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.