Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-26T04:13:39.003Z Has data issue: false hasContentIssue false
  • English
  • Français

The Invasion of Panama Was a Lawful Response to Tyranny

Published online by Cambridge University Press:  27 February 2017

Anthony D’amato
Get access Rights & Permissions [Opens in a new window]

Extract

What Professors Tom Farer and Ved Nanda do not seem to understand is the positive implication for the development of human rights resulting from the United States intervention in Panama. Their views are so conditioned by a statist conception of international law that they seem unable to see through the abstraction that we call the “state” to the reality of human beings struggling to achieve basic freedoms. I am not talking about the human rights of American “matrons domiciled in Panama,” as Professor Farer puts it, who were “rescued” in 19th-century expeditionary-force style. Rather, I am talking about the human rights of Panamanian citizens to be free from oppression by a gang of ruling thugs. My focus is on the basic civil liberties and fundamental freedoms of the people of Panama themselves.

Type
Agora: U.S. Forces in Panama: Defenders, Aggressors or Human Rights Activists?
Information
American Journal of International Law , Volume 84 , Issue 2 , April 1990 , pp. 516 - 524
Copyright
Copyright © American Society of International Law 1990

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See Farer, Panama: Beyond the Charter Paradigm, supra p. 503; Nanda, The Validity of United States Intervention in Panama under International Law, supra p. 494.

2 For an important discussion of the concept of “state” from the viewpoint of transboundary intervention, see F. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (1987). I do not subscribe entirely to Professor Tesón’s views about Hegel; I think that the “state” is more than the sum of the individuals living in it at any given time, and hence is properly accorded some degree of autonomous consideration. See D’Amato, The Relation of the Individual to the State in the Era of Human Rights, 24 Tex. Int’l L.J. 1, 7–11 (1989).

3 P. 504 supra.

4 P. 507 supra.

5 P. 514 supra.

6 P. 510 supra.

7 P. 511 supra.

8 See his excellent study, Farer, T., The Grand Strategy of the United States in Latin America 69–78 (1988)Google Scholar (dealing with the Inter-American Commission on Human Rights).

9 P. 511 supra.

10 P. 498 supra.

11 Id.

12 See Reisman, Coercion and Self-Determinaiion: Construing Charter Article 2(4), 78 AJIL 642 (1984).

13 Aristotle, Politica, bk. Ill, chs. 6–13.

14 A good elaboration of this definition is found in Fishkin, J. S., Tyranny and Legitimacy: A Critique of Political Theories 12–25 (1979)Google Scholar.

15 The intervention, claimed to be under the auspices of the Treaty of Locarno, was aimed at protecting Christians who were being persecuted by Turkey. See 1 L. Oppenheim, International Law 312–13 (Lauterpacht, H. 8th ed. 1955)Google Scholar.

16 Nor is there any requirement that the intervention be actuated by a legally proper motive. In the case of governments, it is impossible to tell what motivated the action, and if the government explains its motivation, it is still impossible to tell whether the explanation is accurate. I have attempted to spell this out more fully in A. D’Amato, The Concept of Custom in International Law 34–39 (1971).

17 Pace the curious argument of Michael Akehurst that what states say is more important than what they do. Akehurst, Custom as a Source of International Law, 47 Brit. Y.B. Int’l L. 1 (1974–75). He seems to have forgotten that what Professor Henry Higgins observed of the French in My Fair Lady was meant to be ironic: “The French don’t actually care what you do, as long as you pronounce it properly!”

18 I have attempted to state this position in some historical and legal detail in D’Amato, A., International Law: Process and Prospect 57–73 (1987)Google Scholar.

19 See Schachter, International Law in Theory and Practice, 178 Recueil des Cours 13, 58–60 (“The Quest for Objectivity”), 133–87 (use of force and exceptions) (1982 V).

20 Id. at 150–66.

21 The term “aggression” is notoriously vague and ambiguous. Consider the dispute as to which side was the aggressor in the recent Iran-Iraq War or in the Vietnam War (North Vietnam or the United States?). Consider also the various types of aggression that have been seriously suggested in the United Nations such as cultural aggression and economic aggression. If nation A commits cultural aggression against nation B, may B counter militarily against A and call it self-defense?

22 Additionally, as in the case of the military intervention in Grenada, U.S. troops apparently were ill-trained for “surgical” missions where many innocent civilians are present.

23 For the argument that human rights law trumps even an explicit intergovernmental waiver of liability, see D’Amato & Engel, State Responsibility for the Exportation of Nuclear Power Technology, 74 Va. L. Rev. 1011 (1988).

24 See, with respect to Article 2(4) of the UN Charter, Franck, Who Killed Article 2(4)?, 64 AJIL 809 (1970); cf Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL 544 (1971).

25 D’Amato, Intervention in Grenada: Right or Wrong?, N.Y. Times, Oct. 30, 1983, at E18, col. 3.

26 Assuming that Article 18 of the OAS Charter generated a customary rule of nonintervention when it came into force, and assuming that I have proven that subsequent customary law development has changed the rule into one of intervention to prevent tyranny, what about the inter se obligations of the parties to the OAS Charter? Those obligations, I suggest, could remain the same. It is possible to violate a treaty obligation even though the same action is now legal under customary law. But we would not say that such action is illegal under “international law”; rather, it is only “illegal,” if at all, under the particular treaty regime and only with respect to the particular sanctions, if any, provided by the treaty itself. To be sure, the parties to the treaty may wish to interpret the subsequent customary law development as constituting a “changed circumstance” so that their interpretation of the treaty is not at variance with the newly formed custom. For a discussion of the analogous case of Article 2(4) of the UN Charter, see D’Amato, Trashing Customary International Law, 81 AJIL 101 (1987).