International Law and the Use of Force

Author(s): Abraham D. Sofaer

Source: The National Interest , FALL 1988, No. 13 (FALL 1988), pp. 53-64
Published by: Center for the National Interest

Stable URL: https://www.jstor.org/stable/42894592

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

is collaborating with JSTOR to digitize, preserve and extend access to The National Interest

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
 International Law and the Use
of Force

by-case application of widely accepted prin-

er significance to the interests of ciples of international law to the particular
F EW er the LEGALthesignificance
United States,United ISSUES to the and are interests of of great- of
and of people facts of each situation. This approach has
everywhere, than the rules and the practices worked well to the extent lawyers have in fact
of nations concerning the use of force. The been consulted for their advice.
United States is committed to the principle The decision of the International Court
that its conduct in international affairs - in- of Justice (icj) in Nicaragua v. United States
cluding the use of force - must be subject to casts considerable doubt on this approach to
law. The rule of law requires individual na- the law relating to the use of force, particu-
tions to subordinate their perceived needs to larly with regard to the right of collective self-
accepted standards of conduct based on the defense. The ICJ has formulated and applied
practice of nations. impractical and counterproductive rules,
Lawyers play many important roles in which have little or no basis in accepted in-
connection with determining when and under ternational practices. These rules may be in-
what conditions nations may lawfully resort tended to reduce the worldwide use of force,
to the use of force. Among the most important but in fact they reduce only the right to de-
of these roles is the function of advising gov- fend - collectively and effectively - against
ernment leaders - often themselves lawyers - uses of force short of conventional warfare,
on the legal principles applicable to proposed which are in fact the most pernicious and
uses of force. To be effective in this role, law- widespread forms of aggression in the world
yers must provide credible and practical guid- today. Furthermore, the rules created by the
ance, based on the actual practice of nations, ICJ for this purpose are so artificial, impract-
and consistent with legitimate political inter- ical, and counterintuitive that they threaten
ests. Legal advisers in the United States have, accepted principles of international law, as
since the adoption of the UN Charter, in gen- well as the stature of the ICJ itself.
eral provided such advice, taking a "common-
law" lawyer's approach that rests on a case-
The Lawyer's Role in Use of Force
Decisions
Abraham D. Sofaer is legal adviser at the U.S. De-
partment of State. This article is based on an
address to the American Society of Interna- LAWYERS the the development
development andPLAY important and application roles in
application
tional Law on April 22, 1988. The author is of the law relating to the use of force. In
grateful for the able assistance of Steven Rat- addition to the judges and advocates that han-
ner and Peter Spiro. dle specific cases, scholars and the bar take a

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
deep interest in this subject. We write, lecture, territorial integrity or political independence
and lobby to advance our points of view. Leg- of other states, unless the Security Council
islators, many of whom are also attorneys, has authorized such action.2 This represents
express their views through laws, resolutions, a bold step toward peaceful relations among
in hearings, or as influential individuals. Gov- states by bringing, as Louis Henkin put it,
ernment lawyers have special responsibilities. uwithin the realm of law those ultimate po-
We are sworn to uphold the law, and that litical tensions and interests that had long
includes international law, which is the law been deemed beyond the control of law."3
of the land. We have the duty to alert our
leaders to applicable international rules of
The United States Position
conduct, and to argue that the proper rules
be respected. In doing so, however, we must
rely on our ability to convince our clients to THE in CHARTER Article
in Article 51, expressly
51, however, however, the reserves "in-
the "in-
consult us, and to accept our advice. We can herent right of individual or collective self
issue no writs; we can only seek to persuade. defense." That provision is written in terms
Political leaders are not always eager to of defense against uarmed attack" but the
talk to lawyers - even their own lawyers - right of self-defense is termed "inherent,"
about planned uses of force, and legal advisers thus conveying the sense that it includes the
through the years have occasionally been by- right to defend those fundamental interests
passed, or consulted inadequately, in such sit- customarily protected. The United States has
uations. Even when we are fully involved in tried repeatedly to gain approval for collective
the decision-making process, our advice is UN action in using force, but that option be-
sometimes rejected in whole or in part. came unavailable as a practical matter after
To have any hope of influencing the po- the Korean War. Nevertheless, the United
litical and military leadership, the lawyers in States has always assumed that Charter prin-
a government - any government - must have ciples provide a workable set of rules to deal
both a coherent and a convincing message. with the array of needs that potentially re-
We must be able to explain why nations are quire the use of force, including such threats
bound by certain rules, and to demonstrate as state-supported terrorism and insurgencies,
that the rules we propose as authoritative are even if they are deemed not to amount to an
reasonable, commonly accepted, consistent "armed attack." General Assembly interpre-
with prior practice, and fair in terms of the tive declarations make clear that "force"
strategic challenges our leaders face. As Law- means physical violence, not other forms of
rence Hargrove recently put it, the uprimary coercion. But they also indicate that aggres-
rules [governing the use of force], in order to sion includes both direct and indirect com-
work, must therefore be readily perceivable, plicity in all forms of violence, not just con-
by people bearing the actual responsibilities ventional hostilities.4 Our position has been
of government, to reflect the practical require- that the inherent right of self-defense poten-
ments of the world in which states must sur- tially applies against any illegal use of force,
vive and conduct their affairs." The rules we and to the extent the term "armed attack" is
advance as authoritative will fail to convince relevant in use-of-force issues that it should

