Power, Politics, Law: International Law and State Behaviour During International Crises

Power, Politics, Law: International Law and State Behaviour During International Crises

Power, Politics, Law: International Law and State Behaviour During International Crises By

Radhika Withana

LEIDEN • BOSTON 2008

Layout and camera-ready copy: Anne-Marie Krens – Oegstgeest – The Netherlands This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Withana, Radhika. Power, politics, law : international law and state behaviour during international crises / by Radhika Withana. p. cm. Includes bibliographical references and index. ISBN 978-90-04-16411-6 (hardback : alk. paper) 1. International law—Political aspects. 2. State, The. I. Title. KZ1250.W58 2008 341—dc22 2008035993

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Table of Contents Acknowledgements Chapter One The Relationship Between International Law and State Behaviour in International Crises Involving the Threat or Use of Force

VII

1

Chapter Two An Alternative Theoretical Approach for Understanding the Relationship Between International Law and State Behaviour During International Crises: International Law as Ideology

61

Chapter Three The Place of International Law in State Behaviour During the Korean War

91

Chapter Four The Place of International Law in British and American Foreign Policy Behaviour During the Suez Crisis

137

Chapter Five The Place of International Law in State Behaviour During the Cuban Missile Crisis

167

Chapter Six The Place of International Law in State Behaviour During the Dominican Republic Crisis

199

Chapter Seven Conclusions: Confirming the Empirical Efficacy of an ILI Perspective and Examining the Implications of the Case Study Findings for a Generalized Understanding of the International Law-State Behaviour Relationship During International Crises

225

Bibliography

255

Index

285

Acknowledgements

This book began as a doctoral thesis completed at the University of New South Wales (UNSW). First and foremost, therefore, I would like to thank Dr. Shirley Scott, Associate Professor in the School of Politics and International Relations at the University of New South Wales (UNSW). It was Dr. Scott’s own intellectual efforts that inspired me to explore the political dimensions of international law in my doctoral thesis. Her advice and assistance throughout the process of writing this thesis have been invaluable. I owe her an enormous debt of gratitude for her patience as she helped me to see and develop the half-thoughts and ideas in my writing into a substantive piece of work. I would also like to acknowledge and thank Dr. Ephraim Nimni, now at the Department of Politics, International Studies, and Philosophy at Queen’s University, Belfast. As co-supervisor (while at UNSW) he was always open to discuss my ideas as they developed, and provided valuable insights and feedback as I progressed with the writing of the thesis. I would like to acknowledge the financial assistance provided by the Australian Postgraduate Award Scholarship for funding my doctoral studies, as well as a travel grant from the UNSW School of Arts and Social Sciences UNSW enabling me to travel to the US and UK to undertake archival research. I must gratefully acknowledge the assistance of the following special libraries in Australia and abroad whose archival collections were invaluable to my research: the United Nations Library in Sydney; the National Archives and Records Administration (NARA) in College Park, Maryland; the Harry S Truman Presidential Library and Museum in Independence, Missouri; the John F Kennedy Presidential Library and Museum in Boston, Massachusetts; the Lyndon B Johnson Presidential Library and Museum in Austin, Texas; and the UK’s Public Records Office in Kew. My thanks also to the staff at Martinus Nijhoff Publishers, in particular, Joeri Coppejans. Finally, I would like to thank my parents for their continued support and encouragement. No amount of thanks can adequately express my appreciation and gratitude to them. This book is dedicated to the memory of Rosaline Withanaarachchi, my grandmother, who died as the doctoral thesis – on which this book is based – was being finalised.

CHAPTER ONE THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND STATE BEHAVIOUR IN INTERNATIONAL CRISES INVOLVING THE THREAT OR USE OF FORCE

When viewing a painting there are a number of positions from which to view it. Stand close to it and you can perceive the details of the brushstrokes used in creating the painting. Stand a bit further back and you loose the detail of the brushstrokes but gain a more vivid sense of the colour. Stand even further back and you can perceive the totality of the work: the way brushstroke, colour, and form combine to convey an idea through images. How the painting is viewed – whether as brushstrokes, colour, or total image – depends on the positioning or perspective one adopts. Moreover, while brushstroke and colour may indeed help illuminate how we interpret a painting, it is only through viewing the totality of the work that a superior appreciation of the painting can be achieved. Likewise, how the theoretical picture of the relationship between international law and State behaviour is perceived depends in large measure on where one stands in terms of the theoretical perspective by which to perceive the picture. Existing theoretical perspectives have helped to illuminate aspects of the relationship between international law and State behaviour, but few have been able to adequately account for the totality of the picture. While existing perspectives are useful, it is also necessary to be able to appreciate the totality of the relationship between international law and State behaviour. The aim of this chapter is to chart where others have stood in relation to the international law-State behaviour picture.

The Relationship Between International Law and State Behaviour in International Crises Involving the Threat and/or the Use of Force: More Than Compliance or Justification? Peruse the official pronouncements of governments as represented by the statements of their foreign ministers, formal statements in multinational forums, press releases,

2

Chapter One

even government websites, and you will see extensive reference to international law. Governments invest much time, energy and political capital to present international legal arguments in support of their foreign policy behaviour in a wide range of areas of international relations, such as trade, the environment, human rights, the use of military force by one country against another country, and so on. The area of State behaviour capturing the biggest headlines and the most attention among specialists and novices alike, is that of the use of force. States that use force (or aim to do so) undertake intense public diplomacy. Part of the process of public diplomacy involves reference to legal argument in support of a State’s preferred action and in condemnation of one’s rival’s action. Both the initiator and subject of threats and/or use of force engage in intense diplomacy to demonstrate how their positions are consistent with international law. Such behaviour seems at odds with the popular picture of international law as a ‘toothless tiger’, of little significance to the conduct of international politics. Where important considerations of national interest are concerned, as in times of war, law is absent. From this perspective, international law can at best only serve as a justification for State behaviour; an ‘apology’ for State behaviour taken on other, political, grounds. Such a picture can be contrasted with another popular, yet contradictory, picture that suggests that law, if complied with, can be a vehicle for world peace and cooperation. This ‘utopian’ picture of the influence of international law on State behaviour assumes that faithfulness to the rules of international law could be a basis for peaceful relations among States.1 The popular picture of international law as a ‘toothless tiger’ is premised on an assumption that national self-interest takes precedence over the rules of international law. International crises involving the use of force would appear to be the most obvious example of national interests taking precedence over considerations of international law in the determination of State behaviour. Military action to protect the security (and possibly the very survival) of the State takes precedence over what the rules of international law may or may not allow. It would therefore be expected that the influence of international law on State behaviour – the process of foreign policy decision-making and public rhetoric – would reside in its capacity to legitimate behaviour determined on the basis of geopolitical and military considerations as opposed to any intrinsic capacity international law may itself possess. According to such an understanding of the influence of international law on State behaviour, references by US representatives to a Security Council resolution recommending the use of military force to support the defense of South Korea against North Korea during the 1950 Korean War was a justification, worked out once the main issues of US national interest had been addressed. Yet how can we account for instances in which States act according to international law contrary to perceived national interests? For instance, during the Korean War, the US in certain instances held back

1

The terms ‘apology’ and ‘utopia’ are borrowed from Martii Koskenniemi From Apology to Utopia: The Structure of International Legal Argument (Finnish Lawyers’ Publishing Company: Helsinki 1989).

The Relationship Between International Law and State Behaviour

3

from action that may have provided a military advantage due to the necessity to ensure their action was within the UN Charter framework.2 The notion that international law is only useful to a State as justification suggests that law is only useful where there is a coincidence between the intended behaviour of a State and the law. However, this was not the case faced by the US government during the Cuban Missile Crisis. Here the US Government was faced with constructing a policy against the deployment by Russia of medium and long range missiles to Cuba, which was not in itself illegal. Despite this, international legal considerations were central to both the formulation and execution of US policy and played an integral role in the resolution of the crisis in favour of US interests.3 A non-coincidence of law and policy was also evident during the 1956 Suez crisis. In this case Britain and France wanted to react with military force in response to the decision of Egypt’s President Nasser to nationalise the Suez Canal Company. Recognising that nationalisation itself was not justification enough to use force against Egypt, Britain and France sought to engineer a situation which could allow them to use force according to the accepted parameters of the law, as they interpreted it.4 If it were true that international law is largely irrelevant and of little importance to State foreign policy behaviour, it would seem futile for relatively weaker States to even bother with international law. Yet in the 1965 US intervention in the Dominican Republic, international law was politically relevant for both the powerful and powerless. Latin American States in the Organisation of American States (OAS) were in the invidious position of having to vote to sanction US intervention in the Dominican Republic which the Americans had justified, in part, on the basis of upholding the principles of non-intervention in the Western Hemisphere. Members of the OAS were severely compromised in their ability to act: the US had presented the OAS with a fait accompli in regards to US intervention in the Dominican Republic, most OAS States were dependent on the US for economic assistance, and all OAS States were militarily weaker than their giant neighbour. Yet despite these power differences the OAS was able to use international law to circumscribe the basis on which the US sought authority to intervene in the region. The OAS authorised the entry of US forces into the Dominican Republic as a peacekeeping measure, instead of on the basis of protecting the region from non-intervention as the Americans had initially argued. Had the US argument been approved, it would have granted the US a right to intervene free from impunity. The weak protected itself against the strong via international law.5 This suggests that international law is important to State foreign policy behaviour and can be powerful in its own right. There would appear to be a number of dimensions of the influence of international law on State behaviour during international crises which are at odds with the popular

2 3 4 5

See See See See

Chapter Chapter Chapter Chapter

Three, pp. 102-104 and pp. 112-113. Five, pp. 169-182. Four, pp. 139-151. Six, pp. 200-11.

4

Chapter One

image of international law. That governments which threaten or use force appear to take care to present their own position as ‘legal’ and/or the position of the State with which it is in dispute as ‘illegal’; that States act contrary to national interests in the name of international law; that law is an important factor in determining State behaviour during international crises involving the use or threat of force even in cases where there is no convergence of legal and political interests; and that less powerful States consider it an important element in their power political disputes with more powerful States, suggests that the influence of international law on State behaviour involving the possibility of force is more significant than mere justification. It also suggests that legal argument is important in ways other than simply determining the legality or illegality of State action in order that a State may comply with its legal obligations, important as this may be. There would appear to be a lacuna in understanding precisely the role of international law in State behaviour during international crises. This book seeks to explore the relationship between international law and State behaviour during international crises involving the threat and/or the use of force. In particular, the question this book seeks to address is: where does international law fit into the making and implementation of foreign policy where a State is considering and/or may actually use force? Might diplomacy that makes references to international law and military action actually be parallel dimensions of the same event? This line of inquiry entails a significant shift in focus beyond considerations of whether a certain action is ‘legal’ per se, and on to the political significance of legal argument to State behaviour. Just what is the political importance of legal argument in scenarios involving questions of the threat or actual use of force? Do international legal considerations influence decision-making as to how a State behaves when faced with questions involving important national interests during international crises? How is the influence of international law during internal decision-making and/or public diplomacy manifested during use of force scenarios? Do international legal considerations also have a role in the public diplomacy employed by States during use of force episodes, and if so how is it manifested? Is it the same for all States? The first step in the process of answering these questions is to examine how existing empirical and theoretical literature has attempted to deal with them. Before moving onto the substantive analysis to be undertaken in this chapter, let us first be clear as to what precisely is meant by the term ‘State behaviour’6 which will be referred to throughout this book. There are a number of ways in which a State may act in world politics. A State may, for example, enter into alliances, pursue a course of negotiation, engage in policies that deter certain actions on the part of States regarded as adversaries, cooperate on issues of mutual concern with other States or

6

The Standard English spelling of ‘behaviour’ is used throughout this book. However, when quoting directly or citing the title of works by authors referring to ‘behaviour’, I follow the spelling adopted by the author, some of whom adopt the alternative American spelling of the word.

The Relationship Between International Law and State Behaviour

5

compete with other States through military and/or diplomatic channels. While the term ‘State behaviour’ has been used to refer to the way a State’s domestic behaviour has been modified by treaty obligations7 or the goals of international institutions,8 when referring to State behaviour in world politics it is often understood to be synonymous with ‘foreign policy behaviour’ and the two terms have been used interchangeably.9 Authors have, for example, used the term ‘State behaviour’ to refer to the particular foreign policy behaviour involved in the formation of international military alliances,10 to refer to the propensity of States to pursue foreign policies that result in cooperation,11 to refer to the foreign policy choices of a particular State12 and to the influences of a State’s constitutional arrangements on foreign policy choices.13 Examining State foreign policy behaviour in world politics entails examining both foreign policy formulation and implementation, which Frankel referred to as ‘decision’ and ‘action’ respectively.14 Henkin, in examining ‘how nations behave’ sought to examine the foreign policies of States and how States behave towards each other.15 As Bull explains: The formulation of [foreign] policy includes the gathering and assessment of information about the international environment and the weighing of alternative lines of policy.

7

8 9

10 11 12 13

14 15

Beth A Simmons “International Law and State Behavior: Commitment and Compliance in International Monetary Affairs” American Political Science Review, Vol. 94(4), December 2000, pp. 819-835; Oona Hathaway “Do Human Rights Treaties Make a Difference?” Yale Law Journal, Vol. 111(8), 2002, pp. 1935-2042. Liliana Botcheva and Lisa L Martin “Institutional Effects on State Behavior: Convergence and Divergence” International Studies Quarterly, Vol. 45(1), March 2001, pp. 1-26. Laura Neack, Jeanne A K Hey and Patrick J Haney “Generational Change in Foreign Policy Analysis” in Laura Neack, Jeanne A K Hey and Patrick J Haney (Eds) Foreign Policy Analysis: Continuity and Change in its Second Generation (Prentice Hall: Engelwood Cliffs NJ 1995) at 8; Matthew J Lebo and Will H Moore “Dynamic Foreign Policy Behavior” Journal of Conflict Resolution, Vol. 47(1), 2003, pp. 13-32. Daniel Y Chiu “International Alliances in the Power Cycle Theory of State Behavior” International Political Science Review, Vol. 24(1), January 2003, pp. 123-136. Yuwa Wong “Impotence and Intransigence: State Behavior in the Throes of Deepening Global Crisis” Politics and the Life Sciences, Vol. 13(1), 1994, pp. 3-14. John S Duffield “Political Culture and State Behavior: Why Germany Confounds Neorealism” International Organization, Vol. 53(4), Autumn 1999, pp. 765-803. Ersun N Kurtulus “Sovereign Rights in International Relations: A Futile Search for Regulated or Regular State Behaviour” Review of International Studies, Vol. 28, 2002, pp. 759-777. Joseph Frankel Contemporary International Theory and the Behaviour of States (Oxford University Press: London 1973) at 83. Louis Henkin How Nations Behave: Law and Foreign Policy (Columbia University Press: New York 1979) at 3. For Henkin the terms ‘nation’ and ‘State’ are interchangeable. He used the term ‘nation’ to avoid confusion between States in international society and the United States of America (at 1).

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Chapter One

Execution comprises the communication to other governments and peoples of the line of foreign policy that has been decided, attempts to explain and justify this policy to them and, where appropriate, to secure their cooperation or neutralize their opposition in carrying it out – by reason and persuasion if possible, but sometimes by threats of force or other kinds of coercion.16

One of the best ways to ‘see’ foreign policy formulation is to look at the process of foreign policy decision-making.17 However, foreign policy decision-making alone does not allow us to examine the way States interact with one another. It is for this reason that the way in which foreign policy decisions are implemented and justified through public rhetoric that seeks to secure cooperation or to neutralize opposition towards a State’s preferred foreign policy position is also important when investigating ‘State behaviour’. The approach to State behaviour in this book adopts an understanding of State behaviour in terms of the process of foreign policy decision-making and implementation as expressed through public rhetoric.18 Of the numerous ways in which State behaviour could be defined, this definition is considered the most suitable in seeking to understand the relationship between international law and the ways States behave in world politics. If State representatives do make reference to international law in the process of interacting with one another, it is likely that such references to international law are not random and that they have their genesis in the ‘behind the scenes’ process of deciding exactly how to act and exactly what to say in support of that action. The “post-decisional”19 stage of foreign policy implementation is also important. As Frankel has noted, in “…international politics explanations [of foreign policy] play a particularly important part because much of the behaviour is verbal in form…”.20 Even in cases where threats or the actual use of force is being imple-

16

17

18

19 20

Hedley Bull The Anarchical Society: A Study of Order in World Politics (Macmillan: London 1995) at 158. One of best illustrations of this approach is the prize-winning study of US foreign policy by Henry Kissinger. See Henry Kissinger Diplomacy (Touchstone: New York 1994). Chris Brown Understanding International Relations (Macmillan: London 1992) at 74. The decision-making approach to the analysis of foreign policy was pioneered by Snyder, Bruck and Sapin. See Richard C Snyder, H W Bruck and Burton Sapin Foreign Policy Decision Making: An Approach to the Study of International Politics (Free Press: New York 1962). This follows the definition of State behaviour followed by Shirley Scott. See Shirley V Scott “Building Bridges with Political Science?: A Response from the Other Shore” Australian Year Book of International Law, Vol. 16, 1995, pp. 271-284, at 277-278. Joseph Frankel The Making of Foreign Policy: An Analysis of Decision Making (Oxford University Press: London 1963) at 211. Ibid., at 216. Similarly, Dixon has referred to foreign policy behaviour, in part, as “communicative activity”. William J Dixon “A Lag Sequence Application to the Analysis of Foreign Policy Behavior” in Charles F Hermann, Charles W Kegley Jr and James Rosenau (Eds) New Directions in the Study of Foreign Policy (Unwin Hyman: Boston 1987) at 78.

The Relationship Between International Law and State Behaviour

7

mented, the process by which the decision is ‘sold’ to other States would also appear to be of relevance in examining the influence of international law in world politics. How is the foreign policy decision justified and how does the language used, including references to international law, serve to persuade other States to support, acquiesce or not oppose, the policy being implemented? Thus, in understanding the relationship of international law to State behaviour, it would appear most relevant to investigate the influence of international law on those aspects of State behaviour defined in terms of the foreign policy decision-making process and implementation (in part) through public rhetoric. It is through such processes that State policy-makers decide on a particular course of action and that State representatives in their diplomacy implement decisions with counterparts in other States.21 Let us now begin the process of exploring the relationship between international law and State behaviour during international crises by first examining what current answers there are in existing literature to the question of where international law fits into the determination and implementation of foreign policy where the threat or use of force is a possibility. This chapter will proceed as follows. Part One will look at how existing empirical literature has dealt with the relationship between international law and State behaviour during international crises involving the threat or use of force. This section will also identify and critically explore the core ideas of the theoretical approaches underpinning empirical literature. Part Two will explore new theoretical perspectives on international law and international relations which have not given rise to any major bodies of empirical literature on the relationship between international law and State behaviour during international crises. This section will critically examine the core ideas of international law and/or international relations central to these newer theoretical approaches and the implications of these newer approaches for understanding the relationship between international law and State behaviour in general, and in relation to international crises involving the threat or use force in particular.

21

A common criticism is that to speak of State ‘behaviour’ is to anthropomorphise the State. Henkin, above note 15, at 10. It is suggested that such anthropomorphising obscures the reality that it is individuals that are invested with the authority to make decisions and act as representatives of the State. For this point see Joseph Frankel International Relations in a Changing World (Oxford University Press: Oxford 1991) at 81. It should now be apparent that such a criticism, while valid in certain circumstances, is not relevant to the present usage of the term which explicitly takes into account the individuals involved in the determination and implementation of State behaviour. As will become apparent in the analysis of the case study chapters to follow, the definition of State behaviour used in this book does not obscure the work of policy-makers and State representatives. The usage of the term State behaviour here is merely a ‘short-hand’ to refer to the complex processes of policy development and implementation undertaken by those vested with the authority to make decisions and act as State representatives. The idea of the term ‘State behaviour’ as a short-hand to more complex processes is borrowed from Henkin, above note 15, at 5.

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Chapter One

PART ONE: THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND STATE BEHAVIOUR DURING INTERNATIONAL CRISES INVOLVING THE THREAT AND/OR THE USE OF FORCE – EXISTING EMPIRICAL LITERATURE AND ITS THEORETICAL UNDERPINNINGS

The vast bulk of the literature on international law, use of force and foreign policy/ State behaviour can be categorized into three groups in terms of answers that each provides to the question of the influence of international law on State behaviour during international crises involving the use or threat of force. The first group, which I term the ‘only law’ approach, examines State behaviour involving the use of force in terms of whether such behaviour is legal or illegal. A second group of literature, which I term the ‘no law’ approach, focuses on the political dimensions of State behaviour. It is assumed that the relationship between international law and State behaviour during international crises involving threats or use of force is either irrelevant or minimally relevant to the extent that law can only be used to justify state behaviour. The third group that I term the ‘functions of law’ approach defines the relationship in terms of the political functions international law can play in foreign policy where the use or threat of force is an issue. Part One will set out and critically examine these three different groups of empirical literature in terms of how they answer the central question on the nature of the relationship between international law and State behaviour where the use of force is threatened and/or used.

‘Only Law’: Literature Examining the Legality and Illegality of State Behaviour During International Crises Involving Threats or the Use of Force The first body of literature to be examined focuses on assessing when the use of force is or is not legal. It does so on the basis of the international law on the use of force. At the heart of discussion on the modern use of force law is the UN Charter, which represented an attempt to control the ‘use of force’ by States. This departed from the narrower prohibition on ‘war’ found in the Covenant of the League of Nations

The Relationship Between International Law and State Behaviour

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and the General Treaty for the Renunciation of War.22 Central to the Charter regime is Article 2(4) that states: All Members shall refrain in their international relations from the threats or use of force against the territorial integrity or political independence of any State, or in any other means inconsistent with the Purposes of the United Nations.23

Two exceptions to this general prohibition on the use of force can be found in the UN Charter. Firstly, there is the right of individual and collective self defence under Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if any armed attack occurs against a Member of the United Nations, until the Security Council has taken the 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.24

22

23

24

See Article 10 of the Covenant of the League of Nations, regulating the use of ‘external aggression’ by members against other members of the League of Nations. For the text of the Covenant of the League of Nations, see Malcolm D Evans (Ed) Blackstone’s International Law Documents (4th Edition) (Blackstone Press Limited: London 1999) at 3. See Article 1 of the General Treaty for the Renunciation of War which outlines the prohibition of war as an instrument of national policy. This treaty is variously known as the Pact of Paris and the Kellogg-Briand Pact. For the text see 94 League of Nations Treaty Series 57. For the text of the UN Charter see Evans, Ibid., at 9. The prohibition on the use of force has been further elaborated on and restated in a number of international instruments through UN General Assembly declarations including: Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (UNGA Res. 2625); Definition of Aggression 1964 (UNGA Res. 3314); Declaration on Enhancing the Effectiveness of the Principle of Refraining from the Use of Force 1987 (UNGA Res. 22). There have also been a number of important Security Council resolutions, which have added to the doctrinal debates on the limits of prohibition on the use of force. See David J Harris Cases and Materials on International Law (Sweet and Maxwell: London 1998) at 940-84. In relation to debates on the law making capacity of UN organs and the quasi-legislative role of UN Security Council and General Assembly resolutions see also Rosalyn Higgins The Development of International Law Through the Political Organs of the United Nations (Oxford University Press: Oxford 1963); Richard A Falk “On the Quasi-Legislative Competence of the General Assembly” American Journal of International Law, Vol. 60, 1966, pp. 782-791. Evans Ibid., at 16.

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The second exception to the prohibition on the use of force in Article 2(4) is when authorized by the Security Council, as set out in Chapter Seven of the UN Charter. In particular, where the Council has determined there to be a situation that is a threat to peace, breach of the peace or an act of aggression, it may recommend the use of force to ‘maintain or restore international peace and security’. Of particular relevance to the use of force authorised by the Security Council is Article 42 which states: Should the Security Council consider that measures provided for in Article 41 [measures not involving the use of force] would be inadequate or have proved to be inadequate, it may take such action by air, sea , or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.25

In addition to treaty law, reference is also frequently made to customary international law where the use of force is employed for reasons of self-defence. In particular the principles of necessity and proportionality, best elucidated in the Caroline case has subsequently formed an important part of the international customary law regulating the use of force.26 The case arose out of the Canadian Rebellion of 1837 involving British forces seizing and destroying an American ship called the Caroline, off the Canadian coast. Two US nationals were killed in the process and as a result a British national was arrested on charges of murder and arson. The legality of British action was discussed in several letters between Daniel Webster, then US Secretary of State, and Lord Ashburton, chief negotiator for Britain on this issue, seeking release of the British national held in custody. Their communication has come to establish the standards of necessity and proportionality (the Caroline standard) which set out the customary international law at the time, and which have endured into the UN Charter era and remain two important tests against which the appropriateness of force is judged. The classic definition of necessity stated by Webster stipulated that it must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”27 On proportionality he wrote that it should involve “nothing unreasonable or excessive; since the act, justified by the necessity of self defence, must be limited by that necessity and kept clearly within it.”28 In the Nicaragua (Merits) case the judgement confirmed that action taken in self defence remains subject to the customary international law requirements of necessity and proportionality established by

25 26 27 28

Ibid., at 15. For the text of the Caroline Case, see Harris, above note 23, at 894. Ibid., at 895. Ibid.

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the Caroline case.29 In the 1997 Advisory Opinion in the Nuclear Weapons case it was found that Article 51 imposes the same restrictions as a matter of treaty law.30 Debate as to the legality or illegality of any particular use of force since the inception of the UN Charter regime largely turn on the above mentioned aspects of treaty and customary law on the use of force. Legal interpretation of treaty and customary law proceed on the basis of the ‘ordinary meaning’, or where defined, the technical meaning of terms in a treaty (in this case the UN Charter); reference to the historical context in which the treaty was negotiated by parties to the treaty as evidenced by its travaux préparatoires; the practice of States since the entry into force of the treaty; the legal opinion of States recognising the emergence of new custom in international law; and the purposes for which the treaty was created.31 These criteria, in effect, define the nature of arguments as those which proceed via legal reasoning and serve to differentiate arguments of ‘law’ from those that proceed from a non-legal logic and are arguments of a non-law character.32

Debates on the Scope of the Prohibition on the Use of Force Some of the major legal debates on the prohibition on the use of force include the extent of the prohibition on the use of force under Article 2(4) of the UN Charter; the meaning of ‘force’ and whether it includes not just armed military force, but also political, economic and indirect aggression; the meaning and limits of what constitute threats of force; and the meaning and scope of ‘territorial integrity and political

29 30 31 32

Ibid., at 896 Ibid. For the text of the Nicaragua (Merits) case and the advisory opinion on the Nuclear Weapons case, see Ibid, pp. 866-895 and pp. 924-939, respectively. Peter Malanczuk Akehurst’s Modern Introduction to International Law (7th Edition) (Routledge: London 1997) at 365-369. For a comprehensive analysis of the doctrinal debates regarding the international law on the use of force see, among others, the following selection of well known and widely consulted works: Derek W Bowett Self Defence and International Law (Manchester University Press: Manchester 1958); Bruno Simma (Ed) The Charter of the United Nations: A Commentary (Oxford University Press: Oxford 1994); Antonio Cassese (Ed) The Current Legal Regulation of the Use of Force (Martinus Nijhoff Publishers: Dordrecht 1986); Higgins, above note 23; Ian Brownlie International Law and the Use of Force by States (Clarendon Press: Oxford 1963); Anthony Clark Arend and Robert J Beck International Law and the Use of Force: Beyond the UN Charter Paradigm (Routledge: London/New York 1993); Thomas Ehrlich and Mary Ellen O’Connell International Law and the Use of Force (Little, Brown: Boston 1993); Harris, above note 23, at 859-984; Christine Gray International Law and the Use of Force (Oxford University Press: Oxford 2000); Yoram Dinstein War, Aggression and Self Defence (Cambridge University Press: Cambridge 2001).

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independence’ which, if threatened, may constitute an illegal use of force.33 There has also been debate about whether Article 2(4) allows a right of intervention for the purposes of facilitating the processes of democratization and self-determination.34 Argument on the scope of the prohibition on the use of force also includes discussion on the extent of the prohibition on intervention in the internal affairs of another State, in particular, third party intervention in an ongoing civil war. Rules pertaining to the forcible intervention in civil wars have mainly been developed through a series of General Assembly resolutions that have elaborated on how Article 2(4) and provisions of non intervention in regional instruments, such as the Charter of the OAS, are to be understood in the context of intervention in civil conflicts.35 In the Nicaragua case – one of the key cases relating to the intervention of a foreign state in a civil war36 – the majority opinion found that that US funding of Nicaraguan contras amounted not so much to an unlawful use of force, but to an illegal intervention. Although intervention in civil wars may be more or less illegal, States tend to use other arguments where they would otherwise appear to be intervening in a civil war, including: request from the government of the State being intervened; protection of sphere of influence from communist intervention (during the Cold War); protection of the lives of nationals and/or rights to intervention in mutual defence pacts.37 Literature evaluating the legality or illegality of intervention based on these reasons base their evaluation on elements of law and/or fact. For example, whether, as a matter of fact, the government requesting military assistance from a third State is in fact the legitimate authority and/or whether a request was made at all.38 Or whether, in terms of law, military assistance given to insurgents that represent one side of a civil conflict constitutes an ‘illegal’ intervention.39

33

34 35

36 37 38 39

Brownlie, Ibid., at 363-365; Harris, Ibid., at 862-865; Albrecht Randelzhofer “Article 2(4)” in Simma (Ed), Ibid., at 111-118; Bert V A Roling “The Ban on the Use of Force and the UN Charter” in Cassese (Ed), Ibid., at 4; Romana Sadurska “Threats of Force” American Journal of International Law, Vol. 82, 1988, pp. 239-268. Gray, above note 32, at 42-50. Relevant General Assembly resolutions include: Res. 375 on the Rights and Duties of States (1949); Res. 2131 On the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (1965); and Res. 2625 On Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations (1970). The Nicaragua case endorsed the General Assembly resolutions on intervention, especially Resolutions 2131 and 2625 as stating the customary international law relating to intervention in civil conflicts. See Harris, above note 23, at 889. Gray, above note 32, at 54. Harris, above note 23, at 890; Gray, Ibid., at 57-58. Ibid., at 891. Ibid.

