposc of This Essay_ With this hands after attempts to assay what concept in mind, the present essay will guidance the law offers in this area and consider that mode of force to which have fallen back on post-factum ra­ states have frequently resorted since tionalization. And yet even this cynical 1945, i.e., forcible self-help, and at­ approach is a response to an intuitive tempt to elucidate some practical cri­ appreciation that the awesome power teria which decisionmakers might apply which force can exhibit demands great in a situational context to determine circumspection in its application. For as whether a proposed use of force is Richard Falk has eloquently noted: legitimate. To do this it will be helpful "Among the most profou~d quests of a to first examine the customary law of moral man is knowledge about the forcible self-help as it existed prior to proper use of force in human relations, the U.N. Charter. Next, the proscrip­ for force entails a wide range of claims tions and prescriptions of the charter over life and death. As such it expresses will be considered and, subsequently, the limiting condition of mortality.,,13 state practice under the charter, Se­ curity Council actions in response to the THE CUSTOMARY INTERNATIONAL use of force, such judicial decisions as LAW OF FORCIBLE SELF-HELP exist, and authoritative commentary in the area. The Gcneral Nature of Forcible Self­ Hopefully, ilrom this analysis it will Help. Forcible self-help as a means of be possible to indicate certain state coercion short of war is an ancient and conduct which is clearly legitimate and obvious principle to which societal com­ other activity which is equally clearly munities have had frequent recourse in subject to condemnation. Between these the conduct of international relations. poles there will obviously be a broad As long ago as 431 B.C. a treaty gray area, but it is in this area that between the Mediterranean city-states certain inchoate normative conduct may of Oeantheia and Chalaeum attempted be discernible which can provide a to regulate resort to this mode of suggested pattern for decisionmaking conduct.! 4 with a high order of probability that the Self-help is, of course, the creature of use of force in a given instance can be a decentralized society, be it national or legitimated. international. In the .course of history, It should be noted that the emphasis resort to self-help has waxed and waned throughout is on measures of forcible in relationship to the degree to which self-help, forcible in the sense that society was integrated or diffused. Thus armed force is applied or threatened. the establishment of the Roman Empire The numerous other means of coercion seems to have eliminated practices of utilized in international relations, while self-help in the territory under Roman of considerable significance in interna­ rule; again after the dissolution of the tional law, must of necessity be rele­ Holy Roman Empire and the diminu­ gated to a position of incidental refer­ tion of the power of the Pope self-help ence in the current undertaking. flourished.! 5 In more recent times, the Whether the effort to enunciate prac­ full flowering of the nation-state system tical guidelines will be successful re­ with its accent on sovereign indepen­ mains to be seen, but it is considered a dence created a condition in interna­ most necessary endeavor. There has tional relations in which measures of been much too much of the frustration self-help were vital to the protection of and cynicism referred to above. Deci­ state interests. sionmakers have, with considerable jus­ Across this historical spectrum, while tification, fre~uently thrown up their the legitimacy of self-help was clearly 143 recognized so were its inherent dangers, Probably the best statement of the and, accordingly, attempts to regulate conditions for the exercise of self­ the means and methods of self-help have defense in customary international law been as consistently in evidence as the is the definition formulated even earlier instances of a recourse to the device. I 6 by Secretary of State Daniel Webster in 2 Out of this effort has developed a body the Caroline incident. I of international law which, with varying In 1837 during an insurrection in degrees of success, has categorized and Canada, the steamer Caroline was being defined legitimate measures of forcible used to transport to Canada men and self-help and prescribed rules for their materials for the rebels from American utilization. Under the classical system of territory across the Niagara River. The international law, these measures could Government of the United States was be divided into three main legal cate­ not p'reventing this activity, and, accord­ gories: (a) self-defense, (b) reprisals, and ingly, a body of Canadian militia (c) intervention. I 7 crossed the Niagara into U.S. territory and after a scuffle, in which some Self-Defense. A state's right of self­ American citizens were killed, sent the defense was considered paramount Caroline over the falls. In the conten­ under customary international law. And tion which followed, the issue was yet a precise definition of this right is raised as to whether the conditions for difficult to\ discover. In the 19th cen­ the exercise of the right of self-defense tury, statesmen and writers frequently had been met. Webster formulated a test equated the right with a "right" of which has since met with general ac­ self-preservation. I 8 Yet it has been ceptance. He noted that self·defense noted. that such a definition is so exten­ must arise out of an instant and over­ sive as to destroy the imperative charac­ whelming necessity, leaving no choice of ter of any system of law by making all means and no mcment for deliberation. obligation to obey the law conditional. Additionally, the action taken must It has been suggested that rather than involve nothing unreasonable or exces­ equating self-defense with self-preserva­ sive "since the act justified by the tion, it should be recognized that self­ necessity of self-defense must be limited preservation for both states and individ­ by that necessity and kept clearly uals is an instinct rather than a legal within it.,,22 right. While in a given situation the The rule of the Caroline case was instinct might prevail over a legal duty subjected to some criticism on grounds, not to do violence to others, a society inter alia, that the conditions it pro­ espousing any kind of order ought not nounced were somewhat vague. Be that to admit that it is lawful for it to do as it may, the case is generally recog­ SO.19 nized as an authoritative pronounce­ 2 The foregoing suggests that, in cus­ ment of customary international law, 3 tomary law, self-defense became recog­ and if state practice is taken together nized as a more limited right than that with the Caroline case, a reasonably enunciated in the 19th century. This clear basis for the exercise of the cus­ view is generally borne out by the tomary right of self-defense emerges: practice of states. At least after 1920 • Its exercise must be in response to legitimate self-defense typically appears actual or threatened violence. in the context of the threat or use of • The actual or threatened violence force. It was considered as a reaction to must be of such a nature as to create an imminent or actual violence rather than instant and overwhelming necessity to as justified by any violation of the legal respond, and rights of a state or of its subjects? 0 • The response taken must not be 144 excessive or unreasonable in relation to pecuniary terms and equivalent to loss the violence being inflicted or threat­ plus reasonable costs? 6 ened_ In general, the practice of private reprisals acquired a high degree of uni­ Reprisals. While self-defense in cus­ formity in international law. Regula­ tomary international law can be viewed tion, both local and by treaty, carefully as a reaction by states to violence being channelized the evolving doctrine into a inflicted or threatened by another state, fairly structured method of achieving reprisal is a means of forcible self-help redress of certain amounts under con­ 2 to redress wrongs already inflicted. Self­ trolled conditions. 7 Thus the potential defense as a means of self-help is recog­ abuses of the system were kept reason­ nized in both international and domes­ ably in check. Occasionally, however, tic law. Reprisal is not. At least in when reprisals were used for political modem times, reprisal is unique to the purposes, as in wars of reprisal, they international arena. In domestic society departed from established norms and central authority is frequently unavail­ became unpredictable. This unpre­ able to forestall the immediate threat of dictability was the chief characteristic force, and hence the doctrine of self­ of public reprisals, which superseded defense has prevailed; but in the absence private reprisals in the 18th century. of immediacy there are institutions and The distinguishing aspect of public methods in m~dern domestic society to reprisals was the authorization of sei­ peacefully redress wrong, and hence zures as a punishment of the offending 2 retaliatory self-help is not endorsed. 4 state. They were carried out by states, The first legal doctrine to emerge was as opposed to individuals, and although one involving private reprisals. In Eng­ based on the notion of denial of justice lish practice acts of private reprisal first for a wrong committed, the wrong did made a significant appearance in the late not have to be against any individual 13th century. They were characterized, person nor were the seizures limi ted by typically, by the seizure of goods and any notions of loss plus costs. 2 8 property on the high seas. By the late Measures of reprisal commonly used 15th and the 16th centuries, reprisals by included: (a) embargo of the offending private seizure had become a generally state's ships found in the waters of the recognized method of forcible self­ wronged state, (b) seizure of the in­ help.25 juring state's ships on the high seas, and Private reprisals prevailed until the (c) pacific blockade of the coasts of the 18th century. During their existence offending state against the ships of that they had certain unchanging character­ state.29 istics. They were authorized by the In the Naulilaa arbitration of 192830 sovereign of an individual against whom there appears the most authoritative an alleged crime had been committed statement of the customary law of (generally robbery or failure to pay a reprisal. In October 1914, while Portu­ debt) by a subject or agent of another gal was still neutral, a party from state. Additionally, the legal right to German Southwest Africa entered Por­ pursue reprisals rested upon the pre­ tuguese African territory. A misunder­ existence of a denial of justice. By this standing arose due to the incompetence was meant that redress had been sought of the German interpreter; shots were from the sovereign of the injuring party fired, and a German official and two of but to no avail. Finally, retaliation was his officers were killed. By way of to be had against the property and reprisal, the Governor of German South­ people of the offending state for an west Africa sent a punitive force into amount susceptible of expression in Portuguese territory. The force attacked 145 several frontier posts and drove out the time of the essence. Likewise, there garrison from Naulilaa. In the evacuated were learned debates on what in any area a native uprising occurred, the given context amounted to proportional suppression of which necessitated a con­ response. Finally, there was contention siderable expedition by the Portuguese. as to what state acts were illegal in A special arbitral tribunal considered international law so as to permit taking Germany's responsibility for all that had reprisals in the first place.32 Neverthe­ ensued. Germany contended that her less, as a general proposition, the rule of action was a legitimate reprisal. The the Naulilaa incident fulfilled the task arbitrators rejected this plea. In so doing of enunciating concepts, with a con­ they noted: sensus in state practice, which served to Reprisals are acts of self-help by provide decisionmakers with useful the injured State, acts in retali­ standards against which to measure their ation for acts contrary to interna­ policies and consequently preserve at tional law on the part of the least minimum conditions of order and offending State, which have re­ restraint in the use of force. mained unredressed after a de­ mand for amends. In consequence Inlervenlion. This final category of of such measures, the observance self-help is the most amorphous of the of this or that rule of interna­ three, being more a method of applying tional lhw is temporarily sus­ force than a conceptual basis or justifi­ pended in the relations between cation for its use. The legitimacy of two States. They are limited by intervention is, by and large, to be considerations of humanity and found in other categories of self-help. the rules of good faith, applicable Thus in customary law there were inter­ in the relations between States. ventions in the affairs of other states by They are illegal unless they are way of reprisal {as in the Naulilaa based upon a previous act con­ incident) or for purposes of self-defense trary to international law. They (as in the Caroline case). seek to impose on the offending But interventions also occurred when State reparation for the offence, neither of these bases was present. It has the return to legality and the been noted that on many occasions in 3 avoidance of new offences. 