The major difficulty with international law is that it converts what are essentially problems of international morality, as defined by a particular political community, into arguments about law that are largely drained of morality. This conversion is, no doubt, a conscious tactic of the left. When there is danger that a nation’s public might support the action the left dislikes, the charge is made that it violates law. Government officials are then drawn into quibbles about nonexistent laws that inevitably divert the public from the merits of what was done to the charge that the nation in question, usually the United States, is an international outlaw.
While their social and cultural predilections are much the same, members of the international New Class are not unified on all subjects. There are themes that cut across otherwise common values. There is, for example, a widespread resentment of the United States, particularly among the intelligentsia of many foreign nations, a resentment that finds expression in international law. A similar hostility is directed at Israel by Arab and some European nations. There is also antagonism between have and have-not nations, between developed countries and those still developing or still awaiting the first signs of development. This antagonism often takes the form of demands for the redistribution of wealth and power from the nations of the North to those of the South.
The anti-Americanism that frequently suffuses international tribunals was exemplified by the decision of the International Court of Justice that the United States had violated customary international law by aiding the Nicaraguan insurgency of the contras against the Sandanista dictatorship, including the mining of Nicaraguan harbors. When the United States learned in 1984 that Nicaragua would file a claim in the ICJ, it suspended its acceptance of the tribunal’s jurisdiction over disputes with any Central American nation. When the ICJ decided it would retain jurisdiction, the United States terminated its qualified 1946 acceptance of the court’s compulsory jurisdiction. At the time, only 47 of the 162 nations entitled to accept that jurisdiction did so – and nine of the fifteen judges came from nations that did not.
El Salvador was under attack from armed rebels supported by Nicaragua, but the court rejected that country’s petition to intervene, although the ICJ’s own statute gave El Salvador that right. Nicaragua alone was to be heard. The ICJ had no jurisdiction under the treaties invoked by Nicaragua, so the court decided it could apply customary international law whose principles were said to be binding despite their incorporation in the treaties that could not be applied. Its application of those principles was particularly lawless, and the principles themselves turned out to be one-sided, wooden, and wholly unsuited to the realities of international armed conflict.
The court found that Nicaragua, despite supporting, arming, and giving sanctuary to the rebels attacking El Salvador’s government, had not engaged in armed attack. That finding, however contrary to fact and common sense, should have ended the case. There was no reason to go on to address the United States’s claim that it was exercising the well-established right of collective self-defense. But the court chose to do so and rejected the claim for a very odd reason: the state undergoing attack must declare that fact. Another state may not exercise the right of collective self-defense based on its assessment of the situation.
This entirely novel requirement had a major impact. Even if El Salvador was under attack by Nicaragua and the entire world knew it, but El Salvador, for reasons of prudence, did not wish to make a formal declaration to that effect, the United States could not respond by treating Nicaragua in the same way that Nicaragua was treating El Salvador. Still worse, El Salvador had, in fact, asked the United States to assist in its defense, President Duarte had repeatedly mentioned the attack in press conferences, and El Salvador’s improperly rejected petition to intervene in the ICJ’s proceedings had declared the existence of such an attack. When the decision inevitably went against it, the United States did not, of course, pay damages, nor had Nicaragua expected it to.
The purpose and effect of the invocation of the ICJ’s jurisdiction (which did not exist) was to inflict a serious political and moral injury to the United States. That was true in America as well as abroad. International law scholarship, along with the rest of the American academic world, is politicized. One of the characteristics of the American academy is the hostility to America that flourishes there. For every professor who criticized the ICJ’s obviously illegitimate decision, another castigated the United States. No Nicaraguan scholar criticized the decision, which is one more example of how international law about the use of force harms only open, democratic nations and not dictatorships. As Professor Michael Reisman pointed out, the “international law-making process has itself undergone change and has subtly, but steadily, sought to change international law with regard to certain unilateral uses of force. While it has not totally succeeded, it has accomplished enough to have made expectations of who and how the law is made and what the law is less certain than in the past.”
This transformation is connected with the change that occurred in the nature of the UN General Assembly as many new nations were admitted. In the early days the assembly operated on the assumption that what was said there was based on international law or at least evidence of it. The new entrants were generally have-not nations and they wanted an international law that implemented their desires. The result is, as Reisman says, the inversion of many established rules about the use of force.
