bar - was Perhaps the most dramatic evidence of this point Congress' action after the Court had issued its judgment on the merits. While some legislators criticized the U.S. on the basis of the ICJ's ruling, Congress provided $75 million in lethal aid for the contras. The reaction of the international consisting on the whole of lawyers devoted to the rule of law -- is also instructive. It has produced a range of commentary that is as divergent as it is impassioned.50/ decision has been hailed as "a positive model of judicial style, whose "quality of legal reasoning is admirable";51/ and it has been denounced as "a tragedy for world order."52/ The Judgment has been said both to misunderstand, and to uphold, international law. It has been characterized as both The "authoritative",53/ "extremely persuasive,54/ and "a misfortune of some magnitude" in its impact on the vitality of the law of the United Nations Charter governing force and self-defense.55/ Policy makers are particularly unlikely to defer to rules which are not only inconsistent with prior behavior, but also evoke such intense differences among persons expert in the field. The United States properly refused to participate in the merits stage of the Nicaragua case, because the President 29 We decided this nation could not allow its right to exercise self-defense to be regulated by the ICJ without its consent. This nation remains committed to the rule of law, however, and to the appropriate use of the ICJ. Our continuing support for the Court is demonstrated by our willingness to take to chambers within it a maritime boundary dispute with Canada. also continue to have over 60 treaties vesting the Court with jurisdiction over disputes; we are presently before a chamber of the Court in a commercial dispute with Italy arising under one such treaty. We welcome the idea, moreover, of attempting to work out agreed areas of jurisdiction for the Court, to which all permanent members of the Security Council would adhere. We are, in short, despite our rejection of the Court's jurisdiction in the Nicaragua case, determined to work to preserve the Court's role in the areas we believe it functions with authority and effectiveness. Meanwhile, with respect to the use of force, the United States will continue to follow a principled but flexible approach: one that requires policymakers to grapple with and be guided by the traditional limitations on the use of force, while recognizing the legitimacy of protecting, effectively, not only American territory, but American citizens, interests, and allies. Lawyers must play an active role in the decision-making process, not by attempting to force policy to particular results through the assertion of artificial rules, but by insisting on the thorough evaluation of and respect for limitations, based on accepted community practice. ENDNOTES 30 1. John Lawrence Hargrove, "The Nicaragua Judgment and the Future of the Law of Force and Self-Defense," The American Journal of International Law, vol. 81 (1987), p 137. 2. Article 2(4) of the Charter obligates all members "to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." Articles 39, 41, and 42 provide for collective action under Security Council auspices in response to unlawful uses of force. 3. Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Columbia University Press, 1979), p. 131. 4. 5. U.N. Charter, Article 51. See, e.g., Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, U.N.G.A. Res. 2625 (1970). 6. "Special Message to the Congress on Greece and Turkey: The Truman Doctrine, March 12, 1947," Public Papers of the Presidents of the United States: Harry S. Truman 1947 (Washington: U.S. Government Printing Office, 1963), p. 178 (emphasis added). 7. Department of State Bulletin, vol. 34, no.. 995 (July 21, 1958), p. 105. 8. See generally Abram Chayes, The Cuban Missile Crisis: International Crises and the Rule of Law (New York: Oxford University Press, 1974). 9. Quincy Wright, The Cuban Quarantine," The American Jounral of International Law, vol. 57 (1963), p. 546; Louis Henkin, Comment, in Chayes, The Cuban Missile Crisis, pp. 149-54. 10. Chayes, The Cuban Missile Crisis 101. 11. Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (Los Angeles: University of California Press, 1958), pp. 10-11. 12. Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order (New Haven: Yale University Press, 1961), pp. 151-53. 13. Leonard Meeker, "The Dominican Situation in the Perspective of International Law," Department of State Bulletin, vol. 53, no. 1359 (July 12, 1965), p. 60. 14. Department of State Bulletin, vol. 52, no. 1352 (May 24, 1965). p. 822. 115. Department of State, Office of the Legal Adviser, "The Legality of United States Participation in the Defense of Viet Nam," Yale Law Journal, vol. 75 (1966), p. 1085. 16. Hammarskjold Forum, "Expansion of the Viet Nam War into Cambodia - The Legal Issues, New York University Law Review, vol. 45 (1970), p. 664 (comments of A. Chayes). - 17. Eleanor C. McDowell, ed., Digest of United States Practice in International Law 1975 (Washington: U.S. Department of State, 1976), p. 780. 18. Jimmy Carter, "Rescue Attempt for American Hostages in Iran, Public Papers of the Presidents of the United States: Jimmy Carter 1980-81, vol. 1 (Washington: U.S. Government Printing Office, 1981) p. 779 (1980-81) (letter to Congress, April 26, 1980). 19. Michael Reisman, "Humanitarian Intervention, The Nation, May 24, 1980, at 612. 20. The use of force for rescue, and perhaps for other purposes is widely approved. As noted in the official comment to Section 703 of the Restatement of the Foreign Relations Law of the United States, "It is increasingly accepted that a state may take steps to rescue victims or potential victims in an action strictly limited to that purpose and not likely to involve disproportional destruction of life or property in the state where the rescue takes place." American Law Institute, Restatement of the Law: The Foreign Relations Law of the United States, vol. 2, p. 177 (Minneapolis: ALI Publishers, 1987). The U.S. and others strongly defended Israel's use of force in rescuing its citizens at Entebbe in 1976. See, e.g., William Scranton, "U.S. Gives Views in Security Council Debate on Israeli Rescue of Hijacking Victims at Entebbe Airport," Department of State Bulletin, vol. 75, no. 1936 (Aug. 2, 1976) pp. 181-84. 21. See Joseph H. Crown & John H. E. Fried, "A Legal 22. The State of the Union, Weekly Compilation of Presidential Documents, vol. 16 (Jan. 23, 1980), p. 197. 23. President Reagan said, for example, that the U.S. would prevent another Iran in Saudi Arabia, and he hailed the U.S. action in Grenada as a first step in the repeal of the Brezhnev Doctrine. Professor Reisman has pointed out that: Rhetorical idiosyncracies aside, it could have been Kennedy or Johnson: Ronald Reagan could claim no innovation here. U.S. actions in [the Caribbean and Central America] are consistent with the United States' conception of its interests and its behavior for decades. If one sought a specific declaration by a U.S. president that expressed Ronald Reagan's conception of present U.S. regional objectives and rights, it could certainly be Kennedy's manifesto of April 1961. W. Michael Reisman, "Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice, Yale Journal of International Law, vol. 13 (1988), p. 180. 24. Abram Chayes, "Grenada Was Illegally Invaded," N.Y. Times, Nov. 15, 1983. 25. See Letter from State Department Legal Adviser Davis R. Robinson to Prof. Edward Gordon, reprinted in "Contemporary Practice of the United States," The American Journal of International Law, vol. 78 (1984), p. 661. 26. Edwin M. Yoder, Jr., "The Legality of It All, Washington Post, Oct. 28, 1983. 27. Dep't State Bull., March 1986, at 36 (presidential news conference of Jan. 7, 1986). 28. George Shultz, Address before the National Defense University, Washington, Jan. 15, 1986 (U.S. Dep't of State Current Policy No. 783). 29. Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. 14 (Judgment on the Merits of June 27) (hereinafter Nicaragua v. U.S.). 30. Dean Rusk, "The Control of Force in International Relations, Department of State Bulletin, vol. 52, no. 1350 (May 10, 1965), p. 698. |