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Debates on the Scope of the Self Defence Exceptions to the General Prohibition on the Use of Force The second broad area of debate in the ‘only law’ approach to State behaviour involving the use of force by States is that relating to the scope of exceptions to the prohibition on the use of force. According to Article 51, force may be used against an armed attack in self defence both individually or collectively.40 There has been considerable debate in the literature regarding the meaning of ‘armed attack’, which may, depending on how it is constructed, either narrow or broaden the scope of the self defence exception to the prohibition on the use of force. It can be taken to mean only the movement of regular armed forces into the territory of another Sovereign State.41 In addition to this, armed attack is said to arise as a result of the particular characteristics of some weapons, such as nuclear weapons or radar guided missiles.42 With regards to individual self defence, one of the major legal debates surrounds the question of whether Article 51 has extinguished the pre-1945 customary international law rights to use force or not. Kelsen is of the view that Article 51 extinguishes customary international law rights to self-defence.43 Brownlie argues that if customary international law were to coexist with Article 51, the limits of Article 51 would be meaningless, allowing in effect, an unrestrained right to intervene. He also argues that State practice at the time the Charter entered into force had already narrowed the customary international law right to self-defence.44 Bowett on the other hand argues that the UN Charter has not extinguished pre-existing customary international law as evidenced by the term ‘inherent’ in Article 51.45 According to Harris, it is generally accepted that the majority opinion of the Nicaragua (Merits) case confirms the customary international law standards for self defence established by

40

41 42 43 44 45

Article 51 therefore is not an independent rule but only an exception to Article 2(4). See Jean Combacau “The Exception of Self Defence in UN Practice” in Cassese, above note 32, at 9-38. Brownlie, above note 32, 365-368. Gray, above note 32, at 96-105. Kelsen, cited in Harris, above note 23, at 896. Brownlie, above note 32, at 280. Bowett, above note 32, at 187.

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the Caroline case: necessity and proportionality.46 However, he notes that State practice “does not support a totally unreconstructed pre-1945 right of self defence.”47 This debate regarding the nexus between Article 51 and customary international law standards regarding the use of force in self defence is also reflected in debates surrounding the legality of the use of force to protect the lives of nationals, humanitarian intervention, and anticipatory self defence. Several authors, for instance, are of the view that the protection of nationals abroad fits within the scope of Article 51, as the travaux préparatoires indicates that the intention of the UN Charter regime was to preserve a pre-existing customary right to self-defence, such as the protection of nationals abroad.48 Zedalis goes even further, to suggest that, in some circumstances, the use of force for the protection of nationals abroad can be judged legitimate within the context of wider ethical values such as the protection of lives.49 Yet for others, despite the possible threat to the lives of nationals that might be posed by the internal conditions of a certain State, such a threat does not fit the self-defence exception because it does not constitute an armed attack nor a threat to international peace and security. Without the consent of the intervening State it constitutes an unwarranted interference in the internal affairs of the State concerned.50 As Gray argues, where the use of force is justified on the basis of protecting the lives of nationals, but which may not be necessary or proportionate, the action is likely to be seen as a pretext for an intervention that has little to do with protecting the lives of nationals and that would otherwise have no legal basis.51 Arend and Beck take the view that despite the varying attitudes towards the legality of intervention in a second State to protect the lives of nationals, the State practice of ‘specially affected’ States – those with the cause and capacity to use force in such circumstances – must be taken into account. When the State practice of such ‘specially affected’ States

46

47 48

49 50 51

Harris, above note 23, at 896. In the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court reaffirmed the finding in the Nicaragua case that the UN Charter reflects customary international law on the use of force, and drew upon this finding to suggest that territory acquired as a result of threats or actual use of force is illegal. In the opinion of the court “…the principles as to the use of force incorporated in the Charter reflect customary international law;…the same is true of its corollary entailing the illegality of territory acquired through the threat or use of force.” ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, at 36 (PDF document) http:// www.icj-icj.org/icjwww/idocket/imwp/imwpframe.htm, accessed 01/08/04. Ibid., at 897. Derek Bowett “The Use of Force for the Protection of Nationals Abroad” in Cassese, above note 32, at 40; Humphrey Waldock “The Regulation of the Use of Force by Individual States in International Law” Recueil des Cours, Vol. 81(2), 1952, pp. 455-515, at 466-467; Arnold D McNair Law of Treaties (Clarendon Press: Oxford 1961) at 206-211. Rex J Zedalis “Protection of Nations Abroad: Is Consent the Basis of Legal Obligation?” Texas International Law Journal, Vol. 25, 1990, pp. 209-270, at 216. Malanczuk, above note 31, at 315; Radelzhofer, above note 33, at 125. Gray, above note 32, at 111.

The Relationship Between International Law and State Behaviour

15

are accounted for, they argue that there is no restricting or controlling norm prohibiting the use of force to protect the lives of nationals abroad.52 Humanitarian intervention is defined as the use of force for the purposes of protecting fundamental human rights, especially the lives of people whether citizen or other foreign national residing in the territory of the target State.53 Humanitarian intervention is usually not the result of an invitation by the State subject to the use of force.54 Outside of cases where such a use of force has received the authorisation of the Security Council pursuant to Article 39 of the UN Charter,55 there is considerable debate regarding the legality of humanitarian intervention. Those who argue in favour of forcible humanitarian intervention give certain pre-conditions for its use. The use of force should be to prevent a pressing and imminent threat to human life or mass systematic extermination; it must not be intended to compromise the territorial integrity or political independence of the State itself.56 Those who oppose such a right of humanitarian intervention suggest that even when it is possible to establish a humanitarian intent for the action, it is nonetheless beyond the boundaries of permissible action. It is argued that the action oversteps Article 2(4), is not contingent

52 53 54 55

56

Arend and Beck, above note 32, at 110. Wil D. Verwey “Humanitarian Intervention” in Cassese (Ed), above note 32, at 59. Ibid. Security Council authorisation under Article 39 of the UN Charter for the use of force where the humanitarian situation in a particular State is believed to constitute a threat to international peace and security is a relatively recent innovation in doctrine and State practice. The evolution began in 1991 when the Security Council, without specific reference to any of the provisions in Chapter Seven of the UN Charter, determined that the consequences of the repression of the Kurdish population in Northern Iraq were a ‘threat to peace’. It was the case of Somalia in 1992 that humanitarian intervention was, for the first time in UN practice, based on Chapter Seven of the UN Charter, with Security Council Resolution 794 finding that the “magnitude of the human tragedy…constitutes a threat to international peace and security.” See Security Council Resolution 794, passed December 3 1992. In a (belated) response to the ethnic cleansing unfolding in Rwanda in 1992, Security Council resolution 929 authorised France and other willing member States to use “all necessary means” to protect the civilian populations under threat from the program of ethnic cleansing being carried out in Rwanda. See Security Council Resolution 929, passed June 22 1994. According to Simma, while there has been acceptance by States that the Security Council may authorise the use of force for humanitarian purposes, not all violations of human rights will give rise to Security Council action under Chapter Seven of the UN Charter. Security Council authorisation under Chapter Seven for humanitarian purposes is strictly limited to the use of force where the humanitarian situation in a particular State is linked to an armed conflict or other form of destabilization that threatens international peace and security. Simma, cited in David J Harris Cases and Materials on International Law (Sweet and Maxwell: London 2004) at 974. Ibid; John-Pierre Fonteyne “The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the UN Charter” California Western International

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on the effective operation of collective measures to protect human rights; and that neither State practice nor customary international law supports such a right.57 Likewise, opinion on the legality of anticipatory self-defense is divided. The terms anticipatory self defence and pre-emptive self defence are interchangeably used by authors within this body of literature to refer to instances where the use of force is employed in advance of there being an armed attack. There are those who argue that in certain circumstances it is legal to use pre-emptive force in anticipation of an event that has yet to occur. Such authors argue that Article 51 preserves pre-existing rights to self defence found in customary international law, in particular the Caroline case standard that self defence may be necessary and proportionate where it is instant, overwhelming and leaving no choice of means and no moment for deliberation.58 Others have argued that reference to customary international law does not result in broadening the narrow right of self defence as it would be contrary to the terms of Article 51 which only allows the use of force self defence ‘if an armed attack occurs’ and contrary to the objective of the Charter which sought to minimize the unilateral use of force in international relations.59 Brownlie and Jessup have also suggested that the right of anticipatory self defence is mediated by the principle of proportionality; where such an action is taken with only circumstantial evidence for an impending attack it would be to disregard the need for a proportional response.60 Gray argues that State practice indicates the reluctance of States, in general, to claim a right to anticipatory self defence, and instead prefer to base their action on Article 51 and claim the action is a response to an armed attack, rather than to argue that a right to anticipatory self defence exists in customary international law.61 According to Arend and Beck, even if there is no established consensus in support of anticipatory self defence, the lack of consensus opposed to it suggests that there is no overarching norm prohibiting its use.62

57

58 59 60 61 62

Law Journal, Vol. 4, 1974, pp. 203-79; Timothy L H McCormack Self Defence in International Law: The Israeli Raid on the Iraqi Nuclear Reactor (The Magnes Press: Jerusalem 1996) at 152; Fernando R Teson Humanitarian Intervention: An Inquiry into Law and Morality (Transnational Publishers: New York 1997) at 151; C. Brown “A Qualified Defence of the Use of Force for ‘Humanitarian’ Reasons” International Journal of Human Rights, Vol. 4(3-4), 2000, pp. 283-288. Randelzhofer, above note 33, at 124; Arend and Beck, above note 32, at 136; Brownlie, above note 32, at 342; Harris, above note 55, at 956. “Thoughts on Kind-Hearted Gunmen” in Richard B Lillich (Ed) Humanitarian Intervention and the United Nations (University Press of Virginia: Charlottesville 1973) at 143. Bowett, above note 32, at 188-9; Waldock, above note 48, at 497-8; McCormack, above note 56, 139. Albrecht Randelzhofer “Article 51” in Simma (Ed), above note 32, at 676. Brownlie, above note 32, at 59. Gray, above note 32, at 115. Arend and Beck, above note 32, at 79.

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Since 2002, the US Government has sought to develop the legal norms in relation to pre-emptive self-defence. The post September 11 2001 National Security Strategy sets out the US strategic policy of preventive military action to meet terrorist threats posed to America.63 Going beyond the traditional Caroline standard of pre-emptive action against an ‘imminent’ threat, the 2001 US National Security Strategy has argued that pre-emptive military action is ‘necessary’ and an exercise of an ‘inherent’ right to self defence where the US faces threats from terrorists based in States unwilling or unable to prevent threats to the US from terrorists operating in their territory.64 US arguments to broaden the right of pre-emptive self defence to respond to possible terrorist threats has yet to be recognised as definitive change to the law acceptable by a wide range of States65 and has also divided opinion among legal scholars.66 There has also been discussion of whether international law supports a right to use military force against States which actively support or willingly harbour terrorist

63

64 65

66

National Security Strategy of the United States of America, September 2002, at 15. http:// www.state.gov/documents/organization/15538.pdf, accessed 15/01/03. Herein after referred to as the 2002 US National Security Strategy. The 2006 US National Security Strategy would appear to continue this policy as preventive military action is not explicitly discounted as a way in which to prevent terrorist actions directed towards the US. See National Security Strategy of the United States of America, March 2006, at12. http:// www.whitehouse.gov/nsc/nss/2006/nss2006.pdf, accessed 21/01/07. This argument is again relied upon in the 2006 US National Security Strategy, at 18. Michael Byers “Pre-emptive Self Defence: Hegemony, Equality and Strategies of Legal Change” Journal of Political Philosophy, Vol. 11(2), 2003, pp. 171-190, at 183. Byers, surveying the range of responses from States to the US National Security Strategy, found overt skepticism (France, Germany and Mexico) and, more commonly, a lack of overt support. Those writers critical of the legal arguments proposed in the US National Security Strategy include, for example: Byers, Ibid; Michael Bothe “Terrorism and the Legality of PreEmptive Force” European Journal of International Law, Vol. 14(2), 2003, pp. 227-240; Richard N Gardner “Neither Bush nor the “Jurisprudes”” American Journal of International Law, Vol. 97, 2003, pp. 585-590; Richard A Falk “What Future for the UN Charter System of War Prevention” American Journal of International Law, Vol. 97, 2003, pp. 590-598; Miriam Sapiro “Iraq: The Shifting Sands of Pre emptive Self-Defense” American Journal of International Law, Vol. 97, 2003, pp. 599-607. Those writers who support the legal validity of the US National Security Strategy include, for example: Eyal Benvetisti “The US and the Use of Force: Double Edged Hegemony and the Management of Global Emergencies” European Journal of International Law, Vol. 15(4), 2004, pp. 677-700; Abraham Sofaer “On the Necessity of Pre-Emption” European Journal of International Law, Vol. 14(2), 2003, pp. 209-226; Michael Glennon “The UN Security Council in a Unipolar World” Foreign Affairs, May/June 2003, pp. 16-35; William H Taft IV and Todd F Buchwald “Preemption, Iraq and International Law” American Journal of International Law, Vol. 97, 2003, pp. 557-563; Ruth Wedgwood “The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense” American Journal of International Law, Vol. 97, 2003, pp. 576-585.

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groups,67 which has taken on greater significance since the terrorist attacks on New York and Washington on September 11 2001. As a result of the wide support given to the US action in Afghanistan in response to September 11, Byers has argued that customary international law has now evolved such a right to use force.68 This position has been disputed by Kohen who contends that a lack of criticism for US action does not qualify as indicating a new legal consensus among States regarding action against States willingly harbouring a terrorist.69 Finally, there are arguments in this second area of debate on the scope of the exceptions to the prohibition on the use of force in relation to collective measures under Chapter Seven, and in particular, the authority under Article 39 where the Security Council determines whether there has been a ‘threat to the peace’, ‘breach of the peace’ or ‘act of aggression’. Debate in relation to this authority to use force in collective self-defence has focussed on two important questions: jurisdiction and the competence of the Security Council to address a particular matter brought before it; and the meaning and scope of such phrases as ‘threat to peace’, ‘breach of the peace’ and ‘acts of aggression’.70

67 68

69

70

Arend and Beck, above note 32, at 139-173. Michael Byers “Terrorism, the Use of Force and International Law After 11 September” International and Comparative Law Quarterly, Vol. 51(2), 2002, pp. 401-414, at 410. For a similar view see Mary Ellen O’Connell “The Myth of Pre-Emptive Self Defence” ASIL Task Force on Terrorism Papers, August 2002, pp. 1-21, at 12. This argument was used by Israel when the ICJ looked into the legal consequences of the construction of a wall by Israel in the Occupied Palestinian Territories, including reference to Security Council resolutions 1368 (2001) and 1373 (2001), the same resolutions used by the US in support of its actions against Afghanistan in response to the September 11 2001 terrorist attacks. The court found that these resolutions, along with the broader Israeli argument that it was acting consistent with the inherent right of self defence found in Article 51 of the UN Charter in building a wall in the Occupied Palestinian Territories was not relevant to the case. The court found that the situation faced by Israel is different to that contemplated by Security Council resolution 1368 and 1373, since the terrorist activity against Israel emanated from territory over which Israel exercises control, which differed from the situation between the US and Afghanistan. See ICJ Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, above note 46, at 56. In the same opinion the ICJ also found that Israel could not rely on a state of necessity to justify its construction of the wall, since the court did not think building the wall was “the only way for the State to safeguard an essential interest against a grave and imminent peril.” See ICJ Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, above note 46, at 57. Marcelo G Kohen “The Use of Force by the United States After the End of the Cold War, and its Impact on International Law” in Michael Byers and Georg Nolte (Eds) United States Hegemony and the Foundations of International Law (Cambridge University Press: Cambridge 2003) at 225; Gray, above note 32, at 119. Harris, above note 23, at 942; Randelzhofer, above note 33, at 119-121.

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International Legal Positivism and the ‘Rule-Book Image of International Law’: The Theoretical Underpinnings of Empirical Literature Examining the Legality and Illegality of the Use of Force by States Literature on the use of force which comes under what I dub the ‘only law’ approach assesses only the legal validity of State behaviour involving threats to, or the use of, force. For determining when the use of force is legal or illegal, such analyses are an important and valid enterprise. However, from the perspective of understanding the wider political relationship between international law and State behaviour, this analysis is limited. In fact, extra-legal considerations are avoided altogether. No mention is made of the wider political context in which international law is created (the result of negotiations between competing State interests) or the political context in which it is applied (in which geopolitical and military factors are also important considerations in the decision to use force). Discussions about the UN Charter, for example, make no reference to the circumstances of its evolution in the final period of WWII or that its chief architects were American leaders conscious of the new role America would assume in the post-war world. Likewise in discussions about the Caroline case no mention is made of the wider political tussle that was occurring between Britain and America at the time of the incident which gave rise to the case; in discussions about the Corfu Channel case it is not mentioned that at the time a fierce civil war in Greece was in progress and in which Britain and Albania both had a stake; in discussions about the Nicaragua case it is not mentioned that US involvement in Nicaragua was part of the wider Cold War struggle for power. The limitations of this body of literature, if we are reading it to understand the relationship between international law and State behaviour during international crises, stems from its being grounded in particular theoretical assumptions – in this case the theoretical framework of international legal positivism.71 The central focus of international legal positivism is on determining a body of ‘legal’ rules for the conduct of States, removed from the political milieu in which the rules operate. Positivism is the dominant theoretical approach adopted by legal practitioners and members of the academy who examine how State behaviour is or is not in accordance with international legal standards. Positivism does not ostensibly seek to explain the relationship between international law and State behaviour and is a theory firmly rooted in the discipline of International Law and is a theory of law not about law.72 Having said this, positivism does contain a number of implications for understanding the relationship between international law and State behaviour even

71

72

International legal positivism – and realism and functionalism to be dealt with later in this chapter – as presented in this book are ideal types, which enable an exploration of the basic tenets of each theoretical approach. This distinction was drawn by Myres S McDougal and W Michael Reisman “The Changing Structure of International Law – Unchanging Theory for Inquiry” Columbia Law Review, Vol. 65, 1965, pp. 810-835, at 813.

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if the relationship is not explicitly addressed in a positivist framework. Let us now explore some key positivist writing and explore the implications of the approach for understanding the relationship between international and State behaviour. In science, positivist philosophy “…restricts the object of scientific knowledge to matters that can be verified by observation [therefore] excluding from its domain all matters of …a metaphysical nature”.73 Positivist philosophy also influenced the legal sphere. The foremost exponent of a positivist theory of law was the 19th century theorist John Austin.74 According to Austin there are two categories of law: laws properly so called and laws improperly so called. Laws properly so called are ‘positive laws’ and are set by political superiors who are sovereign and beyond the bounds of law; such laws are a species of command which can be used to inflict ‘pain or harm’ where the law is disobeyed. 75On the other hand, international law is of the category of laws improperly so called, given that it does not derive from a single sovereign above the law and lacks the power to coercively command compliance. International law is a form of morality set and enforced by ‘mere opinion.’76 Stung by Austin’s conception of international law as ‘mere opinion’, twentieth century international legal positivism was concerned with differentiating a system of international law that was above morality and which could be law ‘properly so called’. International legal positivism sought to conceptualise international law in a way that differentiated it from morality or opinion. The positivist conceptualisation of international law includes a number of assumptions (explored below) about the nature of international law which add up to what can be called the ‘rule-book image of international law’.77 An understanding of international law in terms of a rule-book image of international law comes from outside the discipline of International Law and is a way of describing certain assumptions about international law commonly conveyed by legal argument. The image conveys an ideal vision of international law. Legal rhetoric which is underpinned by such an image therefore conveys an idealized picture regarding the operation of international law, as opposed to a less idealized reality whereby the rule-book image of international law may not be wholly true. For example, foreign policy decision-makers in State A may use force in a particular situation and its representatives present a legal argument as to why that action is legal.

73 74

75 76 77

Hans Morgenthau “Positivism, Functionalism, and International Law” American Journal of International Law Vol. 34, 1940, pp. 260-84, at 261. John Austin The Province of Jurisprudence Determined (Cambridge University Press: Cambridge 1995) at 19. This utilitarian positivist philosophy of law was also expounded by another famous theorist – Jeremy Bentham. See Jeremy Bentham Of Laws in General (The Althone Press: London 1970). Austin, Ibid., at 19. Ibid., at 19. This explanation of positivism in terms of the rule-book image of international law draws on Scott’s explanation of international legal positivism. See, for example, Shirley V Scott “Beyond ‘Compliance’: Reconceiving the International Law-Foreign Policy Dynamic” Australian Yearbook of International Law, Vol. 19, 1998, pp. 35-48, at 37.

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Yet representatives of State B may oppose the use of force by State A and argue that the action is illegal. Both representatives in State A and B will present their own appeals to international law as being the only suitable legal position under existing rules of international law. Despite the reality that it is possible to make legal arguments both for and against the use of force and that the distinction between what is legal and illegal may in fact be due to subjective political factors, each side presents its own position as the only course to be taken given the rules of international law. In doing so the legal rhetoric of each side is underpinned by a rule-book image of international law that conveys the operation of law in an idealized way – such as, that it is possible to distinguish objectively between a legal and illegal action. The main project of positivist thinkers in international law has been to determine a body of legal rules that are truly juridic in nature and not tainted by non-legal considerations such as morality or ethics. In the twentieth century non-legal considerations included the ‘political’ or ‘social’.78 This delineation of a body of rules untainted by non-legal considerations is underpinned by certain positivist assumptions about international law – such as the notion that there is a clear law-non law boundary and the notion that international law can be separated from and is superior to political and other non legal factors – that constitute the rule-book image of international law. Positivism does not deny that international law is created by the very political phenomenon of State practice, but believes that the application of law ought not to incorporate an evaluation of political context.79 According to Lassa Oppenheim, who provided a classic elucidation of positivism early in the twentieth century, the foundations of international law do not rest on a priori metaphysical extrapolation of rules but on a positive method resting on the extant and recognised rules of international law as set out by custom and treaty.80 He postulated seven tasks on which the science of international law should focus, including: “[e]xposition of the existing rules of law, historical research, criticism of the existing law, preparation of codification, distinction between the old customary and the new conventional law, fostering of arbitration, and popularization of international law.”81 The delineation of the sources of international law is underpinned by the positivist assumption that there is a clear law-non law boundary: an assumption integral to the rule-book image of international law.82 This was evident in the em-

78 79 80 81 82

In the beginning the positivist aim was to separate law (verified by observation) from natural law (matters of a metaphysical nature). Anthony Clark Arend Legal Rules and International Society (Oxford University Press: Oxford 1999) at 70. Lassa Oppenheim “The Science of International Law: Its Task and Method” American Journal of International Law, Vol. 2, 1908, pp. 313-56 at 313. Ibid, at 313-14. Of central importance to any discussion on the sources of international law in modern international law is Article 38(1) of the Statute of the International Court of Justice, which sets out the recognised sources of international law, including treaty, customary international law, general principles of law, and subsidiary means such as judicial decisions

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pirical literature on the use of force underpinned by positivism examined above.83 Reference to the sources of international law such as custom, treaty, and rules of treaty interpretation, serves to delineate a law-non law boundary which in legal terms is identifiable and objective but which in reality is largely a matter of perception. Hans Kelsen developed a “pure” theory of law which sought to articulate a science of law by examining “what and how the law is.”84 Kelsen’s theory of law is ‘pure’ in that it “…only describes the law and attempts to eliminate from the object of this description everything that is not strictly law…[it is] the methodological basis of the theory.”85 His quest to isolate law from political phenomena was made possible by the assumption that international law is separate from, and superior to, politics. According to Kelsen international law is ‘law’ in that it is a set of rules and norms regulating the behaviour of States through sanctions – such as reprisals and war – in the event of a breach of the law.86 Although decentralized and without a central legislative body, international law is nonetheless a system of general laws that is binding on all States (at least to the extent that States agree to be bound by such rules).87 International law is a set of rules which set out the obligations and responsibilities of States, setting out what ought to be done and ought not to be done.88 The most well known and influential positivist writer is H. L. A. Hart who provided a conception of international law contrary to the Austinian repudiation of international law as merely a form of morality. Hart recognised that the concept of international law is distinct from that of morality. Thus he wrote that “[w]hat predominate in the arguments, often technical, which States address to each other over disputed matters of international law, are references to precedents, treaties and juristic writings; often no mention is made of moral right or wrong, good or bad.”89 However, his conception of law also includes a normative element by distinguishing between compliance with law compelled by coercion as Austin suggested, and compliance compelled by a sense of duty or obligation. Hart’s concept of law distinguishes between ‘primary’ rules and ‘secondary’ rules. The former – to which the rules of international law belong – ‘impose duties’ by setting out what actions actors are required to do or must abstain from; the latter – which international law does

83 84 85 86 87 88 89

and the teachings of highly respected international legal scholars. See Statute of the International Court of Justice, in Evans, above note 22, at 32. See above pp. 4-13. Hans Kelsen Pure Theory of Law (University of California Press: Berkelely 1967) at 1 Ibid. Ibid., at 320. Ibid., at 323-324. Ibid., at 325. H L A Hart The Concept of Law (Clarendon Press: Oxford 1994) at 223.

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not possess – provide the mechanisms by which to clarify, change or eliminate the substantive provisions.90 Positivism is the dominant paradigm within the discipline of international law. Indeed it is the paradigm of international law. A law student undertaking a course on international law will, typically, encounter the obligatory, introductory chapter in their textbook exploring the characteristics of international law. In it they will read how, despite the differences between international and municipal law – principally the lack of an executive and law making body and a law enforcing body – international law really is ‘law’. By this it is meant that analysis proceeds on the basis of “legal forms and methods”;91 that legal reasoning involves “exchanging arguments about the facts and the law”;92 that it is “accepted in practice as legally binding by States.”93 ‘Real’ law, the students come to understand, turns on some key assumptions of the positivist idea of law that form the crux of what is here being referred to as the rule-book image of international law: that that that that

legal issues can be delineated from non legal issues; law is separate from and superior to politics; a legal position can be objectively delineated from an illegal position; it is binding on all States which submit to it.

As Orford suggests, international lawyers come to embody and internalize what they are taught in their disciplinary training.94 Given the pervasiveness of positivism in legal pedagogy it is not surprising that the rule-book image of international law at the heart of positivism is a pervasive and significant image influencing how international lawyers see themselves and the operation of international law itself. International lawyers themselves have recognised their proficiency in “providing technical, legal advice.”95 Much has been written of the international lawyer’s quest to pursue peace, justice, democracy and human rights through international law.96 Such quests

90

91 92 93 94 95 96

Ibid., at 78-79. According to Hart, municipal law differs from international law by possessing both primary and secondary types of rules, though municipal and international law are considered part of one system of law rather than being separated as two different systems of law. Brierly, cited in Harris, above note 23, at 2. Ibid., at 5. Malanczuk, above note 31, at 7. Anne Orford “Embodying Internationalism: The Making of International Lawyers” Australian Year Book of International Law, Vol. 19, 1998, pp. 1-34, at 2. Ibid., at 5. For example: Orford, Ibid., passim; David Kennedy “Spring Break” Texas Law Review, Vol. 63, 1985, pp. 1377-1424; “Autumn Weekends: An Essay on Law and Everyday Life” in Austin Sarat and Thomas R Kearns (Eds) Law in Everyday Life (University of Michigan Press: Ann Arbor 1993); Martii Koskenniemi “Between Commitment and Cynicism: Outline for a Theory of International Law as Practice” in UN Office of Legal Affairs Collection

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are “premised upon an idealism about the capacity to do good through international law”.97 The idealism found among international lawyers is derived from an assumption – reinforced throughout their training – that international law operates (or at least should operate) according to the rule-book image of international law as a set of objective, politically neutral set of rules which can deal with virtually any issue that arises between States, and also which, if always obeyed, would provide a better world. The significance and pervasiveness of the rule-book image of international law is also apparent in the context in which reference is made to international law. Those wishing to assert international law in their analysis of international events, whether lawyers, political scientists or lay pundits, frequently assert this rule-book image of international law. Open a newspaper and read an editorial urging that a certain action be undertaken only where it is ‘legal’. Turn the television on and hear about the ‘legality’ of certain actions undertaken or contemplated. Listen to the speeches of government representatives in national parliaments or in the UN General Assembly or Security Council and hear the claims and counter claims of legality and illegality. The pervasiveness of the rule-book image of international law at the heart of positivism will also be apparent when other theoretical approaches from the disciplines of International Law and International Relations are examined below. The fact that much of the writing about the political aspects of international law, from the International Relations tradition, transplant the positivist rule-book image of international law when analysing international law, is indicative of the pervasiveness of the rulebook image of international law. International legal positivism does not deny the role of power in international relations nor does it deny the idea that international law lacks power. Rather than explicitly deny either of these propositions, positivists focus instead on the normativity of law: law should be obeyed. Hart recognised an obligation or duty to comply. Given that positivism ascribes great importance to States acting legally, the principal task is to elucidate a ‘scientific’, ‘positive’ methodology which places emphasis on law alone. By virtue of this insistence on law, all non-legal considerations – such as the political influence of international law in world politics – are sidelined within the positivist conceptual framework.98

97 98

of Essays by Legal Advisers of State, Legal Advisers of International Organizations and Practitioners in the Field of International Law (United Nations: New York 1999); Hilary Charlesworth “International Law: A Discipline of Crisis” The Modern Law Review, Vol. 65, May 2002, pp. 377-392. Orford, Ibid., at 16. While I have focused on what unites positivists – namely the determination of an approach that delineates law from politics and morality – it should be noted that there are great differences as well between the theorists that I have explored. As Bix has noted, Kelsen’s pure theory of law is vastly different to Austin’s command theory and both are, in turn, different to Hart. Bix, cited in Carl Landauer “Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter” European Journal of International Law, Vol. 14(4), 2003, pp. 767-799, at 769.

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This necessity that States should obey law also has implications for understanding the contribution of international law to the foreign policy process. Positivism assumes that States should obey law and it implies that international law is a necessary and essential element of foreign policy. Decision-makers should use law in determining action. Law is not only a viable option but also a necessary element. The assumption that international law is separate from politics and can objectively distinguish between legal or illegal behaviour would seem to imply that only law would need to be relevant for the determination of State behaviour within a positivist framework.99 This is apparent in studies that examine the influence of the legal adviser on the foreign policy process. That the Office of the Legal Adviser is regularly located within the institutional structure of a State’s foreign ministry is indicative of the general enmeshment of law and politics. The institutional configuration of legal advice represents the reality of international law as a distinctly political phenomenon. Yet those who study the role of the legal adviser typically trace the influence of international law through the role played by the legal adviser on foreign policy, based on the assumption of an objective, politically neutral, universal set of rules to the application of policy.100 This may not be necessarily believed as true, yet it underpins most analysis that renders the influence of international law in terms of legal advice ‘given’ to the (political) foreign policy apparatus. Thus Bilder, in one of the earliest such studies, suggested that the role of the international lawyer involved assessing the validity of legal arguments used in US rhetoric as well as legal rhetoric used by other States against America, which assumes the possibility of objectively determining which arguments are legal and which are illegal. Legal advisers also ensured that (US) policy objectives and/or action was consistent with international law, which assumed a body of rules external to the State which dictated how a State should behave.101 Likewise Cassese’s empirical investi-

99

100

101

There are of course other international actors apart from States that have increasingly become subject to international law, such as inter-governmental organisations, and increasingly, individuals themselves especially in the area of international human rights law and international criminal law. Arthur D Watts “International Law and International Relations: United Kingdom Practice” European Journal of International Law, Vol. 2(1), 1991, pp. 157-164. See also, UN Office of Legal Affairs Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law (United Nations: New York 1999). This collection is particularly interesting in featuring the essays of legal advisers from diverse countries such as Qatar, Ghana, Zimbabwe, Pakistan, and Sri Lanka, to name just a few featured in the collection. These and others provide an insight into the role of international legal advice in the foreign ministries of countries without a strong democratic and rule of law tradition – a role apparently not significantly different to that of legal advice in the foreign ministries of liberal democratic countries. Richard B Bilder “The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs” American Journal of International Law, Vol. 56, 1962, pp. 633-684, at 642-643.

