Hostname: page-component-78c5997874-8bhkd Total loading time: 0 Render date: 2024-11-14T05:27:59.535Z Has data issue: false hasContentIssue false
  • English
  • Français

Panama: Beyond the Charter Paradigm

Published online by Cambridge University Press:  27 February 2017

Tom J. Farer
Get access Rights & Permissions [Opens in a new window]

Extract

In the fall of 1867, a powerful British expeditionary force, dispatched from India under the command of Field-Marshall Lord Napier and conveyed by over 250 ships, began deploying on the Red Sea coast of Africa. Its mission: rescue two British emissaries and their several assistants who, together with a brace of other Europeans, had been imprisoned by the volatile Ethiopian Emperor Theodore.

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. 503 - 515
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 A. Morehead, The Blue Nile 205–74 (1962).

2 Statement by the President (Dec. 20, 1989) (Office of the Press Secretary, the White House).

3 I frankly cannot tell from Professor D’Amato’s feverish comment whether he believes (1) that there is no widely accepted paradigm with respect to the legitimate use of force, or (2) that there is a paradigm but I have misdescribed it, or (3) that there is a paradigm but it is odious and in a sufficiently advanced state of decrepitude that any scholar truly concerned about human beings should feel free to hasten its demise by writing as if it were already embalmed. See The Invasion of Panama Was a Lawful Response to Tyranny, infra p. 516.

4 One difficulty I encountered in following the unraveling thread of Professor D’Amato’s argument is the ambiguity of his position with respect to the interpretation of texts in general and of the Charter in particular. When discussing Professor Schachter’s work, D’ Amato dons his deconstructionist’s hat and emphasizes the “necessarily subjective” character of interpretation (p. 521 infra) (as a character in David Lodge’s novel Small World puts it, every decoding is a new encoding). Having said that, however, Professor D’Amato seems to concede the capacity of texts to produce an intersubjective consensus: “We are better off with rules of international law that at least point us to important factual and contextual considerations . . .” (id.). Presumably we are better off only if those “rules” (i.e., those bits of text) can contribute to that degree of coordinated action and response that makes society possible. In short, the content of the text does matter.

More telling evidence of Professor D’Amato’s irresolution about the uses and abuses of interpretation is his splenetic response to my, I thought hackneyed, observation that “the central Charter value [is] national autonomy.” “Who proclaimed this to be the central value of the UN Charter?” D’Amato thunders. “Whatever happened to human rights? A glance at the Preamble . . . reveals its affirmation of ‘faith in fundamental human rights . . .; there is no mention of national autonomy” (p. 518 infra).

Particularly for a self-proclaimed contextualist (“all interpretation varies with context,” p. 521 infra), this is a remarkably literal approach to interpretation. And I fear that, as literal approaches so often do, it leads Professor D’Amato astray. For the most casual study of the preparatory work and of state behavior in the immediate aftermath of the Charter demonstrates as conclusively as anything of this nature can be demonstrated that the defense of human rights was very much a subordinate concern of the initial UN membership. Surely Professor D’Amato is aware, for instance, that the founding members rejected a proposal sponsored by Chile and Panama to include a bill of rights in the Charter, that a majority led by the United Kingdom blocked inclusion of any reference in the Universal Declaration to a right of individual petition, that at its first session the Human Rights Commission decided that it had no authority to take any action with respect to individual petitions, and so on. Reading the reference to human rights in the context of the Charter itself, which gives the Security Council the authority to use or authorize members to use force against other members only to maintain or restore peace, also is suggestive.

A scholar who emphasizes the inconclusiveness of verbal formulas and the corresponding need to understand rules as doing nothing more than pointing us “to important factual and contextual considerations” (id.) has a particular obligation to see the larger context of events and to get his/her facts right. Perhaps because he is driven by the sort of unzipped feelings one often encounters in those who view the agonies of the Third World from a book-lined study in the First, Professor D’Amato does not always satisfy this obligation. For instance, in celebrating the invasion of Grenada, he refers to “the kind of tyranny that was about to gain a foothold [there] in 1983 (when a group of thugs machine-gunned their way into power, murdering the existing democratic rulers)’’ (pp. 519–20 infra). Professor D’Amato is presumably unaware that the existing ruler, namely Maurice Bishop, had himself seized power through a putsch and that what in fact occurred was a falling–out between two factions of a Marxist-Leninist party.

5 I have had some difficulty decoding Professor D’Amato’s objection to my invocation and construction of Article 18. That subsequent practice glosses a text is a truism. Nor is it anomalous to claim that a rule embodied in those texts we call “international agreements” has been superseded by subsequent state practice. Professor D’Amato is certain that the governing elites who drafted and approved the Charter intended to preclude an invasion designed to promote human rights. Could he possibly be arguing that subsequent practice demonstrates the onset of tolerance among member states of the OAS for such invasions?

He cites only two precedents—Grenada and Panama. And for some reason or other he fails to note that immediately after the Panama invasion, the Permanent Council of the OAS approved a resolution “deploring” it (Boletin de Noticias, Dec. 22, 1989). My own exchanges with Latin diplomatic personnel at the OAS, particularly the ambassadors from several of the most influential South American democracies, confirmed my sense that the resolution, rather than being perfunctory, expressed in mild form a widespread sense of outrage among democratic elites. Perhaps they are influenced in part by an awareness of historical context to which Professor D’Amato is insensible. I refer to the fact that the number of instances in which the United States has intervened to restore democracy is offset in some not trivial measure by cases where intervention, albeit by more covert means, has functioned to subvert democratically elected governments. 6 Why, Professor D’Amato asks, should sovereignty, assuming it means anything at all, interfere with efforts to eliminate tyrants? The issue of whether moral values are better served by prohibiting or authorizing intervention on behalf of insurgents battling in the name of democracy to unseat authoritarian regimes has been elegantly joined by Michael, Walzer (Just and Unjust Wars, esp. at 87–108 (1977)Google Scholar) and Stanley, Hoffmann (Duties Beyond Borders (1981)Google Scholar). In taking a negative position, Walzer sees a need to demarcate and protect space where a people with a sense of common identity can work out their own destiny. Neither he nor Hoffmann (who arrives finally at a more qualified, nuanced negative that arguably implies a slim affirmative penumbra) would apparently authorize direct intervention, i.e., invasion and occupation, except in cases of massive human rights violations such as those that marked the rule of Idi Amin in Uganda and the Khmer Rouge in Cambodia. Professor D’Amato does not suggest that the Noriega regime had yet reached that level of delinquency.

7 See note 4 supra.

8 Wash. Post, Jan. 14, 1990, at B7.

9 See A. Morehead, supra note 1, at 258.

My principal and modest purpose in writing this little piece was to work out for myself whether one could make the invasion fit the Charter paradigm. (The extant utility of that paradigm for the promotion of international security, human rights or any other end is an issue I cannot intelligently address within the brief compass of an Agora.) While trying to imagine the various arguments the Bush administration could mobilize in support of the invasion’s alleged consistency with widely prevailing notions about the legitimate use of force, I did for a moment consider the claim that any state may invade any other state in order to remove a government that appears not to enjoy substantial popular support and is therefore forced to maintain itself in substantial degree through intimidation of the majority. After reviewing the admittedly traditional sorts of evidence one might offer on behalf of such a claim, I came to suspect that even the most ardent advocate could not manage a persuasive legal argument and therefore that making the attempt, even in the role of devil’s advocate, might make one appear just a little bit silly. I fear that Professor D’Amato has confirmed my suspicion.