DEPARTMENT OF THE ARMY PAMPHLET 27-1 00-37 MILITARY LAW REVIEW VOl. 37 &4i t i c ies THE DECISION TO EXERCISE POTVER--.A PERSPECTIVE 09 ITS FR.4SIETT'ORK IN INTERNLATIOSAALLAIT' Lieutenant Coiimann'er James E. Toms THE OT.ERSE.4S COLIAI.4SDER'S POTS'ER TO REGUL-ATE THE PRIT-.ATE LIFE .Major JYqiie E. Alley E-[UhLI;1N RIGHTS IS THE AADSIISISTRA4TION OF PHILIPPINE 51ILIT.ARY JUSTICE Lieutenmit Colonel Priiiziti:~D. Chingcuangco P RIV I LEGE D COl151 US I CLATI O?;- THE PERSOS-IL PRII'ILEGES Major Daoin' 14. Fontanella HEADQUARTERS, DEPARTMENT OF THE ARMY JULY 1967 PREFACE The Military Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Advocate General's School, U. S. Army, Charlottesville, Vir- ginia 22903. Footnotes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvard Blue Book. This Review 'may be cited as 37 MIL,. L. REV. (number of page) (1967) (DA Pam 27-10037,l July 1967). For sale by the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Price: $75 (single copy). Subscription price: $2.60 a year; $75 addi- tional for foreign mailing. i Pam 27-10037 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-37 WASHINGTON, D.C., 1 July 1967 MILITARY LAW REVIEW-VOL. 37 Articles : Page The Decision to Exercise Power-A Perspective on Its Framework in International Law Lieutenant Commander James E. Toms ____--_- 1 The Overseas Commander’s Power to Regulate The Private Life Major Wayne E. Alley ....................... 57 Human Rights in the Administration of Philippine Military Justice Lieutenant Colonel Primitivo D. Chingcuangco - 127 Privileged Communication-The Personal Privileges Major David A. Fontanella __________________ 157 iii THE DECISION TO EXERCISE POWER-A PERSPECTIVE ON ITS FRAMEWORK IN INTERNATIONAL LAW* By Lieutenant Commander James E. Toms ** The author discusses the self-help measures of retorsion, reprisal, and intervention, as they relate to interm tional law. His analysis includes the application of these measures in such contemporary crises as the Domivzican Republic, Southern Rhodesia, and Vietnam. The author concludes that the world community is not yet ready for a “force monopoly” by the United Nations and that, meanwhile, individual states should exercise power in accordance with established international law and the ideals expressed in the United Nations Charter. I. INTRODUCTION International law is a discipline conceived to bring order to the relationships of a number of states asserting certain rights. Indicative of these rights is the expression of Chief Justice Marshall: “The world [is] composed of distinct sovereignties, possessing equal rights and equal independence. .’’I It might be said that these rights and their reciprocal obligations are given credence by states applying standards and rules which are designed to define and implement the rights and obligations. As states emerged and the international community developed, it became apparent that the absence of central authority for this community resulted in ad hoc accommodations amongst the states which depended as much upon relative physical ca- pacities of the states involved as upon any theory of sovereign equality. But even in such a loosely knit society, where resort * The views expressed are those of the author and do not necessarily repre- sent the views of The Judge Advocate General’s School or any other governmental agency. ** USN; Assistant Legal Officer, U.S. Naval Support Activity, Da Nang, Republic of Vietnam; B.S.L., 1954, University of Minnesota; LL.B., 1957, William Mitchell College of Law, St. Paul, Minnesota; admitted to practice before the bars of the State of Minnesota and the United States Supreme Court. Schooner Exchange v. M’Faddon, 11 US. (7 Cranch) 116, 136 (1812). 1 37 MILITARY LAW REVIEW to self-help measures of violence could not be discounted, if an interest was deemed important enough, a lexicon grew up, cate- gorizing and setting legal frameworks for testing the propriety of a variety of coercive measures which did not amount to the ultimate measure of war. Although war itself was a measure available to states,’ it was useful to recognize and employ measures of less generalized effect when limited ends were sought.s The regulation of the resort to war itself constitutes the ultimate problem toward the solution of which the world has been groping. Along the way it has been possible to secure a measure of agreement on lesser problems.