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Reflections on the Lawfulness of Invasion

Published online by Cambridge University Press:  27 February 2017

Christopher C. Joyner
Christopher C. Joyner*
Affiliation:
The George Washington University
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Extract

Grenada is a micro-state located in the southeastern Caribbean Sea, approximately 1600 miles from the United States. Its territory covers some 133 square miles—about twice the size of the District of Columbia—and its citizen population numbers around 110,000. Granted independence from British colonial rule in 1974, Grenada functioned under a parliamentary government until March 1979, when Maurice Bishop’s New Joint Endeavor for the Welfare, Education, and Liberation (JEWEL) Movement ousted then Prime Minister Sir Eric Gairy in a near bloodless coup. Since attaining independence, Grenada sought and secured membership in the British Commonwealth, the Organization of American States, the Caribbean Common Market and the United Nations.

Type
The United States Action in Grenada
Information
American Journal of International Law , Volume 78 , Issue 1 , January 1984 , pp. 131 - 144
Copyright
Copyright © American Society of International Law 1984

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References

1 The Statesman’s Year-Book 1983–1984, at 561 (J. Paxton ed. 1983).

2 Gale Research Co., Countries of the World and their Leaders Yearbook 1983, at 541 (1983).

3 Hoagland, U.S. Invades Grenada, Fights Cubans; Reagan Cites Protection of Americans, Wash. Post, Oct. 26, 1983, at Al, col. 5.

4 See, e.g., Twin Legal Foundations for the Decision to Invade Grenada, N.Y. Times, Nov. 22, 1983, at A22, col. 3 (letters by John Norton, Moore and John, Carey)Google Scholar; Chayes, , I. Grenada Was Illegally Invaded, N.Y. Times, Nov. 15, 1983, at A35, col. 1Google Scholar; Joyner, , When It’s Legal to Intervene, Wash. Post, Nov. 18, 1983, at A18 Google Scholar, col. 1; and Rostow, , 2. Law “Is Not A Suicide Pact,” N.Y. Times, Nov. 15, 1983, at A35 Google Scholar, col. 1. Compare also the remarks personally expressed by Michael G. Kozak, John Norton Moore, Burns H. Weston, Robert K. Goldman, Robert Tucker and Edward Gordon at “Law and the U.S. Military Action in Grenada,” a public forum sponsored by the American Society of International Law (ASIL) at the Johns Hopkins University School of Advanced International Studies, Washington, D.C., Dec. 1, 1983 (transcript on file at ASIL).

5 Statement by the Honorable Dam, Kenneth W., Deputy Secretary of State, before the Committee on Foreign Affairs, U.S. House of Representatives 2 (Nov. 2, 1983)Google Scholar (mimeograph), reprinted in major part infra at p. 200 [hereinafter cited as Dam Statement].

6 Banta, Spice Island Power Play, Time, Oct. 31, 1983, at 78.

7 Dam Statement, supra note 5, at 3.

8 Smith, , 2 Americans Killed; Cubans Clash with Force—30 Advisors Are Reported Safe, N.Y. Times, Oct. 26, 1983, at Al, col. 6.Google Scholar

9 Id.; Hoagland, supra note 3, at Al, col. 5.

10 Jenkins, , “Search and Destroy” Patrols Under Way, Wash. Post, Oct. 30, 1983, at Al, col. 5Google Scholar; Jenkins, , U.S. Forces Seize Fugitive Leader of Grenadan Coup, Wash. Post, Oct. 31, 1983, at Al, col. 6Google Scholar; U.S. Dep’ts of State & Defense, Grenada: A Preliminary Report 1 (1983).

By Dec. 13, 1983, withdrawal of U.S. combat forces reportedly had been completed, leaving only “American military police and support troops” on Grenada. 1,000 U.S. Paratroops Leave Grenada, Wash. Post, Dec. 13, 1983, at A17, col. 1.

11 Cannon, Strategic Airport, Hostage Fears Led to Move, Wash. Post, Oct. 26, 1983, at Al, col. 2; Gwertzman, , Fear of “Another Iran” Haunted White House, N.Y. Times, Oct. 26, 1983, at Al, col. 2Google Scholar.

