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Self-Defense and the Rule of Law

Published online by Cambridge University Press:  27 February 2017

Oscar Schachter
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Extract

Self-defense on the international level is generally regarded, at least by international lawyers, as a legal right defined and legitimated by international law. Governments, by and large, appear to agree. When they have used force, they have nearly always claimed self-defense as their legal justification. Governments disputing that claim have usually asserted that the legal conditions of self-defense were not met in the particular case. However, despite the apparent agreement that self-defense is governed by law, the meaning and validity of that proposition remain open to question. There are some who challenge the basic idea that the security of a state—its self-preservation—can and should be subjected to international law. Others question whether under present conditions the ideal of a rule of law can be applied on the international level to national security decisions. My aim in this essay is to explore some aspects of the problem raised by these challenges to the applicability of international law to claims of self-defense. It is not my intention, I should add, to consider specific interpretations of self-defense.

Type
Research Article
Information
American Journal of International Law , Volume 83 , Issue 2 , April 1989 , pp. 259 - 277
Copyright
Copyright © American Society of International Law 1989

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References

1 H. Grotius, de jure belli ac pacis, bk. II, ch. I, pt. III, at 172 (Carnegie Endowment trans. 1925) (1646).

2 However, characterization of self-defense as a natural right did not mean to Grotius that a state could invoke it arbitrarily or for “reasons of state.” See H. Lauterpacht, The Grotian Tradition, 23 Brit. Y.B. Int'l L. 1, 30–38 (1946).

3 See H. Kelsen, The Law of the United Nations 791–92 (1950); D. Bowett, Self-Defence in International Law 187 (1958); Ago, Addendum to Eighth Report on State Responsibility to the International Law Commission, [1980] 2 Y.B. Int'l L. Comm'n, pt. 1 at 13, 66–67, UN Doc. A/CN.4/SER.A/1980/Add.1; Y. Dinstein, War, Aggression and Self-Defence 169–72 (1988).

4 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 94, para. 176 (Judgment of June 27).

5 Acheson, Remarks, 57 ASIL Proc. 13, 14 (1963).

6 Id.

7 Id.

8 When Acheson presented his views in 1963, he received no support from the audience. On the contrary, those who spoke, while differing in their legal positions, considered the issue of the lawfulness of the U.S. action in the Cuban missile crisis to be important. See particularly comments of Chayes, McDougal and Quincy Wright, id. at 8–18. For other views critical of Acheson's approach, see L. Henkin, How Nations Behave 265–67 (1968); and Moore, The Legal Tradition and the Management of National Security, in Toward World Order and Human Dignity 321 (W. M. Reisman & B. Weston eds. 1976).

9 U.S. note of June 23, 1928, quoted in H. Miller, The Peace Pact of Paris 213, 214 (1928).

10 H. Lauterpacht, The Function of Law in the International Community 179–80(1933).

11 Dissenting Opinion of Judge Schwebel, 1986 ICJ Rep. at 259, 285, para. 46.

12 H. Lauterpacht, supra note 10, at 180.

13 Id.

14 Id. at 181.

15 Judgment of the International Military Tribunal at Nuremberg, 1946, 1 Trial of German Major War Criminals Before the International Military Tribunal 208 (1947).

16 1986 ICJ Rep. at 293–96, paras. 69–76 (Schwebel, J., dissenting).

17 1986 ICJ Rep. at 27, para. 34.

18 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 432–36, paras. 91–98 (Judgment of Nov. 26).

19 Sofaer, Statement, in U.S. Decision to Withdraw from the International Court of Justice: Hearing Before the Subcomm. on Human Rights and International Organization of the House Comm. on Foreign Affairs, 99th Cong., 1st Sess. 27–28 (1985).

20 Id. at 30.

21 The Charter does provide in Article 27 that in decisions under chapter VI, a party to a dispute shall abstain from voting. Although this applies to permanent members and therefore is supposed to limit the use of the veto where those states are parties, the restriction does not apply to Article 51 (as it is not in chapter VI). In fact, it has rarely been invoked to preclude the use of the veto.