if they offend "the rough intuitions of re- be defined to include forms of aggression his-
sponsible politicians" concerned with the torically regarded as justifying resort to de-
safety of their citizens.1 fensive measures. Furthermore, the U.S. has
The principles which the United States assumed that it may lawfully engage in col-
believes govern the use of force are in fact lective self-defense in any situation in which
straightforward, sensible, and enlightened. the nation assisted is entitled to act, and to
The UN Charter contemplates an end to the the same extent. On the other hand, we rec-
threat or use of force by states against the ognize that force may be used only to deter

54

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
or prevent aggression, and only to the extent ited conduct." He proposed instead what he
it is necessary and proportionate. called a "common-lawyer" approach in which
international law is left open to a broad range
of interpretation and emphasis, with terms
From Truman to Carter that do not dictate conduct so much as orient
deliberation, order priorities, and guide with-
THE United ACTIONS States,
United States, andOFtheand presidents the positions of the
positions in broad limits. Using this practical and flex-
taken by their lawyers, have consistently dem- ible common-law approach, Chayes argued
onstrated this principled but practical ap- the quarantine was a justified response.
proach to use-of-force rules. In his message to This flexible but principled approach to
Congress requesting aid for Greece, President the use of force had strong support among
Truman announced the Truman Doctrine, leading scholars of the day. Professor Julius
which recognized the importance of the Stone had criticized efforts to determine a
peaceful development of nations under the "mechanical test of aggression, insulated from
UN system, but called for the protection of the merits of the situation in which States act
free nations from "aggressive movements" ... , [a] juristic push-button device."6 Mc-
seeking to impose totalitarian regimes. "This Dougal and Feliciano in fact explained the
is no more than a frank recognition," he said, issue in terms strikingly similar to those used
"that totalitarian regimes imposed upon free by Chayes:
peoples, by direct or indirect aggression, un-
dermine the foundations of international It is no more desirable to attempt to define
aggression uonce and for all" than it is so to
peace and hence the security of the United
States." define any other legal term or concept of inter-

When President Eisenhower sent U.S. national or municipal law. For observers with
full awareness of the factors realistically affecting
forces into Lebanon in 1958 at President
decision, the task of "defining aggression" is not
Chamoun's request, both the United States
and Lebanon asserted a realistic definition of appropriately conceived as one of searching for
a precise, certain, and final verbal formula that
uarmed attack." Secretary of State Dulles said:
would abolish the discretion of decision-makers
"[W]e do not think that the words 'armed
and dictate specific decisions. It is rather, in
attack' preclude treating as such an armed rev-
broad outline, that of presenting to the focus of
olution which is fomented from abroad, aided
attention of the various officials who must reach
and assisted from abroad."
a decision about the lawfulness or unlawfulness
In the wake of the Bay of Pigs debacle,
of coercion, the different variable factors and pol-
which apparently went forward without legal
icies that, in differing contexts and under com-
screening of any kind, President Kennedy was
munity perspectives, rationally bear upon their
careful to consult government lawyers during
decisions; of indicating the interrelations of these
the Cuban Missile crisis. Then Legal Adviser
factors and policies in context; and, perhaps, of
Abram Chayes argued successfully for an ap-
making some lower-order generalizations about
proach that treated the matter as a threat war-
the relative weighting of pertinent factors and
ranting a quarantine, but not amounting to
policies in different contexts. The task, again, is
an armed attack. Professors Wright and Hen-
not so much to abolish, with quasi-magical ar-
kin criticized Chayes for his reliance on the
rangements of words, conflicts of national inter-
Rio Treaty, but Chayes's response reflected
ests (more or less myopically perceived) as it is
an approach to use-of-force decisions that apt-
to clarify common, long-term interests in the
ly describes what U.S. practice has been,
maintenance of minimum public order.7
when the lawyers have been consulted.5
Chayes rejected the notion that law relating When President Johnson intervened in
to the use of force was "a set of fixed, self-the Dominican Republic, no attack of any
defining categories of permissible and prohib- kind had occurred on the U.S. or its citizens.