1 the 19th century the Great Powers From this statement three conditions intervened in the affairs of other states for the legitimacy of reprisals in cus­ in order to impose the settlement of a tomary law can be discerned: question which threatened the peace of • There must have been an illegal act EUrope. This type of intervention was a on the part of the target state. dictatorial interference with the inde­ • Demand for redress must be made pendence of other states. It was only and redress not provided, and justified if it was authorized by treaty • The measures taken must not be or was undertaken to protect nationals excessive, Le., out of all proportion to of the intervening state abroad. Beyond the act which motivated them. this intervention was based on sheer 3 Quite obviously, the foregoing condi­ power rather than law. 3 tions did not provide a sure and certain Additionally, there was some support blueprint for taking legitimate reprisals for the notion that states could inter­ in any given case. There were questions vene in a foreign state for humanitarian as to whether demand for redress must purposes, i.e., to prevent a state from always be made, even when it was commi tting atrocities against its own obvious that none would be afforded subjects, but such support was far from and when Mfective retaliation made unanimous. The prevailing view was that 146 a state's treatment of its own subjects Are measures of coercion which was a matter exclusively within its own are not meant to constitute acts jurisdiction.34 Humanitarian interven· of war consistent with the terms tion in this context cannot truly be of Articles 12 to 15 of the Cove­ conceded therefore as a part of positive nant when they are taken by one customary international law. State prac­ Member of the League of Nations tice would seem to have cynically rele­ against another Member of the gated the application of this principle to League without prior recourse to those areas of the world considered the procedure laid down in those 3 un-Christian and uncivilized. 5 articles? The jurists replied: xxxxxxx Coercive measures which are not intended to constitute acts of war This then was the state of the law of mayor may not be consistent forcible self-help at the time of the with the provisions of Articles 12 creation of the League of Nations after to 15 of the Covenant and it is for World War 1. Nor was the law signifi­ the Council, when the dispute has cantly affected by the League. While been submitted to it, to decide this organization aspired to shift the immediately, having due regard to competencl1 to use force to a corporate all the circumstances of the case body rathef than leaving it with individ­ and to the nature of the measures ual states, the focus of the League was adopted, whether it should recom­ on precluding war rather than forcible mend the maintenance or the withdrawal of such measures. measures short of war, and conse­ [Emphasis supplied. ] 3 7 quently no prohibition against reprisals or interventions or limited actions in The delphic nature of this reply self-defense appear in the covenant. provided solace for all concerned. It was interpreted both as prohibiting forcible It may well have been that resort to reprisals and as not prohibiting them. force, at least by way of intervention or Objectively, however, the most that can reprisal, was inimical to the express be said is that the customary law in obligation in the covenant to settle regard to forcible self-help may have disputes by peaceful means. Indeed, been stripped of some of its old security distinguished authority has made this 36 by the reply, but it was not changed. exact point. But the fact remains that Accordingly, while incidents of forcible there were no express prohibitions in self-help diminished between World War the covenant, and in the only case on I and World War II, the law was not this point submitted by the Council of significantly altered from 1900 until the the League to judicial review, forcible creation of the U.N. Charter in June self-help was not prohibited. 1945.33 The case involved a situation wherein Italy in 1923 bombarded and occupied THE U.N. CHARTER AND the island of Corfu off the coast of FORCIBLE SELF-HELP Greece, claiming that the action was a legitimate reprisal for the murder of an Force Prohibited. While the League Italian general by Greek extremists. The Covenant did not significantly affect the general had been acting as chairman of right of states to resort to forcible tlle Greek-Albanian boundary commis­ measures of self-help short of war, it sion. The League Council presented to a did, as noted in previous discussion, committee of jurists the following signal a significant shift in the perspec­ question: tive of nations vis-a-vis the application 147 3 of force generally. 9 A central corpo­ Nothing in the present Charter rate authority was viewed as being shall impair the inherent right of better able to insure that the use of individual or collective self­ armed force was kept to a minimum. defense if an armed attack occurs Unilateral state action was recognized as against a Member of the United rarely based on real objectivity and Nations, until the Security frequently subject to national myopia Council has taken measures neces­ and even personal whim. sary to maintain international The League of Nations, of course, peace and security. Measures died for a variety of reasons not perti­ taken by Members in the exercise nent to this essay, but the notion that of this right of self-defense shall competence to apply armed force be immediately reported to the should reside in a central authority did Security Council and shall not in not die with it. The idea persisted and any way affect the authority and found expression again, after World War responsibility of the Security II, in the Charter of the United Na­ Council under the present Charter tions.40 - to take at any time such action as The drafters of the U.N. Charter, it deems necessary in order to unlike the drafters of the League Cove­ maintain or restore international nant, did not make the mistake of peace and security.43 limiting their\ specific proscriptions to a Taken together, it can be argued that condition of war. They chose rather to these three provisions present a clear proscribe the threat or use of force. and straightforward statement with Accordingly, to the extent that pro­ respect to the use of armed force by scriptions exist, forcible measures of states in international relations. Its use self-help are not excepted, at least not is prohibited except in the face of an by any narrow process of definition as armed attack, and then the use of force was the case under the League Cove­ is permitted only until the Security nant. Council acts.44 The charter then goes on to establish Charter Proscriptions. Article 2, para­ in the Security Council the competence graph 3, of the charter provides that, and capability to employ armed force to ".All Members shall settle their interna­ coun teract threats to the peace, tional disputes by peaceful means in breaches of the peace, and acts of such a manner that international peace aggression. Article 42 provides that and security and justice are not en­ when economic, diplomatic, and other dangered.,,4 I Having made this positive nonforcible sanctions fail, the Security pronouncement, paragraph 4 then states Council "may take such action by air, the negative corollary: ".All Members sea or land forces as may be necessary shall refrain in their international rela­ to maintain or restore international tions from the threat or use of force peace and security.,,45 Article 43 in against the territorial integrity or politi­ tum provides that the member nations cal independence of any state, or in any will make forces and facilities available 4 other manner inconsistent with the Pur­ to the Council for this purpose. 6 poses of the United Nations.,,4 2 Article 47 even creates a Military Staff The third relevant provision with Committee to advise and assist the respect to the use of force by states is Security Council and be responsible found in article 51 of the charter. This under the Council for the strategic article prescribes the conditions for the direction of armed forces placed at its use of force in self-defense. It provides disposal. that: In chapter VIII the charter then 148 provides an alternate methodology for General Assembly is unquestionably of preserving the peace. It recognizes the the view that the unilateral use of force existence of regional arrangements and by states is limited, under the charter, agencies and notes that these agencies to the narrowest possible circumstances. have competence to deal with "matters It is noted that the threat or use of relating to the maintenance of interna­ force "constitutes a violation of interna­ tional peace and security as are appro­ tional law and the Charter of the United priate for regional action provided that Nations and shall never be employed as such arrangements or agencies and their a means of settling international is­ activities are consistent with the Pur­ sues."s I There follows, by way of poses and Principles of the United Na­ illustration, a variety of specific situa­ tions. ,,4 7 In addition, regional agencies tions wherein states are charged not to may even take enforcement action, but resort to force. In the course of these not without authorization from the illustrations specific reference is made Security Council. 48 to reprisals and intervention. The dec­ Thus the charter has set up a com­ laration notes: "States have a duty to plete scheme for the transfer of the refrain from acts of reprisal involving competence to apply armed force from the use of force."S 2 With respect to individual states to a central supra­ intervention, it is provided: national authority. When its provisions No State or group of States has are considered \in vacuo, there are lew the right to intervene directly or instances where forcible measures of indirectly for any reason whatever self-help by individual states can be in the internal or external affairs legitimated. Use of force is prohibited, of any other State. Consequently therefore forcible reprisals and interven­ armed intervention and all other tions are prohibited. Self-defense is per­ forms of interference or at­ mitted until the Council acts, but only tempted threats against the per­ in the face of an armed attack; although sonality of the State or against its when this occurs the party attacked political, economic and cultural may be assisted by its allies, since elements are in violation of inter­ collective self-defense is recognized. national law. S 3 In short, it has been advanced that Despite the pronouncements of the the customary law in regard to forcible charter and the resolution of the Gen­ measures of self-help has been virtually eral Assembly, however, if international abrogated by the treaty provisions of law is properly defined as those rules for 4 the charter. 