22 Combacau, The Exception of Self-Defence in U.N. Practice, in The Current Legal Regulation of the Use of Force 9 (A. Cassese ed. 1986).

25 For example, self-defense claims made by Israel for attacks against Palestinian organizations based in Jordan and Lebanon were rejected by the Security Council in the following resolutions: SC Res. 228 (Nov. 25, 1966); SC Res. 265 (Apr. 1, 1969); SC Res. 270 (Aug. 26, 1969); SC Res. 279 (May 12, 1970); SC Res. 313 (Feb. 28, 1972); SC Res. 332 (Apr. 21, 1973); SC Res. 347 (Apr. 24, 1974). See also SC Res. 488 (June 19, 1981) (condemning Israeli air attack which destroyed the Osiraq nuclear reactor in Iraq in 1981). The General Assembly rejected the Soviet Union's self-defense claim to justify the intervention in Afghanistan in 1980. GA Res. ES-6/2 (Jan. 14, 1980). In addition, South Africa has been condemned for its attacks against neighboring states. SC Res. 393 (July 30, 1976); SC Res. 387 (Mar. 31, 1976). See Combacau, supra note 22, at 16–18.

24 For example, the Security Council resolution that noted the invasion of the Falkland Islands by Argentina in 1982 demanded the immediate withdrawal of all Argentine forces from the Falkland Islands. No reference was made to the withdrawal of British forces. A clear implication was that the British had legitimately exercised the right of self-defense. The resolution was adopted by 10 votes to 1 (Panama), with 4 abstentions. SC Res. 502 (Apr. 3, 1982). The Israeli rescue action in Entebbe, Uganda was criticized in the Security Council (and also defended). When a draft resolution censuring Israel was not put to a vote, the Council's nonaction was seen as an indication that the rescue mission was not a violation of Article 2(4). See Schachter, International Law in the Hostage Crisis: Implications for Future Cases, in American Hostages in Iran 325, 331 (1985).

25 The General Assembly may indicate its disapproval of a doubtful self-defense claim in a more indirect manner, as by refusing to accept the credentials of a regime imposed by illegal resort to force, for example, Kampuchea. See GA Res. 34/22 (Nov. 14, 1979); and 37/6 (Oct. 28, 1982). Conversely, the United Nations has refrained from condemning the use of force under a questionable claim of self-defense when the end result of the action was not considered reprehensible. For example, the Tanzanian invasion of Uganda in 1979 and its continued occupation were not censured by the General Assembly or by the Organization of African Unity. See N. Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity 102–06 (1985).

26 GA Res. 37/37 (Nov. 29, 1982) (condemnation of the Soviet Union for its invasion of Afghanistan); GA Res. 38/7 (Nov. 2, 1983) (condemnation of the United States for its invasion ofGrenada);SCRes. 562 (May 10, 1985) and GA Res. 40/188 (Dec. 17, 1985)(condemnation of the United States for its trade embargo against Nicaragua); GA Res. 41/31 (Nov. 3, 1986) (calling for U.S. compliance with the ICJ's Judgment in Nicaragua case).

27 1986 ICJ REP. at 98, para. 186.

28 My emphasis on the rational self-interest of states in restraining use of force is not meant to exclude other factors that influence compliance with declared rules and principles. For example, the perception by a state of the legitimacy vel non of a particular rule or interpretation is generally a significant element in regard to its compliance. Legitimacy is itself a complex conception that may be used to embrace various factors that influence states to obey rules in the absence of coercion. This is well brought out in Thomas Franck's erudite and lively article, Legitimacy in the International System, 82 AJIL 705 (1988). See also Schachter, Towards a Theory of International Obligation, 8 VA. J. Int'l L. 300 (1968); T. Honoré, Making Law Bind 13–16 (1987); L. Henkin, How Nations Behave 25–26, 320–21 (2d ed. 1979).

29 See Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1634–35 (1984); McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 AJIL 597 (1963); Sadurska, Threats of Force, 82 AJIL 239 (1988).

30 1986 ICJ Rep. at 123–25, paras. 244–45. For critical comment, see Hargrove, The Nicaragua judgment and the Future of the Law of Force and Self Defense, 81 AJIL 135 (1987).