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gation found that the role of the international lawyer in the US State Department was twofold: promoting compliance with international law and the development of new law;102 two roles also true of States other than America.103 Where there is a clash between law and national interests the latter still prevails.104 Regardless of whether the rule-book image of international law derived from positivism is true or not, analyses underpinned by positivism are premised on the truth of that image. That is, positivism adopts an uncritical posture with regards to the rule-book image of international law. It is an image of international law assumed from within the discipline of International Law, rather than looking at that image from outside the discipline, and which, therefore, does not and can not account for the political nature and significance of the rule-book image of international law itself. Positivism is incapable of theoretically reconciling international law to the broader sphere of international politics. The rule-book image of international law at the heart of positivism limits the ability of this theoretical approach to understand the complexity of the international political system and to understand the political significance of international law, in particular the political nature and significance of the rule-book image of international law. It should be noted that such a conclusion is not intended to be an argument in favour of those who suggest international law is irrelevant by virtue of the complexities in international and national politics.105 Rather, such a

102

103 104

105

Antonio Cassese “The Role of the Legal Adviser in Ensuring That Foreign policy Conforms to International Legal Standards” Michigan Journal of International Law, Vol. 14, 1992, pp. 139-217, at 134-159. For similar studies on the role of the international lawyer in modern foreign ministries see Stephen M Schwebel “Remarks on the Role of the Legal Advisor of the US Department of State” European Journal of International Law, Vol. 2(1), 1991, pp. 132-135, Watts, above note 99; F D Berman “The International Lawyer: Inside and Outside Foreign Ministries” in Christopher Hill and Pamela Beshoff (Eds) Two Worlds of International Relations: Academics, Practitioners and the Trade in Ideas (Routledge: London 1994) at 79-92; Robbie Sabel “The Role of the Legal Advisor in Diplomacy” Diplomacy and Statecraft, Vol. 8(1), 1997, pp. 1-9; Ashley Deeks “Inside “L”: Some Thoughts on the Office of the Legal Adviser” Chicago Journal of International Law, Vol. 2(2), 2001, pp. 503-510. See passim, UN Office of Legal Affairs, above note 99. Cassese, above note 101, at 159-170. The joint International Law Association and American Society of International Law study also reinforced this conclusion. ILA-ILSA “The Role of the Legal Adviser of the Department of State: A Report of the Joint Committee Established by the American Society of International Law and the American Branch of the International Law Association” American Journal of International Law, Vol. 85, 1991, pp. 358-73, at 359. Boyle has disputed the realist characterisation of international law as being unconcerned with issues of power. He suggests that positivism does not deny the law-power issue. The difference between the two approaches rests on the moral imperative of positivism, which stresses that States should obey law. See Francis A Boyle World Politics and International Law (Duke University Press: Durham 1985) at 59; “The Irrelevance of International Law: The Schism Between International Law and International Politics” California Western International Law Journal, Vol. 10, 1980, pp. 193-219, at 206-208.

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conclusion about the inability of positivism to provide a political explanation of international law reflects the dominance of the rule-book image of international law at the heart of positivism, a key component of the rule-book image of international law being the assumption that law is separate from, and superior to, politics. The task for positivist analyses of the law-State behaviour relationship is to determine the way in which a State may or may not behave according to the dictates of international law; is an action legal or illegal? This implies a particular understanding of the law-State behaviour relationship in which international law is a necessary and important element which national governments should consider when deciding action; decision-makers assess the legal validity of their intended action and that which is deemed ‘legal’ is ultimately chosen. The positivist conceptualisation of international law assumes that law exists prior to policy and that the process of legal analysis should be undertaken prior to the determination of policy. Despite acknowledging that international law evolves through State practice, positivist analyses do not provide an adequate theoretical basis for examining aspects of the relationship between international law and State behaviour beyond the simple law-before-policy assumption of positivism which assumes that law should be able to determine the policy course chosen by a State. It should be noted that the rule-book image of international law is not wrong per se. There is some truth to the image. As the vast body of literature on the role of the legal adviser in the process of foreign policy making makes clear, lawyers are consulted in the process of decision-making and a clarification and/or statement of the law is produced in the process of deciding a State’s particular foreign policy position. This would seem to be consistent with the notion of legal determinacy – the notion that it is possible to objectively distinguish between legal and illegal behaviour – central to the rule-book image of international law. States do, at least sometimes, act according to the dictates of international law. For example, during the Cuban Missile Crisis the US was reluctant to invade or launch a surprise attack on Cuba in order to remove Soviet missiles which had been deployed to Cuba, in part because it was recognised that such actions would not meet the standards for the ‘legal’ use of force.106 During the Suez Crisis, the preferred US position of opposing the British intention to use force against Egypt appeared consistent with the obligation in international law on all States to pursue peaceful resolutions to conflicts. Even the British position of deferring its use of force until all peaceful solutions had been exhausted appeared to be in line with the dictates of international law.107 This would seem to be consistent with the rule-book image of international law which suggests that it is compulsory for a State to comply with international law. While there may be some truth to the rule-book image of international law, the image of international law conveyed by the rule-book image does not match reality

106 107

See Chapter Five, pp. 212-214. See Chapter Four, pp. 174-186 for both the US and UK legal positions.

Chapter One

28

absolutely. There appears to be some discrepancy between the image and reality. The rule-book image of international law suggests that it is possible to objectively distinguish between legal and illegal action. Yet in the process of policy formulation during the Korean War there was considerable debate as to legal basis of the US military intervention in Korea to assist the South Korean army against North Korean forces that had entered South Korean territory.108 The rule-book image of international law suggests that it is compulsory for a State to comply with international law, which implies that law exists prior to the formulation of policy. Yet on occasions the law that was referred to did not exist prior to the formulation of policy, as evidenced in the Korean War, the Cuban Missile Crisis (CMC) and in the 1965 Dominican Republic crisis. In these cases, the US worked to bring about new law – in the Korean War developing a new procedure by which the General Assembly could make recommendations for military action,109 in the CMC developing the new concept of ‘quarantine’110 and in the Dominican Republic crisis developing a new interpretation of the non intervention principle111 – during the process of formulating and implementing its preferred policy. The development of these new legal procedures, concepts and interpretations suggests that the rule-book notion that international law is virtually timeless in the sense of predating policy is not entirely true. As has been explained above most fundamental to a rule-book image of international law is the assumption that international law is separate from, and superior to, politics. This implies that States are faced with a clear-cut choice between power interests and international law. Yet this is not always borne out. States may look to international law to facilitate the achievement of political interests. For example, in the Korean War the US wanted the widest possible international support for its use of force against North Korea. US officials used international law – in particular the UN Charter Chapter Seven provisions regarding Security Council authorisation for collective self defence action – to get the international support it wanted for its action.112 During the Suez crisis, Britain wanted the US to support its use of force against Egypt in response to Egypt’s nationalisation of the Suez Canal. British officials looked to international law to find the widest possible legal grounds on which to convince the US to support its intended action.113 Far from international law being separate from politics, international law would appear to play a part in world politics. This suggests that international law may operate politically in ways unaccounted by the rule-book image of international law. While the rule-book image of international law may be true, in part, it tends to obscure what would appear to be a more subtle and nuanced relationship between

108 109 110 111 112 113

See See See See See See

Chapter Chapter Chapter Chapter Chapter Chapter

Three, pp. 121-124. Three, pp. 133-137. Five, pp. 214-216. Six, pp. 251-253. Three, p. 123. Four, pp. 174-175 and pp. 181-184.

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international law and State behaviour during international crises. The rule-book image of international law at the heart of positivism implies that States should comply with international law and that law predates policy. This would lead us to expect that where the particular course of action is more readily deemed ‘illegal’ a State would (should) change its behaviour so as to act according to the dictates of international law. International law would be expected to provide the solution to the challenge policymakers have in deciding how to act, a solution defined in terms of compliance with international law. Rather than there always being a law which precedes policy and with which States should comply, sometimes there may be no law with which to comply and States develop new law, or States may not be in compliance with international law yet continue to make reference to international law by pointing to the way their opponents’ policies and/or actions are ‘illegal’. The place of international law in State behaviour during international crises would seem to be more complex and dynamic than a rule-book image would lead us to expect. Understanding the place of international law in State behaviour during international crises would appear to be constrained by limitations inherent in the very conceptualisation of international law in terms of the rule-book image of international law. For positivists the value of international law stems from the operation of international law matching as closely as possible the rule-book image of international law. From a political perspective a more interesting question is not so much whether international law operates according to its image but why, despite the obvious discrepancy between the rule-book image and reality, the image persists and the significance, if any, of the continuing discrepancy between image and reality. To understand the political operation of the system of international law would appear to require stepping outside the rule-book image of international law to account for both the image and reality of international law. Recognising that the rule-book image of international law might differ from the actual operation of international law – and being able to provide an adequate explanation for the discrepancy between image and reality – is essential to appreciating the place of international law in State behaviour where force is threatened and/or used. What aspects of the law-State behaviour relationship during international crises might we anticipate a positivist understanding to overlook? A positivist perspective would lead us to expect international legal considerations to be the primary consideration in determining the preferred course of action such that the preferred course of action conforms to the dictates of international law. Thus a State which is in a strong legal position – where the preferred policy is more readily deemed ‘legal’ than the State with which it is in dispute – would be expected to act in accordance with international law unhindered by power political considerations. It would also be expected that a State in a weak legal position – where the preferred policy is more readily deemed ‘illegal’ than the State with which it is in dispute – would be expected to modify its preferred policy so as to comply with the dictates of international law. Positivism would appear to overlook the possibility that international law might not be able to provide a ready solution to the policy dilemma faced by States in contem-

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plating the threat or use of force. Even if the preferred policy is one more readily deemed ‘legal’, positivism would appear to have difficulty in explaining why policymakers might not simply be faced with acting legally or illegally but of balancing geopolitical considerations and legal argument. A positivist perspective would also appear to have difficulty in explaining why a State in a weak legal position (more readily deemed illegal) might not modify its position so as to appear consistent with international law yet continue to refer to international law. A positivist perspective would also seem to have difficulty explaining why a State in a weak legal position might modify its preferred policy but not as a result of a perceived need to comply with international law. An understanding of the relationship between international law and State behaviour underpinned by positivism focuses on examining the legality or illegality of actions undertaken by States. Those within the discipline of international law may not need to account for the nature and significance of the rule-book image of international law – after all they seek only to give expression to that image. Assuming the rule-book image of international law is not wrong per se, but tends to obscure the political significance of the rule-book image of international law itself and a more nuanced understanding of the law-State behaviour relationship that can account for both legal argument and geopolitical considerations.

The ‘No law’ Approach: Empirical Literature Examining the Political Dimensions of State Behaviour Where the Use of Force is a Possibility: Implications for Understanding the Law-State Behaviour Relationship During International Crises A second body of empirical literature on the use of force, of relevance for examining the relationship between international law and State behaviour during international crises, is what I will dub the ‘no law’ approach. This approach generally ignores law and instead focuses on ‘political’ aspects of State behaviour and the use of force. Since the end of WWII a vast array of literature has, in various ways, addressed the behaviour of States during international crises from the perspective of how threats or the use of force can be used for power political advantage in world politics. Although there has been much written on the subject of foreign policy and the use of force since the end of WWII from this geo-strategic perspective, it is remarkable how much of it has remained aloof from international law by virtue of the complete absence of legal considerations. This is so despite the significant, indeed epochal, events that took place at the end of WWII with the development of the United Nations Charter and its prohibition on the use of force in international relations, encapsulated

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in Article 2(4).114 As the literature examined here will show, most investigating the role of military force in foreign policy have not explicitly incorporated into their analysis the implications of Article 2(4) or other UN Charter provisions relating to the use of force by States. Liddell-Hart, writing on the use of force and foreign policy, defined strategy as “…the art of distributing and applying military means to fulfill the ends of policy.”115 Likewise André Beaufre saw the judicious application of force as the “…most effective contribution towards achieving the ends set by political policy…”.116 ‘Conventional strategy’ was understood entirely in terms of military defence postures.117 Studies of political and military strategy of increasing sophistication, influenced by game theory, examined the intricacies of deterrence and limited war. In the nuclear age, deterrence took on the form of nuclear deterrence as expressed in the policy of Mutually Assured Destruction (MAD).118 Nuclear deterrence relates not just to the protection of a State’s own defence119 but also to actual threats of military retaliation in defence of a third State party.120 Recognising both that deterrence was not an infallible strategy for preventing conflicts between States, and that force would need to be used in the age of nuclear weapons, studies of limited war were also developed. Unlike general war, which characterised the dynamics of the two twentieth century world wars, limited war was a strategy aimed to augment the deterrence posture by providing the means to fight a war in a way which did not automatically involve suicide.121 One of the earliest works on limited war was the massive and morally problematic volume by Herman Kahn in which he argued that a nuclear war was survivable and that the US should

114 115 116 117 118 119

120 121

Wilhelm G Grewe The Epochs of International Law (Translated and revised by Michael Byers) (Walter de Bruyter: Berlin/New York 2000) at 639-640. B H Liddell Hart Strategy (2nd Revised Edition) (Praeger: New York 1954) at 321. Andre Beaufre An Introduction to Strategy (Faber and Faber: London 1965) at 22. Richard K Betts “Conventional Strategy: New Critics, Old Choices” International Security, Vol. 7(4), Spring 1983, pp. 140-162. Philip Green Deadly Logic: The Theory of Nuclear Deterrence (Ohio State University Press: Ohio 1966). Bernard Brodie “Strategy as a Science” World Politics Vol. 1, 1948-49, pp. 467-488, at 467; Alexander L George and Richard L Smoke Deterrence in American Foreign Policy: Theory and Practice (Columbia University Press: New York 1974); Glenn H Snyder Deterrence and Defense: Towards a Theory of National Security (Princeton University Press: Princeton 1961). Paul K Huth Extended Deterrence and the Prevention of War (Yale University Press: New Haven 1988). See George and Smoke, Ibid. John Garnett “Limited War” in John Baylis, Ken Booth, John Garnett and Phil Williams (Eds) Contemporary Strategy: Theories and Policies (Croom Helm: London 1975) at 116; Klaus Knorr “Limited Strategic War” in Klaus Knorr and Thornton Read (Eds) Limited Strategic War (Pall Mall Press: London 1962) at 4-6.

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acquire the limited war capacity needed to enable it to survive.122 Robert McNamara, former US Secretary of Defence, in his reshaping of US defence policy during the 1960s, developed the distinction between counter-force (military) and counter-value (civilian) targets and sought to maximise the options available to the US in a limited war. He envisaged a considerable build up of a non-nuclear military capability.123 Schelling’s pure theory of limited war, based on mathematical game theory, pioneered a new approach with his theory of ‘non zero sum games (mixed motive games) which occurs when two players find themselves partially in cooperation (through acceptance of basic ground rules for the conduct of the limited war) with each other.124 Several authors have examined the various modes by which either general or limited war may be undertaken, including land warfare,125 naval warfare126 and air warfare127 most often with each mode being utilised in combination. Studies on the use or threat of force by States in international relations also include those that study coercive diplomacy – also known by a number of other names such as crisis management, crisis bargaining, crisis diplomacy and coercive diplomacy. Unlike deterrence, which tries to convince an opponent not to initiate any harmful action, crisis management and the like focus on dealing with actions where the adversary has already employed some coercive manoeuvre. The importance of crisis management was reinforced in the US handling of the Cuban Missile Crisis, which prompted Robert McNamara to declare that “there was no longer any such thing as strategy, only crisis management.”128 Schelling has suggested that most conflict

122 123 124 125

126

127

128

Herman Kahn On Thermonuclear War (2nd Edition) (Princeton University Press: Princeton 1961); Herman Kahn On Escalation (Pall Mall Press: London 1965). William F Kaufmann The McNamara Strategy (Harper and Row Publishers: New York 1964). Thomas C Schelling The Strategy of Conflict (Harvard University Press: Cambridge MA 1960) at 84. See for example, Jonathan M House Towards Combined Arms Warfare: A Survey of Twentieth Century Tactics, Doctrine and Organisation (US Army Combat Studies Institute: Fort Leavenworth: Kansas 1984); Allan R Millet and Murray Williamson (Eds) Military Effectiveness (Allen and Unwin: Boston 1988). See for example Julian S Corbett Some Principles of Maritime Strategy (Naval Institute Press: Annapolis 1988); Andrew Dorman, Mike Smith Lawrence and Matthew R H Uttley (Eds) The Changing Face of Maritime Power (Macmillan: London 1999); Goeffrey Till (Ed) Seapower: Theory and Practice (Frank Cass: London 1994). See for example John Gooch Airpower: Theory and Practice (Frank Case: London 1995); Tony Mason Air Power: A Centennial Appraisal (Brassey’s: London 1994); Robert S Pape Bombing to Win: Air Power and Coercion in War (Cornell University Press: Cornell 1996). Carol Bell The Conventions of Crisis: A Study in Diplomatic Management (Oxford University Press: London 1971) at 2. With the benefit of time Robert McNamara has since conceded that a large amount of luck was involved in the successful resolution of the crisis. See Robert S McNamara “Forty Years After 13 Days” Commentary on the occasion of the 40th Anniversary Conference on the Cuban Missile Crisis, in Havana, Cuba, October 11-13, 2002. www.armscontrol.org/act/2002_11/cubanmissile.asp accessed 5/11/02. This

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situations are essentially bargaining situations, in which strategic bargaining is best utilised not with the efficient application of force but with the exploitation of potential force.129 Likewise Snyder sees strategy as a process of strategic interaction through bargaining. Options for States in the bargaining process can be either coercive or accommodative, thus moving away from the exclusively combative strategies of the past.130 According to Alexander George and associates, coercive diplomacy is one of several strategies for employing force as an instrument of diplomacy in the pursuit of one’s foreign policy.131 Coercive diplomacy is different to pure coercion as it seeks to persuade the opponent to cease aggression rather than to annihilate the opponent.132 In line with this approach to the application of force, Richardson developed five major principles of crisis diplomacy: multiple advocacy of decisionmaking, limitation of objectives, maintaining flexible options, correct perception of adversary, and good communication and signalling.133 Studies of deterrence, limited war and crisis diplomacy elaborated above, are representative of empirical literature that makes no mention of international law when analysing the geopolitical and strategic advantages to be derived from threatening or using force. Despite elaborate strategies for the application of threats or actual force, no consideration is given to the provisions of international law on the prohibition of the threat or use of force found in Article 2(4) of the UN Charter. While not suggesting a simple positivist approach, which requires the determination of legally correct behaviour, there is the question of how the international legal system would practically impact on a State’s ability to achieve certain foreign policy objectives. Implicit in the sidelining of international legal considerations in these studies is an assumption of the limited relevance of international law to State behaviour

129 130 131

132 133

is a rather more generous understanding of luck as opposed to Dean Acheson who contended that success was ‘dumb luck’ rather than the forces of serendipity. Acheson, cited in Abram Chayes The Cuban Missile Crisis (Oxford University Press: London 1974) at 5 (in Chayes, at footnote 21). Ibid., at 5. Glenn H Snyder “Crisis Bargaining” in Charles F Hermann International Crises: Insights from Behavioural Research (The Free Press: New York 1972) at 225. Alexander L George, David K Hall and William E Simons The Limits of Coercive Diplomacy (Simon and Schuster: Boston 1971) at 22-24. The theory of coercive diplomacy set out by these authors is purely defensive as it aims only to reverse what is or has been done. An offensive strategy on the other hand aims to get the opponent to do something it has yet to do, does not want to do, or has not thought of doing, so as to avoid sanctions or other punitive actions taken against it. George A Craig and Alexander George Force and Statecraft: Diplomatic Problems of Our Time (Oxford University Press: New York 1983) at 189. James L Richardson Crisis Diplomacy: The Great Powers Since the Mid Nineteenth Century (Cambridge University Press: Cambridge 1994) at 363.

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manifested in the evident remoteness of international law from analyses of State behaviour involving threat or the use of force .134 Writers have recently turned their attention to the preventive use of force.135 The recent embrace of such a strategic posture by the administration of George W Bush has prompted much writing on this approach to employing the use of force. Few writers canvassed the possibility of the pre-emptive use of force during the Cold War era, partly because States largely pursued a strategy of deterrence and containment during the Cold War and partly because pre-emption has not been an explicitly articulated doctrine of US strategy in the past.136 While the strategy of preventive war has a history dating as far back as the Peloponnesian Wars137 the origins of the policy ideas of pre-emption began in the US in the 1980s with the Nuclear Utilization Strategy (NUTS).138 NUTS developed out a concern for a possible nuclear attack by the Soviet Union. Unlike Mutually Assured Destruction (MAD) which relied on the deterrent threat posed by the possibility of nuclear retaliation following a nuclear attack, NUTS was a plan to act pre-emptively where a credible nuclear attack by the Soviet Union was imminent.139 In the wake of the September 11 2001 terrorist attacks US strategic thinking has undergone ‘sweeping reformula-

134

135

136 137

138

139

Common criticisms of deterrence (which can to an extent be extended to limited war and crisis management) also include that the theory is ethnocentric in that in reflects a particular American obsession with the scientific use of force; that the precise meaning of rationality is unclear; and that it is ethically wrong. Keith Krause “Rationality and Deterrence in Theory and Practice” in Craig A Snyder (Ed) Contemporary Security and Strategy (MacMillan Press: London 1999) at 140. Jervis has called it an alternative security strategy to deterrence. Robert K Jervis “The Confrontation Between Iraq and the US: Implications for the Theory and Practice of Deterrence” European Journal of International Relations, Vol. 9(2), 2003, pp. 315-337, at 330. The preventive use of force can be distinguished from a broader security policy of preventive defense in which foreign and defense policies are developed so as to prevent dangers from becoming geo-strategic threats to a State. For example, the US might seek to prevent the danger of China developing into a major threat to US power and security through US foreign, defense and economic policies that facilitate cooperation and keeps China engaged in the current international system. For more on the broader use of preventive defense, see for example, Ashton B Carter and William J Perry Preventive Defense: A New Security Strategy for America (Brookings Institute: Washington DC 1999). R F Grimmet US Use of Preemptive Military Force: The Historical Record (US Congressional Record Service: Washington DC 2003) at 1-2. Jack Levy “Declining Power and the Preventive Motive for War, World Politics, Vol. 40(1), 1987, pp. 82-107, at 82-83. For a broad treatment of the historical uses of preventive war by States, see Dale Copeland The Origins of Major Wars (Cornell University Press: Ithaca 2000). S M Keeny Jr and W K H Panofsky “MAD Versus NUTS” Foreign Affairs, Vol. 60, 1981, pp. 287-304. Advocates of NUTS who were part of the Reagan Administration included Richard Perle, Donald Rumsfield and Richard Armitage. Ibid., at 287.

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tion’ departing, in part, from the doctrines of deterrence and containment and replaced, in part, by a doctrine of pre-emption.140 While pre-emption is based on detecting evidence that an enemy is about to attack and to beat them by attacking first, prevention is based on the assumption that war is inevitable but not imminent and that it is better to fight now while the costs are relatively low than later when the threat has been allowed to grow and the costs are relatively higher.141 Preventive wars throughout history have been most likely as a strategy during periods when the power capabilities of a rising challenger begin to approach those of the leading State, and the leading State decides to act to prevent a future war with the potential to be more costly for the leading State.142 However, Niov and Odershook have found that the propensity for preventive war in times of changing power capabilities between challenger and leading State is not inevitable, with the leading State not always employing preventive war to forestall a challenge.143 The 2002 US National Security Strategy (NSS) embraces a strategy of preventive war not in response to a rising State challenger to US power, but in the face of rogue States and terrorist organisations determined to strike the US. Such challengers represent a new breed of challengers who are apparently motivated by considerations other than geopolitical concerns. The US NSS argues that containment and deterrence are no longer feasible in a world where “…our [US] enemies see weapons of mass destruction as weapons of choice” and where the threat of retaliation “is less likely to work against leaders of rogue States.”144 The NSS states that the US “must be prepared to stop rogue States and their terrorist clients before they are able to threaten or use weapons of mass destruction against the US and our allies and friends.”145 Departing from the usual formula of acting pre-emptively where there is an imminent threat with sufficient certainty as to the time and place of the attack, the NSS sets out a policy of preemption “…even if uncertainty remains as to the time and place of the enemy’s attack.”146 The strategy not only elevates pre-emption as a tool of US foreign policy but also goes further to embrace a related but different strategic concept: prevention. According to the NSS, the US will now act not just pre-emptively where there is an imminent threat, but also act preventively even without evidence of imminent threat

140 141 142 143

144 145 146

John Lewis Gaddis “A Grand Strategy” Foreign Policy, Vol. 133, November/December 2002, pp. 50-57. James L Wirtz and James A Russell “US Policy on Preventive War and Preemption” Nonproliferation Review, Spring 2003, pp. 113-123, at 116. Levy, above note 136, at 87. Emerson M S Niov and Peter C Ordeshook “Preventive War and the Balance of Power: A Game-Theoretic Approach” Journal of Conflict Resolution, Vol. 31, September 1987, pp. 387-419, at 388. 2002 US National Security Strategy, above note 63, at 15. 2002 US National Security Strategy, Ibid., at 14. Ibid., at 15.

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so as to ensure that a serious threat to the US is not allowed to grow over time.147 Assessment of the US NSS is divided between those that support the political and military logic of the strategy of preventive war in a world of terrorists and rogue States148 and those that argue it is a misguided strategy likely to do more harm than good.149 These writers do not explicitly incorporate the legal implications surrounding the strategy in their analysis. Political analyses of use of force that at least mention international law, albeit only to highlight the irrelevance of international law to foreign policy during use of force episodes, include the work of Bell, Northedge and Brecher et al. For Carol Bell, writing in 1971, the bases of contemporary crisis management included the exchange of hostages, the growth of surveillance, the elements of a common strategic ideology and a show of preponderant military power on the side of the status quo.150 The chief instrument of crisis management is signaling; that is, a threat or offer communicated to the other party or parties to the crisis, use of ambiguity, and so on.151 Such signals (the techniques of crisis management) need not be verbal but can be an action such as the withdrawal of consular or diplomatic staff from an adversary country. While signaling is indeed an important method of inter-State communication, Bell is unable to explain the role of international law in the process. Since “…international law has proved irrelevant to the control of the conflicts which threaten peace”152 the role of law is removed from consideration. The view of international law held by Northedge is one in which rules are designed to constrain State behaviour. This being so, law is of little importance because it is often ignored during international crises where perceived national interests to use force take precedence over laws constraining State action.153 Law lacks power and when faced with a challenge to national interests, has little influence on international affairs and foreign policy calculations. Similarly, Brecher, Wilkenfeld and Moser suggest that law, in particular the UN Charter and the United Nations

147

148 149

150 151 152 153

Michael E O’Hanlon, Susan E Rice and James B Steinberg “The New National Security Strategy and Preemption” The Brookings Institution Policy Brief, Policy Brief 113, 2002 at 1. For example, Gaddis, above note 139, Wirtz and Russell, above note 140. For example, Jean Yves Haine “The Imperial Moment: A European View” Cambridge Review of International Affairs, Vol. 16(3), October 2003, pp. 483-509; Jack Snyder “Imperial Temptations” The National Interest, Vol. 71, Spring 2003, pp. 29-41; G John Ikenberry “American Imperial Ambition” Foreign Affairs, Vol. 81, Sept/Oct 2002, pp. 4460; John J Mearsheimer and Stephen M Walt “An Unnecessary War” Foreign Policy, Vol. 134, Jan/Feb 2003, pp. 50-59; Ivo H Daalder, James M Lindsay and James B Steinberg “The Bush National Security Strategy: An Evaluation” The Brookings Institution Policy Brief, Policy Brief 109, 2002; O’Hanlon, et al., above note 146. Bell, above note 127, at 69. Ibid., at 73. Ibid., at 5. F S Northedge The Use of Force in International Relations (Faber and Faber: London 1974) at 214-215.