‘ Although the United Nations Charter restricts the use or threat of force by ~tates,~it is useful to examine the practice of states prior to that treaty and relate the prior practice to current practice. For, while the purposes of the United Nations Organization are manifestly laudible, its effectiveness in settling international disputes or assisting in such settlement has been less than ideal.e Meantime, states do have reference to pre- ’ “[Dlespite earlier efforts by jurists and moralists to distinguish between bellum justum and bellum injustum, international law had given up the attempt to regulate recourse to war, the most extreme form of the use of force . .” BRIERLY, THE LAW OF NATIONS 397-98 (6th ed. Waldock 1963) (italics in original ; footnote omitted). On occasion, measures employed have been declared beyond the com- petency attributed to force short of war, and the acting states have regu- larized their conduct simply by declaring war. Such was the case of the blockade instituted against Venezuela by Great Britain, Germany, and Italy in 1902, which they intended to enforce against third states. When the United States objected that pacific blockade could not affect ships of third states, Great Britain declared she was at war with Venezuela. See COLOMBOS, INTER- NATIONAL LAW OF THE SEA 426 (15th rev. ed. 1962). JESSUP,A M ODERN LAW OF NATIONS 157 (1952). Charter of the United Nations, 26 June 1945, art. 2(3), 59 Stat. 1031 (1945), T.S. No. 93 [hereafter cited as U.N. Charter], states: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Ar- ticle 2(4) : “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political inde- pendence of any state, or in any manner inconsistent with the Purposes of the United Nations.” Baltimore Sun, 25 July 1966, at A2, col. 5, carried this item: “Israelis Warned of War Danger “Damascus, Syria, July 24 (AP)-Syria warned Israel today that any further raids on Syrian territory will definitely lead to war. “Israel ten days ago bombed Arab operations designed to divert the Jordan River in Syria. The Syrian ForCign Ministry said, in a statement on the eve of a United Nations Security Council meeting which will take up Syrian protest against the air raid, that the debate would be the United Nations last chance to prevent war. 2 DECISION TO EXERCISE POWER existing criteria for justifying forceful action, albeit they now feel more compunction to relate their action to self-defense as that concept is interpreted under article 51 of the United Nations Charter.‘ Self-help measures have generally been categorized as re- torsion, reprisals, intervention, and self-defense.8 These cate- gories are a useful device for orderly discussion of this area of international law. But it must be borne in mind that there is no intent to imply that the categories are mutually exclusive. However, as will be seen later, retorsion and reprisal may be considered mutually exclusive in that bona fide retor- sions are acts within the competence of the state regardless of provocation, whereas reprisals depend for their justification upon their being in response to an illegal act of another state.a It is important to realize that in the jurisprudence of interna- tional law, terminology is sometimes employed simply for its descriptive value without regard to a precise legal definition. So, we find the terms “boycott” and “embargo” in a variety of situations, and we cannot rely on the use of the term as indicative of legal ramifications. “Boycott” is a term applied in municipal as well as interna- tional contexts as a label for a practiced refusal to do business. The United States bans against imports from Cuba and Red China are instances of boycott which need not be justified as either retorsions or reprisals, since the United States is not obligated by treaty or otherwise to allow imports from those sources. Some boycotts must, however, depend upon the condi- tions of reprisal for justification, as will be seen later. “Embargo” is a term applied to many situations which will be discussed within the general heading of reprisals. Not all of “This might be Syria’s last complaint to the international body if the nations concerned (Security Council member states) fail to stand by right and justice by condemning Israeli aggression, the statement said.