12 Tyler, & Hoffman, , U.S. Says Aim Is to Restore Order, Wash. Post, Oct. 26, 1983, at Al Google Scholar, col. 1. The six Caribbean states that requested U.S. assistance were Antigua, Barbados, Dominica, Jamaica, St. Lucia and St. Vincent. “U.S. Had to Act Strongly, Decisively” (Statement of the President), Wash. Post, Oct. 26, 1983, at A7, col. 1.

13 “U.S. Had to Act Strongly,” supra note 12, at A7, col. 1.

14 The words are those of Secretary of State Shultz. Smith, supra note 8, at Al, col. 6; “Concerned for Americans,” Wash. Post, Oct. 26, 1983, at A8, col. 5.

15 Impetus for the decision to invade apparently was added by the Reagan administration’s concern over the 9,000–foot airport runway being constructed by Cubans at Point Salines. Ostensibly, it was believed that when completed, this airport facility would be used as a fueling stop for Soviet planes carrying arms and other military equipment to Nicaragua. In addition, the airport might be employed as a Cuban base for resupplying troops in Angola, as well as a strategic springboard for launching subversive operations throughout the lower Caribbean basin and into Latin America. Cannon, supra note 11, at Al, A8. Subsequent discoveries added credence to these suspicions. See Jenkins, Grenada Military Base Found Well Stocked, Wash. Post, Oct. 29, 1983, at Al, col. 1; Goshko, , Captured Documents’ Contents Outlined, Wash. Post, Oct. 31, 1983, at Al, col. 5; Tyler & Pincers, Captured Documents to be Made Public, Wash. Post, Nov. 3, 1983, at Al Google Scholar, col. 5. But cf. Woodward, & Tyler, , CIA’s Reports Magnify Soviet-Cuban Presence, Wash. Post, Oct. 29, 1983, at Al Google Scholar, col. 3; and Grenada Report, supra note 10, at 18–30.

16 See generally Vincent, R., Nonintervention and International Order (1974)Google Scholar; and Thomas, A.J. & Thomas, A., Non-Intervention: The Law and its Import in the Americas 67 (1956)Google Scholar.

17 Von Glahn, G., Law Among Nations 161–70 (4th ed. 1981)Google Scholar.

18 As noted by Professor von Glahn:

General agreement on the subject of defense against armed attack can be said to exist only on two counts: resort to force in self-defense is lawful in the event of instant and overwhelming necessity; and acts taken in self-defense must be limited to defense itself and must not be transformed into reprisals or “punitive sanctions.”

Id. at 133.

19 Professor Eugene V. Rostow, however, has argued to the contrary. See Rostow, supra note 4.

20 G. Von Glahn, supra note 17, at 127. See also Nanda, , Self-Determination in International Law, 66 AJIL 321 (1972)CrossRefGoogle Scholar.

21 See generally Wright, , Subversive Intervention, 54 AJIL 521 (1950)Google Scholar; Dinerstein, H., Intervention Against Communism (1967)Google Scholar; 1 Hyde, C., International Law Chiefly as Interpreted and Applied by the United States §73 (2d ed. 1947)Google Scholar.

22 Dam Statement, supra note 5, at 10; Grenada Report, supra note 10, at 2.

23 See, e.g., Grotius, H., De Jure Belli Ac Pacis 627 (Scott, J. ed. 1929)Google Scholar.

2 4 Thomas, A. J. & Thomas, A., The Dominican Republic Crisis 1965, at 18 (1967)Google Scholar.

25 See, e.g., text accompanying notes 49, 50 and 51 infra.

26 Sinclair, , Medical Students Recount Tale of Tense Escape from Grenada, Wash. Post, Oct. 28, 1983, at A17, col. 1Google Scholar; Joyce, , First Evacuees Arrive in U.S. from Grenada, N.Y. Times, Oct. 27, 1983, at Al Google Scholar, col. 3. But cf. Omang, , Americans in Grenada Calling Home, Say They Were Safe before Invasion, Wash. Post, Oct. 26, 1983, at A11, col. 1Google Scholar.