9 This view finds support the conduct of interstate relations to in a recent resolution of the U.N. which states bind themselves in their General Assembly. activities, S4 then the best that can be In 1970 the General Assembly re­ said for the charter provisions, in light ceived a report of a Special Committee of state practice since 1945, is that they on Principles of International Law Con­ represent what the world community cerning Friendly Relations and Coopera­ believed the law ought to be rather than tion Among States. The report was what it is. It is submitted that the approved and issued as a "Declaration members of the United Nations have on Principles of International Law Con­ agreed to be bound by the strict charter cerning Friendly Relations and Coopera­ limitations only to the extent that the tion J\mong States in J\ccordilnce with central authority is capable of filling the the Charter of the United Nations."s 0 gap left by a state's renunciation of lhe The text of the declaration is quite right to use force in its own interest.55 lengthy, but a careful reading leads to Beyond this, while the charter provi· the inescapable conclusion that the sions remain as a moral proscription 149 against the use of force, they cannot be tion on _Rights and Duties of States said, in actuality, to provide a real test adopted by the International Law Com­ of its legitimate application in any mission in 1949 provided in article 12 particular case.S 6 that every state has the right of individ­ We must look elsewhere to find ual or collective self-defense against what, if any, real tests exist for the armed attack.6 0 legitimate use of forcible measures of Authoritative publicists also have ex­ self-help. It will be the purpose of the pressed the view that the right of next section to attempt to elucidate self·defense is thus narrowly limited. what that test might be. They have argued that despite the prob­ lems inherent in the restricted view of FORcmLE SELF-HELP this right, to permit any more latitude SINCE THE CHARTER than is contained in the wording of article 51 would be to open the door to The Effect of the Charter. Although so many abuses as to impose an un­ the charter does not provide a realistic acceptable strain on the requirement of 6 statement of what forcible measures of international order. 1 self-help are presently legitimate, we At the other end of the spectrum cannot simply harken back to the cus­ there is, however, contention that tomary rules of international law and forcible measures may be legitimately proclaim thc\t these still provide the taken in self·defense whenever national appropriate measure, for the charter has security is threatened, whether it be by left its mark. Although nations still specific armed attack, threat of attack, employ force against each other, the or any other direct or indirect aggres­ thou shalt not philosophy of the charter sion. In this connection Israel has fre­ has had the effect of negating, to some quently proclaimed that her entire pos­ extent, general acceptance of the cus· ture is one of self-defense and that all tomary law rules. With this in mind it forcible actions taken are taken on that will be useful to reexamine the classical basis. In 1966 before the Security Coun­ categories of forcible self-help in an cil, the Israeli Representative noted effort to determine what state conduct that: "Whatever we do, whatever our is still generally considered legitimate. government decides to do, it is done in order to defend and protect our na­ Self-Defense. There is some justifica· tional independence and our national tion for the contention that since 1945 security. ,,6 2 Again in a Security Council the right of self-defense which has re­ debate in March 1969 it was stated by ceived general acceptance has a content the Israeli Representative: "Yesterday's identical with the right as expressed in Israeli action was an act of self-de­ article 51 of the U.N. Charter, i.e., that fense .... Israel has been in a state of it is limited to being exercised only in self-defense since 1948. It will so remain the case of armed attack.s 7 The terms until the Arab Governments agree to of article 51, or very similar terms, have end the war waged against Israel and appeared in several important multi­ conclude peace.,,6 3 lateral treaties and draft instruments. Also, in the recent India-Pakistan Article 3 of the Inter·American Treaty conflict one of the claims made by India of Reciprocal Assistance of 1947 pro­ was that her incursion into East Pakis­ vided for individual or collective self· tan was in self-defense. Yet it was defense in case of an armed attack. 5 t obvious that no attack against Indian Again, in the Japanese Peace Treaty, territory was occurring nor was one article 51 of the U.N. Charter is referred threatened_ In her view, her security was 5 to expressly. 9 Also, the Draft Declara- imperiled by the conditions existing in 150 East Pakistan and particularly by the Under this test a nation is permitted great influx of Bengali refugees into to use force in self-defense in the face of Indian territory which was depleting her either an actual armed attack or in 6 slender food reserves. 4 anticipation of such an attack, provided Additionally, certain publicists have there is an instant and overwhelming been interpreted as supporting this necessity to respond. The argument in broad view of the right of self· defense. support of at least this much self­ In contending that all or at least some defense takes the position that it is of a state's "legal rights" may be de­ generally consistent with state practice fended by force, it has been argued, and that to limit self-defense short of rightly or wrongly, that these writers are the anticipatory phase at this time is to really once again equating the right of create a condition which is both inade­ self-defense with the right of self-preser­ quate and totally unrealistic. vation. The proponents of this position also Security Council response to claims argue that article 51 of the charter, that various resorts to force have been properly interpreted, permits antici­ in self-defense has not been particularly patory self-defense. Article 51 states helpful in carving out currently ac­ that nothing shall impair the "inherent ceptable conditions for the exercise of right of individual or collective self­ this right. It would seem, however, that defense" [emphasis supplied], and, the the Council, in \general, adopts a restric­ argument goes, since the inherent right tive view.65 In numerous cases it has al ways included anticipatory self­ denounced Israeli action taken osten­ defense, it remains legitimate under the sibly in self-defense but where no spe­ charter. In answer to the contention cific attack was occurring.6 6 Likewise that the phrase "if an armed attack the Council condemned the actions of occurs" limits the right, it is argued that the British against Yemen in 1964. In this phrase is merely descriptive of a that instance the British had carried out particular category of self-defense; that air attacks against Yemen after Yemen it was desired to underline that the right had made a series of attacks on the of individual, and more especially of South Arabian Federation. The British collective, self-defense had not been argued before the Security Council that taken away in the process of conferring its actions had been in self-defense, but power on the Security Council to take the Council declined to accept this plea preventive and enforcement measures and condemned the British action as for the maintenance of peace.6 9 "incompatible with the purposes and But whether article 51 permits antici­ principles of the United Nations.,,6 7 patory self-defense or not, states have In between the two extreme posi­ consistently acted on this basis. More­ tions discussed above, argument has over, to limit self-defense to an armed raged pro and con across the entire attack scenario seriously underestimates spectrum of possible limitations on the the potential of contemporary weapons 7 right of self-defense, and it is exceed­ systems 0 and also discounts even the ingly difficult to pick a point and say possibility that nonmilitary aggression "here is where the line can safely be could achieve a level of coercion com­ drawn." It is submitted, however, that parable in intensity and proportion to wherever the line should be drawn a an armed attack. 7 1 considerable body of opinion would argue that the test of the Caroline case R('prisak Of the three categories of still presents a generally acceptable set forcible self-help under discussion, the of limiting conditions for exercising the law of reprisals has probably been most 6 righ t of self-defense. 3 severely limited since the adoption of 151 the U.N. Charter. It has been widely of the measure taken could not be conceded that this method of self-help disputed. is now generally unacceptable.72 Thus It has been argued that this decision states have rarely attempted to justify suggests the proposition that what is in their use of force on the grounds of reality a reprisal action (i.e., a non­ reprisal. In the Gulf of Tonkin incident innocent passage of an armed force the United States argued that its actions through territorial waters) may be legiti­ were taken in self-defense. 7 3 This was mate if its purpose is to affirm a legal also the contention of the British in the right against an expected unlawful at­ 7 Yemen raid. Also, Israel has argued that tempt to prevent its exercise. 5 It ap­ her forays against the Arabs were ac­ pears clear from the Court's con­ tions in self-defense, although there is demnation of the British for violating little doubt that in the precharter era Albanian territorial waters to search for many of them would have been charac­ mines after the destroyers were sunk, terized as simply reprisal actions. that retaliation simply to obtain redress Notwithstanding that reprisal is not for rights already violated cannot be generally accepted as a legitimate basis condoned. 7 6 Nevertheless, the case for employing forcible measures of self­ would seem to imply that, at least help, there is some indication that retali­ exceptionally, a state may be legiti­ atory action can still be legitimate under mately able to use force in other than certain circUImjtances. One illustration is self-defense and without reference to to be found in the Corfu Channel the United Nations in order to secure case.74 the exercise of certain legal rights. In May 1946 Albanian shore bat­ teries fired without warning on two Intervention. In discussing the cus­ British cruisers making passage through tomary international law with regard to Albanian territorial waters in the North intervention, it was noted that in many Corfu Strait. The United Kingdom, cases this measure of self-help was legiti­ claiming a right of innocent passage, mate not by virtue of any intrinsic subsequently (in October of the same justification, but rather because it was year) sent two British cruisers and two simply a method of effecting a legiti­ destroyers through the strait to assert mate reprisal or of acting in self-defense. this right. The crews were at action Therefore, insofar as interventions are stations with instructions to fire back if premised on these justifications, they attacked. The two destroyers were are of necessity limited since the charter mined with a heavy loss of life. There­ in the same way and to the same extent after, the British sent a large minesweep­ that reprisals and self-defense have been ing force into Albanian waters and limited. found a number of newly laid mines. Beyond this, while states have made Subsequently, the case was referred extravagant claims for the legitimacy of to the International Court of Justice. intervention utilizing a variety of justifi­ Albania claimed inter alia that the cations, it would seem that there are British had violated her sovereignty in only three circumstances where this steaming through the strait in October. type of activity has been generally The court on this issue held for the accepted: To protect nationals where United Kingdom. It stated that the intervention is requested in the face of British mission was designed to affirm a an external threat and in certain special righ t which had been unjustly denied, cases.77 and having carried out the action in a The U.S. intervention in the Domini­ manner consistent with the require­ can Republic in 1965 is illustrative of ments of international law, the legality the first of these circumstances. In that 152