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which it gives rise to, is largely ineffective in stopping or abating international crises involving the use of force.154 Some political analyses of international crises present a role for international law in foreign policy in terms of its capacity to justify State behaviour in order to enhance the legitimacy of the policy or enhance the reputation of the State. The work of Graham Allison makes reference to international law in terms of its capacity to justify a given foreign policy. In this work Allison developed a theoretical approach to organisational politics, which suggested that foreign policy decisions, made in relation to use of force or otherwise, reflect the political weight of particular actors in various government bureaucracies within the national government machinery.155 He emphasised the momentum of organisational routine, and the standard operating procedures of organisations that are very pervasive and influential in foreign policy decisions. Using a case study of the Cuban Missile Crisis he tested three models: the rational actor model, the organisational process model, and the bureaucratic decision-making model.156 As Bernstein has noted, Allison’s work “…explicitly challenged foreign policy realism”, in particular the key assumption that States act rationally to maximise power.157 International law is a limited factor in Allison’s conceptual apparatus. Yet while he does not assume a realist understanding of foreign policy (at least in terms of the rational actor assumption) he nevertheless assumes a realist conception of international law. For instance he makes the point that the blockade was euphemistically called ‘quarantine’ in order to “circumvent the niceties of international law”.158 From Allison’s perspective, international law contributes

154 155

156 157

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Michael Brecher, Jonathan Wilkenfeld and Sheila Moser Crises in the Twentieth Century: Handbook of International Crises (Pergamon Press: Oxford 1988) at 99. Graham T Allison Essence of Decision: Explaining the Cuban Missile Crisis (Little, Brown and Company: Boston 1971) at 10. This study was re-published in 1999 with several updates, taking into account a quarter century of criticism and greater availability of primary documents. Indeed reliance on primary documents is one of the strengths of the new version, given that the original study sought to rely less on primary documents and more on interviews. The three basic models in the original study remain the same, albeit with further elaboration, clarification and re-evaluation in light of criticisms of its model of decision-making. Graham T Allison and Philip Zelikow Essence of Decision: Explaining the Cuban Missile Crisis (Second Edition) (Longman: New York 1999). Allison (1971), Ibid., 4-9. Barton J Bernstein “Understanding Decisionmaking, US Foreign Policy and the Cuban Missile Crisis” International Security, Vol. 25(1), Summer 2000, pp. 134-164, at 137. This is an excellent critical appraisal of both editions of Allison’s Essence of Decision which raises a number of other problems with the study other than that raised here regarding the treatment of international law and its relationship to State behaviour. Ibid., at 57. Such a harsh evaluation does not appear in the second edition, no doubt tempered by the evidence in the Excomm tapes which the authors took account of in the updated edition. The advice of State and Justice Department legal advisers is cited as part of the decision-making process relating to the blockade. See Allison and Zelikow, above note 154, at 119. Despite the inclusion of this information, it does not alter the general

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minimally to foreign policy in its capacity to offer convenient justifications in support of preferred policy priorities that are the result of domestic organisational politics. The normative implications of the US NSS have been examined by a few writers assessing the strategy of preventive war. While none of these writers completely foreclose the possibility of using a strategy of preventive war, they do perceive the strategy’s potential incompatibility with the international law on the use of force, which is understood to prohibit the use of force except in self defence and only allows pre-emptive action where a threat is ‘imminent’.159 Yet these writers do not go so far as to state that the US should not use preventive force to protect its perceived interests (even if it should be a rarely invoked option160) if there is no law with which to justify the action. Empirical literature that I have grouped under the banner of a ‘no law’ approach does not, on the whole, incorporate international law into its discussion of State behaviour during international crises where threats or the use of force is a possibility. International law is considered of limited significance to the political questions that pre-occupy this group. Studies of international crises either ignore international law, or consider law irrelevant, or ascribe law a limited role in terms of its capacity to justify State behaviour. This group of empirical literature does not question or depart from the rule-book image of international law; rather, the image is assumed to be incompatible with the realities of world politics dominated by the pursuit of power and political advantage. State foreign policy behaviour is assumed to be determined by a calculation of the geopolitical and strategic advantages and disadvantages of threatening or using force. This implies that the relationship between international law and State behaviour during international crises where the use of force is considered is one where policy considerations predate and override legal considerations. This literature is founded in a realist framework.

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understanding of the relationship between international law and State behaviour during the Cuban missile crisis, which continues to be viewed in terms of the justification law was able to provide US foreign policy behaviour during the crisis. R S Litwak “The New Calculus of Pre-emption” Survival, Vol. 44(4), 2002-2003, pp. 5380; Charles W Kegley Jr and Gregory A Raymond “Global Terrorism and Military Preemption: Policy Problems and Normative Perils” International Politics, Vol. 41, 2004, pp. 37-49. Litwak, Ibid., at 71.

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Realism as the Theoretical Underpinning of a ‘No Law’ Empirical Approach161 The International Relations theory of realism seeks to explain the operation of world politics. According to realism, law is of little significance to the political process by which the foreign policy behaviour of States is determined. National interest and reasons of State take precedence over international legal considerations. For realists, States are the supreme players in world politics and power the central explanatory concept of International Relations. Where realism takes any notice of international law, it continues to assume the rule-book image of international law that derives from positivist assumptions about the nature of international law; for example, the notion that it is possible to distinguish objectively between legal and illegal action.162 What differentiates realism from positivism is the emphasis in the former on power as the central concept by which to explain international politics, and competitive behaviour as the hallmark of interaction between States. The realities of power and competition are no more obvious than in cases involving the possibility of military force. Law

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I am dealing here with classic modern realism as articulated by such famous modern realist authors as Edward H Carr, Hans J Morgenthau and George Kennan and is the form of realism in which the empirical literature is grounded. There is of course another type of realism that emerged with the publication of Kenneth Waltz’s Theory of International Politics, which has since been coined neorealism (or neoclassical or structural realism). Neorealism was initiated by the landmark work of Kenneth Waltz, who determined a theory of the international system, as distinct from the realist project aimed at providing a general analysis of world politics. Working from the assumption that the international system is anarchical and that States are rational egoists seeking to ensure their own security vis-à-vis other States in the system, he determined a theory of the balance of power as the central explanation of the international system. States, according to this theory, seek to balance the power of another, depending on their own position of power. See Kenneth Waltz Theory of International Politics (Addison-Wesley Publications: Reading MA 1979) at 126. International law does not factor as an important component in his analysis of the international system. In fact it is not mentioned at all. In this respect, neorealism shares the basic assumptions of the law-power politics dichotomy bequeathed to it by its theoretical parent, realism. Realism and neorealism both assume a material understanding of power. On the materialist understanding of power shared by realism and neorealism see, for example, Gideon Rose “Neoclassical Realism and Theories of Foreign Policy” World Politics, Vol. 51(1), 1998, pp. 144-172, at 165. Abstract, ephemeral factors such as international law do not enter the calculation of power indices within either realism or neorealism. The understanding of the relationship of international law and international politics is therefore the same in both modern realism and neo-realism. For instance one of realism’s leading theorists Hans J Morgenthau had a typically positivist image of law that “…conserved a traditional court and case oriented image of law.” Martii Koskenniemi The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge University Press: Cambridge 2002) at 471.

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is contrasted with power and deemed more or less irrelevant to international politics.163 The political philosophy of realism can trace its origins back to antiquity where the power relationship between States was first described by Thucydides when he wrote of the Peloponnesian war: “what made war inevitable was the growth of Athenian power and the fear which this caused in Sparta.”164 The primacy of the power concept to explanations of inter-State relations was central to the work of E H Carr, whose work marks the beginning of the modern realist project.165 His work was a response to the idealist-moralist policy promoted especially by US president Woodrow Wilson, who espoused principles of universal morality in the aftermath of WWI. International law was central to such an idealist policy, as represented by the newly created League of Nations and its judicial organs of the Permanent Court of Arbitration and the Permanent Court of International Justice.166 Drawing upon an historical perspective, Carr believed that this reliance on international law and morality was futile. The world had undergone a major breakdown since the end of WWI, the old order was destroyed and the new order replacing it built on the rivalry between two sharply opposed ideological systems.167 The focus of world politics from this point was to centre on the power of the United States and the Soviet Union. Carr concluded that international politics was thus still driven by power and not morality or law: “…power [is] a decisive factor in every political situation…”168

163 164

165 166 167 168

Dean Acheson “Remarks by the Honorable Dean Acheson: Former Secretary of State” Proceedings of the American Society of International Law, April 25-27 1963, pp. 13-18. Thucydides History of the Peloponnesian War (Penguin Edition: London 1972) at 49. Emphasis added. While Thucydides may have elucidated the power politics relationship between States which we recognise today as the International Relations theory of realism, the theory is informed at a deeper level by the intellectual framework of the Sophists of Classical Greece. As Johnson explains, realist writing shares the sophistic concerns of epistemological relativism, a pessimistic conception of human nature and a central focus on power in all political interactions. The Sophists’ understanding of political relations was restricted to domestic politics; however, the primary philosophical tenets of realism, Johnson explains, are applicable to either domestic or international realism. See Thomas J Johnson “The Idea of Power Politics: The Sophistic Foundations of Realism” Security Studies, Vol. 5(2), winter 1995, pp. 195-247. Political theorists such as Machiavelli and Hobbes have also elucidated the notion of power in political relations. However, like their classical counterparts, their conception of power was formulated with the domestic context foremost in mind. See passim: Niccolo Machiavelli The Prince (Translated by George Bull) (Penguin Books: London 1995); Thomas Hobbes Leviathan (Penguin Books: London 1985). For an excellent introduction to international relations theory from the period beginning with the end of the Roman Empire to the post Cold War era, see Torbjørn L Knutsen A History of International Relations Theory (2nd Edition) (Manchester University Press: Manchester 1997). E H Carr The Twenty Years Crisis: 1919-1939 (MacMillan & Co Ltd: New York 1958) Ibid., at 85-88. Ibid., at 237. Ibid., at 235.

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Carr’s anti-utopian school of international affairs and insistence on power politics influenced the work of the most influential realist of modern international relations – Hans J Morgenthau.169 Deeply influenced by the experience of WWII and profoundly disillusioned with the utopian project, Morgenthau determined a definitive modern theory of political realism in the classic text Politics Among Nations: The Struggle for Power and Peace. Ten years after Carr’s exposition of power politics this text extended the notion of power politics to its most logical end.170 Central to Morgenthau’s approach to international politics is the notion of pragmatism and political prudence.171 Politics for him does not move in the realm of morality. It is not a realm where there are simple choices between principled action and immorality. Rather Morgenthau suggests that it is usually the case that in political life we face competing moral choices as to what is right or wrong and it is never clear cut. Due to this ambiguity it is more realistic to allow prudence to guide decision-making rather than morals or law. Realism is the “rational theory of international politics”.172 Central to this rational theory is the notion of power. Morgenthau stated that international politics, like all politics, “is the struggle for power”.173 Following this psychological conception he saw the game of power very much as a competition between wills and not just arms. Within this conception of power politics the role of international law is dismissed. Morgenthau did not dispute the existence of inter-

169

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171 172 173

While Carr’s realist theory did introduce the notion of power politics back into the understanding of international politics, which he felt had been neglected by the Utopian movement, he was unable to completely dispense with the idealist influence from his understanding. This book is a synthesis of the realist and utopian elements. Thus he was able to argue that even though the first and foremost duty of leaders was to adhere to pragmatism, they could also be moral. Morgenthau rejected this synthesis of the realist (power) and utopian (non-power) elements and stressed the power aspects of relations. Boyle (1985), above note 104, at 12-13. The centrality of power politics in the realist conception of international relations has been expressed by many theorists and is not restricted to Morgenthau. Many eminent authors have espoused the realist paradigm in a similar erudite fashion. The task here is to explore the basic tenets of modern realism that can be found in the most important ‘foundational’ text concerning the paradigm. For other realist examinations see Georg Schwarzenberger “The Role of Law and the Disintegration of the International Society” American Journal of International Law, Vol. 33, 1939, pp. 56-77; Power Politics: A Study of World Society (Stevens and Sons: London 1951); International Law and Order (Stevens and Sons: London 1971), at 16-17, 270-271; Martin Wight Power Politics (Leicester University Press: Leicester 1978). Hans J Morgenthau Politics Among Nations: The Struggle for Power and Peace (5th Edition) (Alfred A Knopf: New York 1973) at 3. Ibid., at 8. This includes physical or military power, economic power and psychological power. See, Morgenthau, Ibid., at 27- 30; Hans J Morgenthau “Common Sense Theories of International Relations” in John C Farrell and Asa P Smith (Eds) Theory and Reality in International Relations (Columbia University Press: New York 1968) at 25.

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national law but deemed it ineffective in the power struggle conducted in international relations: To recognise that international law exists is…not tantamount to asserting that it is as effective a legal system as the national legal systems are and that, more particularly, it is effective in regulating and restraining the struggle for power on the international scene.174

Morgenthau suggested that law can have a useful role as a tool of legitimate power. That is, if power utilises the legitimising effect of moral or legal authority, it may have a better chance to influence the will of those over whom power is exercised than equivalent illegitimate power.175 Since power is the central element of international politics, and international law and power are irreconcilable, realism theorises a limited role for law in international politics. Law plays no part in the determination or conduct of international politics by States. The relationship of law to State behaviour is defined narrowly in terms only of its capacity to justify actions undertaken on other grounds. The implication of this for the realist conception of international law in foreign policy is that law is not central to the political considerations of policymakers. Given the primacy of power, the role of law in foreign policy is to adjust to the realities of world power configurations and mutual state interest.176 The realist portrayal of international law suggests that law can only be utilised when it accords with the power interests of States. However, this obscures the reality that in some instances States observe law when it is contrary to their interests. For instance, during the Cuban Missile Crisis, there was considerable debate in the US between the more military oriented individuals and the non-military oriented individuals regarding the optimum course of action regarding the Soviet deployment of missiles in Cuba. The military arm pushed for a tactical strike that was quick and precise. Those pushing for non-military means with which to deal with the issue were more insistent on embarking on an institutional approach via the mechanisms of the UN and regional organisations. It was this latter course that was used to deal with the crisis. Law had won out over tactical advantage.177

174 175 176

177

Morgenthau, Ibid., at 273. Ibid., at 30. Christopher C Joyner “International Law and the Conduct of Foreign Policy” in Shirley V Scott and Anthony Bergin (Eds) International Law and Australian Security (Australian Defence Studies Centre: Canberra 1997) at 7. Chayes, above note 127, at 10-12. The Cuban Missile Crisis is not an isolated example of State deference to international law over power political considerations. Of the numerous examples to choose, two will suffice. In 1988 the US Navy allowed passage of a ship carrying a load of silkworm missiles to Iran on the basis of legal advice from the State Department that intercepting the ship would constitute a search and seizure on the high seas, considered to be illegal. The US allowed the passage of the ship despite the potential danger the missiles posed to US ships in the region. See Thomas M Franck The Power

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According to realism, international law is unimportant to the formulation of national interests and policy outcomes defined in terms of power. Reference to international law by policy-makers is determined by the utility that can be derived from its capacity to justify foreign policy. It is only in this circumscribed manner that military action and inter-State diplomacy based on law are able to co-exist in the same space and time. Yet this seems an unsatisfactory reason to account for the continued popularity of international law among State members of the international community. How can something seemingly peripheral to State interests continue to be used by States, if only as rhetoric? Continued references to international law by State representatives suggest that international law is an important tool of statecraft hitherto unrecognised by realists. This oversight is the result of realism’s conceptual shortcoming in being unable to reconcile law and power, resulting in questions such as why policy-makers obey international law, rather than examining what the nature of the political influence of international law might be. Realist authors fail to apprehend the nature of the international political sphere that allows a supposedly ‘weak’ system to have such potent effect. In a similar manner realism fails to apprehend how the international law-international politics relationship informs the use of law in policy making. By denying the law-power connection, realism is unable to explain why, contrary to ‘power’ interests, policy-makers pursue action in terms that are legal. By uncritically adopting a rule-book image of international law which is contrasted with the primacy of power in world politics, realism fails to apprehend the political significance of international law to State behaviour. This realist theoretical understanding is evidenced most especially in the thoughts and actions of foreign policy practitioners. One famous exponent of realist maxims, for example, was former US Secretary of State Dean Acheson. According to him questions regarding the legality of foreign policy actions are not so much questions of law but rather ethical and moral considerations. According to Acheson, when considerations of power and the survival of States are concerned, law is not an important factor of foreign policy making and can at best be used to justify foreign policy behaviour determined on the basis of geopolitical and military considerations.178 The foremost practitioner of Realpolitik and protégé of Morgenthau was

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of Legitimacy Among Nations (Oxford University Press: New York 1990) at 3-4. A similar incident occurred in December 2002 when the US Navy intercepted a North Korean ship carrying Scud missiles bound for Yemen. This was at a time when the US was concerned with the spread of weapons to the region and was in the midst of contemplating the use of force against Iraq for failure to disarm its nuclear weapons program. Despite an undertaking by Yemen not to purchase such weapons from North Korea – a reassurance Yemen again gave after the discovery of this shipment – the US did not prevent the passage of the ship to Yemen. As the White House Press Secretary said at the time, “there is no provision under international law that prohibits this [shipment of missiles].” See Press Briefing by Ari Fleischer, December 11 2002, http://www.whitehouse.gov/news/releases/ 2002/12/20021211-5.html#2 accessed 22/5/04. Acheson, above note 162, at 14.

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Henry Kissinger. For Kissinger the task for those seeking to understand international affairs and foreign policy was to “…think in terms of power…”179 He describes what he perceived to be an American propensity to assume “[t]he notion that international relations could be exhaustively defined by international law…”180 Kissinger did not seek to challenge this conceptualisation of law akin to the rule-book image of international law by way of an alternative conceptualisation, but rather, sought to demonstrate the impracticality of such an understanding of law in an international system of anarchical States whose behaviour in world politics is determined by considerations of relative power. For Kissinger the image that there are legal rules for all aspects of international relations is not an erroneous assumption about international law but an erroneous application of that image to the current system of world politics, an application of such an image to world politics he has described as “utopian” and “naïve”.181 It is now apparent that what I term the ‘no law’ category of empirical literature is underpinned by certain realist assumptions. Important realist assumptions that underpin the empirical literature include: the notion that power is central to the operation of international politics and, by extension, the determination of state behaviour; and that international law as a set of normative prescriptions for international behaviour is less important than national survival, central to which is the ability to use force. Rather than examining the legal issues relating to the use of force, literature in this ‘no law’ category turns its attention to various political questions relating to the use of force by States in international relations. This group makes no reference to the importance of international law to State behaviour except insofar as law might justify foreign policy, dealing instead with issues of power and strategy that are considered beyond the scope of international law to address. Whether studies within this group implicitly or explicitly address international law issues or simply ignore legal issues altogether, they all nonetheless incorporate the vision of international law common to positivist analysis. That is, they assume the rule-book image of international law in which questions regarding the influence of international law on State behaviour turn largely on the determination of whether a particular action is legal or illegal. So the legal examination of the use of force underpinned by positivism, as examined above, is not challenged by empirical literature that focuses more on political aspects of State behaviour where the use of force is a possibility. There are several aspects of the law-State behaviour relationship during international crises that we might anticipate a realist perspective to be unable to explain. Realism would predict that where the preferred course of action by a relatively powerful State (according to realist indices of power such as military or economic

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Henry A Kissinger American Foreign Policy: Three Essays (Weidenfeld and Nicholson: London 1969) at 91-92. For a similar and more extensive realist treatise on international relations and foreign policy by Kissinger, see above note 16. Kissinger (1994), Ibid., at 544. Ibid., at 18.

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power) towards a relatively less powerful State would be more readily deemed ‘illegal’, law would not be expected to be a significant part of the process of policy formulation or part of the public rhetoric used by the State. Realism would also predict that where the preferred course of action by a State is more readily deemed ‘legal’, law would be used to justify the particular policy pursued by the State but would not be expected to be a significant consideration of the process of policy formulation. Finally, where a State is relatively less powerful than the State with which it is in dispute, realism would anticipate that the State may refer to international law (where the law readily supports their position) but the State is not expected to gain any tangible benefit. Law is not expected to either help or hinder the ability of such States to pursue their political objectives. Law is of little relevance to a State lacking tangible manifestations of power such as economic or military superiority. It would be expected that realism would be unable to explain a situation where international law is observed to be part of the process of policy formulation and implementation where the use or threat of force is contemplated by a powerful State. Realism would also not be able to explain evidence that pointed to the way States use international law in a way other than to justify policy. The possibility that both powerful and less powerful States draw on international law in a more strategic way is likely to be overlooked and unaccounted for by a realist perspective. Realism would also appear to overlook the possibility that references to international law could actually be of advantage or disadvantage to a State’s ability to pursue perceived political goals. The realist model with its insistence upon ‘power politics’ is problematic in the opposite manner to the positivist school. Whereas positivists focus on law at the expense of wider political considerations, realists focus on politics at the expense of more subtle and important considerations of law. Where positivism stressed only law as the basis for categorising State political behaviour, realism suggests that legal considerations are not important for State behaviour in international politics. Realism does not reject the rule-book image of international law espoused by positivism. The difference is a matter of emphasis. Whereas positivism stresses the normative obligation of States to comply with international law, realists stress the primacy of power politics over law.

‘Functions of Law’ Approach: Empirical Literature Examining the Political Functions of Law in the International Law-State Behaviour Relationship During International Crises Involving Threats or the Use of Force A third group of empirical literature on the relationship of international law to State behaviour relating to the use of force, one which attempts to move beyond positivist and realist approaches, seeks to contextualise the operation of law within the political environment in which it operates. While positivists focus on the law and realists focus on the ‘political’ dimensions of State behaviour during international crises, there is

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a third group of writers, I dub the ‘functions of law’ approach, which deals primarily with the political functions of international law in world politics. Writers in this group do not deny the basic assumptions of the positivist rule-book image of international law. They do nevertheless acknowledge that politics is an important factor to be accounted for, if not in the process of legal reasoning, then at least in the operational relationship between that system of law and wider non-legal factors. However, they do not completely dismiss realist power politics and continue to assume a law-power dichotomy, albeit moderated by some considerations of politics. One of the most widely recognized accounts of the political functions of international law has been by Louis Henkin. By looking at a number of international crises involving the use of force, he emphasized that the observance of law is contingent on cost and advantage to the national interest. He acknowledged that law is a reflection of policies and interests of individual nations, that the actions of governments have impact on law such as attempting to change law inconsistent with government interests, that reference to international law can be important in a rhetorical sense even when violated,182 and that the “…cost and advantage of laws observance or violations must be seen largely in the context of its foreign policy as a whole.”183 Henkin attempts to understand the political dimensions of the relationship between international law and State behaviour. While this is admirable, it still does not tell us much about the nature of the relationship between law, foreign policy and strategy beyond the fact that it is not simple.184 The efficacy of the international law on the use of force, operating within the political process, continues to be judged in terms of its capacity to deter, prevent or terminate the use of force by States.185 The influence of international law on State behaviour continues to be underpinned by a rulebook image of international law that assumes that law is a set of rules external to the State. An interesting group of studies examining the intersection of international law, use of force and foreign policy is the ‘International Crises and Role of Law’ series undertaken under the aegis of the American Society of International Law during the 1970s. Four international crises of the cold war era – the Suez dispute, the Cyprus incident, the Cuban missile crisis, and the UN operation in the Congo – were analysed to assess the ways in which international law affected the behaviour of governments party to each of the disputes.186 Bowie, in his analysis of Suez, suggested that law operated to the extent that State representatives were constrained by it or utilised

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Henkin, above note 15, 38-50. Ibid, at 51. Ibid, at 90. Louis Henkin “Use of Force: Law and US Policy” in Council of Foreign Relations Right V Might: International Law and the Use of Force (Council of Foreign Relations Press: New York 1989) at 37, 52. Roger Fisher Points of Choice (Oxford University Press: London 1978) at v.

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it as an instrument of policy for the demands, defence and definition of positions.187 Thomas Ehrlich in his study of the Cyprus conflict surmised that the relevance of international law to national decision-making centred on four functions: formulating each issue for decision; restraining state action; channelling the exercise and authorisation of power; and providing a tool for advocacy and for the creation of international institutions such as the UN, that in turn provides a forum for diplomacy; negotiation and peaceful settlement of disputes.188 Abram Chayes examined the Cuban Missile Crisis and proposed three functions that law fulfilled in the course of foreign policy formulation and execution. These were: law as a constraint on action, law as the basis of justification or legitimation for action, and law as providing organisational structures, procedures and forums.189 In his study of the UN mission in the Congo, AbiSaab outlined three functions that the law played during the UN Congo operation. Firstly, it was an instrument of social engineering in that it allowed a legal mechanism for the translation of political goals; second, legal argument was a tool of persuasion; and finally, law acted as an instrument for the institutional development of the UN.190 In the years since this landmark series, a number of other authors have turned their attention to the analysis of the functions of law in international crises involving the use of force. Davidson’s analysis of the US invasion of Grenada in 1983 suggested that international law fulfilled two functions: to facilitate routine transactions and to attain foreign policy objectives involving core interests.191 According to Davidson the second function of law – attaining foreign policy objectives involving core interests – demonstrates the limitations of law when considerations of national interest and law clash. According to Davidson the role of law in the pursuit of foreign policy objectives is heavily influenced by the perceptions of decision-makers about the need to act lawfully.192 Beck has also provided an analysis of the functions international law played in US foreign policy during its intervention in Grenada. Following the work of Chayes and his functional account of international law, Beck suggests that in the case of Grenada, international law was not determinative of policy but did impact on policy

187 188 189

190 191 192

Robert R Bowie Suez 1956 (Oxford University Press: 1974) at 115. Thomas Ehrlich Cyprus 1958-1967 (Oxford University Press: London 1974) at 120-122. Chayes, above note 127, at 10-12. See also Abram Chayes, Thomas Ehrlich and Andreas F Lowenfeld International Legal Process (Little, Brown and Company: New York 1968). For a broader discussion of why States comply with international law, see Abram Chayes and Antonia Handler Chayes “On Compliance” International Organization Vol. 47(2), 1993, pp. 175-205. Georges Abi-Saab The United Nations Operation in the Congo 1960-1964 (Oxford University Press: Oxford 1978) at 193-195. Scott Davidson Grenada: A Study in Politics and the Limits of International Law (Gower Publishing Company: Aldershot 1987) at 152-153. Ibid, at 153.

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in two ways: restraint and justification – the latter being the greater influence.193 In examining the impact of international law on US foreign policy during the 1965 American intervention in the Dominican Republic, Papermaster argued that international law had no impact on the US decision, except as rhetoric to justify, after the event, US policy regarding intervention in the Dominican Republic.194 With specific reference to the use of force during the Gulf War, Williamson has examined the role of the legal adviser during foreign policy decision-making involving the use of force and concluded the role of law to be one that ensured States complied with their legal obligations.195 In examining the Entebbe crisis, Francis Boyle identified five functions international law played in that particular international crisis and from which he generalized regarding the role of international law in international crises. These five functions included: definition of the international behavioural standards applicable to a crisis in the perceptions of all the actors involved; a form of decision in decision-making; adjudication of the dispute via institutional organisations (like the UN Security Council); resolution by the institutional organisations and redefinition of international behavioural standards to go beyond those existing prior to the crisis definition, decision, adjudication, resolution, redefinition through which international crises can be understood and the means by which they can be prevented or controlled.196 International law is not irrelevant to international politics in that it has a capacity to prevent or control occurrences of international crises.197 These five functions, according to Boyle, allowed for a more flexible approach to compliance by determining a sliding scale of compliance. His analysis abandoned a strict demarcation of legality and illegality in favour of an incremental scale of seven degrees ranging from pure legality to unequivocal violation. This allowed for the analysis of international political behaviour and the evaluation of the propriety of particular foreign policy decisions in terms of where political behaviour sits on the legality-illegality index.198 Reisman has examined the contribution of international law to foreign policy through his incidents methodology.199 Reisman’s methodology examined the appropriate role of international law and organisation in international incidents – understood

193 194 195

196 197 198 199

Robert J Beck The Grenada Invasion: Politics, Law, and Foreign Policy Decisionmaking (Westview Press: Boulder Colorado 1993) at 206-207. Daniel I Papermaster “The United States Intervention in the Dominican Republic in 1965” Texas International Law Journal, Vol. 24 1989, pp. 463-497. Edwin D Williamson “International Law and the Role of the Legal Adviser in the Persian Gulf Crisis” New York University Journal of International Law and Politics, Vol. 23, 1991, pp. 361-371 at 370. Boyle, above note 104, at 82-83. Ibid., at 82. Ibid., at 164. Francis A Boyle “Book Review of Reisman and Willard International Incidents: The Law That Counts in World Politics” American Journal of International Law, Vol. 83, 1989, pp. 403-406, at 404.

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as an overt conflict between two or more actors in the international system.200 Reisman suggested that the central contribution of international law to use of force incidents rested on its normative role structuring communication and signaling interests and expectations between competing States.201 In a work reminiscent of the earlier International Crises and the Role of Law Series, Scheinman and Wilkinson examined a number of international political crises centred on the use of force – the Berlin Blockade, the Kashmir dispute, the Suez crisis, Indonesia’s campaign to take over Malaysia and the Cuban missile crisis – in terms of the role international law played in such crises.202 The focus of these case studies was on how the need to comply with international law imposed constraints on the decision-making process and the selection of alternative courses of action.203 Using the capacity to constrain State political behaviour as the standard by which to judge the influence of international law in foreign policy, the volume concludes that international law plays a minor part in the policy process. Nonetheless international law does fulfil certain functions: it is an instrument of communication providing a common language and joint frame of reference; it is a means of directing the course of a conflict; and it acts as a tool of policy to protect or enhance a particular policy position.204 As a final example of the functions of law approach in the empirical literature on international law and State behaviour, a note on legal argumentation during international crises in the Harvard Law Review suggested three political purposes of legal argumentation in international crises: law provides common language disparate nations may use to communicate with one another; law provides external standards by which States agree to measure the legitimacy of State actions; and law influences decision-makers either because legal norms have been internalized or to avoid negative world opinion.205

200

201

202

203 204 205

W Michael Reisman “International Incidents: Introduction to a New Genre in the Study of International Law” in W Michael Reisman and Andrew R Willard (Eds) International Incidents: The Law That Counts in World Politics (Princeton University Press: Princeton 1988) at 15. Michael P Socarras “The Argentine Invasion of the Falklands: International Norms of Signaling” in Reisman and Willard (Eds), Ibid., at 115; D Brian Hufford and Robert Malley “The War in Lebanon: The Waxing and Waning of International Norms” in Reisman and Willard (Eds), Ibid., at 144. Stanley Hoffman “Introduction” in Lawrence Scheinman and David Wilkinson (Eds) International Law and Political Crises: An Analytic Casebook (Little, Brown and Company: Boston 1968) at v. The volume also examines one non use of force case: the dispute over UN financing which arose in 1962 as a response to UN peacekeeping activities in the Congo. Ibid. Ibid., at xii-xiii. See also Stanley Hoffman “International Law and the Control of Force” in Hoffman, above note 200. Note “Legal Argumentation in International Crises: The Downing of Korean Air Lines Flight 007” Harvard Law Review, Vol. 97, 1984, pp. 1198-1213, at 1210-1211.

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These studies of international law and State foreign policy behaviour during international crises undertake the admirable task of taking into account both international legal considerations and the wider political realities that influence State behaviour. The studies examined here offer a great many ways of classifying the functions that international law fulfills in foreign policy and international politics in cases where the use of force is a consideration. Such studies identify a panoply of political functions international law fulfills in use of force episodes. They do not, however, depart from the notion that when important national interests are in question and States are faced with the question of power politics, law is of little consequence. From a functionalist perspective the role of law in foreign policy is subject to the Machiavellian proclivities of decision-makers where the role of law in policy is limited. International law, ultimately, has little impact on how governments choose to achieve their goals during foreign policy episodes in which the use of force is a possibility or actuality.

