LEGAL REGULATION of RESORT to INTERNATIONAL COERCION: AGGRESSION and SELF-DEFENSE in POLICY PERSPECTIVE MYRES S.Mcdougalt FLORENTINO P.Feligianot"
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THE YALE LAW JOURNAL VOLUME 68 MAY 1959 NUMBER 6 LEGAL REGULATION OF RESORT TO INTERNATIONAL COERCION: AGGRESSION AND SELF-DEFENSE IN POLICY PERSPECTIVE MYRES S.McDOUGALt FLORENTINO P.FELIGIANOt" THE maintenance of public order-when public order is conceived in its minimal sense as community control and prevention of private violence-is commonly and appropriately regarded as the first indispensable function of any system of law.' The securing of a public order-understood in a broader sense as embracing the totality of a community's legally protected goal values and implementing institutions 2 -which seeks, beyond an effective community tSterling Professor of Law, Yale University. "tResearch Associate and Lecturer in Law, Yale Law School; Technical Assistant, Department of Justice, Republic of the Philippines. The views expressed here do not necessarily reflect those of the Department of Justice of the Government of the Philip- pines. The authors make grateful acknowledgment to the Ralph E. Ogden Foundation, Inc., for grants in aid of research. This article is the third in a series upon the law of war. The first article, Interna- tional Coercion and World Public Order: The General Principles of the Law of War, appeared in 67 YALE L.E. 771. (1958), and the second, The Initiation of Coercion: A Multi-Temporal Analysis, in 52 AM. J. INT'L L. 241 (1958). The present article is con- cerned with the first of the major problems of the law of war. 1. Recognition of the primacy of this function in the international as in municipal arenas is widely reflected in the literature. See, e.g., Waldock, The Regulation of the Use of Force by Individual States in International Law, 81. HAGUE ACADEMIE DE DROIT I NT R.RNATINAL, RECUEIL DES COURS [hereinafter cited as HAGUE RECUEIL] 455 (1952); BRIERLY, THE BASIS OF OBLIGATION IN INTERNATIONAL LAW 230 (1958); Pound, A Snrrey of Social Interests, 57 HARv. L. REV. 1, 17-18 (1943); STOzNE, THE PROVINCE AND FUNCTION OF LAW 454-55, 555, 559-60 (1.950) ; KELSEN, GENERAL THEORY OF LAW AND STATE 21-22 (1954); cf. DE VIsscHER, THEORY AND REAIITY IN PUBLIC INTERNA- TIONAL LAW 99 (Corbett transl. 1957). Studies on primitive and ancient systems indicate that such communities accorded similar priority to control of disruptive violence. See, e.g., HOEBEL, THE LAW OF PRIMITIVE MAN (1954); LLEWELLYN & HOEBEL, THE CHEY- ENNE WAY chs. 10-12 (1941); MAINE, ANCIENT LAW ch. 10 (Everyman's ed. 1954); 1 SIMPSON & STONE, LAW AND SOCIETY 66-89, 284-97 (1948). See also Aberle et al., The Functional Prerequisitesof a Society, 60 ErIcs 100, 103, 110 (1950). 2. For development of the reference assigned to a "system of public order," see McDougal & Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. INT'L L. 1 (1959). See also Dession & Lasswell, Public Order Under HeinOnline -- 68 Yale L.J. 1057 1958-1959 1058 THE YALE LAW JOURNAL [Vol. 68:1057 monopolization of force, the richest production and widest sharing of all values, is today also commonly projected as appropriate aspiration by most mature territorial polities. The intimate interdependence of these two conceptions of public order is obvious. Effective prevention and repression of private vio- lence are necessary prerequisites to establishing appropriate institutions for the most rewarding pursuit of other values. Conversely, a full opportunity to pursue individual and community values through peaceful procedures, by les- sening predispositions to coercion and violence, may be expected to further the continued maintenance of minimal order. Conspicuous features of the world social process today include the in- creasing unity of demand among most of the peoples of the world for achieve- ment in the international arena of public order, in its widest as well as in its narrowest sense, and the increasing awareness that efficient world institutions for the optimum creation and distribution of values depend upon the securing of minimum order. Subjecting the processes of coercion and violence among nation-states to effective community controls is thus the most fundamental contemporary problem for all who seek a world public order honoring, in deed as in rhetoric, human freedom. This problem is not of course peculiar to our age, although the implications of continued failure, given the existing weapons of catastrophic destruction, are now perhaps unique. It had its origin with the first conception of a community of states under a common law.3 When emerging territorially-based polities first began to constitute an international arena, the problem became, as it remains, the central