case, during the course of a rebellion, It would seem, therefore, that where the Dominican authorities stated that the threat is external and a state re­ they "could no longer control the situa­ quests assistance a third state may legiti­ tion, that American and foreign lives mately intervene in its behalf. II 4 The were in desperate danger and that out­ question of whether the threat is ex­ side forces were required."n In re­ ternal, however, can prove in itself to be sponse to an urgent appeal from the highly controversial. Thus there was U.S. Ambassador, 400 U.S. Marines considerable, albeit unjustified, criticism were put ashore, in the words of Presi­ of the U.S. intervention in Vietnam on dent Johnson " ... in order to give the grounds that, like Hungary, Vietnam protection to hundreds of Americans was a case of popular internal uprising who are still in the Dominican Republic rather than external threat.lIs Even this and to escort them safely back to this criticism implies, however, that if in fact country.,,79 the threat is external, intervention may The United States was subject to be legitimately undertaken. severe criticism for retaining its troops The third type of circumstance in the Dominican Republic long after wherein it would seem states could any necessity existed for the protection legitimately intervene within the terri­ of nationals, but its initial actions were tory of another state are the special considered justified by many as a matter cases of necessity_ of urgent ne~essity in order to protect the lives of U.S. nationals. II 0 Protection A serious danger to the territory of a of nationals was one of the legitimate state may arise either as a result of a grounds for intervention in customary natural catastrophe in another state or international law. It is submitted, not­ as a result of the other state deliberately withstanding the sentiments of the or negligently employing its natural General Assembly that states have no resources to the detriment of the inter­ 1I6 "right to intervene directly or indirectly vening state. For example, the reser­ for any reason whatever in the internal voirs of State A on the upper reaches of or external affairs of any other a river might be damaged by natural state, " !I 1 that intervention for this pur­ forces posing a threat of flooding to pose in the future would be hard to State B on the lower reaches. Again, 2 fault. II State A might negligently or wantonly The United States and British actions flood the territory of State B. In either in Lebanon and Jordan provide illustra­ case, even publicists who take a limited tions of the second circumstance in view of a state's right to use force have which intervention would probably be conceded that intervention would be generally acceptable. In both cases the acceptable provided the injuring state respective governments had requested has not provided a timely remedy and the Security Council is immediately United States and British help to assist 7 in repelling attempts at subversion di­ advised. II rected from a neighboring state. While In the foregoing discussion the at­ the United Nations was uneasy about tempt has been made to present a the activity, neither the United States conservative estimate of the extent to nor the United Kingdom was con­ which classic measures of forcible self­ demned for its actions. By way of help are still generally acceptable in the contrast, the Soviet Union was soundly world community. This estimate, how­ condemned for its armed intervention in ever, hardly represen ts the full spectrum Hungary in 1956 for the purpose of of situations in which states hav~ felt suppressing a popular internal up­ required to use forcible self-help. Ac­ rising. II 3 cordingly, it becomes necessary for 153 decisionmakers to know what, if any, national, or political integrity; that a general criteria exist which can be used substantial link must exist between the to evaluate the legitimacy of the use of provocation and the claim of retaliation; force in the many instances which do that a diligent effort must be made to not fit neatly into one of the established seek pacific settlement, including re­ patterns. course to international organizations; that the use of force must be propor­ SUGGESTIONS FOR tional to the provocation and calculated DECISIONl\IAKERS to avoid its repetition; that the force must be directed primarily at military The Falk Criteria. In light of the targets; that the user should make a reaction of the Security Council to prompt explanation of its conduct be­ specific claims and the General Assem­ fore the international community; that bly's Declaration on Principles of Inter­ the use of force must clearly demon­ national Law and in view of the general strate to the target government what thrust of most authoritative commen­ constituted the provocation; that the tary, it is doubtful that state resort to user cannot achieve its purpose by force will be endorsed in any situation acting within its own domain; that a other than those discussed previously. search for pacific settlement should be This is not to say, however, that all made, recognizing the interests of the other resorts to force will be con­ target state; and that a disposition to demned. On the contrary, there is sub­ respect the will of the international stantial evidence to suggest that state community must be evident. resort to force in a variety of circum­ These criteria in general furnish an stances, if not applauded, will at least excellent summary of practical condi­ 8 not be indicted. II The question for tions for legitimately employing forcible consideration then becomes, under self-help. Some criticism is indicated what specific conditions can resort to however. The fourth criterion requires force by states be rendered tolerable? that diligent efforts be made initially to The one word answer to this ques­ obtain satisfaction by pacific means. It tion is "reasonableness." But it is not is submitted that this criterion shou~d terribly helpful for decisionmakers to be explicitly state that peaceful solution told that their conduct will be tolerated must be attempted, if possible. Without if reasonable. The term is intuitively specifically indicating this, the impres­ acceptable as a measure of conduct, but sion is left that peaceful settlement it is also extremely vague with reference must always be attempted. In given to any given circumstances. It becomes circumstances such a requirement would necessary, therefore, to determine what be completely unrealistic. are the criteria for reasonable state A more serious criticism of Falk's conduct with respect to the use of effort, however, arises from a considera­ force. tion of his second criterion. The use of Considerable work has been done by force is limited only by the requirement legal scholars in an effort to delineate that there be a connection between it these criteria. One effort in particular is and the protection of territorial, na­ worthy of evaluation here. Richard A. tional, or political integrity. It is sub­ Falk has developed a number of criteria mitted that requiring nothing more than which would seem to be relevant.1I9 a connection raises the distinct possi­ They provide that the burden of per­ bility that force could be used in such a suasion to legitimate the use of force is way as to be indistinguishable from the on the user; that it must connect its use polar position of completely un­ of force to the protection of territorial, inhibited behavior.9o There is always 154 some link which can be estC!blished provide a framework for evaluating and between a desired use of force and the managing the use of force, are they in broad concepts of national, political, fact illustrative of actual state practice and territorial integrity. It is necessary which has been accepted by the world that decisionmakers operate under more community? Before turning to a con­ substantial restraints. Accordingly, it is sideration of this issue it will be helpful suggested that resort to force must to summarize and reoJ;der the criteria. presuppose the existence of an immi­ The use of force by states may be nent and significant threat to the con­ acceptable provided: tinued existence of a nation's political • That acts of provocation by the independence and territorial integrity. target state have raised an imminent and In a word, there must be a clear and significant threat to the continued exis­ present danger that unless forcible ac­ tence of a nation's political indepen­ tion is taken, the independence or in­ dence and/or territorial integrity. tegrity of the acting state will be seri­ • That, if possible, a diligent effort ously compromised. has been made to obtain satisfaction by With these modifications, it is sub­ pacific means. mitted that Falk has enunciated a useful • That recourse to international or­ framework within which decisionmakers ganizations is had as practicable. can both evaluate a prospective use of • That a state accepts the burden of force and d\!velop methodologies for its persuasion and makes a prompt explana­ application. It has been argued that this tion of its conduct before the relevant approach completely ignores the pro­ organ of community review, showing a 9 scriptions of the charter law, 1 but this disposition to accord respect to its will. contention, however, ignores the fact • That the acting state's purpose that international law, to be law, re­ cannot be achieved by acting within its quires consensus and that the only own territory. consensus with respect to the charter • That the use of force is propor­ provisions that can be observed from tional to the provocation and directed state pronouncement and practice is against military and paramilitary targets that they represent aspirational prin­ and clearly indicates the contours of the ciples rather than realistic norms by unacceptable provocation. which states are presently willing to • That the user of for-ce continues to abide. seek a pacific settlement of the under­ Saying this does not derogate the lying dispute on reasonable terms. U.N. Charter provisions. They are useful as a fundamental restraint in the sense The Cuban Quarantine. The interdic­ that all applications of force start from tion by the United States of the intro· the philosophical premise that they are duction of Soviet nuclear missiles into suspect. However, if it is insisted that Cuba provides an outstanding example articles 2(3), 2(4), and 51 represent the of a state using coercion in a manner "whole law and the prophets" with generally acceptable to a world com­ respect to the use of force, the result munity notwithstanding that its use did could be complete lack of inhibition on not properly qualify as either self­ the part of states and total abrogation defense, reprisal, or intervention.92 of even minimum conditions of public It is true that the U.S. actions have order. Insisting on everything would subsequently been criticized by some probably result in achieving precisely publicists.93 However, in the world nothing. community, objection to the U.S. en­ One question remains: Granted that deavor at the time was minimal-at least Falk's criteria, as modified, appear to in the states beyond the sphere of 155