Though there was no judgment by the ICJ, much the same thing occurred when the United States invaded Grenada. In 1979 that newly independent, small island nation had its government overthrown by a revolutionary party. Events followed the same pattern as had happened in Cuba and, subsequently, in Nicaragua. Large numbers of political prisoners were held and the new regime engaged in rapid and heavy militarization with the assistance of arms and advisors from the Soviet Union, Cuba, and other Communist bloc nations. Grenada’s neighbors, six Caribbean island nations, were alarmed, since Grenada’s military force exceeded their combined forces and seemed to have no possible purpose other than the support of subversion to overthrow their democratic governments. A coup, probably the work of even more hard-line Marxist-Leninists, resulted in chaos, with no one group in control. Rioting, looting, demonstrations, shootings, and a round-the-clock curfew, enforced by threats to shoot on sight, left the island without a stable government. The other six island nations expressed serious concern, as did the United States, for there were about one thousand Americans on the island, many of whom were medical students. These Americans, cut off from the outside world, dependent on the People’s Revolutionary Army for food and water, and confined to their quarters on pain of death, were effectively hostages. The State Department tried, without success, to arrange their release and evacuation.
At the request of other concerned nations, the United States invaded Grenada. When the fighting was over, a CBS News poll found that 91 per cent of Grenadans were glad the U.S. troops had come. Within less than two months, the U.S. armed forces left the island, order had been restored, American and Grenadan lives had undoubtedly been saved, and plans were under way for free elections. One would have thought that, outside the Communist bloc, the American action would have been joyfully received.
Not long after the invasion, however, the UN General Assembly voted to condemn the action as a violation of international law. The majority was even larger than the one that condemned the Soviet invasion of Afghanistan, an invasion that had none of the justifications the U.S. action in Grenada had. The vote had been taken, moreover, without even allowing the nations of the Organization of Eastern Caribbean States or the United States to present their case. Yet once more many American international law professors responded according to their political views. Nine professors signed an article stating that the United States was “in egregious violation of international law” and that the lack of the “imprimatur” of the Organization of the American States would “raise serious doubts concerning the international legitimacy o
f any successor government.” That reaction was so incredible that it comes close to calling into question the professors’ grip on reality. Apparently, a Communist dictatorship installed by violence was internationally legitimate, while a successor government chosen democratically by the people of Grenada was not.
There is nothing here that deserves to be called “law” in any sense. The American Journal of International Law ran separate symposia of the Grenadan invasion and American support of the Nicaraguan contras. The various experts took almost every position imaginable, from the assertion that the United States is a dangerous international outlaw to the contention that everything done exemplified devotion to the rule of law. The arguments in defense of the United States’s actions seemed to me far more persuasive than those condemning those actions, but I quickly realized that I was judging not on grounds that might be called legal but on political and moral considerations. I have no doubt that others, on both sides, did the same. The “law” itself seemed infinitely flexible and indeterminate.
Senator Daniel Patrick Moynihan, an international law enthusiast (he’s on record for saying, “International law exists. It is not an option. It is a fact”), has stated a contradiction that lies at the heart of international law and accounts for its indeterminacy:
An ancient doctrine (going back at least to Grotius) is rebus sic stantibus, which denotes “a tacit condition, said to attach to all treaties, that they shall cease to be obligatory as soon as the state of facts and conditions upon which they were founded has substantially changed” (Black’s Law Dictionary). For all that Chapter II of the charter of the Organization of the American States requires of members “the effective exercise of representative democracy,” this is not going to be the political norm of this hemisphere or this world during the foreseeable future. It had once looked that way; it no longer does. Circumstances have changed. What has not changed – what the United States must strive to make clear has not changed – is the first rule of international law: Pacta sunt servanda, agreements must be kept.
But if the condition on which the United States agreed to the OAS Charter – that the members would be democracies – has changed, why does not rebus sic stantibus relieve us of the obligation to keep the rest of the agreement? It is one thing to contract with democracies and quite another to be bound when the parties become totalitarian or authoritarian. Moynihan’s argument, and his condemnation of America’s action in Grenada, lack coherence.
The crusade to lodge control of the employment of armed force in international bodies continues. As John Bolton, who has since become undersecretary of state for arms control and international security, put it:
During the NATO air war against Yugoslavia, Secretary General Kofi Annan expressed the predominant view that “unless the Security Council is restored to its pre-eminent position as the sole source of legitimacy on the use of force, we are on a dangerous path to anarchy.” Shortly thereafter, in a report to the United Nations’ member ship, Annan repeated his argument, stating that military actions (such as the NATO air campaign) amounted to threats to the “very core of the international security system. … Only the Charter provides a universally legal basis for the use of force.”…
UN High Commissioner for Human Rights, Mary Robinson, was even more pointed, announcing: “[C]ivilian casualties are human rights victims.” She asked, “If it is not possible to ascertain whether civilian buses are on bridges, should those bridges be blown?” Her basic objection, however, was not to civilian casualties, but to the bombing itself. During the war, she said, “NATO remains the sole judge of what is or is not acceptable to bomb,” and she did not mean it as a compliment. Even more basically, she, like Annan, asserted that NATO’s lack of Security Council authorization violated international law.