31 See Schachter, supra note 29, at 1638; Y. Dinstein, supra note 3, at 208–12.

32 Schachter, supra note 29, at 1641–44. See also Resolution of Institut de Droit International on the Principle of Non-intervention in Civil Wars, 56 Institut de Droit International, Annuaire 544, 549 (1975); Moore, Toward an Applied Theory for the Regulation of Intervention, and Bowett, The Interrelation of Theories of Intervention and Self-Defense, in Law and Civil War in the Modern World 3 and 38, respectively (J. Moore ed. 1974); Perkins, The Right of Counterintervention, 17 Ga. J. Int'l & Comp. L. 171 (1986).

33 See F. Boyle, The Relevance of International Law to the “Paradox” of Nuclear Deterrence, 80 Nw. U.L. Rev. 1407 (1986); Reisman, Nuclear Weapons in International Law, 4 N.Y.L. Sch. J. Int'l & Comp. L. 339 (1983); Weston, Nuclear Weapons Versus International Law, 28 McGill L.J. 542 (1983). On targeting, see R. Jervis, The Illogic of American Nuclear Strategy 71–72(1984).

34 See Schachter, International Law in Theory and Practice, 178 Recueil des Cours 111–23 (1982 V).

35 On the complexity and limits of the nuclear balance, see R. Betts, Nuclear Blackmail and Nuclear Balance 180–233 (1987).

36 M. Ceadel, Thinking About War and Peace 72–88 (1987); The Conventional Defense of Europe (A. Pierre ed. 1986); Stockholm International Peace Research Institution, Policies for Common Security (1985).

37 See, e.g., Carlucci, Is Moscow Really Tilting to Defense?, N.Y. Times, May 6, 1988, at A39, col. I; Odom, Soviet Military Doctrine, 67 Foreign Aff. 114(1988). General Secretary Gorbachev's address to the UN General Assembly in December 1988 urged force reductions on the basis of “reasonably sufficient” defense capability. UN Doc. A/43/PV.72 (1988).

38 Jervis, Security Regimes, in International Regimes 173 (S. Krasner ed. 1983) [hereinafter Krasner]; Herz, Idealist Internationalism and the Security Dilemma, 2 World Pol. 157 (1950).

39 Existing treaties include those establishing nuclear-free zones, prohibiting proliferation, and limiting size and number of weapons. See, e.g., Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 UST 483, TIAS No. 6839, 729 UNTS 161; Treaty on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S.-USSR, 23 UST 3435, TIAS No. 7503; Treaty on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (the INF Treaty), Dec. 8, 1987, U.S.-USSR, S. Treaty Doc. No. 11, 100th Cong., 2d Sess. (1988), reprinted in 27 ILM 84 (1988); Treaty for the Prohibition of Nuclear Weapons in Latin America, Feb. 14, 1967, 22 UST 762, TIAS No. 7137, 634 UNTS 281 (the United States is not a party). Future arrangements being considered in intergovernmental negotiations include exchanges of detailed military information, advance notification of military movements, reports on military expenditures, and measures for inspection and verification. Detailed proposals on these lines were made in 1985 by European governments and the United States to the Conference on Confidence Building established pursuant to the Helsinki Final Act of 1975. Conference on Security and Co-operation in Europe: Final Act, Aug. 1, 1975, 73 Dep't St. Bull. 323 (1975), reprinted in 14 ILM 1292 (1975).

40 See Schachter, The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977).

41 See Case concerning Right of Passage over Indian Territory (Port. v. India), Merits, 1960 ICJ REP. 6 (Judgment of Apr. 12).

42 A recent example is the INF Treaty between the United States and the USSR, supra note 39. The necessity of verification and consultation is especially emphasized in arms control and limitation agreements currently under negotiation. Agreements that seek to end long-standing hostilities and interventionary activities are likely to call for more extensive commitments and measures for mutual cooperation beyond the military area. The comprehensive draft Contadora agreement for Central America remains a notable exemplar of a pact that would seek to prevent military intervention through a wide range of cooperative measures in economic and political areas, as well as in limits on arms and foreign bases. Contadora Act on Peace and Co-operation in Central America, June 7, 1986, reprinted in 25 ILM 1302 (1986).