Soviet influence.94 Moreover, the threat to -the peace and security of the United Nations itself in no way con­ hemisphere. 1 01 demned the United States and many The OAS resolution was immediately states specifically affirmed the quaran­ conveyed to the United Nations. The tine.95 President of the United States almost With Falk's modified criteria in simultaneously issued the Quarantine mind, it will be useful to examine the Proclamation and indicated that the U.S. action. quarantine would go into effect on the At the outset the United States following day. This delay was provided, amassed a body of incontrovertible evi­ inter alia, to allow some time for the dence that the Soviets were in the Soviets to divert vessels already at sea process of establishing offensive missile which were carrying prohibited cargoes. bases in Cuba. The missiles were capable The United States also requested an of massive destruction throughout the urgent meeting of the U.N. Security Western Hemisphere. It was evident that Council. 1 02 the Soviet effort was a deliberate at­ The backing of world powers was tempt to significantly alter the status solicited and obtained. The OAS of quo and could have serious conse­ course approved the effort, and the quences for national and hemispheric British, French, and West Germans an­ security. 96 nounced their support. While Soviet With the\evidence in hand and in the satellite states joined with the Kremlin face of a bland assurance from the in denouncing the U.S. action as piracy, Soviet Union that they would never world opinion generally ratified the U.S. place offensive weapons in Cuba, the stand.! 03 United States developed a carefully The quarantine was prosecuted in a orchestrated response. 9 7 First it was forceful but carefully controlled man­ determined that the response would ner. The Navy deployed 180 ships into take the form of a naval "quarantine" the Caribbean. The Strategic Air Com­ rather than a military attack. The mand was dispersed to civilian landing strongest argument against armed attack fields around the country to lessen its was that it would erode, if not destroy, vulnerability in case of attack. Missile the moral position of the United States crews were placed on maximum alert, throughout the world.98 The quaran­ and troops were moved into the south­ tine would have some of the incidents eastern part of the United States.! 04 of a blockade99 but would be limited Warnings were broadcast at regular in­ initially to interdicting the shipment of tervals by the U.S. Navy. These indi­ offensive military equipment to Cuba. It cated that the Windward Passage, Yu­ was hoped that this limited coercive catan Channel, and Florida Straits might force would produce the desired re­ become dangerous waters. ! 05 suIts. 1 00 The United States also announced a Having decided on a course of action, "Clearcert" plan. Shippers could obtain, the United States then sought the sup­ in advance, a clearance certificate to port of the Organization of Am.erican send cargoes through the quarantine States. The OAS was apprised of the area. The purpose of this measure was circumstances of the threat and en­ to minimize interference with non­ couraged to support and cooperate in offensive shipping. Concurrently, addi­ the U.S. action. The response was a tional pressures were developed. Major unanimous affirmation of the U.S. posi­ maritime insurers ceased handling poli­ tion, and the OAS resolved to take all cies for the Cuban trade. Also, Soviet measures necessary to terminate the shipmen ts by air were curtailed when 156

1 nations refused to grant refueling privi­ the United States. 1 0 Efforts Vlere leges. I 06 made to peacefully resolve the matter The in terception of vessels by the with the Russians, but these proved Navy was to be handled in a most unavailing in the face of their bald circumspect manner. If a vessel refused assertions that they were not intro­ to stop, the Navy was to shoot at its ducing missiles or other offensive rudders and propellers in an effort to weapons into Cuba. 111 Having deter­ disable the vessel but avoid any loss of mined to use force, the United States 1 life or the sinking of the ship. 07 The obtained the cooperation of its regional first vessel stopped and boarded was organization. Moreover, both the United personally selected by the President. It States and the OAS immediately in­ was the S.S. Marula, Panamanian owned formed the United Nations, accepted and under Soviet charter. The United the burden of persuasion, and clearly States was demonstrating to the Soviets indicated a disposition to accord respect that it was going to enforce the quaran­ to its will. II 2 tine, and yet because Marula was not Obviously the United States could Soviet owned the boarding did not not achieve its purpose simply by acting represent a direct affront requiring a within its own territory, but its inter­ response. 1011 ference was not within the territory of Along with the foregoing measures, any other nation but rather on the high the United States maintained constant seas. Moreover, the response was care­ communication both with Soviet diplo· fully circumscribed to meet the concept mats and directly with Nikita Khrush­ of proportionality and clearly indicated chev. The reason for the American that the missile buildup constituted the action, its limits, and the conditions for unacceptable provocation. 11 J its termination were made crystal clear. In this connection, the contours of Efforts were also con tinued in the the provocation were carefully ex­ United Nations. Every opportunity was plained to the Soviets. In a letter to given the Russians to find a peaceful Khrushchev immediately after the quar­ solution which would neither diminish antine had been imposed, President their national security nor be a public Kennedy stated: humiliation. 109 In early September I indicated As is well known, the interdiction very plainly that the United States was successful. The missiles were re­ would regard any shipment of moved and the quarantine was termi­ offensive weapons as presenting nated. A serious threat to the peace of the gravest of issues. After that the Western Hemisphere had been re­ time, this Government received moved by the collective application of the most explicit assurance from force by the United States and the other your Government and its repre­ nations of the regional alliance in such a sentatives, both publicly and pri­ manner as to be acceptable to world vately that no offensive weapons opinion. were being sent to Cuba .... In reliance on these solemn assur­ Evaluation. Falk's modified criteria ances I urged restraint upon those reflect almost precisely the method­ in this country who were urging ology employed by the United States in action in this matter at that time. the Cuban incident. Objective evidence And then I learned beyond doubt of provocative acts was amassed, and it what you have not denied­ became clear that the acts constituted a namely that all those public assur­ significant threat both to the political ances were false and that your independence and territorial integrity of military people had set out re- 157

cently to establish a set of missile use force and do so unilaterally or in bases in Cuba.... These activities concert with its allies, but without in Cuba required the responses I reliance on the generally ineffective have announced. competence of the United Nations. I repeat my regret that these Accordingly, in fulfillment of what is events should cause a deteriora­ considered the legitimate legal function tion in our relations. I hope that of enunciating rules of behavior having a your Governmen t will take the consensual basis, some acceptable rem­ necessary action to permit a resto­ nants of the specific customary laws of ration of the earlier situation.! 14 self-help have been discussed and some Finally, throughout the course of the general criteria for a rational employ­ quarantine the United States continued ment of armed force have been evalu­ its efforts to achieve a peaceful solution ated. It is submitted that these rules and which would be sensitive to the needs of criteria strike a favorable balance be­ its adversary. I IS The emphasis was on a tween the need for minimum public settlement which would enable thp. order and the requirement for national Soviets to retreat with grace. This fi­ security and therefore have found gen­ nally was achieved by accepting the eral acceptance in international rela­ Soviets' proposal that they would with­ tions. draw the missiles if we would guarantee not to invad~ Cuba. IIG Quite obviously, however, they serve The Falk modified criteria, then, neither public order nor national se­ represent not just a theoretical offering, curity to the extent that many might but a real and substantial framework for wish. Nationalists will perceive a need decisionmaking, one which has been for fewer legal inhibitions, and interna­ employed successfully and generally tionalists will generally demand greater accepted by the world community. Con­ rp.straints on national power. Interest­ versely, where these criteria have been ingly enough, upon occasion the con­ largely ignored, the use of force by verse will also be true. Situations have states has been subject to heavy criti­ arisen, and will continue to arise, where cism. Witness the condemnation of Rus­ considerations of humanity will lead sia for her intervention in Czechoslo­ many to demand forcible and even vakia, I 17 the criticism of the U.S. unilateral intervention in the affairs of a reten tion of forces in the Dominican state, while national self-interest will Republic, and most recently the Indian perceive no necessity for action and invasion of East Pakistan and the over­ hence employ the argument that to whelming number of Members of the intervene would be unjustifiable. United Nations who voted that she It is this diversity of perception both should withdraw. I 18 in general and in specific situational hypotheses that makes any attempt to CONCLUSIONS prescribe rules of behavior hazardous at best. Is it right or morai or just that the As indicated at the outset, the effort repression in East Pakistan or the geno­ of this essay has been directed toward cide in Biafra should be permitted to those charged with the awesome respon­ continue simply because it is an internal sibility of managing the use of armed affair and the United Nations is power­ force. The need for restraint has been less to act? Is it reasonable that a stale emphasized, and yet recognition has should stand by and turn the other been given to the demonstrable fact that cheek to provocateurs bent on diluting in many situations if a state is going to its national security or threatening its preserve its national interests, it must national interests as in the Dominican 158