Israel’s Aharon Barak claimed the right to judge the deployment of Israeli troops in wartime. Annan and Robinson have gone one better. They claim the right of foreign nations (and, apparently, international courts) to judge the tactical behavior of United States troops in wartime.
No court of the United States would entertain a suit challenging the legality of U.S. actions with respect to Nicaragua, Grenada, Panama, or Kosovo. Various radical groups have tried to litigate American involvement in such operations, but were not successful. Our courts, under one legal rubric or another, essentially agree that there are inherently political disputes that are not fit for judicial resolution. As much could be said for all disputes about the use of force by one nation against another – but that is precisely the point about international law. The United States has not entrusted matters so gravely affecting its national interests, security, and foreign policy to American judges. Yet some will argue that the United States should entrust these issues to a court or a committee sitting on another continent, made up predominantly of jurists or members from foreign countries, and elected, often enough, by international bodies dominated on such concerns by nations hostile to the United States.
I once listened to a professor of international law defend the United States’s actions in Grenada. The argument seemed tortured and artificial, and the most important considerations were omitted. When he was done, I asked whether three factors that most Americans deemed relevant to the matter counted in international law. First, the Grenadan government consisted of a minority that had seized control by violence and maintained it by terror. Second, it was a Marxist-Leninist regime and represented a further advance in this hemisphere of a power that threatened freedom and democracy throughout the world. Third, the people of Grenada were ecstatic at being relieved of tyranny and the ever present threat of violence. The expert replied, somewhat sadly, that these considerations had no weight in international law.
A moment’s reflection makes it clear that, in the real world, they could not. In order to be international, rules about the use of force between nations must be acceptable to regimes that operate on different – often contradictory – moral premises. The rules themselves must not express a preference for freedom over tyranny or for elections over domestic violence as the means of coming to power. This moral equivalence is embodied in international charters. The charters must be neutral and the easiest neutral principle is “No force.” The fact that this principle will be ignored by those who see international law as just one more instrument of foreign policy does not affect the matter.
But even the principle of neutrality is now being altered to the disadvantage of the United States and other democracies. The UN General Assembly has begun to redefine what it means by “the unlawful use of force”: under the new system, those it regards as struggling for “freedom and independence” may legally attack their own government, and another nation may legally provide bases from which the attacks are launched – but it is illegal for the targeted state itself to attack those bases. This change operates primarily to the benefit of radical left or Muslim insurgencies supported by nations of the same outlook, and to the detriment of the United States and other democracies when they aid the nation under attack.
It might be said that we must accept moral equivalence in international law in order to have rules that are acceptable to hostile nations, in the hope that it will deter them from the use of armed force. Yet surely this argument about the power relations of nations is the same as preaching the rule of law to the Medellin cartel, in the expectation that, one day, the drug lords will be worn down by the rhetoric of idealism and submit to the law of Colombia. Even if we could hope that the aspiration of international law might eventually lessen the amount of aggression in the world, there is the present reality that it does not, and that it imposes costs disproportionately on liberal, democratic nations.
The major cost is that, by eliminating morality from its calculus, international law actually makes moral action appear immoral. It can hardly be doubted that, in the view of America and many Western democracies, it would be a moral act to help a people overthrow a dictatorship that had replaced a democratic government by force and to resto
re democracy and freedom to such people. Yet when our leaders act for such moral reasons, they are forced into contrived legal explanations. The implausibility of those explanations reverses the moral stance of the parties.
International law serves, both internationally and domestically, as a basis for a rhetoric of recrimination directed at the United States and other free nations. Those who disapprove of a government’s actions on the merits, but who fear they may prove popular, can transform the dispute from one about substance to one about legality. The government can be painted as a lawbreaker and perhaps drawn into a legalistic defense of its actions. The effect is to raise doubts and lower democratic morale. Dictatorships have no such problem.
As currently defined, then, international law about the use of force is not even a piety; it is a net loss for Western democracies. Senator Moynihan, speaking of international relations in Woodrow Wilson’s time, said, approvingly, that “the idea of law persisted, even when it did not prevail.” That is precisely the problem. Since international law does not prevail, the persistence of the idea that it exists can be pernicious. There can be no authentic rule of law among nations until they have a common political morality or are under a common sovereignty. A glance at the real world suggests we have a while to wait.
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