27 A. J. Thomas & A. Thomas, supra note 24, at 18.

28 Dam Statement, supra note 5, at 9–10.

29 The Organization of Eastern Caribbean States (OECS) counts as member states Antigua, Dominica, Grenada, Montserrat, St. Kitts/Nevis, St. Lucia and St. Vincent and the Grenadines. Treaty Establishing the Organization of Eastern Caribbean States, done at Basseterre, St. Kitts/ Nevis, June 18, 1981, reprinted in 20 ILM 1166’(1981).

30 Viz., Antigua, Dominica, St. Kitts/Nevis, St. Lucia and St. Vincent (in concert with Barbados, hence the media’s designation “the Barbados Group”). For an informative account of the “Barbados Group’s” invitation for U.S. military participation, see Tyler, , The Making of an Invasion: Chronology of the Planning, Wash. Post, Oct. 30, 1983, at Al Google Scholar, col. 4.

31 OECS Treaty, supra note 29, Art. 8, para. 4. Article 51 of the UN Charter accordingly provides:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

UN Charter, infra note 49, art. 51.

32 OECS Treaty, supra note 29, Art. 8, para. 3. In this connection, at least one international legal commentator has averred that the U.S.-OECS “mission” into Grenada was legally justified under the regional security arrangements provided for in Article 52 of the UN Charter, namely:

1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

UN Charter, infra note 49, art. 52, para. 1. See Remarks of John Norton Moore, supra note 4, and letter of John Norton Moore, supra note 4. However, subsequent paragraphs in Article 52 stipulate:

2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.

3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from, the Security Council.

4. This Article in no way impairs the application of Articles 34 and 35.

UN Charter, infra note 49, art. 52, paras. 2–4. Whether “every effort to achieve pacific settlement” of the Grenadan situation was made by either the United States or the OECS Governments seems less than certain, and consequently the legal relevance of applying Article 52 may be open to critical question. See the remarks of Robert K. Goldman and Burns H. Weston, supra note 4, and text at notes 64–66 infra.

33 See DeYoung, , Caribbean Nations’ Role in Invasion Is Sharp Break with Tradition, Wash. Post, Oct. 26, 1983, at A12, col. 3.Google Scholar

34 OECS Treaty, supra note 29, Art. 8, para. 4.

35 Id., para. 3.

36 In full, paragraph 5 provides: “The decisions and directives of the Defence and Security Committee shall be unanimous and shall be binding on all subordinate institutions of the Organisation unless otherwise determined by the Authority.” Id., para. 5. Article 6 of the Treaty designates the “Authority” (i.e., the “Heads of Government of the Member States”) to be the supreme policy-making institution of the organization. Decisions made by the Authority “require affirmative vote of all member States present and voting . . . provided that such decisions shall have no force and effect until ratified by member states, if any, who were not’present at that meeting,” or until they have indicated officially their desire to abstain. Id., Art. 6.

37 Taylor, Experts Question Legality of the Invasion of Grenada, N.Y. Times, Oct. 26, 1983, at A8, col. 3; Smith, supra note 8, at A16, col. 6. But cf. Magnuson, D-Day in Grenada, Time, Nov. 7, 1983, at 22, 27, who reports that leaders of the OECS nations meeting in Barbados on Oct. 21, “voted unanimously to ask the U.S. to provide the muscle to do something about Grenada. Barbados and Jamaica, not members of the group, joined in the plea for U.S. help.” Secretary Dam testified that “these Caribbean leaders [were] unanimous—I repeat, unanimous—in their conviction that the deteriorating conditions on Grenada were a threat to the entire region that required immediate and forceful action.” Dam Statement, supra note 5, at 8.

38 Dam Statement, supra note 5, at 8–9.

39 Id. at 9.

40 Id.

41 See Blaustein & O’Leary, Grenada, in Constitutions of the Countries of the World 1 (A. Blaustein & G. Flanz eds. 1974) (superseded vol.). 42 The Grenada Constitution Order, 1973, No. 2155 (1973), in operation Feb. 7, 1974, reprinted in Blaustein & O’Leary, supra note 41, at 1.