Functionalism: The Theoretical Underpinning of Literature Examining the Functions of Law in the International Law-State Behaviour Relationship During International Crises The studies canvassed above in relation to international crises involving the use of force are a sub-set of a broader functionalist theoretical approach to international law. Unlike positivism and realism, the international law theory of functionalism incorporates both legal and political considerations. Functionalism does not reject all aspects of the rule-book image of law central to positivism and unchallenged by realism; nor does it deny that power is a fundamental component of world politics central to realism and unchallenged by positivism. Instead of incorporating power into its explanation of politics, functionalism seeks to describe the political functions law plays in international politics and State behaviour. It provides a bridge between the extremes of what I referred to as the ‘only law’ and ‘no law’ approaches. Functionalism, unlike either positivism or realism, is not a coherent body of scholarship with easily identifiable theoretical positions or elaborate histories. This approach is united by a quest to understand the political functions which law fulfills in the application of international law to State behaviour in general. Richard Falk undertook to develop a theoretical approach that synthesized such issues of statecraft and international legal processes. He articulated an intermediate approach that places international law in the context of its political environment.206

206

Richard A Falk “The Relevance of Political Context to the Nature and Functioning of International Law: An Alternative View” in Karl W Deutsch and Stanley Hoffman (Eds) The Relevance of International Law: Essays in Honor of Leo Gross (Schenkman Publishing Co: Cambridge MA 1968) at 135-136; Revitalizing International Law (Iowa State University Press: Ames 1989).

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In a synthesis of “legal authority with political power” Falk articulated three key functions of international law, which characterise patterns of interaction in the present international system. Law provides rules of the game, setting the basic assumptions about the acceptable limits of behaviour; international law is important for crisis management through the process of communication; and it provides stable expectations for routine inter-State relations.207 Hedley Bull believed that international law fulfils three political functions in international life: to identify the idea of a society of Sovereign States, to state the basic rules of coexistence among States and international actors, and to help mobilize compliance with the rules of international society.208 One of the most sophisticated and best known forms of functionalism is the policy-oriented framework of inquiry advanced by McDougal and associates.209 The authors of policy-oriented jurisprudence preferred to perceive international law in dynamic terms: as the entire flux of authoritative events, decisions and choices occurring at the international level, shaped by all the factors, values and interests interacting within the larger ‘social process’. International law is characterised as decision-making.210 Policy-oriented analysts downplay international law as ‘law’ and characterise it as a decision: “[i]nternational law would be conceived not merely in terms of the rules that officials and others use in explaining and justifying decision,

207 208 209

210

Falk (1968) Ibid., at 145-150. A more expanded version of this basic framework appears in Falk (1989) Ibid., at 43. Bull, above note 16, at 140-142. McDougal and associates do not themselves label their approach as functionalist, preferring instead ‘policy-oriented’ jurisprudence. Their approach has nonetheless been identified as a functionalist theory of international law. See Douglas M Johnston “Functionalism in the Theory of International Law” Canadian Yearbook of International Law, Vol. 26, 1988, pp. 3-60. McDougal and associates have outlined and developed their theory of international law in the following major publications: Myres S McDougal and Harold D Laswell “The Identification and Appraisal of Diverse System of Public Order” American Journal of International Law, Vol. 53, 1959, pp. 1-29; McDougal “Some Basic Theoretical Concepts About International Law: A Policy Oriented Framework of Inquiry” Journal of Conflict Resolution, Vol. 4 1960, pp. 337-54; McDougal Studies in World Public Order (Yale University Press: New Haven 1960); McDougal and F P Feliciano Law and Minimum World Public Order: The Legal Regulation of International Coercion (Yale University Press: New Haven 1961); McDougal and W Michael Reisman “The Changing Structure of International Law” Columbia Law Review, Vol. 65, 1965, pp. 810-835; McDougal Laswell and Reisman “Theories About International Law: Prologue to a Configurative Jurisprudence” Virginia Journal of International Law, Vol. 8, 1968, pp. 188-299; McDougal and Reisman “International Law In a Policy-Oriented Perspective” in Robert St John McDonald and Douglas M Johnston (Eds) The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Martnus Nijhoff: The Hague 1983) at 103-129. Johnston , Ibid., at 7.

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but rather as decision itself.”211 The maintenance of minimum world order and human dignity is the core objective to guide functionalist jurisprudence.212 This functionalist approach is political in the sense of adopting an explicit normative standard (world order and human dignity) to understand international law and international politics, in contrast to positivists who espouse an ‘objective’ approach to the analysis of legal problems. New Haven scholars explicitly adopt a liberal agenda for evaluating world politics. Yet like positivists they assume that there is a fundamental contradiction between law and power politics. Law is not reconciled to power but is instead reconciled to a liberal enlightenment agenda. Whatever ‘functions of law’ approach is chosen when examining law and politics in international relations, it appears that alternative approaches based on a functionalist methodology have two fundamental theoretical difficulties that prevent a comprehensive analysis of world events. Functionalism seeks to move beyond the positivist rulebook image of international law that assumes that law is separate from and superior to politics, while continuing to retain other aspects of the rule-book image of international law. At the same time functionalism attempts to reconcile law to wider ‘political’ factors yet remains unable to incorporate the concept of power central to politics into the structure of its explanation. In reconciling law and politics, functionalism is compromised by focussing on the political role or function of international law in State behaviour. The relationship between international law and State behaviour is reduced to a series of functions that preserves aspects of the rule-book image of international law and the realist opposition between law and power. A functionalist perspective would lead us to appreciate the political functions international law plays in particular international crises, but would not be expected to depart from the positivist legal-illegal binary framework or reconcile law and power politics. An adequate explanation of the international law-State behaviour relationship during international crises involving the use of force would appear to require a theoretical perspective that can account for the nature and significance of the rule-book image of international law and to reconcile political and legal considerations within a coherent theoretical framework.

PART TWO: NEW THEORETICAL PERSPECTIVES ON THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND STATE BEHAVIOUR As was apparent from an examination of the theoretical underpinnings of the empirical literature in Part One of this chapter, existing theoretical explanations of the relationship between international law and State behaviour appear to be centred on a particular conceptualisation of international law. Whether it is assumed that States should comply with law, or that law is irrelevant or only a justification for State behaviour,

211 212

McDougal and Reisman, above note 208, at 113. Italics in original. McDougal and Laswell, above note 208, at 3.

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or that international law fulfills a series of political functions, all such accounts of the relationship between international law and State behaviour are underpinned by a rule-book image of international law. Thus current literature with a bearing on the relationship of international law and State behaviour during international crises would appear to be founded on theoretical approaches that share an explanatory inadequacy. What remains unaccounted for is the political significance of the rule-book image of international law itself. There is need for an explanation that does not take the rule-book image of international law as a body of compulsory rules, separate from the operation of politics, neutral and capable of objectively distinguishing between legal and illegal behaviour, at face value; but instead provides a political explanation of the power and sway of that image. A conceptualisation of international law that can account for the prevailing rule-book image of international law therefore has the potential to move us beyond explanations of the relationship of international law to State behaviour couched in terms of either compliance or justification. It would appear that to move beyond narratives of compliance or justification requires accounting for the operation of international law in a way that will account for the political significance of the rule-book image of international law. Positivism, realism and functionalism have given rise to major bodies of empirical literature with relevance for understanding the international law-State behaviour relationship during international crises involving the use of force. There are also newer theoretical perspectives on international law and/or State behaviour, including critical legal theory, constructivism, and a liberal theory of international law, which have not given rise to a major body of literature applying those approaches to foreign policy decisionmaking scenarios involving the possibility of force. These newer theoretical approaches all seek in their own way to better account for both the legal and political dimensions of international law and/or State behaviour. Part Two of this chapter will critically examine these new theoretical approaches and assess how each new theoretical approach has accounted for the political significance of the rule-book image of international law, so as to assess whether they offer viable alternative foundations upon which to examine the relationship of international law to State behaviour during international crises.

Critical Legal Theory The work of ‘Newstream’ scholars, which is a part of a broader movement of Critical Legal Studies (CLS), has argued that there is no clear distinction between law and politics.213 Newstream scholars deny the possibility of a strictly ‘legal’ analysis. It is possible to defend a State’s legality by adopting a position “…only by a political

213

Koskenniemi, above note 1; David Kennedy International Legal Structures (Nomos Verlagsgesellschaft: Baden-Baden 1987); “A New Stream of International Law Scholarship” Wisconsin International Law Journal, Vol. 7, 1988, pp. 1-49.

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choice…”.214 As Cass has noted, the “[n]ewstream strategy of integrating politics into law claims to expose law’s silence about politics, cast doubt upon its objectivity, and facilitates the identification of underlying biases within doctrine.”215 The Newstream approach concedes that the mainstream conceptualisation of international law, which assumes law is objective and politically neutral, is untrue. Newstream writers question a fundamental component of the rule-book image of international law; namely, the notion that law is separate from, and superior to, politics. They argue that political considerations influencing the development of a legal rule should be acknowledged to expose bias and show how law is not living up to its image of political neutrality. Such a ‘critical’ approach to international law, exposing the bias built into traditional approaches to international law, is represented in Anne Orford’s critical reading of legal narratives regarding humanitarian intervention. Dispensing with assessing the legality or illegality of instances of humanitarian intervention in the post Cold War period, she has attempted to understand the dominant narratives embedded in legal texts on humanitarian intervention, finding that far from being neutral or objective, such texts have embedded within them imperial and patriarchal fantasies.216 The increasingly sympathetic attitude towards humanitarian intervention by some legal writers, who view such ‘muscular’ intervention as a way to protect and promote human rights, is ‘read’ by Orford in a more ambivalent light: not as a revolutionary development but as a way in which neo-colonial and patriarchal forms are created and replicated. Such a creative insight into the meanings underpinning legal texts represent the advantages of a critical approach to international law. However, there would appear to be limitations to the extent to which a critical approach to international law can help us conceptualise international law separate from the disciplinary ‘baggage’ of International Law, especially in exploring and accounting for the nature of the rule-book image of international law and its place in State behaviour. Newstream thinkers seek to acknowledge the politics of international law in order to reconceptualize the content of the law.217 However, what remains unexplained is the political significance of the rule- book image of international law itself.

214 215 216 217

Martii Koskenniemi “The Politics of International Law” European Journal of International Law, Vol. 1, 1990, pp. 4-32, at 9. Deborah Z Cass “Navigating the Newstream: Recent Critical Scholarship in International Law” Harvard International Law Journal, Vol. 65, 1996, pp. 341-383, at 377. Anne Orford Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge University Press: Cambridge 2003) at 37-38. Cass, above note 214, at 345.

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Constructivism Constructivism is another approach that has been recognised as a possible framework in which to examine the role of international law in international politics.218 Constructivism is a body of international relations theory which first emerged in the mid-1980s and began to fully develop in the 1990s.219 Constructivism has its theoretical antecedents in the English School of International Relations220 and has been described as occupying the middle ground between rational choice theories (such as realism) and postmodern theories of international relations.221 While there is no single constructivist approach, the term constructivism is used to refer to works that may differ in form but share some common assumptions, such as that the international system is constructed on the basis of shared norms, including those of international law. 222One of the earliest ‘constructivist’ approaches said to have prefigured much of the contemporary constructivist approaches223 is that of Friedrich Kratochwil, who examined the role of international legal norms in international

218 219

220

221

222

223

Anthony Clark Arend “Do Legal Rules Matter: International Law and International Politics” Virginia Journal of International Law, Vol. 38, 1998, pp. 107-153, at 129. Anne Marie Slaughter, Andrew S Tulumello and Stephen Wood “International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship” American Journal of International Law, Vol. 92, 1998, pp. 367-397, at 373; Jeffrey T Checkel “The Constructivist Turn in International Relations Theory” World Politics, Vol. 50(2), 1998, pp. 324-348, at 323. Timothy Dunne “The Social Construction of International Society” European Journal of International Relations, Vol. 1(3), 1995, pp. 376-389. Dunne refers to IR theorists of the English School such as Hedley Bull, Martin Wight and Herbert Butterfield as ‘classical constructivists’. Dunne notes that Alexander Wendt, identified as the mainstream theorist of constructivism, does not consciously regard himself as following an English School of constructivism (at 372). Moreover, IR theorists of the English School did not themselves consciously recognise or set about developing a constructivist approach to understanding international relations. Checkel, above note 218, at 327; Emanuel Adler “Seizing the Middle Ground: Constructivism in World Politics” European Journal of International Relations, Vol. 3(3), 1997, pp. 319-363. For key constructivist writings, see, among others: Friedrich Kratochwil and John G Ruggie “International Organization: A State of the Art on an Art of the State” International Organisation, Vol. 40(4), 1986, pp. 753-775; Alexander Wendt “Anarchy is What States Make of it: The Social Construction of Power Politics” International Organization Vol. 46, 1992, pp. 335-370; “Constructing International Politics” International Security Vol. 20, 1995, pp. 71-81; A Social Theory of International Politics (Cambridge University Press: Cambridge 1999); John G Ruggie Constructing the World Polity (Routledge: London 1998); Vendulka Kabálková, Nicholas Onuf and Paul Kowert (Eds) International Relations in a Constructed World (M E Sharpe: Armonk 1998). Slaughter et al, above note 218, at 368.

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relations.224 He investigated the ‘reality of the international legal order’ whereby the rules of international law are constitutive of international political processes rather than being regulative.225 Nicholas Onuf, on the other hand, has contended that rules – of which international law is a highly formalised form – are both constitutive and regulative. He has looked at rules in world politics from the point of view of skillful individuals (such as lawyers) – whereby rules give agency to individuals who not only articulate the content of rules regulating world politics but, in part, constitute and make up the world in which the rules operate.226 More recently Hurrell, whose approach has also been labeled constructivist,227 has suggested that international law is “…constructive of the structure of the State system itself…”.228 According to Reus-Smit, politics is understood “…as a socially constitutive form of action, and law as central to the normative structures that condition the politics of legitimate Statehood and rightful action.”229 Jefferson, Wendt and Kaztenstein, looking at the effects of norms in shaping national security interests have posited three ‘layers’ of the international cultural environment which are ‘constructive’ of State behaviour and State identity. These layers include, firstly, formal institutions (such as NATO or the Non Proliferation Treaty regime); secondly, such diverse elements as sovereignty, international law, and NGOs that carry ‘transnational political discourse’; and thirdly, the patterns of relative friendship/hostility between States.230 Kritsiotis has applied a constructivist perspective in examining how international law structures its relationship with political action involving the use of force. Looking at the international law on the use of force, in particular the Kellogg-Briand Pact and the UN Charter, Kritsiotis has sought to undermine the traditional assumption that law and politics are distinct realms.231 According to Kritsiotis, international law is not simply a body of rules whose relationship to politics is to stipulate how States should act. Law is constitutive of political action in that it is both a constraining factor and

224

225 226

227 228

229 230

231

Friedrich V Kratochwil Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge University Press: Cambridge 1989) at 1. Ibid., at 250. Nicholas Onuf World of Our Making: Rules and Rule in Social Theory and International Relations (University of South Carolina Press: Columbia 1989) at 242-243; “Constructivism: A User’s Manual” in Kabálková et al, above note 221, at 68. J Craig Barker International Law and International Relations (Continuum: London 2000) at 83. Andrew Hurrell “International Society and the Study of Regimes: A Reflective Approach” in Volker Rittberger and Peter Mayer (Eds) Regime Theory and International Relations (Clarendon Press: Oxford 1993) at 59. Christian Reus-Smit “The Politics of International Law” in Christian Reus-Smit (Ed) The Politics of International Law (Cambridge University Press: Cambridge 2004) at 15. Ronald L Jefferson, Alexander Wendt and Peter J Katzenstein “Norms, Identity and Culture in National Security” in Peter J Katzenstein (Ed) The Culture of National Security: Norms and Identity in World Politics (Columbia University Press: New York 1996) at 33-34. Dino Kritsiotis “When states use armed force” in Reus-Smit (Ed), above note 228, at 61.

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discursive medium for States.232 The UN Charter’s prohibition on the use of force serves to restrain State action, and the exceptions to the use of force found in the UN Charter indicate “…the extent of law’s discursive capacity as a communicative device helping to frame the various claims which States make to other States to defend their coercion under international law.”233 By challenging the notion that law is separate from, or superior to, politics and recognising that law may in fact be part of the construction of the international political system and State interests, constructivism poses an interesting challenge to one aspect of the traditional positivist rule-book image – the notion that law is superior to the operation of politics. Yet other aspects of the traditional notion of international law remain intact. Kratochwil believed that international law can “…set the range of permissible goals which actors can pursue and specifies the steps necessary to insure the validity of their official acts…”234 Hurrell suggested that States continue to face the “necessity of justifying their action in legal terms.”235 Onuf accepted the ‘regulative’236 capacity of rules such as international law. Such views continue to reinforce other aspects of the rule – book image of international law – that which conveys the notion of being able to objectively describe State behaviour in terms of ‘legal’ or ‘illegal’ action and the notion that the rules of international law are compulsory. Jefferson, Wendt and Kaztenstein reinforce the “control function”237 of international law, which conveys the idea of international law as a body of rules that is external to the State which somehow regulates or controls State behaviour. While Kritsiotis recognises the distinction between law and politics might not be very clear, what is overlooked is why State representatives continue to endorse the distinction in their public rhetoric even while recognising privately that the distinction is not entirely true.238 If as Kritsiotis suggests international law plays an important political role as a discursive medium in which States defend their use of force under international law, what value is there to being perceived as being in the ‘legal’ right, a conclusion which would seem to admit that it is possible to objectively distinguish between legal and illegal behaviour and that being ‘legal’ is somehow distinct from acting ‘politically’. Similarly, Reus-Smit, while recognising that the distinction between law and politics is unclear, refers to the “obligatory force”239 of law which appears to admit to the possibility that law is somehow distinct from, and superior to, politics. While constructivism challenges one aspect of the rule-book image of international law, it continues to retain the rule-

232 233 234 235 236 237 238 239

Ibid., at 79. Ibid. Kratochwil, above note 223, at 251. Hurrell, above note 227, at 61. Onuf, above note 225. Jefferson et al, above note 229, at 49. Kritsiotis, above note 230, at 54. Reus-Smit, above note 228, at 24.

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book image of international law in other aspects of its explanation. A constructivist approach focuses on shared norms, such as international law, that serve to construct State interests and in turn influence international political processes.240 The question that remains unanswered by constructivism is just what political sway and influence the rule-book image of international law itself carries.

A Liberal Theory of International Law Anne-Marie Slaughter has sought to “reimagine international law”241 so as to develop an “integrated theory of international law and international relations”242 by building on a liberal international relations theory developed by Moravcsik. The starting assumptions for a liberal theory of international law include: the primary actors in the international system are not States but individuals and groups seeking to promote individual interests; government reflects a subset of domestic society whose interests are reflected in a State’s foreign policy; and State behaviour reflects some configuration of State preferences formed by individuals and groups in domestic society.243 Slaughter’s liberal theory of international law thus blurs one of the basic images of traditional positivist, or what she calls classical international law: that international law is politically neutral. She writes: “liberal International Relations theory…permits, indeed mandates, a distinction among different types of States based on their domestic political structure and ideology.”244 One distinction that emerges when this approach is applied is between liberal and non-liberal States.245 Slaughter does not recognise the rule-book image of international law as a phenomenon in need of political explanation. Her aim is to ‘reimagine’ international law so as to accept such a distinction as valid and thus enable an examination of its potential implications.246 A liberal theory of international law which is based on the validity of a distinction between liberal and non liberal States assumes that liberal States display

240

241 242 243 244 245

246

International law is not the only shared norm. Wendt, a key constructivist writer, has identified the ‘institutions of anarchy’ as another shared norm that serves to ‘construct’ power politics and self-help, which are usually considered intrinsic to international political processes. See Alexander Wendt “Anarchy is What States Make of it: The Social Construction of Power Politics” International Organization, Vol. 46(2), 1992, pp. 391-425, at 395. Anne-Marie Slaughter “International Law in a World of Liberal States” European Journal of International Law, Vol. 6, 1995, pp. 503-538, at 505. Ibid., at 503. Ibid., at 508. Ibid., at 504. According to Slaughter, liberal States are characterised by “…some form of representative democracy, a market economy based on private property rights, and constitutional protection of civil and political rights.” Ibid., at 509. Ibid., at 505.

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a greater propensity to comply with international law which gives rise to the ‘liberal peace’.247 While Slaughter has re-imagined some aspects of international law, her approach, like CLS and constructivism, leaves other aspects of the rule-book image of international law unexplained. As with CLS and constructivism, this is not because she has ‘failed’ but because a political explanation of the rule-book image of international law is not the aim of her theoretical approach. By presenting a liberal theory of international law, Slaughter abandons the traditional rule-book image that international law is separate from politics and instead presents a conceptualisation of law that embraces a distinction between different domestic political regimes to explain why a State may act legally. Yet at the same time a liberal theory of international law continues to reinforce the compulsory nature of international legal rules. Such a notion underpins the basic approach of liberal theory to explain the prevalence of peace among liberal States: that liberal States are more likely to comply with international law. Thus she appears to have only reimagined one aspect of the rule-book image of international law, leaving others – such as the compulsory nature of international law – intact.248 Furthermore, what remains unexplained is why these and other traditional images of international law continue to retain validity among international lawyers and political scientists. What can account for the continuation of the classical rule-book image of international law, both within the literature on international crises and more generally? Why, for instance, do State representatives continue to give expression to this rule-book image in their public legal rhetoric? Such questions about the fundamental significance of the rule-book image of international law have not been answered by a liberal theory of international law.

Conclusion It is now apparent that existing theoretical approaches to international law and international relations share an explanatory inadequacy. Theories that have given rise to empirical literature on the relationship of international law to State behaviour during international crises involving the use of force, namely, positivism, realism and functionalism have not been able to adequately explain the law-State behaviour relationship. The newer theoretical approaches such as critical legal theory,

247 248

Ibid., at 530, 533-534. According to Alvarez, Slaughter has also recognised that “international law at a fundamental level needs to continue to insist that all States be treated equal – whatever liberals say.” Thus she would also seem to reinforce another traditional/classical rule-book assumption of international law: the notion that international law is universal in the sense that it treats all States equally. See José E. Alvarez “Do Liberal States Behave Better?: A Critique of Slaughter’s Liberal Theory” European Journal of International Law, Vol. 12(2), 2002, pp. 183-246, at 246.

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constructivism and a liberal theory of international law that have yet to give rise to substantial empirical literature dealing with the relationship of international law and State behaviour during international crises are also unable to explain adequately the relationship of international law to State behaviour. This theoretical lacuna is the result of a shared explanatory inadequacy: the failure to account for the political significance of what has been referred to as the rule-book image of international law – the image of international law as a body of compulsory rules, separate from and superior to politics, capable of objectively distinguishing between legal and illegal State behaviour. Positivists, realists and functionalists have taken the rule-book image of international law at face value. Thus the relationship of international law to State behaviour is deemed as either one of States complying with international law as positivists and functionalists tell us, or of international law being irrelevant or at best used to justify political behaviour as realists tell us. Taken together these three approaches present an ‘all or nothing’ framework where either law is important and political factors that may influence State behaviour are not important, or law is not important and political factors are paramount. Moving beyond the ‘all or nothing’ approaches are new theoretical perspectives of CLS, constructivism, and a liberal theory of international law which have all sought in their different ways to account for both legal and political dimensions of international law and/or State behaviour. Each of these newer theoretical perspectives displays an impressive and sophisticated understanding of the political context in which international law is created and operates. While these newer theoretical perspectives have questioned aspects of the rule-book image of international law, they have not accounted adequately for the persistence and political sway of the rule-book image of international law. Attempts to explain the relationship between international law and State behaviour have been hampered by an understanding of law derived from legal positivism. The political significance of the rule-book image of international law remains unexamined. In the next chapter we will examine a theoretical approach that has been able to account for the political significance and sway of the rule-book image of international law: International Law as Ideology (ILI).

CHAPTER TWO AN ALTERNATIVE THEORETICAL APPROACH FOR UNDERSTANDING THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND STATE BEHAVIOUR DURING INTERNATIONAL CRISES: INTERNATIONAL LAW AS IDEOLOGY

It is now apparent that existing accounts of the place of international law in State behaviour have been inadequate. The inadequacies of those theories and of potential alternatives has been explained in terms of the rule-book image of international law which refers to an understanding of law that (often implicitly) assumes that law is a body of rules that is separate from politics, neutral and universal. As was demonstrated in the previous chapter, existing theoretical accounts of the relationship between international law and international politics have used an understanding of law derived from within the system of international law. It is therefore inevitable that existing theoretical paradigms, which have assumed a legal understanding of law have not explained the political significance of the rule-book image of international law and the relationship of law to international politics. Thus an alternative theoretical foundation is needed to understand the relationship of international law to State behaviour. The gap in knowledge left by the inadequacies of approaches unable to account for the significance of the rule-book image of international law can be filled by an International Law as Ideology (ILI) perspective, which theorizes the relationship of international law to international politics in terms of ideology.1 A theorisation of

1

An ILI approach was first explained and justified in Shirley V Scott “International Law as Ideology: Theorizing the Relationship Between International Law and International Politics” European Journal of International Law, Vol. 5, 1994, pp. 313-325. It has since been developed in, inter alia, Shirley V Scott “Explaining Compliance with International Law: Broadening the Agenda for Enquiry” Australian Journal of Political Science, Vol. 30, 1995a, pp. 288-99; “Building Bridges with Political Science?: A Response from the Other

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international law as ideology developed by Shirley Scott is a political theory of international law clearly situated outside the positivist rule-book image of international law, which attempts to account for the nature and significance of legal dialogue premised on this rule-book image. Rather than assume at face value the rule-book image of international law – a body of rules that are politically neutral, objective, and existing prior to policy – ILI seeks instead to theorize the political significance of such an image of international law. An ILI perspective would appear to have the potential to provide a new theoretical perspective on the relationship between international law and State behaviour and it has the potential to be empirically applied to understand the relationship between international law and State behaviour during international crises.

Theorising the Power of the Rule-Book Image of International Law As realists have told us, to study world politics is to study political power.2 In seeking to understand the political significance of international law, any new theoretical account of the relationship of international law to international politics must grapple with the question of the relationship between international law and political power. Of the three theoretical paradigms examined in Chapter One, only realism – the dominant theoretical paradigm in post-WWII International Relations – explicitly deals with the power concept, albeit only with tangible manifestations of power.3 As we saw in Chapter One, functionalist and positivist perspectives on international law do not address the question of the relationship of international law to political power.

2

3

Shore” Australian Year Book of International Law, Vol. 16, 1995b, pp. 271-284; “Universalism and Title to Territory in Australia” Nordic Journal of International Law, Vol. 66, 1997, pp. 33-53; “Beyond “Compliance”: Reconceiving the International Law-Foreign Policy Dynamic” Australian Year Book of International Law, Vol. 19, 1998, pp. 35-48; The Political Interpretation of Multilateral Treaties (Martinus Nijhoff: Leiden/Boston 2004); Shirley V Scott and Radhika Withana “The Relevance of International Law for Foreign Policy Decision-making When National Security is at Stake: Lessons from the Cuban Missile Crisis” Chinese Journal of International Law, Vol. 3(1), 2004, pp. 163-187. E H Carr The Twenty Year Crisis: 1919-1939 (Macmillan and Co Ltd: New York 1958); Hans J Morgenthau Politics Among Nations: The Struggle for Power and Peace (5th Edition) (Alfred A Knopf: New York 1973) at 27-30. Hans J Morgenthau Politics Among Nations: The Struggle for Power and Peace (5th Edition) (Alfred A Knopf: New York 1973) at 28-30. Morgenthau also acknowledges more abstract forms of power such as psychological power. Despite this concession, the extent to which traditional realism is firmly grounded in material reality is illustrated in his application of psychological power to threats of force. Where the actual use of force is involved, more materially relevant factors such as physical and military power are considered more important. This is representative of the general realist approach which stresses tangible forms of power. It is not surprising therefore that international law is not considered a significant, tangible manifestation of power.

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Thus, to date, explanations of the relationship of international law and international politics have not adequately dealt with the relationship of international law to political power. While realism with its emphasis on tangible manifestations of power cannot conceptualise the relationship of international law to political power, there is a body of theory which examines intangible manifestations of power. Ideology theory is a body of theory which explains the relationship between ideas and power and would appear to have much scope for application in understanding the relationship between international law and international politics. Understanding the rule-book image of international law as an idea would seem to hold the possibility of theorizing the relevance of law to relations of power between States. Ideology theory, which explains the relations between ideas and power, has the potential to be used to establish the theoretical space in which to trace the political operation of international law. To accept such a formulation of international law that is clearly in the intangible sphere requires that one accept the fact that ideas have power. Scott points out that while the notion that ideas have power can not be proven with scientific investigation, it is possible to point to instances where ideas constitute a form of power.4 For instance, few would deny that the rejection of the ideology of colonialism and acceptance of self-determination was a major factor in post-WWII decolonisation.5 Once it is accepted that ideas can be a form of power it is possible to use the insights of particular ideology theorists to explain the connection between ideas and power and the use of international law as a political tool. To explore the proposition that the significance of international law lies in the ‘idea’ of international law, Scott draws on the insights of certain ideology theorists who have examined the relationship of ideas to structures of power and the way in which meaning can be used as a political tool.6

PART ONE: INTERNATIONAL LAW AS IDEOLOGY (ILI): EXPLAINING THE POWER AND SIGNIFICANCE OF THE RULE-BOOK IMAGE OF INTERNATIONAL LAW An International Law as Ideology (ILI) perspective theorizes the relationship of international law to international politics in terms of ideology. While still in the process of development, this new theoretical approach has been outlined and

4 5 6

Scott (1995), above note 1, at 317-318. Ibid. Ibid., at 317-318. As Scott notes, while drawing on these authors her approach to ideology is best described as ‘eclectic’. Her approach does not transfer their work directly or necessarily agree with all aspects of their approach but instead engages with the ideas espoused in their work drawing on their insights to develop her ILI perspective. Scott (2004), above note 1, at 17.