Republic? Or, for that matter, Hungary port the view "when in doubt, don't." and Czechoslovakia? Stated more precisely, force should be The provisions of the U.N. Charter resorted to only when it is clearly would seem to answer with a resounding reasonable, and even then the quantum "yes," if the alternative is the use of should be strictly proportionate to the armed force, and it is doubtful whether need. even the more liberal criteria which have In a way, it is strange that nations been enunciated in this essay would have been so resistant to this conceptu­ admit to resort to force under these alization. Nations are, after all, made up circumstances. By way of conclusion, it of individuals, and these individuals might be useful therefore to reflect for a have extensive domestic conditioning in moment on why this must be so. a rule of law which, by and large, Particularly for the powerful nations imposes severe limitations on individual of the world, the use of force, un· resort to force. True, there are well­ restrained by law or regulation, can known and enforceable sanctions for become addictive as a method of domestic violations, but it is clearly settling disputes. It is simpler and much evident that the majority of the people quicker than the frequently tortuous obey the law out of a conviction that it routes of negotiation and arbitration, represents an appropriate course of con­ and in the short run, it is more produc­ duct rather than from fear of retribu­ tive. For the'i>e reasons the use of force, tion. And yet when action is translated while initially resorted to for only the to the international scene, this condi­ most legitimate of reasons, can rather tioning has tended to evaporate in favor quickly become the primary option for of the notion of sovereign independence the resolution of any difficulty, whether knowing no law other than national it be a reasonable option or not. The interest. resultant disorder, even putting aside Merely stating this paradox, however, the current possibility of escalation to suggests a solution. It is submitted that nuclear catastrophe, does not, it is the bulwark of domestic adherence to submitted, in the long run confer a net the rule of law is the sense of com­ benefit on the user of force. The discord munity that a nation has developed over and animosity created by the aggressive time. From common history and lan­ behavior cannot help but prejudice a guage and experience there has evolved state's international relations and long­ a sense of unity which supports accom­ range interests. Restraint must therefore modation to the needs of others and be exercised, if only for pragmatic restraint in the expression of individual reasons. preferences. Conversely, although the Furthermore, restraint must be exer­ U.N. Charter reflects a legal posture cised in the face of, at least from the which presupposes the existence of such perspective of the prospective user of a sense of community among nations, it, force, rather severe provocations. Since in fact, does not as yet exist. it is impossible to draw lines which will With respect to the use of force, the clearly separate reasonable and un­ embryonic international sense of com­ reasonable resort to force in all situa­ munity only admits of the restraints tions, the law must err on one side or suggested in this essay, and then not the other. Here considerations of always. Beyond this, regulation must morality should come into play. Since proceed at a measured pace, stride for the use of armed force necessarily en­ stride with a developing sense of inter­ tails the possibility of loss of life, it is national community. Decisionmakers submitted that the rule of law and the can hardly be expected to assume a conduct of nations should clearly sup- condi tion of international accom- 159 modation which does not exist, but if the set of policies embodying the resort to force is ever to be eliminated, restraint of coercion and the they must always be actively aware of promotion of humanitarianism the degree of consensus which has been may rise in the balance and that achieved. And as the scope of permissible coercion progress is made toward more may gradually be attentuated and effective organization and cen­ more exacting standards of tralization in the world arena, the humanity formulated and 1 hope that may be ~eld out is that applied. 1 9

FOOTNOTES 1. The Hague and Geneva Conventions governing land warfare are illustrative: Hague Convention No. IV of 1907 Respecting the Laws and Customs of War on Land and the annex thereto; Hague Convention No. V of 1907 Respecting the Rights and Duties of Neutral Powers and Persons in Case of Vlar on Land; the Geneva Conventions of 1949 concerning the amelioration of the condition of the sick and wounded, the treatment of prisoners of war, and the protection of civilian persons in time of war. Copies of these documents are contained in U.S. Dept. of the Army, Treaties Governing Land Warfare Pamphlet no. 21-1 (Washington: U.S. Govt. Print. Off., 1956). 2. See Richard A. Faik, "The Beirut Raid and the International Law of Retaliation," American Journal of In ternationaI Law, July 1969, p. 430. 3. The problem of defining aggression has been a continuing one for the United Nations since its inception; to date no success has been achieved. For an extended discussion of the subject see generally, Julius Stone, Aggression and World Order (Berkeley: University of California Press, 1958). See also, Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order (New Haven: Yale University Press, 1967), p. 61 et seq. 4. Both Israel and the Arab States have attempted to justify their resorts to armed force on the basis of art. 51 of the U.N. Charter which deals with permissible self·defense. For an extensive discussion of these efforts see Derek Bowett, "Reprisals Involving Recourse to Armed Force," American Journal of International Law, January 1972, p. 1. 5. A classic example of this can be found in the argumentation with respect to the competence of regional organizations to use force without the prior au thorization of the Security Council. It has been contended that art. 53 of the charter prohibits enforcement action without Security Council authorization but not preventive action. For an excellent discussion of the argumentation, including illustrative examples, see William O. Miller, "Collective Intervention and the Law of the- Charter," Unpublished Thesis, U.S. Naval War College, Newport, R.I.: 1969, p. 31 et seq. 6. See Bowett. 7. TIle only decision of the Int('rnalional Conrt of Justice to date on the i~Slle of Ihe legitimate usc of forcible sdf·h!'!p is II\(' C<'rfn Challlll'l C.ISt', Thl' 1I.I~Jlw, \nlt'rtI.1Ii"n.l! Court of Justice, Reports or Judgnwnls, lldvisol:Y Opinions .md Ordt'l"s (Leyden: Sijthoff, 1949), p. 4. 8. See Stanley Hoffman, "International Law and the Control of Force," Karl W. Deutsch and Stanley Hoffman, eds., The Relevance of International Law (Cambridge, Mass.: Schenkman, 1968), p. 35. 9. In this connection, former Secretary of State Dean Acheson, himself a lawyer, made the following remarks in discussing the Cuban quarantine: I must conclude that the propriety of the Cuban quarantine is not a legal issue. The power, position and prestige of the United States had been challenged by another state; and law simply does not deal with such questions of ultimate power-power that comes close to the sources of sovereignty...• No law can destroy the state creating the law. The survival of states is not a matter of law. Remarks by the Honorable Dean Acheson, American Society of International Law, Proceedings of the American Society of International Law at Its Fifty-Seventh Annual Meeting (Washington: 1963), p. 14. 10. Hoffman, p. 44. 11. See MCDougal and Feliciano; Richard A. Falk, "The Legal Control of Force in the International Community," Saul H. Mendlovitz, ed., Legal and Political Problems of World Order (New York: Fund for Education Concerning World Peace Through World Law, 1962), p. 143. 160

12. John Norton Moore makes the point that "Efforts to overuse international law, whether by way of support or criticism of rational action, serve only to obscure the vital role that an international legal perspective should play." John N. Moore, "Legal Dimensions of the Decision to Intercede in Cambodia," American Journal of International Law, January 1971, p. 38. 13. Falk, "Legal Control of Force," p. 143. 14. This treaty provided for the total discontinuance of reprisal seizures on land and in seaports, confined the practice to the open seas, and called for the payment of a fine in the event of unlawful seizures. See, Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (London: Macmillan, 1911), v. II, p. 70, 71. 15. Evelyn S. Colbert, Retaliation in International Law (New York: King's Crown Press, 1948), p. II. 16. Phillipson, v. II, p. 364. 17. J.L. Brierly, The Law of Nations, 6th ed. (New York and Oxford: Oxford University Press, 1962), p. 398. In categorizing measures of self·help, "retorsion" is frequently included as a fourth category. This is a measure, however, which involves legal action by states and does not generally involve the use of armed force. Since the present essay is concerned with the use of armed force which is not legal per se, a discussion of retorsion has not been included. 18. This confusion is epitomized by Westlake who, after remarking that the right of self-preservation is merely that of self-defense went on to state: A State may defend itself, by preventive means if in its conscientious judgment necessary, against attack by another state, threat of attack, or preparations or other conduct from which an intention to attack may reasonably be apprehended.... In attack we include all violations of the legal rights of itself or of its subjects, whether by the offending state or by its subjects without due repression by it, or ample compensation when the nature of the case admits compensation. John Westlake, International Law, 1st ed. (Cambridge: University Press, 1904), v. I, p. 299; see also William E. Hall, A Treatise on International Law, 8th ed. (Oxford: Clarendon Press, 1924), p.322. 19. Brierly, p. 405. 20. See Ian Brownlie, International Law and the Use of Force by States (Oxford, Clarendon Press, 1963), p. 231 et seq. 21. This matter was not resolved judicially but precipitated diplomatic correspondence in the course of which Webster formulated his definition in a letter of 24 April 1841 to the British Ambassador in Washington, Fox, later incorporated in a note to Lord Ashburton of 27 July 1842. Cited in Robert Y. Jennings, "The Caroline and-McLeod Cases," American Journal of International Law, January 1938, p. 89. 22. Jennings, p. 89. 23. For a critique of the Caroline test, see Robert W. Tucker, "Legal Restraints on Coercion," TIle United States in a Disarmed World (Baltimore: Johns Hopkins Press, 1966), p. 148, n. 46. 24. While it is true that forcible self-help is still not endorsed, domestic society in the face of the recent efforts of minority groups and the youth movement may be coming to tolerate a greater degree of forcible self-help than ever before. 25. Colbert, p. 15. 26. Ibid. 27. Ibid., p. 27. 28. Ibid., p. 54. 29. Brierly, p. 399. Cf. Lassa F.L. Oppenheim, International Law, 7th ed., H. Lauterpacht, ed. (London: Longmans, Green, 1952), v. II, p. 132 et seq. 30. 8 Recueil des Decisions des Tribunaux Arbitraux Mixtes, p. 409, 422-425. 31. Ibid. 32. Oppenheim, p. 141, n. 1; see also Brownlie, p. 220. 33. Brierly, p. 403. 34. Ibid. 35. Humanitarian interventions by European powers occurred several times in the Turkish Empire during the 19th century. See Brierly, p. 403. 36. Ibid., p. 412. 37. League of Nations, League of Nations Official Journal 1924, p. 524. 38. The Second Hague Convention of 1907 prohibited the employment of force for the recovery of contract debts. But this prohibition was itself limited. It did not apply when the debtor state refused or neglected to reply to an offer of arbitration or after accepting the offer 161