one in international law. This basic problem of legal regulation of resort to international coercion may perhaps be most economically outlined by recalling in briefest summary the related, but analytically separable, processes of coercion and legal deci- sion. 4 In an earlier article, we described the process of international coercion in terms of nation-states seeking the fulfillment of their value goals and apply- ing to each other for that end coercion of fluctuating degree of intensity, by all available instruments of policy, under all the constantly changing condi- tions in the world arena. We sought to indicate that some degree of coercion is almost continuously observable in the ordinary processes of state interac- tion for values,5 and perhaps in all human interaction, whether the processes Law: The Role of the Advisor-Draftsman in the Formation of Code or Constitution, 65 YALE L.J. 174, 185 (1955); Dession, The Technique of Public Order: Evolving Con- cepts of Criminal Law, 5 BUFFALO L. REV. 22, 23-24 (1955). 3. See SCHiFFER, THE LEGAL Co-,MUNITY OF MANKIND ch. 2 (1954) ; VAN VOL- LENHOVEN, THE LAW OF PEACE chs. 1-3 (1936); VAN VOLLENHOvEN, THE TiREE STAGES IN THE EVOLUTION OF THE LAW OF NATIONS (1919); Van Vollenhoven, Grothis and Geneva, in 6 BIBLIOTHECA VISSERIANA 5 (1926); SmiTrr, THE CRISIS IN THE LAW OF NATIONS 8 (1947). 4. A recommended mode of inquiry into these processes is spelled out in some detail in the first article of this series. McDougal & Feliciano, International Coercion and World Public Order: The General Principles of the Law of War, 67 YALE L.J. 771-817 (1958) [hereinafter cited as McDougal & Feliciano, General Principles]. 5. Cf. ARON, ON )VAR 8 (Anchor ed. 1959): "Relations between sovereign states may be more or less bellicose; they are never essentially or ultimately peaceful." HeinOnline -- 68 Yale L.J. 1058 1958-1959 1959] INTERNATIONAL COERCION 1059 be confined within the boundaries of a single state or transcend state boun- daries. In the course of this continuous process of coercion among states, as we also noted, contending participants make certain characteristic types of op- posing claims about the lawfulness and unlawfulness of their respective exer- cises of coercion. The contraposed claims with which we are here more par- ticularly concerned relate to the initiation of coercion. Generally, one partic- ipant asserts that it is lawful to employ highly intense coercion, or to acceler- ate the intensity of coercion previously exercised, against the opposing partici- pant; and the opposing participant then maintains that such is nlavful ini- tiation or acceleration of coercion and justifies defensive coercion. To these facts of initiative and response in coercion and these claims and counterclaims of lawfulness and unlawfulness, certain decision-makers, established by com- munity perspectives as authoritative, respond by determining both the require- ments or limits of authority in respect of the coercion and the appropriate community or unilateral measures. In fulfilling their community responsibility decision-makers commonly find it necessary to appraise particular exercises of coercion in terms of conformity to public-order goals, and when appropriate to characterize such exercises as permissible or impermissible. In the making of such appraisals and characterizations, the decision-makers seek to give ef- fect to certain shared policy objectives. To this end they formulate and apply authoritative community prescriptions. Complementary Prescriptionson Permissible and Nonpermissible Coercion The contemporary world prescriptions about the application of coercion across state boundaries project in general terms a set of complementary poli- cies designed, in ultimate effect, to secure and maintain an overriding policy of peaceful change and of minimizing destruction of values. A principal pur- pose of modern efforts at comprehensive organization of the community of states has been to clarify a distinction between permissible and nonpermissible coercion and to establish the institutions and procedures thought indispensable and appropriate for sustaining that distinction. The Charter of the United Na- tions indicates, in broad strokes, the level of coercion that is sought to be pro- hibited: members are required-and this is declared a basic principle-to "re- frain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the [organization]." ' The positive aspect of this prohibition lies in the obligation of members to resolve their dis- putes "by peaceful means" that do not endanger "international peace and se- curity, and justice."'7 The commitment of members to "refrain from the use or threat of force" is sometimes assumed by commentators to refer to the use or threat of armed or military