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recognised by leading international theorists as offering a new contribution to the literature.7 The theorisation of the international law-international politics relationship offered by Shirley Scott is a political theory of international law clearly situated outside the positivist rule-book image of international law, yet able to account for the nature and significance of legal dialogue which turns on this rule-book image. Rather than assume at face value the image of international law – that it is politically neutral, objective, and existing prior to policy – ILI seeks instead to theorize the political significance of such an image of international law. An ILI approach would appear to possess much potential to open up new avenues for investigating the relationship between international law and international politics, but has yet to be applied widely. This is all the more curious given the recent efforts for greater inter-disciplinary dialogue between the disciplines of International Law and International Relations and ILI having been widely received as a new contribution to the literature on international law and politics. One reason to account for why ILI has not been widely applied to date may be that an ILI approach is a post-positivist theory in which knowledge of the particular social phenomena under investigation – such as international law – is itself theoretically informed. In a post-positivist theory “[t]here are no brute facts, no facts without interpretation, and interpretation always involves theory.”8 This is in contrast to a positivist theory, which assumes that there cannot be different kinds of knowledge; facts and theory are independent and the process of inquiry is “…concerned with the description and explanation of empirical facts.”9 Theory helps to explain empirical facts but does not play any role in how those facts are perceived. An ILI perspective is post-positivist in that knowledge of international law is itself theoretically laden, making it difficult to combine with other theories whose knowledge of international law may differ. The post-positivist nature

7

8 9

Ann Marie Slaughter-Burley “International Law and International Relations Theory: A Dual Agenda” American Journal of International Law, Vol. 83, 1993, pp. 205-39; Ann Marie Slaughter, Andrew S Tulumello and Stephen Wood “International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship” American Journal of International Law, Vol. 92, 1998, pp. 367-397, at 382. Peter Malanczuk Akehurst’s Modern Introduction to International Law (7th Edition) (Routledge: London 1997) at 33; Martin Dixon and Robert McCorquodale Cases and Materials on International Law (3rd Edition) (Blackstone Press Ltd: London 2000) at 5. Ken Booth, Steve Smith and Marysia Zalewski International Theory: Positivism and Beyond (Cambridge University Press: Cambridge 1996) at 13. Thomas Mautner (Ed) The Penguin Dictionary of Philosophy (Penguin: London 2000) at 438. ‘Positivist’ theory referred to here relates to positive philosophy and is not to be confused with international legal positivism which apply the principles of positive philosophy – especially the notion that it is possible to distinguish between what ought to be and what is – to international law. There are other elements of positivist theories not canvassed here such as the assumption that all knowledge is based on sense-experience; that it is possible to explain the causal relationships between phenomena; and that the methods of the physical and social sciences are largely the same. Mautner, Ibid.

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of an ILI approach may account, in part, for why an ILI perspective has yet to be empirically applied by many others. The study of ideology, however defined, makes clear the impact ideas can and do have on social phenomena. However, it should now be clear that the concept of ideology used by Scott, drawing heavily on the work of John Thompson and Anthony Giddens, is used merely to designate and analyse the relationship of ideas to power and the way in which those ideas can be employed politically. By ‘ideology’ Scott wishes only to denote “the analysis of an idea in relation to power, in this case the idea of international law in relation to global structures of power.”10 The political conceptualisation of ideology used by Scott is concerned with the political use of the idea of international law rather than an epistemological conception of ideology which seeks to identify the intrinsic quality of ideas – as false, bad, wrong. In Scott’s usage of the term ‘ideology’ there is no intrinsic difference between ideas, principles and ideology. The distinction resides not in the definition of the three concepts but in the method of their analysis: an ideology is an idea or principle or set of ideas/ principles analysed in terms of power.11 While accepting Thompson’s ‘critical’ emphasis whereby ideology is employed politically largely for the purpose of domination, Scott accounts for the ideology of international law “…as both oppressor and liberator.”12 ILI is not the only occasion where ideology theory has been applied to international law. Susan Marks has applied what she calls a critical conception of ideology to the analysis of international law.13 Her aim was not to theorize the relationship between international law and international politics; she uses the concept of ideology to explore the implications of the growing discourse regarding the developing norm of democratic governance in international law. While drawing on Thompson’s political conception of ideology in terms of examining the political function of ideas in social life, Marks also relied on his critical conception of ideology whereby knowledge of the way ideas are employed for processes of domination offers the possibility for criticism and change.14 Applying a critical conception of ideology allowed her to point to the way in which the present debate on the emerging norm of democratic governance has the potential to entrench domination and to point

10 11 12 13

14

Scott (1995b), above note 1, at 276. Ibid., at 318. Scott (1995b), above note 1, at 276. Susan Marks The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (Oxford University Press: Oxford 2000) at 15, 25; “Big Brother is Bleeping Us – With the Message that Ideology Doesn’t Matter” European Journal of International Law, Vol. 12, 2001, pp. 109-123. Marks (2000), Ibid., at 12. Marks draws, in particular, on John B Thompson Ideology and Modern Culture: Critical Social Theory in the Era of Mass Communication (Polity Press: Cambridge 1990).

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forward to how international legal discourse on democracy through law could be emancipatory.15 The approach to international law by Marks is firmly rooted within the tradition of international law. This can be seen in her approach to the rule-book image of international law. By advocating abandonment of the long held assumption that law is politically neutral16 she challenges part of the rule-book image of international law. Other aspects of the rule-book image remain unchallenged. Marks believes, for example, that an emergent norm of democratic governance should be established not by reference to customary international law as is usually done but by reference to general principles of international law.17 Reference to the sources of international law keeps intact that part of the rule-book image of international law that delineates a clear law-non law boundary.

International Law as Ideology: Understanding the Rule-Book Image of International Law Using the Insights of Ideology Theory A theorisation of international law as ideology developed by Scott seeks to analyse the political significance of the image of international law, rather than reconcile or resolve the contradiction between the ideal of international law operating according to a rule-book image of international law and the reality of its operation. A theorisation of international law as ideology does not seek to alter the ideal but proposes a mechanism by which the ideal can be used as a form of power, either as oppressor or liberator. ILI does not therefore challenge the positivist rule-book conceptualisation of international law, but instead seeks to explain the political significance of that image. It looks at the rule-book image of international law from outside the discipline of International Law. An ILI approach is not a substitute for, or negation of, a realist theory of the operation of world politics. Instead an ILI approach seeks to reconcile international law to power politics, the latter being the central explanatory concept of realism. While ILI is situated in the realist tradition and accepts the realist theory of world politics,18 ILI departs from realism by concentrating attention on process rather than outcomes or interests. One problem with a realist approach to understanding relations of power between States has been that it overlooks the processes by which States interact. The primary unit of analysis in realism is the State. If, as realists assume,

15 16 17 18

Marks, Ibid., at 1. Ibid., at 147. Ibid., at 111. By reconciling the idea of international law to power politics an ILI approach is not an idealist approach as Miéville suggests. See China Miéville, “The Commodity-Form Theory of International Law: An Introduction” Leiden Journal of International Law, Vol. 17(2), 2004, pp. 271-302 at 279. Rather, an ILI approach is in fact situated in the realist tradition.

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State behaviour is determined by the rational calculation of interests, and outcomes are determined by relative power capabilities, then the process by which States interact is of little importance. Realism says little about the process between the rational calculation of interests and outcomes determined by power. This is because realism does not focus its explanation of international political activity at a level lower than the State. Interaction between States actually occurs through individuals acting as representatives of that State. State behaviour is determined by individuals within the decision-making apparatus of a State and decisions implemented by State representatives. A further reason for realism’s inability to account for the process through which foreign policy is conducted and the influence of international law on that process, is the emphasis of realism on tangible manifestations of power. Thus international law and power are contrasted. The determination of State behaviour at the decisionmaking level and the implementation of State behaviour, in part, through the diplomacy undertaken by State representatives, take place through language, whether through oral or written communication. The determination of foreign policy at the decision-making level includes, among other things, considerations of international law. State representatives implement policy positions and attempt to legitimise the chosen course as convincingly as possible, including through rhetoric that appeals to international law. The language of international law is a part of the process by which State decision-makers formulate and implement foreign policy. International law exists very much in the realm between the determination of interests and outcomes; however, realism provides no avenues for an investigation of the process by which States interact. As we now know, theories of ideology have the potential to explore intangible manifestations of power, such as the power of ideas. Understanding international law as an ideology allows for the possibility of reconciling what, in realism, has been a dualism between power and law. It is a dualism not reconciled by either positivism or functionalism, neither of which has denied the primacy of power in world politics or incorporated international law into the power politics equation. For Scott, it is through understanding international law as an idea that it is possible to theorize the relevance of law to relations of power between States. Understanding international law as an ideology thus shifts the focus from examining State behaviour in terms of the formulation of interests and outcomes determined on the basis of power. The focus is instead turned towards the process by which State behaviour is determined at the level of foreign policy decision-making and the process by which State behaviour is implemented at the level of inter-State diplomacy, and the relevance of international law to these processes. According to Scott’s use of the term ‘ideology’ there is integral to every political order a particular set of ideas (ideology).19 In order to apply ideology theory to the rule-book image of international law, Scott treats the whole international political

19

Scott (1995), above note 1, at 318.

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order as one power structure. Assuming that the system of international law has evolved with the modern international political system, it is hypothesised that the idea of international law is integral to that power structure.20 In a bold departure from existing accounts of the relationship of international law to State behaviour, ILI suggests that without the idea of international law the international political system would not operate as it does currently. “[F]ar from being irrelevant, international law is, in its own right, a prime, though not the sole, determinant of relative power positions in international politics.”21 ILI therefore surmounts much criticism of the irrelevance of international law and highlights how international law in its own right is a central (though not the only) determinant of relative power positions in international relations.22 Thus a theorisation of international law as ideology does not reject the realist theory of international politics; rather it reconceptualizes the rule-book image of international law in the context of a realist understanding of international politics. An unequal distribution of power is portrayed by an ideology as a natural state of affairs. The ideology of international law can be identified from references to international law both in oral and written communication. Public rhetoric that State representatives employ in their diplomacy with each other may refer to international law. Correspondence between representatives of States may also refer to legal rhetoric in the process of announcing and justifying a particular course of action. International law may also be found referred to in internal decision-making documents such as memoranda, policy papers, meetings to canvass foreign policy options and so on. What is most important for the operation of the ideology is that members of the international political structure must continue to uphold the ideology if that political order is to remain in place. “It is through functioning as a logical prerequisite for discourse within that political order that the ideology has its existence and sway.”23 This insight draws on Giddens’ theory of structuration24 where the “structural properties of social systems are both the medium and the outcome of the practices that constitute those systems.”25

20 21 22

23 24 25

Ibid., 319. Ibid., 319. Scott (1995b), above note 1, at 273. Cf. this point with the constructivist view that shared norms, such as international law, serve to construct State interests, but which does not explain what political sway and influence the rule-book image of international law itself carries. ILI which does account for the nature and significance of the image itself explains how international law is integral to relative power positions, not as constructivists tells us, through the construction of State interests, but in the processes through which States interact. Scott (1997), above note 1, at 35. Ibid. Anthony Giddens Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis (Macmillan: London 1979) at 69.

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The ideology is upheld by rhetoric assuming it to be true, such as, for example, when State representatives make reference to the illegal intervention of a State contrary to Article 51 of the UN Charter. In this their rhetoric assumes the idea that it is possible to distinguish objectively between legal and illegal behaviour. When armed force is supported by reference to Security Council authorisation under Article 39 of the UN Charter, acceptance is given to the binding quality of international law by stressing the legality of one’s own behaviour. This is quite different to analyses that would assert the legality or illegality of certain action. There are a number of principles that characterise the rule-book image of international law which constitutes the ideology of international law. These include: international law is ultimately distinguishable from, and separate to, politics; it is possible to distinguish objectively between illegal and legal behaviour; international law is already equipped to deal with whatever dispute may arise (and if new issues arise, relevant principles can be ascertained from the existing, generally self contained body of rules); the rules that make up the system of international law are compulsory; international law is politically neutral or universal in the sense that it treats all States equally; international law is, at this point of time, static; international law is vitally self contained; it is possible to apply the rules of law objectively so as to settle a dispute between States; international law is virtually comprehensive.26 International lawyers reinforce components of the rule-book image of international law when they make reference to international law and engage in legal debate.27 The component principles are first reinforced in the training of international law students, who are likely to encounter the obligatory, introductory chapter in their international law textbook establishing the ‘legal’ credentials of international law. In such a chapter, students are told that international legal analysis is based on “legal forms and methods”,28 which reinforces the notion that international law is separate from politics. Legal reasoning, they are told, involves “exchanging arguments about the facts and the law”,29 which reinforces the notion that international law is objective and politically neutral. States, students are told, are legally bound by their

26 27

28 29

Scott (1998), above note 1, at 44. As Martin and McCorquodale have written, “[p]art of the role of an international lawyer is to clarify, declare and uphold international law.” Martin and McCorquodale, above note 7, at 19. Brierly, cited in David J Harris Cases and Materials on International Law (Sweet and Maxwell: London 1998) at 2. Ibid., at 5.

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obligations,30 which reinforces the notion that the rules of international law are compulsory. Students are also taught that general principles of international law provide a reservoir which international lawyers may draw on to fill gaps in the law; “…in this way international law is able to function as a complete system in which lawyers are able to find a legal solution to every problem which may arise in international relations.”31 This view reinforces the notion that international law is virtually comprehensive and can deal with any issue that arises between States. Authors of international legal texts refer to States that ‘observe’ and ‘violate’ the law,32 which reinforces the notion that it is possible to objectively distinguish between legal and illegal behaviour. The International Court of Justice is regarded as a body to which States may refer their dispute for settlement,33 which reinforces the idea that the rules of international law can be objectively applied to settle a dispute between States.

Understanding the International Law on the Use of Force From an ILI Perspective Let us now re-look at the literature on the use of force underpinned by positivism, to see how the above mentioned principles which constitute the rule-book image of international law remain implicit assumptions underpinning positivist literature on the use of force.

Reinforcing the Assumption That it is Possible to Distinguish State Behaviour Involving the Use of Force as Either ‘Legal’ or ‘Illegal’ One way the rule-book image of international law is reinforced is via the assumption that it is possible to objectively distinguish between action that is legal and action that is illegal. This assumption underpins the vast body of literature which seeks to elaborate the legal limits of the prohibition on the use of force and the exceptions to this prohibition. Underpinning this literature is the assumption that the distinction between ‘legal’ and ‘illegal’ action can be delineated by seemingly objective criteria. Such objective criteria include reference to the sources of international law, including:

30 31 32

33

Malanczuk, above note 7, at 7. Stephen Hall Public International Law (LexisNexis Butterworths: Sydney 2003) at 10. For example see: Ian Brownlie Principles of Public International Law (Oxford University Press: Oxford 2003) at 9; Antonio Cassese International Law (Oxford University Press: Oxford 2002) at 212, 229; Ivan A Shearer Starke’s International Law (11th Edition) (Butterworths: London 1994) at 3. Rebecca M M Wallace International Law: A Student Introduction (Sweet and Maxwell: London 1997) at 4.

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the ‘ordinary meaning’, or where defined, the technical meaning, of terms in a treaty; reference to the historical context in which the treaty (in this case the UN Charter) was negotiated by parties to the treaty as evidenced by its travaux préparatoires; the practice of States since entry into force of the UN Charter; the legal opinion of States recognising the emergence of new custom in international law relating to the use of force; and the purposes for which the UN Charter was created.34 Reference to the sources of international law serve to delineate a law-non law boundary which in legal terms is identifiable and objective but which in reality is largely a matter of perception. The most comprehensive application of these criteria to questions on the use of force can be seen in Bruno Simma’s commentary on the UN Charter.35 This impressive collection of international legal opinion examines the scope and extent of each article of the UN Charter according to the above criteria on the sources of international law, in order to determine, among other things, the limits of what is ‘legal and ‘illegal’ in relation to the use of force. By doing so such analysis serves to reinforce not only the rule-book image of international law that suggests there is a clear law-non law boundary, but also the aspect of the rule-book image that suggests that it is possible to objectively distinguish between what is legal and illegal action.

Reinforcing the Assumption That the Rules of International Law Are Compulsory Reference to the international law on the use of force also incorporates assumptions about the compulsory obligation of States to obey the law, a common question being what a particular treaty provision ‘requires’ of States.36 It is assumed that international law imposes compulsory obligations on States. For example, it is suggested that the UN Charter “…imposes on the disputants an obligation to take action for the purposes of securing a settlement of their differences.”37 The peaceful settlement of disputes, it is frequently said, is a compulsory obligation for all member States.38 The impression given is that the obligation to resolve disputes peacefully is compulsory as opposed to the reality that the means by which to resolve a dispute is determined by the States involved. Sometimes, it might be in a State’s interest

34 35 36 37

38

Malanczuk, above note 7 at 365-369. Bruno Simma (Ed) The Charter of the United Nations: A Commentary (Oxford University Press: Oxford 1994) D.W. Greig “Self Defence and the Security Council: What Does Article 51 Require?” International and Comparative Law Quarterly, Vol. 40, 1991, pp. 366-402. D N Hutchinson “The Material Scope of the Obligation Under the United Nations Charter to Take Action to Settle International Disputes” Australian Yearbook of International Law, Vol. 14, 1993, pp. 1-128, at 2. Christian Tomuschat “Article 33” in Simma, above note 35, at 507; Malanczuk, above note 7, at 273.

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to resolve a dispute through non-peaceful means. Sometimes it might be in a State’s interest not to resolve the dispute at all.

Reinforcing the Assumption That International Law is Distinguishable From Politics Another expression of the rule-book image of international law is the notion that the rules of international law are a body of rules, external to the State, which provide objective criteria to govern State behaviour in international relations. In this way international law is distinguished from, and superior to, politics. International law, it is said, ‘regulates’ the use of force by States in world politics.39 Law provides the ‘criteria’ by which to determine the appropriate use of force in international relations.40 International law now ‘regulates’ the use of force and “States are bound by instruments which define, in various terms, illegal resort to force.”41

Reinforcing the Assumption That International Law is Virtually Self Contained The image of international law as an autonomous set of rules governing the conduct of international relations is reinforced even where there is frustration that international law may not yet be clear on a particular issue. For example, Lobel and Ratner have examined what they describe as ‘ambiguous authorizations’ by the Security Council to use force. To clarify this area of ambiguity they propose three rules for Security Council authorizations of the use of force derived from their interpretation of the UN Charter and its relevant provisions relating to Security Council authorizations to use force.42 The effort to clarify the rules of international law through analysis and debate assumes the possibility that even if the law on a particular point is not yet clear, legal debate will eventually provide such an outcome. Of course, an alternative analysis not grounded in law could be that States are seeking to use

39

40

41 42

C H M Waldock “The Regulation of the Use of Force by Individual States in International Law” Recueil Des Cours, Vol. 81(2), 1952, pp. 455-515; Antonio Cassese (Ed) The Current Legal Regulation of the Use of Force (Martinus Nijhoff Publishers: Dordrecht 1986). W. Michael Reisman “Criteria for the Lawful Use of Force in International Law” Yale Journal of International Law Vol. 10, 1985, pp. 279-285; Herbert K Tillema and John R Van Wingen “Law and Power in Military Intervention” International Studies Quarterly, Vol. 26(2), June 1982, pp. 220-250. Ian Brownlie International Law and the Use of Force by States (Clarendon Press: Oxford 1963) at 426. Jules Lobel and Michael Ratner “Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-fires and the Iraqi Inspection Regime” American Journal of International Law, Vol. 93(1), 1999, pp. 124-154 at 125.

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ambiguity to bypass the process of Security Council authorizations. Likewise, Hutchinson in his review of the obligations of States to resolve international disputes recognised the ‘considerable uncertainty’ that surrounds the scope of the obligation. He hoped that through a rigorous legal analysis of the issues it would eventually be possible to determine the ‘categories of disputes which fall within the scope of that obligation’.43 Despite recognition of the ambiguity as to the precise ambit of the self defence exception to the prohibition on the use of force, positivist international lawyers continue to debate the scope of this exception in the hope of clarifying the legal rules pertaining to the self defence exception.

Reinforcing the Assumption That International Law is Virtually Comprehensive It is possible to identify another aspect of the rule-book image of international law that is given expression in the empirical literature looking at the legal dimensions of the use of force: the notion that international law can deal with any issue that arises between States. For instance, Franck suggested that the prohibition on the use of force found in Article 2(4) of the UN Charter has been eroded into obsolescence as a result of wars of national liberation, the threat of wars of total destruction in a nuclear age, and the dominance of regional security systems by a single power.44 In its place Franck predicted the emergence of new norms of international law. He suggested – then in the midst of the Cold War – that regional spheres of influence would expand with the emergence of a new legal norm by which each power would not use force in the region where the other dominated.45 This gives expression to the notion that the system of international law can deal with new issues arising between States; in this case the challenge of developing new legal norms on the use of force by States in the face of super power rivalry, an issue not dealt with by the UN Charter. Arend has suggested that while the UN Charter paradigm is now obsolete, new post-Charter legal norms have emerged which recognise the right to use force in anticipatory self defence and as reprisals for the purposes of correcting past injustices.46

43 44

45 46

Hutchinson, above note 37. Thomas Franck “Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States” American Journal of International Law, Vol. 64, 1970, pp. 809-837, at 835. Ibid., at 836. Anthony Clark Arend “International Law and the Recourse to Force: A Shift in Paradigms” Stanford Journal of International Law, Vol. 27(1), 1990, pp. 1-47 at 29-32. In a subsequent book, Arend, along with Beck, suggested that in the post Cold War world a new ‘prodemocratic’ paradigm might emerge in response to the new issues arising in a world no longer divided by ideological rivalry. See Anthony Clark Arend and Robert J Beck International Law and the Use of Force: Beyond the Charter Paradigm (Routledge: New York/London 1993) at 189.

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In his response to Franck, Louis Henkin argued that the UN Charter is not obsolete and suggested that it can in fact deal with the new developments of super power rivalry identified by Franck as a threat to Article 2(4),47 a view underpinned by an assumption that even if one set of rules becomes obsolete, international law can expand to encompass new developments and issues that arise in world politics. This aspect of the rule-book image of international law has also been given expression in relation to responses to terrorist actions. As Henkin noted: “[i]t remains necessary to continue to develop the law of permissible responses to terrorist activities…”.48 By 2002 Michael Byers suggested that after the widely supported US military operations in Afghanistan following the terrorist attacks of September 11 2001, customary international law may have evolved to support the use of force in self defence against a State that supports or harbours terrorist groups.49

Reinforcing the Assumption That it is Possible to Apply the Rules of Law Objectively to Settle a Dispute Between States The legal literature on the use of force also draws on the case law of the International Court of Justice. By doing so it gives expression to the idea that international law can be used objectively to settle disputes between States. For example international lawyers have used the majority opinion in the Corfu Channel case to support their own position on the scope of Article 2(4). In the Corfu Channel case the United Kingdom claimed compensation from Albania for damage to British warships from mines in Albanian territorial waters. In presenting its case to the ICJ the British Government argued that its minesweeping of Albanian territorial waters (Operation Retail) was justified as it did not threaten Albanian territorial integrity or political independence and was intended to secure evidence for its compensation claim in an international tribunal.50 While the court did not deal specifically with this argument, several authors have used the Court’s criticism of Operation Retail as ‘objective’ support for the argument that Article 2(4) is construed more broadly than the

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Louis Henkin “The Reports of the Death of Article 2(4) Are Greatly Exaggerated” American Journal of International Law, Vol. 65, 1971, pp. 544-348. Henkin, cited in Staminir A Alexandrov Self Defence Against the Use of Force in International Law (Kluwer Law International: Hague 1996) at 188. Michael Byers “Terrorism, the Use of Force and International Law after 11 September” International Comparative Law Quarterly, Vol. 51(2), 2002, pp. 401-414, at 410. For a contrary view see Marcelo G Kohen “The Use of Force by the United States After the End of the Cold War, and its Impact on International Law” in Michael Byers and Georg Nolte (Eds) United States Hegemony and the Foundations of International Law (Cambridge University Press: Cambridge 2003) at 225. Corfu Channel Case, Pleadings, cited in Harris, above note 73, at 865.

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restrictive interpretation offered by the United Kingdom.51 According to Alexandrov, the ICJ judgement in this case makes clear that self-help is illegal.52 Another famous case with implications for the use of force arose when Nicaragua took the US to the ICJ in response to efforts by the US to, among other things, establish and finance anti-government forces known as the Nicaraguan ‘contras’. In this case the majority opinion held that the US support for the contras was an illegal intervention in the domestic affairs of Nicaragua and not a legitimate exercise of collective self-defence.53 The Nicaragua case has been applied to support the argument that military training offered by one State to insurgents in another can be construed as force and understood as a means of indirect aggression.54 It is, according to Gray, an “authoritative statement of the law in this area.”55 Judgements in such cases, it is assumed, provide answers to the issues raised by the parties to the dispute;56 when they do not they are criticized for being obscure and not providing clear definitions or answers.57 Frustration over the Court’s inability to clarify the law in a given area can be seen in the fall-out of the more recent application to the Court by Yugoslavia. In 1999 Yugoslavia began proceedings in the ICJ against 10 out of 19 NATO members alleging that their participation in the 1999 Kosovo bombing campaign was in breach of their obligation not to use force, and that by training the Kosovo Liberation Army (KLA) they were not complying with their obligation to respect the internal affairs of another State. Had the Court addressed the questions before, rather than find it did not have the jurisdiction to address the matter, its judgment would have been considered by international lawyers to have implications, in legal terms, for the legal status of humanitarian intervention under international law. Ultimately the court did not settle the questions put before it and as such “…the controversy over the legality of humanitarian intervention continues.”58 This would suggest that had the court addressed the issues raised it would be possible to settle objectively the existing

51

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For example see Randelzhofer “Article 51” in Simma (Ed), above note 35, at 112. Harris, Ibid., at 865; Malanczuk, above note 7, at 310; Christopher Greenwood “The International Court of Justice and the Use of Force” in Vaughan Lowe and Malgosia Fitzmaurice (Eds) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge University Press: Cambridge 1996) at 379. Alexandrov, above note 48, at 125. Harris, above note 28, at 883-884. Harris, Ibid., at 866; Malanczuk, above note 7, at 319; Greenwood, above note 51, at 379280. Christine Gray International Law and the Use of Force (Oxford University Press: Oxford 2000) at 143. Robert St. John Macdonald “The Nicaragua Case: New Answers to Old Questions?” Canadian Yearbook of International Law, Vol. 24, 1986, pp. 127-159. Hilary Charlesworth “Customary International Law and the Nicaragua Case” Australian Yearbook of International Law, Vol. 11, 1991, pp. 1-31, at 27. Gray, above note 55, at 38.

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ambiguity relating to the legality of humanitarian intervention under international law. In contrast to approaches that assume the rule-book image of international law at face value, the principles which constitute the idea/image of international law are examined by ILI in terms of the role that the ‘idea’ has within the power structure of which it is a part. In political terms what is important is that the ideology is used as a means of acquiring power within the system in which it operates. It is for this reason that the Newstream scholarship is ultimately limited so far as explaining the relationship of international law to international politics is concerned, as it focuses on exposing the non-objectivity of law; that is, demonstrating that the ideology of international law is untrue. What remains unanswered is the political sway of the ‘image’ itself. Since international law is an important ideology giving substance to the current international political system, the validity of the ideology is less crucial to a determination of its political power. In political terms the ideology of IL can successfully fill a role within a power structure whether or not it is true.59 What is crucial is the demonstrated acceptance of the shared idea by members of the political order in their diplomacy with each other.60 Thus it is no longer meaningful to ‘isolate the impact of rules and norms on State behaviour’ so as to determine compliance.61 To assume this is possible is to perpetuate the rule-book image of international law –the notion that there is a body of rules external to the State dictating whether political behaviour is legal or illegal – rather than account for the continuing political strength of the image in State behaviour. Having explored how the principles that constitute the rule-book image of international law remain implicit assumptions in positivist literature on the use of force, let us in the remainder of this section explore the insights of an ILI perspective regarding the relationship between international law and State behaviour.

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This does not mean that the rule-book image of international law is completely untrue, only that it is not true in a pure, absolute sense. There is, however, some discrepancy between the idea and reality. What is interesting, and which an ILI perspective aims to explain, is the political significance of that discrepancy. Ibid. Beth A Simmons “Compliance with International Law” Annual Review of Political Science, Vol. 1, 1998, pp. 75-93, at 89. See also Simmons “International Law and State Behaviour: Commitment and Compliance in International Monetary Affairs” American Political Science Review, Vol. 94(4), December 2000, pp. 819-835.

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Understanding the Relationship Between International Law and State Behaviour From an ILI Perspective According to an ILI perspective, a State can use the ideology of international law as a tool in its foreign policy in order to pursue political goals. International law is a strategic device at the disposal of all States.62 “The art of using law as a means of pursuing national interests is the art of drawing on the obligation of another State to play its part in upholding the ideology in such a way that the rules of international law discriminate against the other party, but do so in such a way as to retain the appearance of law as neutral, both in construction and in operation.”63 The ideology of international law can be used as a tool by a State to improve its position by recognising and using the discrepancy between the idea and reality of international law.64 Thus, what Thomas Franck has lamented as the “lack of congruence between the international legal norms of Article 2(4) [of the UN Charter] and the perceived national interests of States, especially the superpowers”65 is in fact the very discrepancy by which the idea of international law can be used as a instrument of power. The ideology of international law is a political mechanism by which States can carry out their interests. Less powerful States can work to improve their position in the international political order via international law, for example, by demonstrating how aspects of the law do not accord with the idea that international law is politically neutral or universal in the sense that it treats all States equally. Any obvious discrepancy between the idea and reality must be rectified so that the ideology can

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Scott and Withana, above note 1, at 182. Another writer who has recognised the strategic dimension of international law is Michael Byers, who has examined the way the operation, creation and maintenance of customary international law is an aspect of power that States may strategically employ in the pursuit of long term interests. See, inter alia, Michael Byers Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge University Press: Cambridge 1999); “Terrorism, the Use of Force and International Law After 11 September” International and Comparative Law Quarterly, Vol. 51(2), 2002, pp. 401-414. Byers’ analysis of the strategic value of international law does not offer a new theoretical approach and instead draws on several existing theories, melding the theoretical approaches of statism, positivism and realism. While Byers’ analysis recognises the relationship of international law to international politics, he does not abandon the positivist rule-book image of international law or reconcile power politics to law. By drawing on elements of both realism and positivism he replicates the dualism between law and power evident in each of those theories. Thus we are told that States may use international law strategically and exert power through law, yet the question remains as to just what the basis of law’s influence is. How is it that the rule-book image of international law can be used as a strategic device by States in world politics. It is to ILI that we must turn to find answers to such questions. Scott (1998), above note 1, at 46. Scott and Withana, above note 1, at 182-183. Franck above note 44, at 835.