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
The danger to Americans there was serious, tered the practical approach and deliberative
however, and a communist takeover was seen process Chayes considered proper as legal ad-
as a real possibility. Legal Adviser Leonard viser, and which served the nation and world
Meeker defended the intervention as justified order so well at that critical time.

to protect Americans "in imminent danger of President Ford relied on Article 51 in or-

life and limb from rioting mobs," and he ar- dering U.S. forces to attack Cambodian naval
gued that a continued U.S. presence was nec- assets to secure release of the vessel Mayaguez
essary to prevent anarchy. He rejected criti- and its crew. The seizure of a U.S. merchant
cisms based on what he called vessel was deemed "a clear-cut illegal use of
force" which
"fundamentalist views about the nature of UN
in-Ambassador Scali asserted
justified
ternational law," as such views were "notappropriate
very measures in self-defense.
useful as a means to achieving Similarly,
practical President
and Carter used force in an
attempt
just solutions of difficult political, to rescue American hostages in Iran,
economic,
and social problems." He calledarguing
for athat the United States is entitled to
"prac-
tical idealism," in which international law
seek to protect its citizens abroad "where the
could be read as consistent with efforts government
to of the territory in which they are
pre-
vent bloodshed and communist takeovers. He
located is unable or unwilling to protect
said that "an international law which cannot them." Carter received the support of Profes-
deal with facts such as these, and in a way sor Reisman,9 and the limited use of force to
that has some hope of setting a troubled nation rescue citizens has strong support in custom-
on the path of peace and reconstruction, is ary practice and scholarship.10 Nonetheless,
not the kind of law I believe in." President the President was condemned by some inter-
Johnson added explicitly the justification of national law experts, who argued that by no
intervening to prevent revolutions by "evil stretch of the imagination was the seizure of
persons who had been trained in overthrow- Americans as hostages an armed attack, and
ing governments and establishing communist therefore that the U.S. was precluded from
control." using force to secure their release.11
The Vietnam conflict generated a great
deal of legal debate about the use of force, and
the legal adviser's office found the U.S. inter- The Reagan Years
vention to assist South Vietnam legally jus-
tified under the doctrine of collective self-de- THE continued REAGAN
continued to adhere
to adhere administration to the has
to the prac-
fense. Further debate was prompted by the tical but principled approach to use-of-force
U.S. incursion into Cambodia. By this time, rules which has in general characterized
Chayes had changed his point of view. While United States policy since the UN Charter's
purporting still to believe that "absolute" adoption. The President has repeatedly made
judgments about "legality" should be avoided clear, moreover, that he will continue the pol-
in international law, his analysis became high- icy of assisting nations in preventing non-
ly technical and much less oriented to the democratic takeovers conducted by outside
specific facts. He properly criticized the gov- forces (as in Afghanistan) or fomented and
ernment for failing to consider the incursion's aided by them.12 The Grenada operation in-
legality prior to its implementation. But his volved no armed attack on the U.S. but was
judgment on legality was controlled by what justified as necessary to protect U.S. lives and
had become in his view "the essential guiding to respond to invitations of the governor gen-
principle of world law and world order: to eral and of members of the Organization of
confine within the narrowest limits the situ- the Eastern Caribbean States. Chayes sug-
ations in which we are prepared to condone gested that this action could not be distin-
or legitimate unilateral decisions to resort to guished from the Soviet invasion of Afghan-
force."8 This guiding principle radically al- istan,13 and others also criticized it, including

56

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
the American Bar Association Section on In- rights of states to use force in exercise of their
ternational Law. Legal Adviser Davis Rob- right of individual or collective self-defense. The
inson's defense, resting on the combined effect UN Charter is not a suicide pact.
of all the unique circumstances supporting
Despite these warnings, Libya organized
intervention, is an exemplary illustration of
the U.S. common-law tradition.14 As Edwin and supported additional attacks, including
Yoder commented at the time:
the bombing of a Berlin disco in which two
Americans were killed and over 100 people
All the Grenadian operation has in common with injured. We reliably knew that Libya was
recent Soviet enforcements of the Brezhnev doc- planning several more attacks. The purpose
trine, so-called, is the unpleasant use of military of the limited air strike was to convince Libya
force. If force per se is to be condemned, if the to halt this support for terrorist operations.
legitimacy of its use under international law has Most recently, we have used force in de-
nothing to do with intent or result, then it is
fensive actions in the Persian Gulf. Iran re-

anarchy merely disguised as law.15 peatedly engaged in placing mines in sea lanes
with the intention of attacking U.S. public
We relied on the same approach in ex- and flag vessels. We warned Iran that we re-
ercising our rights of self-defense by attacking garded such mining as an armed attack that
facilities in Libya used to support terrorists. justified the necessary and proportionate use
Before December 1985, we had exhausted vir-
of force in self-defense. They persisted, open-
tually every measure short of force to con- ly asserting that they would make us suffer.
vince Libya to stop supporting terrorists in For what? For exercising our right to navigate
attacks on Americans. Then came the mind-
in international waters. We caught Iran laying
lessly cruel attacks at the Rome and Vienna
mines and sank the vessel involved. Again
airports in which seven Americans were
Iran acted, this time firing a missile at a U.S.
killed, including 11-year old Natasha Simp-
vessel. W7e destroyed a platform used for these
son. Tunisian passports were found on themilitary operations. Iran persisted in laying
killers that were traced to Libyan officials, and
new mines, and one seriously damaged a Navy
Qadhafi praised the terrorists as heroes. frigate, the U.S. S. Roberts , injuring ten crew-
Nevertheless, the President decided not to use
men. We destroyed two platforms, and then
force at that point, but instead to exhaust allresponded to Iranian attacks by sinking ves-
remaining economic sanctions and to warn
sels of Iran's navy. If we deferred to such
Libya one more time, explicitly invoking our threats, we would have no end of Khomeinis
view of the governing law. He said: and Qadhafis ordering us to give up exercising
By providing material support to terrorist groups our rights. President Carter adopted the prin-
which attack U.S. citizens, Libya has engaged in ciple that we would exercise and defend our
armed aggression against the United States un-rights in international waters, including the
der established principles of international law,Persian Gulf. President Reagan is determined
just as if it had used its own armed forces. to uphold that bipartisan policy. The limited
scope of our actions, at each point, was wholly
Secretary Shultz explained our positionconsistent with the legal advice the President
received.
in greater detail in January 1986, at the Na-
tional Defense University:

A nation attacked by terrorists is permitted to Nicaragua v. United States

use force to prevent or preempt future attacks,
to seize terrorists, or to rescue its citizens when
THE which RULES
whichthe AND
theUnited expectations
United StatesStateshas
has con-
con-on
no other means is available. The law requires
sistently relied in making use-of-force deci-
that such actions be necessary and proportionate.
sions have been cast into grave doubt by the
But this nation has consistently affirmed the

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
International Court of Justice in Nicaragua v. ing to assume that Nicaragua's flow of arms
United States. 16 The background of this case is to the rebels in El Salvador had "been both
well known. El Salvador, unable to defend regular and substantial, as well as spread over
itself effectively against Nicaraguan-support- a number of years and thus amounting to in-
ed guerrillas, asked the U.S. to help in its tervention." The court concluded, however,
defense. We assumed that Nicaragua's sup- that a limited intervention cannot justify re-
port of guerrillas for the purpose of destroy- sort to self-defense. According to the court,
ing the government of El Salvador was a form customary law only allows the use of force in
of aggression against El Salvador, and that self-defense against an "armed attack," and an
necessary and proportional responses, includ- armed attack does not include "assistance to
ing force, could be taken collectively against rebels in the form of the provision of weapons
such actions. This was precisely the position or logistical or other support." This ruling
taken by Secretary of State Dean Rusk, in was without support in customary interna-
defending the legality of our actions against tional law, or the practice of nations, which
North Vietnam before the American Society could not rationally be read to deprive a state
of International Law in 1965. He said: of the right to defend itself against so serious
a form of aggression. Recognizing this, the ICJ
In resisting the aggression against it, the Repub-
came up with the following solution: A state
lic of Vietnam is exercising its right of self-
is not permitted to resort to "self-defense"
defense. It called upon us and other states for
against aggression short of armed attack,17 but
assistance. And in the exercise of the right of
collective self-defense under the United Nations
it may be able to take what the court called
"proportionate countermeasures."
Charter, we and other nations are providing such
assistance.
This ruling arguably should not alone
cause great concern. So long as a nation's in-
The American policy of assisting South Vietnam
herent right to protect itself is recognized,
to maintain its freedom was inaugurated under
whether one calls the actions "self-defense"
President Eisenhower and continued under Pres-
or "countermeasures" need make no real dif-
idents Kennedy and Johnson. Our assistance has
ference. But the verbal play in which the court
been increased because the aggression from the
engaged had a purpose, egregiously transpar-
North has been augmented. Our assistance now ent. Had the court called the defensive actions
encompasses the bombing of North Vietnam.
it allowed "self-defense," then Article 51
The bombing is designed to interdict, as far as
would explicitly have allowed such actions to
possible, and to inhibit, as far as may be neces-
be taken collectively as well as individually.18
sary, continued aggression against the Republic
of Vietnam.
But by characterizing permissible defensive
actions as "countermeasures," the court cre-
Significantly, Nicaragua did not disagree ated a tautological rationale that enabled it to
with us in these legal assumptions. Rather, itdeny the right of joint action. "Countermea-
claimed it was innocent of having aided the sures," the court found, can only be under-
insurgents in El Salvador, and therefore that taken by the victim state, not by any other
our actions in aiding the contras had no jus- state, because such measures do not constitute
tification. self-defense.
The ICj's opinion articulated a signifi- The court went further in narrowing the
cantly different view of international law. right to collective self-defense. To be entitled
While refusing unequivocally to determine to exercise collective self-defense, the court
that Nicaragua's conduct amounted to aggres- suggested, the victim must openly declare that
sion, the court nonetheless found or assumed it is under armed attack at the time of the
that Nicaragua had indeed supplied arms toattack, and must formally request assistance
communist rebels in El Salvador at least from the state seeking to justify its actions.
through early 1981. President Singh was will- facts showed that the government of El
The