rendered settlement of the compromis impossible or, after the arbitration, failed to submit to the award. 39. See Brierly, p. 408. 40. The concept that the unilateral use of force should be foresworn also became embodied in the Pact of Paris of 1928-the Briand-Kellogg Pact, signed by a great many of the members of the international community. This pact did not perish with the League but remains in effect today, being fully consistent with the provisions of the U.N. Charter. War as a solution for international controversies and as an instrument of national policy was condemned. Peaceful settlement of all disputes was required. Recourse to war in self-defense, however, was not forbidden. On 20 June 1928 Kellogg stated, as the position of the United States, that" ... the right of self-defense is inherent in every sovereign state and implicit in every treaty." U.S. Dept. of State, Foreign Relations of the United States, 1928 (Washington: U.S. Govt. Print. Off., 1942), v. I, p. 91. 41. United Nations, Yearbook of the United Nations 1968 (New York: Office of Public Information, United Nations), v. XXII, app. II. 42. Ibid. 43. Ibid. 44. See Oppenheim, p. 152 et seq. 45. United Nations, Yearbook 1968. 46. Ibid. 47. Ibid., art. 52, para. 1. 48. Ibid., art. 53, para. 1. 49. See Brownlie, p. 431 et seq. 50. United Nations, General Assembly, Official Records, Resolution no. 2625 (XXV), 25th sess., supp. 28, A8028 (New York: 1971), p. 121 et seq. 51. Ibid., p. 122. 52. Ibid. 53. Ibid., p. 123. 54. See Brierly, p. 1. 55. See Stone, p. 96. 56. See MCDougal and Feliciano, p. 5. Their entire thesis argues that the U.N. Charter does not tell us what is lawful in any given situation. This is arrived at by measuring actions against certain realistic judgmental criteria. In this connection see particularly p. 63 of their work. 57. See Brownlie, p. 280. 58. United Nations, "Inter-American Treaty of Reciprocal Assistance and Final Act of the Inter-American Conference for the Maintenance of Continental Peace and Security," Treaty Series (New York: 1948), v. XXI, no. 324, p. 77. 59. United Nations, "Treaty of Peace with Japan," Treaty Series (New York: 1952), v. CXXXVI, no. 1832, art. 5, p. 46. 60. United Nations, General Assembly, Official Records, Report of the International Law Commission, 4th sess. supp. no. 10 (A/925) (Lake Success, N.Y.: 1949). See also, United Nations, "Treaty of Alliance, United Kingdom and Jordan," Treaty Series (New York: 1947), v. VI, no. 74, art. 5, p. 145; "Treaty of l\lliance and Mutual l\ssistance, United Kingdom and France," 1'n'.lIy SIlI'it'S (New York: 1947), v. IX, no. 137., art. 2, p. 190. 61. See Oppenilcim, v. II, p. 154; Dr. D. Nincic in Georg Schwarzenberger, Hepor! 011 Some Aspects of the Principle of Self-Defense in the Charter of the United Nations and the Topics Covered by the Dubrovnik Resolution (New York: International Law Association, New York University Conference (1958) Committee on the Charter of the United Nations: 1958), p. 68. 62. United Nations, Security Council, Official Records 21st yr., 1321st mtg., 16 November 1966, S/PV 1321 (New York: 1966), p. 17. 63. United Nations, Security Council, Official Records, 24th yr., 1466th mtg., 27 March 1969, S/pV 1466 (New'York: 1969), p. 48; United Nations, Security Council, Official Records, 24th yr., 1468th mtg., 1 April 1969, S/PV 1468 (New York: 1969), p. 21. 64. See "Mrs. Gandhi Said to Set Terms for Visits by Observer Teams," The New York Times, 17 November 1971, p. 16:7; Sidney H. Schanberg, "India and Pakistan: Short of War," The New York Times, 18 November 1971, p. 2:3; "Mrs. Gandhi Rejects Thant Proposal," The New York Times, 19 November 1971, p. 16:6; "No Reaction So Far," The New York Times, 30 November 1971, p. 3:5. 65. See Bowett, p. 4 et seq.; see also Brierly, p. 431. 66. Bowett, p. 4 et seq. 162 bi. United Nations, Security Council, Official Records, Supplement for April, May and June 1964, lllth mtg., 9 April 1964, S/5650 (New York: 1965), p. 9. 68. See Brierly, p. 420. This view is also shared by a number of other publicists including Stone, Bowett, Waldock, and McDougal. 69. Brierly, p. 418. 70. At least one adherent of the restrictive view of self·defense has attempted to accommodate this position to the potential of nuclear weapons. Dr. M. Nagendra Singh would not require that self·defense wait on a physical violation of the territory of a state. Armed attack in his view includes those last proximate acts necessary to initiate an attack, e.g., aircraft being launched or submarines leaving their territorial waters. For McDougal's critical commentary on this accommodaJ:ion, see McDougal and Feliciano, p. 239. 71. Ibid., p. 238 et seq. 72. Bowett, p. I, and authorities cited therein. 73. While initial U.S. statements indicated that the air attacks following the incident were retaliatory in nature, in the U.N. the U.S. Representative argued that in the face of military aggression his Government had decided, in self·defense, to take "positive but limited and relevant measures to secure its naval units against further aggression." United Nations, Security Council, Official Records, 19th yr., 1140th mtg., 5 August 1964, S/PV 1140 (New York: 1964), p. 2. This view represents a broad view of self· defense commonly called the cumulation of events doctrine, and there is little difference between it and precharter reprisals. 74. The Hague, International Court of Justice, p. 4. 75. See Brierly, p. 421 et seq.; see also Claud H.M. Waldock, "The Regulation of the Use of Force by Individual States in International Law," The Hague, Academy of International Law, Recueil des Cours, 1952 (Paris: Librairie du Recueil Sirey, 1953), v. LXXXI, p. 501. 76. See Brierly, p. 425 et seq. 77. Some publicists would also include humanitarian intervention as a legitimate basis for the use of force. The most eminent of these has been the editor of the recent editions of Oppenheim, Sir Hersch Lauterpacht. The eighth edition of Oppenheim states that intervention is legally permissible "when a state renders itself guilty of cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of mankind." Lassa F.L. Oppenheim, International Law, 8th ed., H. Lauterpacht, ed. (London: Longmans, Green, 1955), v. I, p. 312-13. There is still some question, however, as to whether this type of interference in the internal affairs of another state is acceptable and therefore in this reasonably conservative estimate of the measures of forcible self·help which are legitimate, humanitarian intervention has not been included. It is suggested that intervention of this type may better be left to the United Nations rather than individual states. 78. See statement of Secretary of State Dean Rusk as quoted in Jay Mallin, Caribbean Crisis (Garden City, N.Y.: Doubleday, 1965), p. 58. 79. White House Press Release, 28 April 1965, Documents on Anierican Foreign Relations, 1965 (New York: Harper, 1966), p. 234. 80. See Miller, p. 54. 81. United Nations, General Assembly, Resolution no. 2625, p. 123. 82. Even Brownlie, who adopts a very strict view of what force can legitimately be applied in modern law concedes that .•. the protection of nauonals presents particular difficulties and ..• a government faced with a deliberate massacre of a considerable number of nationals in a foreign state would have cogent reasons of hUmanity for acting •.. The possible risks of denying the legality of action ini a case of such urgency ... must be weighed against the more calculable dangers of providing legal pretexts for the commission of breaches of the peace in pursuit of national rather than humanitarian interests. Brownlie, p. 30l. 83. Brierly, p. 431. 84. Ibid. 85. The United States has always taken the position and amply demonstrated that its intervention in Vietnam only occurred after it had been clearly determined that the subversion of South Vietnam was being directed from North Vietnam. 86. While the argument was never made, it might be contended \vith some justification that India's intervention in Pakistan falls in the category of a special case; that the flow of Bengali refugees into India was similar to the negligent use by Pakistan of its natural resources. It is submitted, however, that this argument probably stretches the limited "special cases of necessity" beyond acceptable limits. 87. Brownlie, p. 376. 88. See generally Bowett; see also Miller. 163

89. See Falk, "Beirut Raid," p. 441; cf. Yehuda Z. Blum, "The Beirut Raid and the International Double Standard. A Reply to Professor Richard A. Falk," American Journal of International Law, January 1970, p. 73. 90. Cf. N.G. Onuf, "The Current Legal Status of Reprisals," Unpublished Manuscript submitted to the American Society of International Law, Panel on Reprisals and Retaliation in International Law: 1971, p. 19. 91. Ibid. 92. No attack against the United States was imminent, hence self-defense under the Caroline case test was not a legitimate basis for the quarantine. Likewise, no acknowledged right was being denied to establish a "Corfu Channel" type reprisal action. Finally, neither protection of nationals, requested intervention against an external threat, nor a "special case of necessity" was present so as to justify the intervention. Professor Carl Q. Christol has stated that the Cuban action constructed a new rule of international law. Carl Q. Christol and Charles R. Davis, "Maritime Quarantine: the Naval Interdiction of Offensive Weapons and Associated Material to Cuba, 1962," American Journal of International Law July 1963, p. 525. 93. See Quincy Wright, "The Cuban Quarantine," American Journal of International Law, July 1963, p. 546, and authorities cited therein. 94. Russia and her satellites condemned the action as piracy and contended that the United States was engaged in unprecedented aggressive action. See Christol and Davis, p. 528. 95. Although a resolution condemning the quarantine was presented to the Security Council by the Soviet Union, the Council by general consent refrained from acting upon it. It has even been argued that the failure to condemn and the Council's encouragement of negotiations to resolve the matter indicates ex post facto authorization by the Security Council. See Leonard C. Meeker, "Defensive Quarantine and the Law," American Journal of International Law, July 1968, p. 515. 96. See Christol and Davis, p. 526. 97. Andrei Gromyko personally gave these assurances to President Kennedy, although the President knew at the time that offensive missiles were being installed. Some weeks previously Ambassador Dobrynin had assured Robert Kennedy that there would be no ground-to-grouhd missiles or offensive weapons placed in Cuba. See Robert F. Kennedy, Thirteen Days, (New York: Norton, 1969), p. 25, 41. 98. Ibid., p. 49. 99. See Wright, p. 554; see also Kennedy, p. 48. 100. See Christol and Davis, p. 527. 101. Ibid., p. 528; see also Kennedy, p. 51. 102. "U.S. Request for Meeting of Security Council," The Department of State Bulletin, 12 November 1962, p. 724. 103. Theodore C. Sorenson. Kennedy (New York: Harper & Row. 1965). p. 706; see also Arthur M. SChlesinger. Jr.• A Thousand Days (Boston: Houghton Mifflin, 1965), p. 815. 104. Kennedy, p. 52. 105. See Department of the Navy. Oceanographic Office, Notice to Mariners, No. 47 (Washington: 1962). p. 2547-48; see also Jack Raymond. "Navy Tells Ships of Danger Areas." The NI'w York Thill'S. 25 October 1962. p. 20:6. 106. In this conllcction the United Slates reccived slIpport rrolll J\rrican counlries Ihatll.,d been considered antagonistic. Guinea. Senegal. and Algeria rerused to permit Soviet aircraft to land or refuel. Kennedy. p. 122; see also Schlesinger. p. 815. 107. Kennedy. p. 61. 108. Ibid .• p. 82. . 109. Ibid .• p. 124. 110. See the Falk modified criteria as summarized and reordered in previous discussion, first item. Ill. Ibid., second item. 112. Ibid., third and fourth items. 113. Ibid., fifth and sixth items. 114. Kennedy, p. 80. 115. See Falk's modified criteria, seventh item. 116. Kennedy, p. 103. 117. In addition to other countries, almost all the Members of the Security Council condemned as illegal the action of the Soviet Union. Sec "Situation in Czechoslovakia: Security Council Considers Item." UN Mon thly Chronicle, August-September 1968, p. 34 et seq. 118. Eric Pace, "U.N. Vote Follows Pleas for Action," The New York Times, 8 December 1971, p. 1:5. 119. McDougal and Feliciano, p. 59. 164

BELLIGERENCY AND LIMITED WAR

William O. Miller

When J was asked if I would give this What I think we should ask ourselves presentation, I wondered if the title, in any study of this topic is how much "Belligerency and Limited War," was real utility docs the dichotomy of a law cast in technical legal terms--that is, of war and law of peacc provid(~ to us, does it mean belligerency in its generally and I think we wiII come up with the accepted legal sense--and does it mean answer that in a contcmporary situation "war" in its generally accepted legal it provides little utility at all. sense--or docs it mean a situation wherc Let's take a look just for a minute at there is no technical state 0 f war but, thc situation in Vietnam. \V ar or peace'? ncvertheless, where therc is a largc-sealc Or docs it rcally maLLer frolll a legal armed conflict raging. standpoint? This is an extrcmely important con­ As a factual matter, what wc have sideration, for the technical cxistence of there is a conflict of major proportions. a state of war, in the traditional law, has But, as we are all aware, there is no been a prerequisite for the legitimacy, in tcchnical state of war in cxistellce. You a legal sensc, of certain types of actions. have read the memorandum from the For example, the term "blockade" is a Defense Department to the Senate term unknown in the law .except as it Armed Services Committee in which it connotes a belligerent blockade in time was stated that the present situation of war. imposes no obstacles on us in the This has always seemed to me to be a pursuance of our objectivcs in Vietnam, somcwhat less than adcquate manner of and I have no doubt that this is true, viewing tlw problem. Thc real problem, But what if our ohjectives should broml­ it scems to me, is thc nced to dctcrmine en and it was considered necessary to what dC/,'l"ce of forcc, applied in what restrict the inflow of goods into North manner, against what targets, may states Vietnam? I know you have often heard reasonably expect acceptance by the it said that we cannot blockade Ilai· majority of other states. phong because it is not legal, bccause But until just reccntly lhis enlirc blockade is legal only in time of war. J prohlt'lII Il