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continue as an integral element in the distribution of power within the political order. “International law…is a political lever at the disposal of all members of the international political community.”66 From an international law as ideology framework it is apparent that, although it generally operates in favour of the powerful, international law is powerful in its own right and not just a tool for those with the usual economic or military indicators of power. From an ILI perspective the fundamental obligation of a State is not to comply with international law but to uphold the ideology of international law through their discourse.67 This is a significant departure from realist, positivist and functionalist perspectives which have understood international law in terms of how States act in compliance with the law, as opposed to how and with what success States (or more specifically their representatives) uphold the ideology of international law in discourse. Upholding the ideology affords State decision-makers much wider scope of action than existing paradigms have suggested. Positivists and functionalists assume that States should change their preferred course of action where it may readily be deemed ‘illegal’. From an ILI perspective, the task is only to uphold the ideology of international law so as to establish the appearance of a binary distinction between the legality of one’s own position and the illegality of one’s opponent’s position. Scott suggests that there are several ways a State representative may do this. If it is not possible to uphold one of the principles of the ideology of international law it may be possible to uphold other principles of the ideology of international law.68 State representatives can therefore use international law strategically. For example, it may be possible for a State whose position would most readily be deemed ‘illegal’ to draw on the principles that constitute the rule-book image of international law so as to uphold the ideology of international law. This may be possible by working to bring about change in the law so as to accord with one’s own preferred policy and/or by pointing to the way one’s rival is acting ‘illegally’ so as to imply the ‘legality of one’s own behaviour. The success with which a State can pursue its perceived interests and use the ideology of international law will depend on the degree to which the ideology is upheld. An ideology is upheld relatively strongly where the difference between the ideology and reality is blurred; an ideology is upheld relatively weakly where the difference between the ideology and reality can be readily recognised, through, for example, actions of a State that contradict its rhetoric to reveal the extent to which the ideology of international law does not match reality. An effective or successful use of the ideology of international law therefore involves reference to the ideology in a way that does not highlight the discrepancy between the idea and reality. ILI does not deny the realist notion that power interests shape State action and outcomes, but reconciles law to power and thereby offers a more sophisticated analysis

66 67 68

Scott (1995a), above note 1, at 298. Ibid., at 295 Scott (1998), above note 1, at 44.

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of State behaviour in relation to international law. Given realist assumptions about the primacy of power, an important implication of reconciling law to power is that it provides a new theoretical ‘space’ in which to explain the process between the rational calculation of interests and outcomes determined by the distribution of power. Realists assume that relative power capabilities influence the formulation of State interests and determine political outcomes. In scenarios involving the use of force, relative State power would be expected to explain why States choose to use force and the outcomes achieved, but would remain silent on the process between the formulation of interests and the achievement of outcomes and the place of international law in that process. Law would be expected to play little or no part in policy outcomes. State behaviour is influenced by a number of factors during international crises, including, of course, geopolitical and military considerations. Yet what continues to remain unrecognized is the influence of international law on State behaviour during international crises.

PART TWO: TOWARD A NEW UNDERSTANDING OF THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND STATE BEHAVIOUR DURING INTERNATIONAL CRISES INVOLVING THREATS AND/OR THE USE OF FORCE It is the hypothesis of this book that an ILI perspective offers a better explanatory perspective by which to account for the place of international law in the decisionmaking and/or implementation of foreign policy where the use or threat of force by a State is involved than rival explanations grounded in positivism, realism or functionalism. This book has so far identified the limitations of existing literature to explain the relationship between international law and State behaviour during international crises, as stemming from the limitations of positivist, realist and functionalist theoretical approaches. An examination of an ILI approach suggests that this perspective could offer a better explanation of the place of international law in State behaviour where the threat or use of force is contemplated but has yet to be empirically applied or tested systematically. Thus the task of this book is to test the empirical efficacy of an ILI approach as compared with existing theoretical explanations of the relationship between international law and State behaviour involving foreign policy decision-making and implementation during international crises.69 Are the likely shortcomings of positivist, realist and functionalist

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As Simon has written: “[A theory] is immensely more valuable after it has been tested and found to be in accord with the empirical facts.” Julian L Simon Basic Research Methods in Social Sciences (Random House: New York 1978) at 503. According to Van Evera, hypotheses regarding the theoretical efficacy of one theory over rival theoretical models are assessed by testing the competing theories. This process of testing serves to confirm or disconfirm the hypothesis of the study. Theories are tested by experimentation

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perspectives borne out? Does an ILI perspective offer a better explanation of the relationship between international law and State behaviour during international crises?

The Focus of Analysis Adopting the perspective of a theorisation of international law as ideology in investigating international crises allows for an examination of how the ‘idea of international law’ is utilised by decision-makers and in rhetoric between State representatives. To trace the influence of what is referred to as the ‘idea of international law’ requires a shift in focus, from actions to words. According to Scott, the power of the idea of international law will be determined by demonstrated acceptance of the idea; repeated expression and allusions to the idea of international law reinforce the existence of the ideology.70 The ideology of international law can be identified in references to international law and legal rhetoric in inter-State correspondence, and in State rhetoric and government documents illuminating a State’s foreign policy decision-making processes.71

Methodology This book will adopt a case study methodology. This methodology has been well recognised for its suitability to investigations testing the relative explanatory capacity of competing theories72 and is the best strategy for explanatory research questions in social science.73 It will look at a number of international crises where the use or threat of force was employed as opposed to using one single case to test competing theoretical explanations. The selection of multiple cases for examination is underpinned by the logic of replication, whereby cases are selected so that they replicate each other. In such a process of “literal replication”74 similar results are expected in each study. The

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and/or observation. Van Evera notes that in the social sciences observation – where predictions from a theory are inferred, data observed without imposing external stimulus on the situation and observations assessed in terms of consistency with predications – is best. Stephen Van Evera Guide to Methods for Students of Political Science (Cornell University Press: Ithaca 1997) at 28. An example of unobtrusive data collection is the analysis of archival records. David Nachmias and Chava Nachmias Research Methods in the Social Sciences (Edward Arnold: London 1976) at 123. Scott (1995), above note 1, at 323. Ibid., at 319; Scott (1998), above note 1, at 38-42. Van Evera, above note 69, at 88. Robert K Yin Case Study Research: Design and Methods (2nd Edition) (Sage Publications: Thousand Oaks 1994) at 1. Robert K Yin Applications of Case Study Research (2nd Edition) (Sage Publications: Thousand Oaks 2003) at 5.

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multiple case studies underpinned by replication logic replicate the same theories being tested. “From such a standpoint, the more cases that can be arrayed in similar replicative fashion, the stronger the aggregate evidence in support of [the] theory [being tested].”75 As Yin has suggested, it is important for demonstrating the efficacy of a particular theoretical explanation to compare the evidence in a case study not just from the perspective of the theory posited to provide the better explanation but also from the perspective of rival explanations.76 When rival explanations are identified and rejected in each of the multiple cases examined, the stronger is the evidence in favour of the remaining theory that can better explain the case study evidence.77 Thus in testing the relative explanatory capacity of an ILI perspective, each of the case studies in this book examines the historical evidence regarding the place of international law in the process of foreign policy decision-making and/or implementation from the rival perspectives of positivism, realism and functionalism as well as from an ILI perspective, in order to assess each theory’s ability to explain the historical record.78 In each of the case studies, we can assess the validity of rival theoretical approaches by comparing accounts of the place of international law in State behaviour as found in the existing literature on the particular crisis with the historical record presented in each case. We can then examine whether an ILI perspective better matches what we find in the historical record and assess whether an ILI perspective offers a better explanation of the historical record than existing literature grounded in rival theoretical perspectives. According to Yin, this replication logic is different from the erroneously applied sampling logic, in which it is assumed that the selected cases are representative cases from which broad generalizations to a whole universe of phenomena can be made. Multiple case studies are not intended to assess the incidence of phenomena. Thus in this book, the aim of the case studies is not to examine how frequently the idea of international law influences State behaviour and to then generalize about its wider incidence from the findings of the case studies. Rather, the aim is to use the case studies to make theoretical generalizations about each case study as it relates to the broad theory which underpins the present research question. Do the expectations of

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Ibid., at 73. Yin views the use of multiple case studies underpinned by replication logic as analogous to multiple experiments in the physical sciences whereby consistent positive results across a number of experiments strengthen the case for the hypothesised outcomes. He notes, however, that replication reasoning in the multiple case study method will never be as strong as doing a series of scientific experiments, though given the impossibility of scientific experiments in social science, multiple case studies is the best method for the application of replication logic in the social sciences. (Ibid., at 73). Yin (1994), above note 73, at 149. Yin (2003), above note 74, at 73; David A Bositis Research Designs for Political Science: Contrivance and Demonstration in Theory and Practice (Southern Illinois University Press: Carbondale and Edwardsville 1990) at 87-88. This approach to case study analysis demands “[c]onstant reference to…the possible alternative explanations.” Yin (2003), Ibid., at 122.

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an ILI approach closely match what we find in the case studies, therefore suggesting that a theorisation of international law as ideology is a better theoretical approach for understanding the relationship between international law and State behaviour during international crises? Does an ILI perspective change our understanding of the particular crisis under investigation and of the relationship between international law and State behaviour during international crises in general? When replication logic is applied to the multi-case study design, the number of cases deemed necessary for an investigation becomes superfluous, being largely a matter of judgement and choice; though of course each case study should follow a specific purpose related to the overall question. Comparisons of the efficacy of competing theoretical explanations of the international law-State behaviour relationship during international crises can be done both within each case and across all cases investigated. Within a given case, rival explanations of the law-State behaviour relationship – whether realist, positivist or functionalist – can be tested against an analysis of the historical record from an ILI perspective. In this way it will be possible to test the relative explanatory capacity of ILI against rival theoretical explanations within each case. Within case comparison relies on the logic of literal replication where the same result – the expected greater theoretical efficacy of an ILI perspective – is replicated in each case study. Following the logic of replication, the findings which follow about the utility of an ILI perspective and any re-conceptualisation concerning international law during international crises that result from the multiple cases, are expected to be stronger than in a single case.79 Moreover, the selection of multiple cases for examination underpinned by the logic of replication ensures that generalizations resulting from the case study analyses are both ‘compelling’ and ‘robust’.80 Comparison can also be done across cases. Across case comparison of case study outcomes based on an ILI perspective, compared to those based on realist, positivist and functionalist perspectives, allows for an assessment of the overall empirical efficacy of an ILI perspective in explaining the place of international law in State behaviour. Four international crises of the Cold War era have been selected to examine the place of international law in foreign policy formulation and implementation. The four international crises to be investigated are the Korean War (1950-1953), the 1956 Suez crisis, the 1962 Cuban Missile Crisis and the US intervention in the Dominican Republic in 1965. There are two reasons for choosing the four case studies from the Cold War period. First, the Cold War conflict in general, and international crises during that era in particular, represent cases of great tension in which considerations of national interest and relative power are paramount and provide the ultimate test for a theory that seeks to explain the relationship between political power and law. Secondly, the period is rich in primary and secondary sources. Not only has archival

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Yin (1994), above note 73, at 45-50. Herriott and Firestone, cited in Yin (1994), Ibid., at 45; Yin (2003), above note 74, at 110, 135.

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material been declassified from this period,81 but where archival material is not available an immense array of secondary sources is available from which to piece together the story of legal argument used by State representatives in each case. The case studies will serve not only to test an ILI perspective against rival expectations. An examination of the historical record relating to each of the crises and analysis of the historical evidence from an ILI perspective is also expected to contribute to existing historiography by providing fresh historiographical perspectives on each of the crises chosen for investigation. To study world politics is to study political power. To understand the relationship between international law and State behaviour in world politics requires understanding the relationship between international law and political power. The cases chosen for investigation, like most international crises involving the use or threat of force in the post WWII/UN Charter era, involve crises in which the States in dispute with each other are unevenly matched in terms of the attributes of realist power82 and which differ in terms of the legality of their actions, with the actions of one side more readily deemed ‘legal’ and the actions of the other side more readily deemed ‘illegal’.83 What, if any relationship exists between power political considerations and international law in the process of foreign policy formulation and/or implementation? Is State behaviour motivated by considerations of relative power or by concerns to act legally? Does a State that is relatively more powerful, but whose actions are more readily deemed ‘illegal’ than the State with which it is in dispute, simply ignore international law? Is international law completely irrelevant for a

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Invariably much more archival material has been declassified by governments in the west than by governments in the former eastern bloc or by the People’s Republic of China. In recent times material in the Soviet and East German archives have slowly been declassified, though of course the material made available, especially that which has been translated, is a mere drop in an ocean of unclassified documentation. In a survey of 278 international crises involving threats or the use of force in the period 1945-1975, Brecher, Wilkenfeld and Moser found that none included disputes between States that were evenly matched in terms of their resources. In assessing the ‘power discrepancy’ between States involved in a military conflict they looked at six factors: size of population, GNP, territorial size, alliance capability, military expenditures and nuclear capability. Michael Brecher, Jonathan Wilkenfeld and Sheila Moser Crises in the Twentieth Century, Volume 1: Handbook of International Crises (Pergamon Press: Oxford 1988) at 31. This data has since been updated and expanded. In looking at crises from 1917-2001 Brecher and Wilkenfeld found that crises involving a major power involved a power discrepancy (understood according to the six factors outlined above). See Michael Brecher and Jonathan Wilkenfeld International Crisis Behavior Project 1918-2001 [computer file] 5th ICPRSR version College Park, MD; Michael Brecher and Jonathan Wilkenfeld [producers], 2003, Ann Arbor Michigan: Inter-University Consortium for Political and Social Research [distributor], 2004, pp. 1-66, at 63. While theoretically possible there have been no instances in the post WWII era where States on competing sides of a military conflict were all in a strong legal position (more readily deemed ‘legal’) or were all in a weak legal position (more readily deemed ‘illegal’).

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relatively less powerful State even where its actions are more readily deemed ‘legal’? Does a relatively more powerful State whose preferred position is more readily deemed ‘legal’ than the State with which it is in dispute simply use international law to justify behaviour? Does a State whose preferred policy position is more readily deemed ‘illegal’ – whether relatively more or less powerful than the State with which it is in dispute – change its policy so as to comply with international law? Thus for the purposes of assessing which theoretical perspective – realism, positivism, functionalism, or ILI – can best explain the relationship between international law and State behaviour during international crises, the two variables of most interest in each of the crises to be examined include the degree of relative power possessed by the States in dispute with each other and the relative degree of the legality of the actions undertaken by each of the States in the dispute. In each of the crises to be investigated, the asymmetries of relative power and the relative legality or illegality in the position of the States in dispute with one another, will allow us to examine which theory can best explain the relationship between power politics and law, and thus the relationship between State behaviour and international law. In order to assess the relative explanatory capacity of realist, positivist, functionalist and ILI perspectives, it will be necessary in the case studies to examine which perspective can best explain the relationship of State behaviour and international law in each of the crises chosen for investigation. To test each theory it is first necessary to outline what each perspective would lead us to expect regarding the law-State behaviour relationship. Let us first look at the expectations of realist, positivist and functionalist perspectives – the three theoretical perspectives against which an ILI perspective will be compared.

Realist, Positivist and Functionalist Expectations of the International Law-State Behaviour Relationship During International Crises Realist Expectations Realism explains the operation of world politics. The course of world politics and the behaviour of States are both explained in terms of power. According to a realist understanding of power indices in use of force scenarios, a powerful State is one with relative physical, military and/or economic superiority as compared with its rival. Law is contrasted with political power. At best law is relevant to State behaviour when the rules of international law and political interests coincide and law can be used by States to justify the legality of their behaviour. Where political interests and law do not coincide, law is more or less irrelevant to State behaviour. As law is not a tangible manifestation of power, references to international law are not expected to improve or worsen the ability of either powerful or relatively less powerful States to pursue their political objectives. A realist perspective would anticipate the following regarding the law-State behaviour relationship in a particular use of force scenario:

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For a State that is relatively more powerful and its actions more readily deemed ‘legal’ than the State with which it is in dispute, realism would lead us to expect State behaviour to be decided on power political grounds and law would be of relevance only in justifying the resulting policy. To the extent law is a part of the formulation of foreign policy so as to justify State behaviour, political considerations are expected to predate legal considerations. While realism would anticipate that in this scenario law could be used by a powerful State to justify its behaviour, law is not expected to provide any additional political advantage to such a State in the pursuit of its political objectives in a particular crisis. For a State that is relatively less powerful but its actions more readily deemed ‘legal’ than the State with which it is in dispute, realism would lead us to expect law to be relevant to State behaviour in terms of justifying the legality of the State’s foreign policy. Realism would, however, anticipate that justifying the legality of State behaviour will not provide a relatively less powerful State with any political advantage in the pursuit of its political objectives. For a State that is relatively more powerful and its actions more readily deemed ‘illegal’ than the State with which it is in dispute, realism would lead us to expect law to be irrelevant to the formulation and implementation of foreign policy. According to realism, law is not powerful in its own right and can at best justify behaviour only where political interests and law coincide. Where political interests and law do not coincide, realism would anticipate that a relatively more powerful State would not be overly concerned with legal considerations in the formulation and implementation of foreign policy during international crises. Realism would predict that law is largely irrelevant to State behaviour in this scenario. For a State that is relatively less powerful but its actions more readily deemed ‘illegal’ than the State with which it is in dispute, realism would predict that law would be largely irrelevant to State behaviour. According to realism, law is not a tangible manifestation of power and is at best relevant only to justify State behaviour where political interests and law coincide. Thus, for a relatively less powerful State whose political interests do not coincide with international law, realism would anticipate that law would be irrelevant to the formulation and implementation of foreign policy.

Positivist Expectations Positivism categorizes international political behaviour undertaken by States in terms of a binary legal-illegal distinction. Power considerations are not explicitly incorporated into a positivist perspective. Relatively powerful and relatively less powerful States both face the sole choice of acting legally or illegally. International law is able to provide the ‘solution’ to the question of how to act, a solution with which a State can comply or not. Positivism assumes that States must, or at least should, ‘obey’ international law. The binary legal-illegal, compliance-non compliance,

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distinction assumes the existence of a set of compulsory rules which can categorize State behaviour as ‘right’ or ‘wrong’. State behaviour is ‘right’ where the ‘legal’ course of action is undertaken. State behaviour is ‘wrong’ where the ‘illegal’ course of action is undertaken. Positivism would lead us to anticipate that it is easier for a State to act ‘correctly’ in complying with international law where its preferred course of action is supported by existing rules of international law. In such a scenario positivism would lead us to expect the rules of international law to exist prior to the determination of policy and the resulting policy to be in compliance with international law. Non-legal considerations should not displace legal considerations in the determination of State behaviour. Where a State’s preferred policy position is not supported by the rules of international law and is more readily deemed ‘illegal’, positivism would anticipate that the State would (or should if it does the right thing) change its preferred policy position so as to comply with existing legal norms. Legal considerations should prevail as the dominant consideration in the formulation of State behaviour.

Functionalist Expectations A functionalist perspective applied to each of these cases would lead us to expect international law to function in a positive role to help resolve the crisis peacefully and to facilitate cooperation among competing States. For example, international law may function as a constraint on State behaviour, and so help to resolve the crisis peacefully. International law may provide a forum for negotiation such that States use the UN Charter legal regime to resolve their dispute and cooperate to end the crisis peacefully.

ILI Expectations of the International Law-State Behaviour Relationship During International Crises Beyond the basic obligation on States in the international system to uphold the ideology of international law, States may use the ideology of IL as a source of power that they can draw on to further their political objectives. Unlike realism, positivism or functionalism, ILI has reconceived international law as an ideology that can be employed strategically by States. An ILI perspective would prepare us to anticipate the following regarding the relationship between international law and State behaviour in a particular use of force scenario. It should be noted that the following expectations are a theoretical characterisation of the expected relationship between international law and State behaviour during international crises. State representatives charged with the responsibility for determining and implementing foreign policy would not necessarily view the place of law in State behaviour in such terms.

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Expectation 1: ILI hypothesises that making strategic use of international law involves, firstly, recognising the need to uphold the ideology as strongly as possible and reconciling this need with other policy factors during the process of policy formulation. It is expected that looking at the process of policy formulation from an ILI perspective will take us further in our understanding of the law-State behaviour relationship than existing approaches to international law by pointing to the distinction between complying with international law and upholding the ideology of international law. It may be possible for a State to uphold the ideology relatively more strongly than its rival despite being in the weaker legal position. It may also be possible for a State to uphold the ideology relatively weakly than its rival despite being in the stronger legal position. Expectation 2: Secondly, an ILI perspective would lead us to expect a State making strategic use of international law, to compete to uphold the ideology more strongly than a State with which it is in dispute. An ideology is upheld strongly where the difference between the ideology and reality is not apparent; an ideology is upheld weakly where the discrepancy between the ideology and reality is highlighted through, for example, actions of a State that contradicts its legal rhetoric. International law may, therefore, be used in a way that can either improve or worsen the ability of a State to pursue its political interests. An ILI perspective takes us further than existing approaches to international law by pointing to the distinction between using international law to justify a policy position and using the ideology of international law in the course of a dispute as a political tool with which to improve or maintain one’s position vis-à-vis one’s rival. An ILI perspective also takes us further than existing approaches to international law by illuminating the way in which international law can either improve or worsen the ability of a State to pursue its political interests. This suggests a number of new possibilities regarding the law-State behaviour relationship during international crises: A State that is relatively more powerful than the State with which it is in dispute can be further advantaged in achieving its political objectives by upholding the ideology of international law more strongly than its rival. A State that is relatively less powerful than the State with which it is in dispute can be further disadvantaged in achieving its political objectives by upholding the ideology of international law more weakly than its rival. A State that is relatively more powerful than the State with which it is in dispute can be disadvantaged in achieving its political objectives by upholding the ideology of international law more weakly than its rival, thus circumscribing, at least in part, its relative power advantage. A State that is relatively less powerful than the State with which it is in dispute can be advantaged in the pursuit of its political objectives by upholding the ideology of international law more strongly than its rival, thus overcoming, at least in part, its relative power disadvantage.

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Expectation 3: Finally, an ILI approach hypothesises that it will be in the best interests of a State to use the discrepancy between the idea and reality of international law to its advantage. It would be expected that in taking advantage of the discrepancy between the idea and reality of international law, a State would undertake strategic planning regarding how to act and what legal rhetoric to use on the basis that the principles that constitute the rule-book image of international law are not wholly true, while upholding the ideology in public rhetoric so as to reinforce the rule-book image of international law. In this way the ideology of international law can be used for political advantage by a State to encourage a perceived ‘rival’ State to play its part in upholding the ideology in such a way that the ideology disadvantages the rival and suits one’s own interests.

The Plan for the Analysis to Follow Theory testing requires confirming that empirical evidence supports a particular theory’s predictions.84 Having outlined the expectations of realist, positivist, functionalist and ILI perspectives, the task ahead will be to see which approach most closely matches what we find in the particular international crises chosen for investigation. This will permit conclusions regarding the relative explanatory capacity of the alternative theories of the relationship of international law to State foreign policy formulation and implementation in use of force scenarios. In each of the case study chapters, the first step will be to explore the historical record of the place of international law in the formulation and/or implementation of the foreign policy of the States involved in the crisis under investigation. The second step will be to evaluate the explanatory capacity of realist, positivist and functionalist perspectives in accounting for that historical record. We can do so by comparing the theoretical underpinnings of existing accounts of the particular crisis with the historical record. Have the expectations of realist, positivist and functionalist perspectives been borne out in the historical record? If not, what remains unexplained? How does this reflect on the adequacy of the theoretical approaches underpinning the literature in accounting for the relationship between international law and State behaviour during the particular use (or threat) of force scenario under investigation? The third and final step in each of the case studies will be to evaluate the capacity of an ILI perspective to explain the historical record regarding the place of international law in the formulation and implementation of foreign policy. Are the expectations of an ILI perspective borne out when the historical record is evaluated from an ILI perspective? If an examination of the historical record confirms the three expectations of an ILI perspective, then an ILI perspective will be found to offer a better explanation of the historical record than accounts underpinned by positivist, realist and functionalist assumptions.

84

Van Evera, above note 69, at 39.

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This approach to testing the relative explanatory capacity of realist, positivist, functionalist and ILI perspectives fits well the logic of literal replication. If an ILI perspective is found to offer a better explanation of the historical evidence than rival explanations in all four of these scenarios, then the stronger the evidence in favour of the overall theoretical and empirical efficacy of an ILI perspective in accounting for the relationship between international law and State behaviour during international crises. Let us now examine the first of the case studies, which focuses on the Korean War.

CHAPTER THREE THE PLACE OF INTERNATIONAL LAW IN STATE BEHAVIOUR DURING THE KOREAN WAR

Chapter One identified three bodies of literature on the relationship of international law to State behaviour during international crises underpinned by positivism, realism and functionalism. Gauging the theoretical value of an ILI approach in each of the case studies under investigation requires comparing the theoretical efficacy of an ILI approach with positivist, realist and functionalist explanations of the law-State behaviour relationship during international crises. The first of the within case comparisons of competing theoretical explanations of the law-State behaviour relationship will focus on the Korean War, the first major military conflict of the Cold War. While the Korean War began with the military intervention of the North Korean Army (NKA) into South Korea, the progression and eventual end of the war was the result of military action and diplomacy on the part of representatives from the US, the Soviet Union, the PRC and to a lesser extent, the Democratic People’s Republic of Korea (DPRK). This case involves a scenario in which the two competing sides are unevenly matched in terms of (realist defined) power and in which the actions of the competing States differ in their degree of legality as understood in terms of a legal-illegal binary framework. By using an historical methodology, which examines documentation generated by decision-makers both in their internal policy deliberations and their public statements, it is possible to identify references to international law and its place in the process of policy formulation and implementation. As the historical documentation is much richer on the American side, the analysis of international policy deliberations is focussed on US decision-making. While sources from the Soviet side are now being declassified and shed some light on the policy processes of the governments of North Korea and the People’s Republic of China (PRC), much remains to be uncovered. However, it is possible from the available primary and secondary sources to build a picture of how the communist alliance of the Soviet Union, the PRC and North

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Korea1 utilised international law in their public diplomacy during the Korean War, at least to the extent of examining responses of the Communist alliance to legal rhetoric used by the US during the war. This chapter will proceed as follows. After a brief account of the historical context of the Korean War, I will investigate the historical record regarding the influence of international law on US foreign policy decision-making and international diplomacy during the Korean War. This section will also investigate the responses of the communist alliance to US legal rhetoric as evidenced in the public diplomacy undertaken by North Korean, PRC and Soviet representatives during the Korean War. In this and the other case study analyses to follow, I do not seek to relate the total process of decision-making and all the influences on the formulation and implementation of foreign policy. Rather I focus largely on the international legal considerations canvassed during the process of decision-making and implementation. Some military, economic and political considerations are dealt with so as to give the context in which legal issues were discussed and to analyse what, if any, relationship exists between the legal and non-legal considerations canvassed by decision-makers. Having outlined the historical record regarding the place of international law in US and communist alliance State behaviour during the Korean War, I will then compare the historical record with existing empirical literature on the Korean War and its theoretical underpinnings so as to assess whether the theoretical assumptions underpinning existing empirical literature hold up when compared to the historical record. Finally the historical record will be examined from an ILI perspective to assess the efficacy of an ILI approach in understanding the place of international law in State behaviour during the Korean War.

1

By treating the Soviet Union, the PRC and North Korea as a loose communist ‘alliance’ I do not wish to suggest that a common policy objective or common approach to achieving policy ends unified those on the communist side. There was indeed much disagreement between North Korea, communist China and the Soviet Union. They were nonetheless generally united in their legal rhetoric regarding the status of their own and their adversary’s positions in terms of international law. The process by which the communist side interacted with the rival US was common to North Korea, communist China and the Soviet Union. Thus the three communist States can be classed as a loose alliance in terms of their approach to diplomatic interaction with the US, and in particular, the process by which they interacted with the US using international law. For discussion of differences within the communist camp, see for example: Robert R Simmons The Strained Alliance: Peking, Pyongyang, Moscow, and the Politics of the Korean War (Free Press: New York 1975); James L Stokesbury A Short History of the Korean War (William Morrow and Company Inc: New York 1988); Kathryn Weathersby “New Findings of the Korean War” Documents of the Cold War International History Project Bulletin, Issue 3, 1993, pp. 1, 14-18.

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The Historical Context of the Korean War The Korean War ostensibly began when US, South Korean and allied forces commenced military action on June 27 1950 against North Korean forces that had entered the Republic of Korea (ROK)2 two days earlier in an overt act of aggression against the South. The war’s origins can, however, also be found in the Cold War ideological confrontation between the United States and the Soviet Union. Now, over 50 years since the conclusion of the armistice agreement that ended the Korean War, the Korean peninsula remains as divided as when it was first partitioned in the aftermath of WWII. The partition of the Korean peninsula had initially been intended as a temporary solution in the aftermath of WWII. Japan had occupied Korea since 1905. Japan’s surrender at the end of WWII left a power vacuum which the Soviet Union capitalized upon by occupying the Northern part of Korea. The US, concerned that the Soviet Union might wish to take over the whole of the Korean Peninsula, proposed that the Soviets control the area north of the 38th parallel while American troops occupy the area south of the 38th parallel, a proposal accepted by the Soviet Union. Eventually two separate governments developed in North and South Korea, with the government of South Korea allied to the US and the government of North Korea allied to the Soviet Union. With the Cold War stalemate between the two superpowers escalating, the UN was requested by its members in August 1948 to oversee general elections in Korea as a precursor to the unification of Korea. With the Soviet Union not agreeing to elections in the north, voting to elect a President of a new Republic of Korea in the south took place and soon after the government of the newly elected President Syngman Rhee was recognised by the UN as the legitimate Government of Korea.3 The north held a separate election in which Kim Il-Sung was elected the first president of the newly created Democratic People’s Republic of Korea.4 While the US and the Soviet Union were largely concentrating their ideological conflict in Europe, Rhee’s government allied to the Americans and Kim Il-Sung’s government allied to the Soviets, each adopted a posture of hostility and belligerence towards the other, which would eventually bring them and their superpower patrons into conflict. A series of border incidents in late 1949 and early 1950 culminated in a large-scale attack by North Korean forces across the 38th parallel on June 25 1950.5 The spark needed to light the flame was ignited. Informed by Cold War

2 3 4 5

Herein after referred to as South Korea. General Assembly resolution 195(III), December 12, 1948. Herein after referred to as North Korea. Yearbook of the United Nations 1950 (United Nations: New York 1951) at 221. Herein after referred to as UN Yearbook 1950. The June 25 attack across the 38th Parallel by North Korea into South Korea was confirmed by the UN’s Military Field Observers. See Report of the United Nations Commission on Korea (15 December 1949-4 September 1950, A/ 1350) at 2-3. It has been speculated that the main reason for North Korea’s military

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suspicions, US decision-makers looked at the North Korean incursion into noncommunist ‘free’ South Korea with alarm, fearing that Korea would be the first step in a succession of Soviet assaults on the ‘free world’. On June 26 1950, US President Harry S Truman authorised US forces (along with allied forces) to enter the ROK. On November 1950 communist China also entered the war with the deployment of communist Chinese ‘volunteers’ to assist North Korean military forces in their struggle with US and allied forces.