43 In this regard, section 57 of Grenada’s 1967 Constitution provided that the Government’s “executive authority was vested in Her Majesty” and “was exercised on her behalf by the Governor- General, either directly or through officers subordinate to him.” Grenada Const., supra note 41, §57, para. 2. See also the letter of John Carey, supra note 4, which cites this point in defense of the Governor-General’s authority to request OECS assistance. The office of the Governor- General was also empowered to proclaim a national emergency. Grenada Const., supra note 41, §17. Perhaps even more significant in light of Prime Minister Bishop’s death on Oct. 19, the 1967 Constitution permitted the Governor-General, “acting in his own deliberate judgment,” to exercise the powers of the Prime Minister “in his own deliberate judgment” if he “considers that it is impracticable to obtain the advice of the Prime Minister owing to his absence or illness.” Id., §61, para. 2. Ostensibly, this provision would have allowed the Governor-General to assume the legal personality of the Prime Minister if he—the Governor-General—deemed it appropriate. This role, arguably, could have contributed greater legal weight to the Governor-General’s “appeal for action,” had the 1967 Constitution been legally operative at the time.

44 People’s Law No. 1, March 13, 1979, reprinted in Blaustein, & Holt, , Grenada, in 6 Constitutions of the Countries of the World 18 (Blaustein, A. & Flanz, G. eds. 1983)Google Scholar.

45 People’s Law No. 2, March 13, 1979, reprinted in Blaustein & Holt, supra note 44, at 18. That international legitimacy was accorded Grenada’s People’s Revolutionary Government is readily apparent. Within 2 weeks of assuming power, the Bishop Government received official legal recognition from three Caribbean states, Jamaica, Guyana and Barbados. The United States, Great Britain and Canada announced their recognition “immediately thereafter.” Id. at 9.

46 People’s Law No. 3, March 13, 1979, reprinted in Blaustein & Holt, supra note 44, at 18.

47 As proclaimed in People’s Law No. 18 of Apr. 2, 1979, the Governor-General’s only “powers and functions” were to be those contained in §§83(6), 86(7) and 90(5) of the 1967 Constitution. Blaustein & Holt, supra note 44, at 30. People’s Law No. 15 of March 29, 1979 reinstated the “full legal force and effect” of those particular sections. Id. at 26. The three provisions respectively concern the Governor-General’s authority to remove a member from Grenada’s Public Service Commission, to remove the Director of Public Prosecutions from office, and to remove a member of the Public Service Board of Appeal. See Blaustein & O’Leary, supra note 41, at 51, 54 and 58.

48 In point of fact, the precise legal authority of the Governor-General has long been a source of debate and controversy in British Commonwealth Law. See the remarks of Burns H. Weston and Robert K. Goldman, supra note 4.

49 59 Stat. 1031, TS No. 933, 3 Bevans 1153, done at San Francisco June 26, 1945.

50 2 UST 2394, TIAS No. 2361, 119 UNTS 3, done at Bogotá April 30, 1948.

51 62 Stat. 1681, TIAS No. 1838, 21 UNTS 77, 4 Bevans 559, done at Rio de Janeiro Sept. 2, 1947.

52 See, e.g., Berlin, , Cuba, Mexico Ask U.N. Action against U.S., Wash. Post, Oct. 26, 1983, at A9, col. 1Google Scholar; Drozdiak, , Bonn Urges U.S. to Leave Grenada Soon, Wash. Post, Oct. 28, 1983, at A5, col. 1Google Scholar; Osnos, , British Saw Invasion as Unjustified, Dangerous, Wash. Post, Oct. 29, 1983, at A14, col. 1Google Scholar; Shabecoff, , Most O.A.S. Members Assail U.S. Action, N.Y. Times, Oct. 27, 1983, at A19, col. 1Google Scholar; and Bernstein, , Grenada Debate Continues in U.N., N.Y. Times, Oct. 27, 1983, at A19, col. 1Google Scholar. On Nov. 2, the UN General Assembly voted 108 to 9 for GA Res. 38/7 (XXXVIII) declaring the “armed intervention” in Grenada a “flagrant violation of international Law.” Voting in favor of the resolution (i.e., against U.S. action) were many Western states, including Australia, France, Denmark, Greece, Iceland, Italy, the Netherlands, Norway, Portugal and Spain. The 27 abstentions included Great Britain, Japan, West Germany and Canada, all of whom had earlier made public statements opposing the U.S. intervention. Voting against the resolution (i.e., in support of U.S. intervention) were the United States, Israel, El Salvador and the six Caribbean states that had participated militarily in the invasion. Berlin, , U.S. Allies Join in Lopsided Vote Condemning Invasion of Grenada, Wash. Post, Nov. 3, 1983, at Al, col. 1Google Scholar.