43 Rescue actions were undertaken by Israel in Entebbe, Uganda in 1976 and by the United States in Iran in 1980. An earlier rescue mission was carried out in Stanleyville in the then Congo by Belgium. For discussion of legal issues, see Schachter, supra note 29, at 1629–32.

44 E.g., the U.S. bombing of Libya. See Dep't St. Bull., No. 2111, June 1986; GA Res. 41/38 (Nov. 20, 1986); Statement of U.S. representative to UN Security Council, excerpted in Contemporary Practice of the United States, 80 AJIL 632, 633–36 (1986).

45 E.g., the Israeli action against Egypt in 1967. See Dinstein, The Legal Issues of Para-War and Peace in the Middle East, 44 St. John's L. Rev. 466, 469–70 (1970).

46 E.g., the Israeli military invasion of Lebanon in 1982. See SC Res. 509 (June 6, 1982); and GA Res. ES-7/9 (Sept. 14, 1982). See also Feinstein, The Legality of the Use of Armed Force by Israel in Lebanon, 20 Isr. L. Rev. 362 (1985); Mallison, Aggression or Self-Defense in Lebanon?, 77 ASIL Proc. 174(1983).

47 E.g., the U.S. support of the resistance (contras) in Nicaragua. See Nicaragua case, 1986 ICJ Rep. 14; see also Moore, The Secret War in Central America and the Future of World Order, 80 AJIL 43 (1986); Rowles, “Secret Wars,” Self-Defense and the Charter, id. at 568.

48 E.g., the U.S. blockade of Cuba in 1962. See McDougal, supra note 29; Wright, The Cuban Quarantine, 57 AJIL 546 (1963).

49 A recent example is the military aid to the resistance in Afghanistan given by Pakistan and the United States. See J. Collins, The Soviet Invasion (1986). On the legal claim of the USSR, see Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56 Brit. Y.B. Int'l L. 189 (1985).

50 For example, self-defense has been cited as justification for military action to recover “lost” territories that were allegedly taken by illegal force. India's seizure of Goa and Argentina's attempt to occupy the Malvinas-Falkland Islands are in point. For references, see Schachter, supra note 29, at 1627.

51 See M. S. McDougal & F. Feliciano, Law and Minimum World Public Order 207–61 (1961); Moore, supra note 8.

52 See, e.g., Reisman, Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice, 13 Yale J. Int'l L. 171, 182–85 (1988). For a different analysis of violations and practice, see Schachter, In Defense of International Rules on the Use of Force, 53 U. Chi. L.R. 113, 128–31 (1986).

53 See notes 39 and 42 supra.

54 E.g., Treaty of Peace, Mar. 26, 1979, Egypt-Israel, Art. III, 18 ILM 362, 364 (1979). The Helsinki Final Act of 1975, supra note 39, provided for a broad range of cooperative relations—economic, cultural, exchange of information, etc.—among former adversaries.

55 See Keohane, The Demand for International Regimes, in Krasner, supra note 38, at 141, 158.

56 See Rhyne, The Athens Conference on World Peace Through Law, 58 AJIL 138(1964); Franck & Lehrman, Messianism and Chauvinism in America's Commitment to Peace Through Law, in The International Court of Justice at a Crossroads 3, 6, 15–17 (L. Damrosch ed. 1987) [hereinafter Damrosch].

57 Franck & Lehrman, supra note 56, at 5, 6.

58 See Damrosch, supra note 56, especially articles by Bilder, Weiss, Damrosch, Gordon and Highet. See also Appraisals of the ICJ's Decision: Nicaragua v. United States (Merits), 81 AJIL 77 (1987); Scott & Carr, The ICJ and Compulsory Jurisdiction, id. at 57.

59 UN Doc. A/43/629 (1988).

60 See Schachter, Disputes Involving the Use of Force, in Damrosch, supra note 56, at 223.

61 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24). See also Schachter, supra note 24.

62 See H. Lauterpacht, supra note 10, at 183 et seq.