Thl'n' al:;o was a tr;lIlitional hloek;lIle supporL of this proposiLion. This ship hy the United States ap;ainst the North was seized hy the Spanish authorities in Korean coast tluring the Korcan war LB7;~ while it was in the proce:;s of whcm then' was a fm mahle p;cohrraphic transporting arms to Cuhan insllrgcnts. situation and liJlli ted political objcc­ The British ship J)eerholLllcl was seizcd tivcs. This hlockade, according to by Spanish warships during the Spanish l\lessrs. Cagle and Manson, was success­ Civil War for the same reason. And fully maintained for 3 years. And, yes, during the Algerian War, French war­ hoth Soviet and Chinese Communist ships stopped at leasl lWo ships--one a vessels respected the hlockade, although British and one a Yugoslav, both of hoth governments denounced it and which were suspected of the same of­ refused to recognize its legality or even fense. its existence. The current Market Time operations I would like now to discuss three in Vielnam arc also pertinent to our other, but related, situations with you. discussion. The Republic of Vietnam The first is the old 19th century decree announcing this operation Slated, concept of pacific blockade--a term essentially, that the entry into South which one hears handied ahout from Vietnam of goods or personnel through time to time. This action has heen other than recognized ports is forbiddcn deserihed as a measure short of war, i.e., by the South Vietnamese customs and where the hlockading slate docs not immigration regulations and that it was wish to resort to war but, nevertheless, intended to enforce these regulations wishes to resort to some degree of force strictly. Accordingly, it providcd thal all to ohtain redress of a claimed wrong hy vessels within the Repuhlic of Vietnam the opposing slate. Hence, pacific block­ contiguous zone were subjcct to visit ades arose as a form of reprisal used in a and search, and arrest where appro­ peacetime situation generally by larger priate, for violations of these regula­ states against those less powerful. It tions. It wenl a bit further and declared consisted of hlockading aeecss to or exit that even beyond their contiguous zone, from a particular port or ports of the ships suspected of being RVN, although target state, of the vessels of that state. flying another flag, would be stopped, Only the shipping of the blockaded searched, and seized if appropriate. state was affected. Neutral ships, or South Vietnam has done nothing ships of other nations, an~ permiLled to here, of course, that a state cannot C()ml~ mill go i1S they please. There are legally do in time of peace under the no rc(:orclcd iw;Lancl:H of this "eing IIHI:(\ 19!iB Geneva Conventions. These are in this century, and there arc no in­ stricLly police measurcs designed to en­ stances where it was ever used by the force the domestic laws of the RVN United States. I mention it here just so seaward throughout their sanitnry, that you will be able to distinguish it fiscal, amI customs ZOlle, or contiguous from the belligerent type blockade if zone, and Oil lhe high seas against ships the need arises. suspected of heing their own although There arc other measures short of flying a foreign flag. war which hear some relevance to the !VIay I simply pose this question to use of seapower in a limitcd war situa­ you? Does the Virgin ills case, alHl the tion. I refer to the basic right of every others I cited a moment ago, suggest a staLe to take such actions at sea as are ralionale for a possible extension of this reasonable and necessary to protect its surveillance? security interest against the hostilc acts A fi nOlI blockade-type situation of oLher states. The old case of the U.S. which c(lInpds ollr attention is t he IIH:j Flagship I';r#;/I ilL.~ is fl"~II'u:ntly eitell in lJuaranlinr of stratep;ie arllls to Cuba. 170 This exercise of force at sea was de­ essential protecLive rights since such signed by the United States as a re­ would have undoubtedly prejudiced Lhc sponse to the Soviet/Cuban missile chances for a peaceful solution of the thn!at and, el'rtainly, as a IIH:asure matter. whieh, it was hoped, eould re:mlve the Of course, the lawyers have waxed situation short of aetual conflict. long and hard on the legality of the I call this a blockade-type situation quarantine. Some puhlicists, cvcn some because it was not a blockade in any U.S. publicists, have branded it as an sense of the word--you will recall that I unlawful exercise of force under article commenced my remarks with the nota­ 2(4) of the Charter. Others, and these tion that blockade deals with ships, are substantially in the preponderance, solely, and not their cargo. have argued for its legality, although not There was never any intention in the always using the same yardstick. The Cuhan situation to prevent the ingress official U.S. position is that the action of ships. The entire thrust of the opera­ was legal as a collective action by the tion, of course, was on offensive missiles American states under articles 6 and 8 and their component parts. Ships were of the Rio Treaty in response to a stopped, and those whieh were not situation endangering the peace of transporting the prohibited items were America. Others contend that it was a permitted to eontinue their voyage, and legitimate exercise of the right of collec­ a clearcert, or clearance certi ficate, tive self-defense undcr article 51 of the system, modeled a fter the old naviccrt U.N. Charter. system was initiated to obviate even this These latter arguments seem to me to ineonvenience for ships carrying inno­ he the more realistic ones and, as such, cent cargo. This really bears a close to he a much more useful part of the resemblance to the prohihition of con­ continuing development of standards of traband, also a belligerent right under conduct to which we can generally the traditional law of sea warfare. Bear expect states to conform. To brand as in mind here that there never was any illegal under present law every exercise intention, on anyhody's part, that a of armed force, as some do, invites state of war should exist between the comments like those of former Secre­ United States and Cuba, or the United tary of State Dean Acheson to the States and the Soviet Union, although American Society of International Law, what has traditionally been a helligerent shortly after the quarantine. right was, in essence, exercised. I must concludc that the propriety This, I thillk, delllollHLraLC:K Illy tlH:His of the Cuban quarantinc is not a h:gal thaL changing conditions require chang­ issue. Thc powcr, position, and prestige ing rules and that a law of peace and law of the United States had been chal­ of war dichotomy is inadequate in such lenged by another statc: and law simply does not deal with such ques­ eonLclllporary situaLions. tions of ultimate power-·power that Clearly, the UniLed States could have comes close to the sources of sover­ declared war Oil Cuha, established a eignty. I cannot believe that there arc hlockadc, or annolillced lists of contra­ principles of law that say we must band itcms; although, undoubtedly, aeccpt destruction of our way of life. One would be surprised if practical many would have cried that the declara­ men, traincd in legal history and tion of war, itself, was violative of thought, had devised and brought to a article 2(4) of the U.N. Charter. But state of gencral acceptance, a principle putting this argument aside for a :no­ condemnatory of an action so cssential to the continuation C(f precmincnt ment. it el'rtainly l:'Cl'IllS obvious that a pOWl'r as that taken by the United forIllal statc of war sh()uld not be Statcs last Octobl'r. Such a principle reljuired for a state to insist on certain would bc as hannful to the devdoll' 171

ment of restraining procedures as it anees for the effect which otherwise would be futile. No law can destroy normal neutral trade would have on the thr state creating the law. The survival of states is not a matter of law. enemy's war effort. Thus the old 19th century law failed under the strict test Whether or not 01\(: ahrrecs fully with of mili~ary necessity in a modern con­ th($e n'lIIl1rks, I do I hink onl! must text. abrrl!e that they do point out c1eurIy that But to get back to my subject, I will in order for restruining procedures to simply say that in limited war situa­ huve any hope of effectiveness, they tions, where objectives are limited, there must be premised on a realistic appraisal will be more self-imposed restraints and, of what states can be expected to do in hence, more constraints in the form of particular circumstances. law that can hope to be imposed: Now, what is the relevance of all of this to my subject--the legality of the In the Vietnamese situation, for ex­ use of certain weapons in a limited war ample, our self-imposed restraints arc situation? . such that we make no effort at all to use While we do have some rules of force to interfere with the seaborne international law in sea warfare which trade into North Vietnam. This situation Iilight very well be appear definite and certain on their otherwise, however, if there were to be, face, this is by no means the true for example, a massive invasion across situation. I\lost of these ;ulcs were the DMZ. It could very well be that the d1w(·I0l'l·tI in allll for a totally tliffl'rent defense of South Vietnam would re­ (mvirolllnent than we face today. While quire interdiction of North Vietnamese there are, and must be, restraints on the strategic commerce. This situation did participants in a conflict, whether or develop in Korea. It would not be not that conflict is characterized as a unrealistic, therefore, to expect, given technical state of war, I think history the right circumstances, something in teaches us that the degree of effective the nature of a traditional blockade of restraint will vary in inverse proportion the North Vietnamse coast. to the nature of the objectives for which In seeking to determine the legality tJle conflict is being waged; that is, as of a proposed action, one should not the objectives become more unlimited, only look to such rules as are found in the fewer restraints we can expect the such publications as The Law of Naval parties to impose upon themselves, und, Warfare, but he must also study the hence, the fewer constraints the world history of these rules, i.e., the situation community, in the form of law, can for which they were designed and the hope to impose. history of their application. lIe must' The traditional blockade which we also recognize that there are many have been discussing provides a good situations which are simply not covered example of this. When faced with a war in the rule books--and it is here, particu­ where the total, organized resources of larly, where the practice of states, if it thc enemy became a legitimate military can be determined, will make possible a objective, the old rules which sought to hetter and more meaningful appraisal. separate noncombatants from com­ As Professor Morgenthau stated the batants at sea were not adequate. Nor other day, "We deal not with theory, were those which failed to make allow- but with experience." ----0/----