58

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
Salvador had repeatedly and openly com- attacks on oil installations could similarly be
plained of Nicaragua's support for the rebels expected to diminish Nicaragua's capacity to
in that country. Furthermore, the uncontrov- continue its aggression.
erted Declaration of Intervention of El Sal- The decision, in short, ignored actual cus-
vador, filed with the court, confirmed that its tom and practice, and relied on rules that were
president had asked the United States to come seemingly derived for the purpose of depriv-
to his country's defense. But the court none- ing the United States and El Salvador of in-
theless ruled that El Salvador had failed to herent rights. Aggression, though undeniably
meet these new procedural requirements, and present, was deemed irrelevant because it did
that this failure deprived U.S. actions of theirnot amount to an "armed attack." Defensive
potential justification as defensive measures. measures, though undeniably justified, were
Whether actions of the United States deemed "countermeasures" so they would not
were necessary and proportional was treatedbe jointly exercisable. Collective self-defense,
though undeniably intended, was found im-
by the court in a single paragraph. American
actions were pronounced unnecessary be-
perfect for lack of unprecedented procedural
cause they were undertaken "several months requirements. Necessity and proportionality,
after the major offensive of the armed oppo- though demonstrated by the desperate situa-
sition against the Government of El Salvador tion in which El Salvador found itself, were
had been completely repulsed (January 1981), found lacking for reasons that might have re-
and the actions of the opposition considerablyflected nothing more than the success of El
reduced in consequence." Thus, the court
Salvador and the United States at preventing,
said, "it was possible to eliminate the mainthrough the acts condemned, further and
danger of the Salvadoran Government with- more serious aggression.
out the United States embarking on activities
in and against Nicaragua."
The court's treatment of proportionality Effects of the ICJ's Decision
was similarly curt. Interestingly, the court
made no finding that aid to the contras failed MANY ademics INTERNATIONAL
ademics and practitioners law ac-
and practitioners
this test; in fact, United States aid to the con-
strongly believe that lethal support of the con-
tras was the same sort of aid the evidence tras by the United States was inconsistent
demonstrated was extended by Nicaragua to with our international obligations. Even those
the rebels in El Salvador. Rather, the court
who take such a view, however, should con-
sider whether the icj's conclusions are prop-
said it could not regard the actions relating
erly based, or seem likely to be effective in
to the mining of Nicaraguan ports, and attacks
reducing resort to force in the world. In my
on port and oil installations, as satisfying pro-
view, the icj's rulings concerning the use of
portionality, and that United States help to
force create artificial distinctions and me-
the contras continued long after any aggression
by Nicaragua could reasonably have been pre-chanical rules that are fundamentally incon-
sumed to have continued. Judge Schwebel de-sistent with the principled but flexible ap-
tailed in his opinion, however, the similarproach followed by the United States since
measures of depredation engaged in by the the Charter's adoption.
insurgents in El Salvador, and he explained The court's restrictive approach in defin-
ing "armed attack" could deprive states of the
that an action is proportional when it is need-
right of self-defense against the most common
ed to halt and repulse an attack, not just when
and dangerous forms of aggression in the
it corresponds exactly to the acts sought to be
defended against. The mining of harbors
world today. Our political leaders and mili-
tary strategists cannot reasonably be expected
could be expected to restrict the flow of arms
from Nicaragua's suppliers, which were beingto and will not accept the notion that self-
passed on to the rebels in El Salvador, and thedefense applies only to armed attacks across

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
borders in the formal sense, when the prin- ence. Government lawyers do not get fired
cipal vehicles for competition against the dem- for failing to convince. But they get ignored,
ocratic West through violence are state-sup- thereby losing their capacity to help ensure
ported terrorism and insurgencies. That the that traditional and accepted use-of-force stan-
court might allow "countermeasures" even dards are maintained.
where self-defense is inapplicable may well
demonstrate that the ICJ has not completely
lost its grip on reality. But the distinction is therefore, though undoubtedly
artificial and creates undesirable uncertainty THE well therefore, well
COURT' S though
motivated, could proposed
reduce could undoubtedly reduce rules,
in an area of grave importance. Lawyers are the effectiveness of traditional and accepted
unlikely to impress their political and military standards of law. This is not because political
clients by assuring them that, although they leaders are slow witted, or averse to technical
may not be able to regard essential national analysis, but rather because they would see
security activities as "self-defense," they may through the court's rules as efforts to change
nonetheless be allowed to engage in such ac- the law rather than as guidance on the appli-
tivities as "necessary countermeasures." cation of accepted rules of conduct.
The puzzlement that such an assurance Once the issue becomes the desirability
is likely to cause will turn to disbelief as these of one set of rules over another, rather than
clients learn the new rules of collective self- their legitimacy, political leaders will feel free
defense. While an ally may assist the victimto challenge the court's premise that inter-
state within the victim's territory, we lawyers
vention and force would be minimized by its
must now explain, the ally may not act ac- approach. They could reasonably conclude, in
cording to the ICJ against the aggressor state fact, that the court's rules are more likely to
in the latter's territory. Furthermore, beforeencourage conflict, intervention, and the un-
acting to assist an ally in collective self-defenselawful use of force than are the rules and
the ICJ would have the lawyer insist that his practices which reflect accepted norms of con-
clients obtain from the victim state a publicduct. To construe restrictively the meaning
declaration that it is under attack, and a publicof "armed attack," for example, would do
invitation for the ally's assistance. At thiswonders for the world if as a result uncon-
point the client's eyes would assume thatventional forms of aggression became less fre-
glazed expression associated with polite dis-quent or more benign in their consequences.
regard. The court's ruling could have no such effect;
But the lawyer would have even more to rather, it can only limit - and is designed to
say. The court also expressed artificial and limit - the use of force in responding to such
unrealistic standards in applying the accepted forms of aggression. To the extent it succeeds
principles of necessity and proportionality. in this objective, states which now sponsor
Rather than asking what in fact appears mil- terrorism and insurgencies will feel less pres-
itarily necessary to deter the illegal conduct sure to stop.
involved, the ally is supposed to do only that The court's limits on collective self-
which seems sufficient to make it possible to defense are likely to have the same adverse
preserve the victim state's independence. Fur- effects. Refusing to allow an ally to join in
thermore, acts which are not strictly similar "countermeasures" in the territory of an ag-
to those of the aggressor state will run a high gressor would not reduce the tendency of ag-
risk of being condemned as disproportionate, gressors to sponsor internal subversion; rath-
even though they might be reasonably related er such a rule would only diminish the
to the threat involved. These are not the sort capacity of relatively weak states to defend
of standards that are likely to convince, andagainst aggression by relatively strong states.
at this point the lawyer is likely to have lostWhere the victim state is not strong enough
his case, or even worse to have lost his influ- to use "proportional countermeasures"

