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Published online by Cambridge University Press: 27 February 2017
Nations typically act first and worry about legalities afterwards. International lawyers thus find themselves relegated, for the most part, to the passive role of sorting out rationalizations of past events. Once in a while, however, when a democratic government is contemplating an action that is legally questionable, international lawyers may have a chance to play a more active role. The government at that time might decide to introduce the issue of the legality of its contemplated action into the public forum, either in the hope that open debate may help pave the way for public acceptance of whatever action the government ultimately chooses to take or, more charitably, in a genuine search for the public will on the matter. The primary forums are the daily media aimed at an informed readership—in the United States, one thinks of the editorial pages of the New York Times and the Washington Post. In contrast, a quarterly journal such as the American Journal of International Law in nearly all cases is not published on a timely enough basis to influence specific planned policy initiatives.
1 In a previous editorial, I discussed some aspects of governmental vs. academic international law rationalizations. See D’Amato, Nicaragua and International Law: The “Academic” and the “Real,” 79 AJIL 657 (1985).
2 Tucker, Using Force Against Libya?, N.Y. Times, Jan. 11, 1989, at A25, cols. 2–5.
3 Of course, Professor Tucker knows that it is the Geneva Protocol and not the “Convention.”
4 Back in 1975, Professor Tucker and I exchanged views about the question whether the American use of chemical weapons in the Vietnam War was contrary to customary interna tional law. See Law and Responsibility in Warfare 161–72, 176–82 (Peter D. Trooboff ed. 1975).
5 What is omitted is Professor Tucker’s “diplomacy first” argument and a rather inconsequential argument that action against Libya in particular might be justified because it is an outlaw nation. Professor Tucker neatly observes that “in 1801, President Thomas Jefferson directed the commander of a naval squadron to act forcibly against the Pasha of Tripoli. Given the present pasha of Tripoli’s persistent pattern of lawless behavior, a similar view might well be taken.’
6 The reader is less likely to question the accuracy of Professor Tucker’s statement that it is legal to manufacture chemical weapons plants, because that statement appears in an unqualified form in the New York Times and the many letters and op-ed pieces that might have questioned Professor Tucker’s conclusions were not published.
7 For similar reasons, in an earlier editorial, I defended Israel’s air strike on the Iraqi nuclear reactor as justified by the norm against nuclear proliferation and not by any notion of self-defense. See D’Amato, Israel’s Air Strike upon the Iraqi Nuclear Reactor, 77 AJIL 584 (1983).