53 G. Von Glahn, supra note 17, at 127.

54 See 5 Whiteman, M., Digest of International Law 321–701 (1965)Google Scholar: Brierly, J., The Law of Nations 402 (6th ed. 1978)Google Scholar.

55 OAS Charter, supra note 50, art. 15. This prohibition against intervention by OAS members is further highlighted by Article 16, which reads in full: “No State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another State and obtain from it advantages of any kind.” Id., art. 16.

56 Id., art. 18.

57 A. J. Thomas & A. Thomas, supra note 24, at 9.

58 Id. at 9; 1 C. Hyde, supra note 21, §73. Concerning “intolerable” civil strife, however, an important caveat is in order. Under the so-called abatement theory, armed intervention has sometimes been justified. In its legal particulars, the

abatement theory holds that when conditions in the territory of a neighboring state border on anarchy, with concurrent inability of the constituted authorities to restore order and to prevent a spilling over of the disturbance into one’s own territory, then one has a duty to intervene—quite likely by armed force—to restore order along one’s frontiers and to end the chaos next door. If no selfish aims are involved in the intervention in question, if no territorial aggrandizement or other gain is contemplated or realized, then it is difficult, in many instances, to deny a right, based on self-defense or self-preservation, to violate the ban on intervention for the sake of abating the nuisance at one’s doorstep.

G. Von Glahn, supra note 17, at 168. The obvious difficulty in applying the abatement theory to the case of Grenada is that it is an island state, with no immediate neighbors. The states most proximate to Grenada are St. Vincent, Trinidad and Tobago, and Venezuela, which are respectively 75, 90, and 100 miles distant.

59 See Akehurst, M., A Modern Introduction to International Law 240–47 (4th ed. 1982)Google Scholar; and Henkin, , How Nations Behave 153–62 (2d ed. 1979)Google Scholar.

60 OAS Charter, supra note 50, art. 17.

61 UN Charter, supra note 49, art. 2, para. 1.

62 Id., art. 2, para. 4.

63 Rio Treaty, supra note 51, Art. 1. Interestingly, the Rio Treaty defines acts of aggression to include the following:

a. Unprovoked armed attack by a State against the territory, the people, or the land, sea, or air forces of another State;

b. Invasion, by the armed forces of a State, of the territory of an American State, through the trespassing of boundaries demarcated in accordance with a treaty, judicial decision, or arbitral award, or, in the absence of frontiers thus demarcated, invasion affecting a region which is under the effective jurisdiction of another State.

Id., Art. 9. Though Grenada is not a party to the Rio Treaty, the United States is. Accordingly, the United States is obligated by the Treaty’s limitations on use of force, as well as by the duty “to submit every controversy . . . to methods of peaceful settlement.” Id., Art. 2.

64 UN Charter, supra note 49, art. 33.

65 OAS Charter, supra note 50, art. 20. Article 21 enumerates as “peaceful procedures: direct negotiation, good offices, mediation, investigation and conciliation, judicial settlement, arbitration, and those which the parties to the dispute may especially agree upon at any time.” Id., art. 21.

66 Some legal commentators have asserted that no public evidence exists to support the contention that such dispute settlement measures were even initiated. See the remarks of Robert K. Goldman and Burns H. Weston, supra note 4. But cf. remarks of Michael G. Kozak and John Norton Moore, supra note 4.

67 The New York Times put it well when it opined: “The deed is political. It promises to rid the Caribbean of a pro-Soviet gnat. And it demonstrates to radicals in Central America that only logistics, not laws or treaties, will determine the means the United States is ready to employ against them.” Editorial, Which Threat in Grenada?, N.Y. Times, Oct. 26, 1983, at A26, col. 1.

68 See, e.g., Shaw, , U.S. Has Long Wielded “Big Stick” in Caribbean, Wash. Post, Oct. 26, 1983, at A12, col. 1Google Scholar.