60

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
against the aggressor on the latter's territory, basis if reasonably construed to satisfy legit-
conflict would be limited to the territory of imate national security planning. But the
the victim state. If anything, the interests of right to self-defense is too fundamental for
peace would seem most clearly served by rules leaders to allow it to be subordinated to any
having a measured, deterrent effect on such scheme of world order based on theory and
aggression. Similarly, one is at a loss to un- wishful thinking, however enlightened. Self-
derstand what interest is served by the for- defense is not a production of lawyers to be
malistic requirements that a state declare it is modified as we please, but a concept lawyers
under attack and openly invite assistance from have used to describe the situations and man-
its ally. Apparently the court seeks to promote ner in which civilized nations have tradition-
the goal of limiting the number of actors in
ally used force. It is a reflection of the fact
a conflict. Once a state is forced to declare
that, despite the UN Charter, we still live in
itself as under armed attack, however, anda world in which states are controlled by lead-
openly to invite an ally's assistance, theers who claim to get their marching orders
chances for diplomatic resolution may be re-directly from God; whose tolerance for point-
duced. less destruction is so monumental it can be
The problem of controlling conflict in explained only in pathological terms; or who
this contentious world is not so easily dealtare outright criminals - murderers, drug deal-
with as the court, and some international law-ers, thieves. In dealing with the actions of such
yers, assume. Political and military strategists states, our leaders will continue to insist upon
intensely dispute which sets of rules anduse-of-force rules that offer them, in clear and
forms of conduct are most likely to preserve comprehensible terms, a sufficient degree of
peace. The use of force is a central elementlatitude to plan and act effectively to deter
in these calculations, and respected thinkersaggressors who would physically harm Amer-
have cautioned against a world in which force icans or America's allies.
can only be used in conventional war. Henry
Kissinger has suggested, for example, that "in
the missile age, the side which can add another THE of MOSTof the decision
decisioninPREDICTABLE
Nicaragua v. in Nicaragua result v.
increment of power without resorting to all- United States will be a diminution in respect
out war - or which can threaten to do so - for the ICJ's pronouncements, and in its future
will gain a perhaps decisive advantage overpotential as an instrument of reason in the
an opponent who does not have this ability."cause of peace. At one point in his opinion,
Ronald Reagan and George Shultz have made President Singh explained that the court
a similar point: "Diplomacy not backed by could not allow itself "to miss a major op-
strength is ineffectual." We must adapt powerportunity to state the law so as to serve the
to political circumstances to compete effec- best interests of the community." Yet, the ICJ's
tively with opponents who treat force as place
a in history will depend not upon its seiz-
continuation of politics by other means. Once ing opportunities to issue rulings attempting
it is established that state-sponsored terrorism
to narrow the inherent right of self-defense,
and insurgencies can achieve their politicalbut rather upon its development of a juris-
objectives, their practitioners will get bolder, prudence that retains the flexibility of the
and the threat to our interests greater. The
Charter's design, and leaves to statesmen the
courťs severe and artificial limitations on the task of achieving the Charter's goals within
right of self-defense would serve to encouragethe bounds of principles based on the actual
aggression by diminishing the capacity law-
practice of nations.
fully to deter. The case against the ICJ's involvement in
The concepts of uarmed attack" and "self-Nicaragua v. United States was cogently ex-
defense" are limitations which world leaders pressed by Chayes in his earlier days. He
have accepted, and they provide a sufficientwrote:

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
 I suggest that most great disputes between states, international law. It has been characterized as
even when they involve important legal ele- "authoritative,"23 "extremely persuasive,"24
ments, are not justiciable - and for much the and ua misfortune of some magnitude" in its
same reason that most disputes between organs impact on the vitality of the law of the UN
of our government not involving invasions of Charter governing force and self-defense.25
private rights are not justiciable. Courts do not Policy makers are particularly unlikely to de-
exist to answer legal questions just for the sake fer to rules which are not only inconsistent
of having an answer. They are specialized insti- with prior behavior, but also evoke such in-
tutions. Acceptance of their judgments depends tense differences among persons expert in the
on a subtle complex of factors. Institutional char- field.
acteristics limit the range in which they can ef-
fectively exercise authority. If judges go beyond
those limits, the result is likely to be not vindi- Continuity in American Policy
cation of the law, but erosion of judicial author-
ity.19 THE refusedrefused
UNITEDto to participate
participate in theSTATES
mer- in properly the mer-
its stage of the Nicaragua case, because the
Chayes likes to say that he has "already made
President had decided this nation could not
a meal of those words in the Hague/' where
allow its right to exercise self-defense to be
as counsel for Nicaragua he successfully per-
regulated by the ICJ without its consent. This
suaded the IC] to risk the erosion of judicial
nation remains committed to the rule of law,
authority he had predicted. Presumably,
however, and to the appropriate use of the
Chayes at some point also decided to eat his
ICJ. Our continuing support for the court is
words about the common lawyer approach to
demonstrated by our willingness to take to
use-of-force decisions. But the reasons he gave
chambers within it a maritime boundary dis-
for the ICJ to decline jurisdiction remain valid.
pute with Canada. We also continue to have
They go beyond separation of powers objec-
over sixty treaties vesting the court with ju-
tions, and in the final analysis relate to the
risdiction over disputes; and we are presently
kind of international law the ICJ seems in-
before a chamber of the court in a commercial
clined to produce when it becomes involved
dispute with Italy arising under one such
in such issues, a law that this nation's lead-
treaty. We welcome the idea, moreover, of
ers - of both parties and in both branches -
attempting to work out agreed areas of juris-
will refuse to accept as the final word on pro-
diction for the court, to which all permanent
tecting essential national security interests.
members of the Security Council would ad-
Perhaps the most dramatic evidence of
here. We are, in short, despite our rejection
this point was Congress' action after the court
of the court's jurisdiction in the Nicaragua
had issued its judgment on the merits. While
case, determined to work to preserve the
some legislators criticized the U.S. on the ba-
court's role in the areas we believe it functions
sis of the icj's ruling, Congress provided $75
million in lethal aid for the contras. The re- with authority and effectiveness.
Meanwhile, with respect to the use of
action of the international bar - consisting on
force, the United States will continue to fol-
the whole of lawyers devoted to the rule of
low a principled but flexible approach: one
law - is also instructive. It has produced a
that requires policymakers to grapple with
range of commentary that is as divergent as
and be guided by the traditional limitations
it is impassioned.20 The decision has been
on the use of force, while recognizing the le-
hailed as "a positive model of judicial style,"
gitimacy of protecting, effectively, not only
whose "quality of legal reasoning is admira-
American territory, but American citizens, in-
ble";21 and it has been denounced as ua tragedy
terests, and allies. Lawyers must play an active
for world order."22 The judgment has been
role in the decision-making process, not by
said both to misunderstand, and to uphold,
attempting to force policy to particular results

62

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
through the assertion of artificial rules, but respect for limitations based on accepted com-
by insisting on the thorough evaluation of and munity practice.

Notes
1. John Lawrence Hargrove, "The Nicaragua steps to rescue victims or potential victims
Judgment and the Future of the Law of in an action strictly limited to that purpose
Force and Self-Defense," The American Jour- and not likely to involve disproportional de-
nal of International Law, vol. 81 (1987), p. 137. struction of life or property in the state
2. Article 2(4) of the Charter obligates all mem- where the rescue takes place." American
bers "to refrain in their international rela- Law Institute, Restatement of the Law: The
tions from the threat or use of force against Foreign Relations Law of the United States , vol.
the territorial integrity or political indepen- 2 (Minneapolis: ALI Publishers, 1987),
dence of any state." Articles 39, 41, and 42 p. 177. The U.S. and others strongly de-
provide for collective action under Security fended Israel's use of force in rescuing its
Council auspices in response to unlawful citizens at Entebbe in 1976.
uses of force. 11. See Joseph H. Crown and John H.E. Fried,
3. Louis Henkin, How Nations Behave : Law and "A Legal Disaster," The Nation , May 24,
Foreign Policy (New York: Columbia Uni- 1980, p. 613; Benjamin B. Ferencz, "Rescue
versity Press, 1979), p. 131. Mission Violated the U.N. Charter," New
4. See, e.g., Declaration of Principles of Interna- York Times, May 5, 1980 (letter to the editor).
tional Law Concerning Friendly Relations and12. President Reagan said, for example, that the
Cooperation Among States in Accordance with U.S. would prevent another Iran in Saudi
the Charter of the United Nations , United Na- Arabia, and he hailed the U.S. action in
tions General Assembly Res. 2625 (1970). Grenada as a first step in the repeal of the
5. Quincy Wright, "The Cuban Quarantine," Brezhnev Doctrine. Professor Reisman has
The American Journal of International Law , vol. pointed out that:
57 (1963), p. 546; Louis Henkin, "Com-
Rhetorical idiosyncracies aside, it could
ment," in Chayes, The Cuban Missile Crisis ,
have been Kennedy or Johnson: Ronald
pp. 149-54.
Reagan could claim no innovation here.
6. Julius Stone, Aggression and World Order : A
U.S. actions in [the Caribbean and Cen-
Critique of United Nations Theories of Aggres-
tral America] are consistent with the
sion (Los Angeles: University of California
United States' conception of its interests
Press, 1958), pp. 10-11.
and its behavior for decades. If one
7. Myres S. McDougal and Florentino P. Fel-
iciano, Law and Minimum World Public Order
sought a specific declaration by a U.S.
president that expressed Ronald Reagan's
(New Haven: Yale University Press, 1961),
conception of present U.S. regional ob-
pp. 151-53.
jectives and rights, it could certainly be
8. Hammarskjold Forum, "Expansion of the
Kennedy's manifesto of April 1961.
Viet Nam War into Cambodia - The Legal
Issues," New York University Law Review , vol. W. Michael Reisman, "Old Wine in New
45 (1970), p. 664 (comments of A. Chayes). Bottles: The Reagan and Brezhnev Doc-
9. Michael Reisman, "Humanitarian Interven- trines in Contemporary International Law
tion," The Nation , May 24, 1980, p. 612. and Practice," Yale Journal of International
10. The use of force for rescue, and perhaps for Law , vol. 13 (1988), p. 180.
other purposes is widely approved. "It is 13. Abram Chayes, "Grenada Was Illegally In-
increasingly accepted that a state may take vaded," New York Times , November 15, 1983.

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms
14. See Letter from State Department Legal presuming the consent of the victim state.
Adviser Davis R. Robinson to Prof. Edward Mutual defense agreements enshrining this
Gordon, reprinted in "Contemporary Prac- principle include among others the Rio,
tice of the United States," The American Jour-North Atlantic, and Warsaw treaties.
19. Abram Chayes, "A Common Lawyer Looks
nal of International Law , vol. 78 (1984), p. 661.
15. Edwin M. Yoder, Jr., "The Legality of Itat International Law," Harvard Law Review ,
All," Washington Post , October 28, 1983. vol. 78 (1965), p. 1409.
16. Military and Paramilitary Activities in 20.
and The international legal community is in-
Against Nicaragua, 1986 ICJ Reports, p. 14 debted to The American Journal of Interna-
(Judgment on the Merits of June 27) (here- tional Law for soliciting and publishing the
inafter Nicaragua v. U.S.). views of 16 leading international law schol-
17. Nicaragua v. U.S., pp. 93-94, 100-101. Inars of the icj's decision. See Harold G.
these few sentences, the court resolved a Maier, ed., "Appraisals of the icj's Decision:
forty-year-old debate about the meaning of Nicaragua v. United States (Merits)," The
Article 51 with absolutely no analysis. The American Journal of International Law , vol. 81
majority view, backed by such scholars as (1987), p. 77.
Myres McDougal, Philip Jessup, Julius 21. Richard Falk, "The World Court's Achieve-
Stone, D.K. Bowett, Sir Humphrey Wal- ment," The American Journal of International
dock, and James Brierly, has examined the Law , vol. 81 (1987), p. 106.
22. John Norton Moore, "The Nicaragua Case
travaux préparatoires of the United Nations
Charter. They concluded that Article 51 wasand the Deterioration of World Order," The
inserted to ensure that regional self-defenseAmerican Journal of International Law , vol. 81
organizations, such as the then-recently con-(1987), p. 152.
23. Herbert W. Briggs, "The International
cluded Inter-American alliance created by
the Act of Chapultepec, would not be par- Court of Justice Lives Up to Its Name," The
alyzed by a requirement that all collective American Journal of International Law , vol. 81
responses to force be taken by the Security (1987), p. 85.
Council. The Article was meant to reaffirm,
24. Tom J. Farer, "Drawing the Right Line,"
not constrain, the right of individual and The American Journal of International Law, vol.
collective self-defense under customary in- 81 (1987), p. 113.
ternational law. 25. John Lawrence Hargrove, "The Nicaragua
The minority school, led by Professor Ian Judgment and the Future of the Law of
Brownlie of Cambridge University, insists Force and Self-Defense," The American Jour-
that Article 51 was inserted in order to cre- nal of International Law, vol. 81 (1987), p. 135.
ate only the smallest exception to the ban At least one commentator has decried the

on the use of force in Article 2, paragraph court for not going far enough in its de-
4. That exception was to apply to self- nunciation of United States activities in

defensive measures taken in reponse to an Central America. See Francis A. Boyle,

armed attack and to such an attack alone. "Determining U.S. Responsibility for Con-
The court adopts the minority view. tra Operations Under International Law,"
18. State practice and publicists support the The American Journal of International Law, vol.
view that a victim state's allies may assert81 (1987), p. 86 (arguing that U.S. should
the right of self-defense in those circum-have been held responsible for contra vio-
stances in which the victim state asserts it,lations of laws of war).

64

This content downloaded from

193.255.241.4 on Sat, 09 Oct 2021 09:15:50 UTC
All use subject to https://about.jstor.org/terms