The Historical Record of the Place of International Law in US and Communist State Behaviour During the Korean War Harry S Truman, US President at the time of the North Korean intervention into South Korea, wrote in his memoirs of the swift and unanimous decision of his ‘war cabinet’ on June 25 1950 to use military force to assist the South Korean resistance of North Korean invading forces.6 As a result of the division of Korea at the end of WWII, eventually resulting in USSR control of North Korea, many US decision-makers saw in the developments on the Korean Peninsula the imprints of Soviet influence; there was “no possibility that the North Koreans acted without prior instruction from Moscow.”7 The US response to the North Korean intervention reflected less an interest in Korea, which had been placed outside the US defense perimeter in a speech by Secretary of State Dean Acheson at the beginning of 1950,8 than a concern over its place in the continuing strategic rivalry between the US and the USSR. A State Department Intelligence memorandum stated what would be at the heart of the strategic considerations for the Truman administration during the Korean War: that by “choosing Korea as the area of attack, the USSR was able to challenge the US

6

7

8

intervention into South Korea was to reunify Korea by force, having failed to do so by ballot. See John Merrill Korea: The Peninsular Origins of the War (University of Delaware Press: Newark 1989). Harry S Truman Memoirs: Volume 2- Years of Trial and Hope (Doubleday and Co Inc: New York 1956) at 345. Present at the meeting were the Secretary of the Army Frank Pace, Secretary of the Navy Francis Matthews, Secretary of the Air Force General Vandenburg, Chief of Naval Operations Admiral General Collins, Secretary of State Dean Acheson, Under Secretary of States Webb, Deputy Under Secretary Dean Rusk, Assistant Under Secretary of States John Hickerson, Secretary of Defence Johnson and Ambassador at Large Philip Jessup. ‘Intelligence Estimate Prepared by the Estimates Group, Office of Intelligence Research, Department of State’ June 25 1950, Foreign Relations of the United States, 1950, Vol. 7, Korea (GPO: Washington DC 1976) at 150. Herein after referred to as FRUS, 1950, Vol. 7. Dean Acheson “Crisis in Asia- An Examination of US Policy” Department of State Bulletin, Vol. 22, January 23 1950, pp. 111-118, at 116.

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specifically and test the firmness of resistance to communist expansion.”9 Decisionmakers were of the opinion that US interests could be served by disunity in the communist bloc and for this reason US military action in Korea offered the opportunity to split the Sino-Soviet alliance.10 In addition, the Truman administration sought to balance the need to use force and the necessity to support the system of collective security in dealing with international peace and security issues embodied in the United Nations and its Charter. It is this challenge for US decision-makers between the use of force and the necessity to appear consistent with the principles of the UN Charter that this historical analysis will focus upon. When the North Korean Army invaded the South on June 25 1950, State Department policy-maker William Sanders recognised, well before Truman had convened his decision-makers at Blair House, that it “…posed an early test of the support the US was prepared to give, when the chips were down, [to] the concepts and institutions embodied in the fledgling United Nations.”11 As US Secretary of State Dean Acheson noted: “Korea is of very great importance to the United States and to the United Nations because it is there that the first great effort of collective security is being made to repel an armed attack.”12 A product of US led efforts for a global institution to deal with matters of international peace and security, the United Nations and its collective security system was, at the time, a key element in US foreign policy. It was viewed as instrumental to the achievement of US interests.13 Well before the movement of North Korean forces south of the 38th parallel, US policy makers clearly relied on the UN as an overarching framework “within which the free world holds together as a kind of grand coalition, united in the principles and purposes of the Charter…”.14 The “United States should approach the United Nations, as do members

9 10 11 12

13

14

DOS Office of Intelligence Research, Truman Papers, PSF, June 28 1950, Truman Presidential Museum and Library, Independence, Missouri. ‘Intelligence Estimate Prepared by the Estimates Group, Office of Intelligence Research, Department of State’ June 25 1950, in FRUS, 1950, Vol. 7, at 152-153. Korean War, Harry S Truman Papers, Oral History Interview with William Sanders, Truman Presidential Museum and Library, Independence, Missouri. Testimony of Dean Acheson, in US Senate Military Situation in the Far East: Part 1-5 (Part 2) (US Government Printing Office: Washington DC 1951) at 1818. Herein after referred to as Military Situation in the Far East. RG59, General Records of the Department of State, Records of the Policy Planning Staff 1947-1953, Box 20, Country and Area Files, “Memorandum for the Secretary of State, from Paul H Nitze, December 2 1950.” RG 59, General Records of the Department of State, Records of the Policy Planning Staff 1947-1953, Box 31, United Nations 1950-1953, “Role of the United Nations in American Foreign Policy: Selected Issues for S/P discussions”. There is no date mentioned in relation to this draft but it was due to be discussed at a policy planning staff meeting and distributed on January 31, 1950.

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of the United Nations generally, as a means and an entity to advance effectively its own interests.”15 Upon hearing of the invasion of North Korean forces into the Republic of Korea, State Department officials immediately turned to developing plans for action within the framework of the UN Charter. According to John Hickerson, then Assistant Secretary of State, the first thing he and Dean Rusk (future Secretary of State and then Assistant Secretary of State for Far Eastern Affairs) decided upon was to pursue contingencies for action through the UN: “The first thing, the UN, was just automatic.”16 As Sanders recalled, State Department policy planning staff identified two legal arguments that could be used to support the proposed US policy to assist South Korea militarily: The question debated in the Department between June 25…and June 27…was whether the US should justify its intervention in the conflict solely on Article 51 of the UN Charter or seek to obtain the approval of the organization for collective action under Article 39. Article 51 recognizes the inherent right of individual or collective self defence in the case of an armed attack against a member, until the Security Council has taken measures necessary to maintain international peace and security. Article 39 provides the Security Council with the overall responsibility for taking the measures required to maintain or restore international peace and security. Specifically the choice for the US was to intervene unilaterally or to obtain a UN umbrella for the operation, which would include the military and material support of other members, and give practical support to the UN approach to the maintenance of peace and security.17

Sanders recalled that the initial preference of policy planning staff was in favour of military action taken under the authority of Article 51 of the UN Charter. Policy planning staff were concerned that the US would not achieve Security Council authorisation to use military force to repel North Korean forces from South Korea, pursuant to Article 39 of the UN Charter, as the Soviet Union would use its veto power in the Security Council to prevent Security Council authorisation. In the end the State Department decided to seek support for its preferred policy to support South Korea militarily by proposing a resolution taken pursuant to the procedure outlined

15

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RG 59, General Records of the Department of State, Records of the Policy Planning Staff 1947-1953, Box 31, United Nations 1950-1953, “The United States Role in the United Nations 8 August 1952.” John D Hickerson Oral History Interview by Richard D McKinzie, November 10 1972, Harry S Truman Presidential Library and Museum, www.trumanlibrary.org/oralhis/ hickerson.htm accessed 23/5/02. The news that the North Korean Army (NKA) had entered South Korea arrived in the early hours after midnight Washington time. President Truman was in his home in Independence, Missouri. Hickerson was at the State Department working on the initial steps to deal with this development, along with Dean Rusk, then Assistant Secretary of State. Both were in consultation with the Secretary of State, Dean Acheson. Ibid.

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in Article 39, which it was hoped would provide the widest international support for US action. This decision to go the Security Council for authorisation pursuant to Article 39 was facilitated by the absence of the Soviet Union from the Security Council.18 The first meeting of Truman’s ‘war cabinet’ on June 25 1950 at Blair House canvassed a number of issues, including the perceived necessity to assist the weaker South Korean army to repel North Korean forces, to supply ammunition and other material to the South Korean Army, and the need to ensure that any US military action was taken with the authority of the UN and its Charter.19 US officials at the United Nations thus began the strategy of mobilising the UN to ensure a legal basis for its intended action based on a UN Security Council resolution pursuant to Article 39 of the UN Charter, which would open the way for US military action against North Korea. When the Security Council eventually met it passed a resolution finding the actions of the North Korean Army to be in ‘breach of the peace’ and called on the North Korean authorities to cease hostilities and withdraw their armed forces to the 38th Parallel.20 In addition, the resolution called upon all Member States to “render every assistance to the UN in the execution of the resolution and to refrain from giving assistance to the North Korean authorities.”21 In a further resolution on June 27 the Security Council recommended that members of the UN provide assistance to the ROK ‘as may be necessary’ to repel the armed attack and to restore international peace and security in the area.22 Resolutions 82 and 83 formed the core legal authority underpinning US military action with South Korea and other allied troops against North Korean forces in the ROK.23 With the passage of these two

18

19 20 21 22 23

Reminiscence of William Sanders (written oral history), August 1975, Harry S Truman Presidential Library and Museum, www.trumanlibrary.org/oralhist/sandersw.htm accessed 23/5/02. The Russian delegate had absented himself from the Security Council since January 1950, in protest over China’s seat on the Security Council being represented by the Chinese National delegation (now Taiwan) in place of the PRC. Truman, above note 6, at 335. See also, William Sander Oral History, Ibid. Security Council Resolution 82, June 25 1950 – passed in the absence of the Soviet Union delegate from the Security Council. Ibid. Security Council Resolution 83, June 27 1950 – passed in the absence of the Soviet Union delegate from the Security Council. Later Security Council Resolution 84 passed on July 7 established the Unified Command (UNC) under US command and requested the Americans to designate the commander of the United Forces of the UN to fight to restore international peace and security in Korea. The US appointed General Douglas MacArthur. Security Council Resolution 84, July 7 1950 – passed in the absence of the Soviet Union delegate from the Security Council. For announcement of General MacArthur as Commander of Unified Command see text of announcement by President: “UN Places Unified Command of Military Forces in Korea Under United States” Department of State Bulletin, Vol. 23, July 17 1950, pp. 83-83. The military contributions of member States were initially small given the preparations and logistical arrangements in physically moving troops to Korea. Nonetheless 15 member

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resolutions Truman was now in a position to declare publicly that the US action to use force against North Korea was legal and pursuant to a Security Council ‘order’: …communism has passed beyond the use of subversion to conquer independent nations and will now use armed invasion and war. It has defied the orders of the Security Council of the United Nations issued to preserve international peace and security.24

This approach to the early phase of the war, by which military-political considerations were to be reconciled with the UN Charter framework, continued to mark the US decision-making throughout the Korean War. As a policy planning document noted: The President has decreed that every effort shall be made to tie our actions in Korea into the framework of UN activity so that it may be clear to the world that the action in Korea to resist aggression is UN action not solely US action.25

Beijing’s initial public reaction to the North Korean intervention in South Korea appeared muted, with initial reports of the war appearing belatedly in the Chinese communist press and relegated to secondary positions in the newspapers.26 It would appear that Beijing was not centrally interested in Korea per se, but in the central challenge it posed to the PRC strategy toward Taiwan, and to the safety of its Northeast region of China. The Korean Peninsula since the time of the Japanese occupation had been a stepping-stone to the Chinese mainland; it was not just rhetoric that Beijing

24

25

26

States had deployed forces to assist South Korea by the end of 1950. See UN Yearbook 1950, at 226-229. Yet with even this support the majority of forces – nearly two thirds – were American. Goodrich, above note 133, at 117. Statement by President Truman (released to press June 27 1950) in “US Air and Sea Forces Ordered Into Supporting Action” Department of State Bulletin, Vol. 23, July 3 1950, pp. 56, at 5. There was some confusion as to exactly when the formal issuance of the order for US troops to begin military action in Korea was given. At the Senate hearings into US decision-making during the Korean War, conducted by the Committee on Armed Services and the Committee on Foreign Relations, Senator Byrd asked General Omar Bradley, Chairman of the Joint Chiefs of Staff (JCS), when Truman gave the order to US troops to commence military action in Korea, and specifically whether military forces were committed prior to Security Council Resolution 83 authorising military assistance to the ROK. According to Bradley’s testimony US troops were initially committed on June 25 (two days before the Security Council resolution authorising US and allied use of force) “to get our nationals out of Korea”. However, it was not until June 27 pursuant to Security Council Resolution 83 that Truman ordered “air and sea units to give the Korean Government troops cover and support.” See Testimony of Omar Bradley, in Military Situation in the Far East (Part 2), at 991-992. RG 59 General Records of the Department of State, Records of the Policy Planning Staff 1947-1953, Country and Area Files, Box 20, “Korea, prepared for Secretary by Geographic Offices”, July 24, 1950. Allen S Whiting China Crosses the Yalu: The Decision to Enter the Korean War (Stanford University Press: Stanford 1960).

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emphasised the security of Korea as being closely related to China’s security.27 Beijing’s only admonishment at this early stage was to warn of negative consequences if US armed forces entered the Korean peninsula.28 When US forces did enter Korea, PRC representatives condemned the US move, regarding it as an armed aggression in violation of the UN Charter. Mao stated: [Truman] shredded all international agreements related to the American commitment not to intervene in China’s internal affairs…The United States is unable to justify in any way its intervention in the internal affairs of Korea, the Philippines, and Vietnam.29

Likewise PRC Foreign Minister, Zhou Enlai,30 declared the move an “armed aggression against the territory of China in total violation of the United Nations Charter.”31 Standard PRC appraisal of resolutions adopted by the Security Council and later the General Assembly followed the line that no resolution or decision was deemed binding on the PRC so long as the PRC was “unlawfully” excluded from participation in such organs.32 Zhou Enlai declared that the United Nations intervention in Korea was a cover up for “United States armed aggression…and intervention in the internal affairs of Korea in violation of world peace.”33 In a telegram to UN Secretary General, Trygve Lie, he went further, suggesting that “[t]he resolution adopted by the Security Council on June 27 [was made] under the instigation and manipulation

27 28 29 30

31

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33

Jian Chen China’s Road to the Korean War: The Making of the Sino-American Confrontation (Columbia University Press: New York 1994). Ibid. Mao Zedong’s manuscripts after the founding of the republic cited in Chae-Jin Lee China and Korea: Dynamic Relations (Hoover Press: California/Stanford 1996) at 12. Note that Zhou Enlai/Chou En-lai refer to the same person. In some publications and US government documents reference is made to Chou En-lai. The practice in most modern publications is to write Zhou Enlai, which reflects the current consensus regarding the more accurate translation of the name from Chinese to English. Cited in Hao Yufan and Zhau Zhihai “China’s Decision to Enter the Korean War: History Revisited” in Kim Chull Baum and James I Murray (Eds) Korea and the Cold War: Division, Destruction, and Disarmament (Regina Books: Claremont, CA 1993) at 111-124. Hungdah Chiu “The United Nations” in Shao-Chuan Leng and Hungdah Chui (Eds) Law in Chinese Foreign Policy: Communist China and Selected Problems of International Law (Oceana Publications: New York 1972) at 201. S/1583, Cable dated July 6 1950, from PRC Minister of Foreign Affairs (Zhou Enlai) to Security Council President. See also for similar comments, S/1703, Cable dated August 20 1950, from Zhou Enlai to Security Council President.

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of the United States Government…”.34 In another telegram to Trygve Lie on July 6, PRC Foreign Minister Zhou Enlai stated: The resolution adopted by the Security Council on June 27 under the instigation and manipulation of the United States Government, calling upon the members of the United Nations to assist the South Korean authorities, is in support of United States armed aggression and constitutes an intervention in the internal affairs of Korea and violation of world peace…Therefore the resolution of the Security Council with regard to the Korean question is not only destitute of any legal validity, but greatly damages the United Nations Charter.35

The PRC considered certain UN resolutions null and void, not just non-binding. All resolutions concerning Korea, whether adopted by the General Assembly or the Security Council, were deemed to be invalid. For example, one day after the Security Council resolution authorising intervention of UN forces into Korea, Mao Zedong declared that the US intervention was “…interference in the internal affairs of Korea [and] totally unjustified.”36 As the war proceeded, Chinese accusations of aggression became the most frequent charge against the actions of US and allied forces near the Chinese mainland.37 When the Soviet delegate returned to the Security Council, Jacob Malik declared the Korean conflict a civil war in which no foreign State should intervene: According to contemporary international law, interference in the domestic affairs of a State in the form of an attack by one State on another was regarded as a most serious international crime; international law draws a definite line between, on the one hand, domestic conflicts, civil war and, on the other hand, international conflicts, wars between States…the conception of aggression is not applicable to civil war…[reference to North Korean aggression cannot conceal] the fact that the military action taken by the Government of the United States against the Korean people is an act of armed aggression…38

34

35

36 37 38

Zhou Enlai, cited in Han Nianlong (Ed) Diplomacy of Contemporary China (New Horizons Press: Hong Kong 1990) at 47. Similar comments were made in relation to the Uniting for Peace resolution. See, Declaration of the Foreign Ministry Opposing the Adoption of the United Nations General Assembly of the Resolution to Expand the War of Aggression Against Korea, October 10, 1950, cited in Ibid., at 202. S/1583, Ibid. This would become a standard refrain in rhetorical statements in Chinese foreign policy. While communist China had been committed to the idea of the United Nations since its inception, it was never happy with its actual practice, viewing UN operations as a series of Charter violations under US manipulation. This continued until the PRC was finally given its seat in the UN (and the Security Council) in 1971. See Chiu, above note 32, at 22. Address to the 8th Meeting of the Central People’s Government Council, 28 June 1950, reprinted in, Nianlong, above note 34, at 46. James C Hsiung Law and Policy in China’s Foreign Relations: A Study of Attitudes and Practices (Columbia University Press: New York 1972) at 192. S/PV/489 (No. 31, August 22 1950) at 2-3.

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North Korea also submitted to the Security Council written communications condemning the US for violating international agreements and the UN Charter by its intervention into Korea, in particular that the June 25 and 27 Security Council resolutions were contrary to Article 27(3) of the UN which required the unanimous vote of all permanent members of the Security Council.39 Pak Hen Nen, the Foreign Minister of the DPRK, declared that the “American interventionists…[are] ruthlessly violating the rules of international law and the standards of human morality.”40 When the Soviet representative, Jacob Malik, returned to the UN in August 1950 he introduced a new resolution to invite representatives of North Korea and the PRC to discuss the Korean question, and to call an end to the hostilities in Korea and the withdrawal of all foreign troops from Korea.41 In his speech introducing the draft resolution he stated that the Security Council resolutions authorising US and allied use of force in Korea were “…illegally constituted from the standpoint of the Charter; for two permanent members of the Security Council were absent…consequently the decision adopted cannot be regarded as legal…there was no legal decision by the United Nations.”42 Zhou Enlai later cabled the Security Council president expressing support for the Soviet draft resolution.43 In the same cable Enlai criticised the movement of the US Seventh Fleet into the Taiwan Straits as part of their defensive naval actions taken after US forces entered Korea, declaring the action “…a direct armed aggression on the territory of China and a total violation of the UN Charter.”44 Another resolution proposed by the USSR calling an end to the US bombing campaign on the South Korean side of the 38th parallel accused the US of “…a gross violation of the universally accepted rules of international law.”45 This resolution was also defeated.46 By August 1950 US decision-makers were turning their attention to a legal strategy in the pursuit of perceived US national interests, which by now had changed from repelling the North Korean forces from South Korea to unifying Korea. As a memorandum from the Policy Planning Staff makes clear, US policy on Korea took on twofold objectives: to protect the ROK from North Korean forces and the unifica-

39 40 41 42 43 44 45 46

S/1849, cable dated October 14 1950 from Foreign Minister of the DPRK (Pak Hen Nem) to the Security Council President. S/1674, cable dated August 5 1950 from Foreign Minister of the DPRK to the Security Council President, in S/PV/484 (No. 26 August 8 1950) at 2. S/PV/483 (No. 25 August 4, 1950) at 14. The resolution was rejected on September 6, 8 against 1 in favour (Soviet Union) and 2 abstentions (Egypt and Yugoslavia). Ibid, at 15-16. S/1715, Cable dated August 24 1950 from PRC Minister of Foreign Affairs to Security Council President, in S/PV/489 (No. 31 August 28 1950) at 9-10. Ibid. Draft resolution S/1679 submitted August 8 1950, in UN Yearbook 1950 at 235, 236. The draft resolution was defeated on September 7 1950, 8 against 1 in favour (Soviet Union) 1 abstention (Yugoslavia). Ibid.

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tion of Korea.47 On September 15 General MacArthur launched a surprise naval assault resulting in troops landing at Inchon only a few hundred kilometers from the 38th parallel. This surprise landing, described as “the most successful improvisation in the history of war”,48 shocked North Korean forces and resulted in the complete collapse of North Korean resistance. From Inchon it took US/UN troops only two weeks to reach the 38th parallel as they pursued retreating North Korean troops and forcing the North Koreans back behind the 38th parallel. Military and political decision-makers were then faced with the question of whether to cross the 38th parallel. Crossing the 38th parallel involved both military and political considerations. From a military perspective there was no compelling reason to stop. The Joint Chiefs of Staff (JCS) saw no military reason to stop at the 38th parallel in the pursuit of Korean unification.49 There were also political reasons for not stopping. Decision-makers reasoned that it could provide an opportunity to limit the Soviet encroachment into the Far East and possibly also the rest of Asia, which also served to continue pressure on the Sino-Soviet relationship.50 While there may have been no military impediment to crossing the 38th parallel, there were other dilemmas faced in crossing the 38th parallel. One dilemma was the risk such an action would run in expanding the conflict by bringing either the USSR or the PRC directly into the conflict given their close ties to the North Korean regime. It would seem that on this issue decision-makers misplaced their concern over a likely Soviet reaction, and seriously misread Chinese

47

48 49

50

RG 59 General Records of the Department of State, Records of the Policy Planning Staff 1947-1953, Country and Area Files, Box 20, Office of the Secretary, 11 August 1950 Policy Planning Staff Memorandum, 11 August 1950, ‘US Policy Objectives in Korea’. In the same reference group see also the document of July 14, 1950, titled ‘Department of State Memorandum from Dulles to Nitze’. Carl Berger The Korea Knot: A Military-Political History (Revised Edition) (University of Pennsylvania Press: Philadelphia 1957). ‘Draft Memorandum Prepared in the Department of Defense’ July 31 1950, FRUS, 1950, Vol. 7, at 502. See also testimony of JCS Chairman, General Omar Bradley, Military Situation Relating to Far East (Part 2), at 1008-1009. Ibid., at 502-3, 506.

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communist warnings not to cross the 38th parallel51 as evidenced by the eventual PRC entry into the war. Another significant dilemma was ensuring that any such action was reconciled with international legal requirements. As a policy-planning memorandum noted, “…the US will not undertake to bring about, nor will it permit, the unification of Korea by any means inconsistent with the principles of the United Nations Charter.”52 As General Omar Bradley, Chairman of the JCS stated, military action north of the 38th parallel was best conducted by a ‘directive’ from the United Nations53 in order that US action did not appear ‘unilateral’.54 A similar sentiment was reinforced by President Truman, who stated, when asked in a News Conference what he would do when US troops reached the 38th parallel, that “[i]t will be worked out by the UN and I will abide by the decision that the UN makes.”55 US decision-makers examining the legal basis on which US/UN forces could cross the 38th parallel were faced with two options. The US could act on its own, declaring that there was sufficient authority in the existing Security Council resolutions (especially Resolutions 82 and 83) to authorise US/UN forces to cross the 38th parallel and secure the unification of Korea. As John Emmerson of the State Department Policy Planning Staff noted: … by the terms of the second resolution [resolution 83], the responsibility of the Security Council has been widened to include the restoration of “international peace and security”. Fulfillment of this obligation may therefore require action beyond that of driving the North Koreans to the 38th parallel.56

51

52 53 54 55 56

PRC Foreign Minister Zhou Enlai warned the US on October 3 1950, via the Indian Ambassador in Beijing K. M. Panikkar, that while China would tolerate South Korean forces crossing the 38th parallel, it would not tolerate the same of US forces and would in that instance enter the war. ‘Memorandum by the Director of the Office of Chinese Affairs (Clubb) to the Deputy Assistant Secretary of State for Far Eastern Affairs (Merchant)’ October 4 1950, FRUS, Vol. 7, 1950, at 864. In this memorandum Clubb took the warning seriously enough to consider the risks ‘considerable’ (at 864). The CIA on the other hand did not consider the Chinese entry into the war probable. Despite close ties between Kim Il-Sung and Mao, it was thought that communist China’s domestic problems – Mao had only recently won the civil war and faced a massive domestic reconstruction task both in physical and economic terms – meant they would be too preoccupied to enter the Korean conflict. ‘Memorandum by the Central Intelligence Agency’ October 12 1950, FRUS, Vol. 7, 1950, at 934. Ibid. Testimony of General Omar Bradley, Military Situation in the Far East (Part 2), at 1007. Testimony of General Omar Bradley, Military Situation in the Far East (Part 2), at 1077. Statement by President Truman, September 21 1950 News Conference, in FRUS, 1950, Vol. 7, at 748. RG 59 General Records of the Department of State, Records of the Policy Planning Staff 1947-1953, Country and Area Files, Box 20, “Policy towards the 38th parallel” by J K Emmerson, July 17 1950.

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Such a view was also reflected in an early draft of what would become NSC 81/1 that set out the conditions for the US/UN forces entry into North Korea. It was the view of Emmerson that operations beyond the necessity to compel the withdrawal of the North Korean forces from South Korea should not be taken without a new resolution from the United Nations. This would allow the US to present its actions not as a unilateral decision but as the result of a directive from the UN backed by international consensus.57 Only then would it be possible to present the US position on the crossing of the parallel in terms consistent with the UN Charter and in uniformity with international law. On September 11 Truman signed NSC 81/1 outlining the official US Korean War policy and in principle authorising US/UN ground troops in South Korea to cross the 38th parallel.58 Between the time Truman signed NSC81/1 and the final authorisation for US/UN forces to cross the 38th parallel, the US worked to ensure international legal support for its preferred policy position. With the Security Council unlikely to pass resolutions favourable to the US position since the return of the Soviet delegate, Jacob Malik, to his Security Council seat, the US turned to the UN General Assembly, which according to Article 11(2) of the UN Charter may discuss and make recommendations on matters relating to international peace and security. On September 20 Secretary of State Dean Acheson brought the issue of restoring peace and security in Korea before the General Assembly.59 The issue was referred to the General Assembly First Committee on political affairs where eight US allies presented a draft resolution calling for the establishment of a unified, independent and democratic government

57 58

59

Ibid. It should also be noted that NSC 81/1 was not unanimously supported. Two important policy planning staff, Kennan and Bohlen, disagreed with the view that North Korean policy was directed by the Soviet Union, and believed such a view underestimated the likelihood of Chinese entry into the war should US forces cross the 38th parallel. See Foot, above note 138, at 73. The operational decision of when to cross the 38th parallel was deferred and was to be made in light of further appraisals of the risk of general war with Soviet and/or Chinese forces, agreement from allies and with UN authorisation. ‘Memorandum by the Executive Secretary of the National Security Council (Lay) (NSC 81 Enclosed)’, September 1 1950, FRUS, 1950, Vol. 7, at 689-690. Confidence in extending military action to pursue the unification of Korea was no doubt enhanced by General MacArthur’s military victory against the North Korean army at Inchon in South Korea. Richard Whelan Drawing the Line: The Korean War 1950-1953 (Little, Brown and Company: Boston 1990) at 193. No doubt the risks associated with crossing the 38th parallel were downgraded given how close the UNC appeared to a decisive military victory. At the Wake Island conference General MacArthur was reported to have expressed not only complete confidence to deal with Chinese forces should they enter the war, but also the possibility of ending the war by the end of the year. See ‘Substance of statements made at the Wake Island Conference’, October 15 1950, FRUS, 1950, Vol. 7, at 948-960. Address made by Dean Acheson before the plenary session of the General Assembly, September 20 1950, reprinted in “The Peace the World Wants” Department of State Bulletin, Vol. 23, October 2 1950, pp. 532-529.

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in the State of Korea.60 Ambassador Austin, speaking in support of the eight-nation resolution, stated: Faithful adherence to the United Nations Charter and its objectives of restoring international peace and security in the area counsels the taking of appropriate steps to eliminate the power and ability of the North Korean aggressor to launch future attacks.61

The Soviet Union and four other Soviet allies submitted an alternative draft resolution calling for, among other things, the end of hostilities, the withdrawal of foreign troops and the holding of elections to establish a government of a unified Korea.62 The resolution proposed by the Soviet Union and its allies was rejected.63 On October 7 an overwhelming majority of the General Assembly voted in favour of the eight-nation resolution.64 The resolution recommended, among other things, that “all necessary steps be taken to ensure conditions of stability throughout Korea [and] all constituent acts be taken, including the holding of elections, under the auspices of the United Nations for the establishment of unified, independent and democratic Government in the sovereign State of Korea [and that the] United Nations should not remain in any part of Korea otherwise than so far as necessary for achieving [these] objectives.”65 The resolution “…[provided] support for operations north of the thirty-eighth parallel.”66 As Rusk noted, the “…purpose of the resolution was to give maximum flexibility to the military command…[and for this reason the resolution] was particularly clever in that it provided that any United Nations forces entering North Korea should not remain ‘otherwise than so far as necessary’”67 to

60 61

62 63 64

65 66

67

A/C.1/558, September 30 1950 in UN Yearbook 1950, at 258. The draft resolution was proposed by Australia, Brazil, Cuba, Netherlands, Norway, Pakistan, Philippines and the UK. Speech made by Ambassador Warren R Austin before the Political and Security Committee (First Committee) of the UN General Assembly, reprinted under “Speech and Security for the Future of Korea” Department of State Bulletin, Vol. 23, October 9 1950, pp. 579-58, at 579. A/C.1/567, September 30 1950 in UN Yearbook 1950, at 258. The draft resolution was proposed by the USSR, Ukraine, Byelorussia, Poland and Czechoslovakia. Rejected as a whole by a roll-call of votes on each paragraph of the draft resolution, 46 against 5 in favour 8 abstentions, in UN Yearbook 1950, at 264. UN General Assembly Resolution 376(V), October 7 1950, 47 in favour 5 against 7 abstentions. The draft resolution proposed in the First Committee of the General Assembly was approved on October 4, 47 votes in favour 5 against 7 abstentions, in UN Yearbook 1950, at 264. UN General Assembly Resolution 376(V), Ibid. Testimony of General Omar Bradley, Military Situation in the Far East (Part 2), at 987; Comment by Dean Rusk in ‘Minutes of the Sixth Meeting of the United States Delegation to the United Nations General Assembly’ September 25 1950, FRUS, 1950, Vol. 7, at 770. Comment by Dean Rusk in ‘Minutes of the Sixth Meeting of the United States Delegation to the United Nations General Assembly’ September 25 1950, FRUS, 1950, Vol. 7, at 769.

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achieve the objectives of a peaceful Korea. US/UN forces crossed the 38th parallel into North Korea that same day. The PRC regarded this resolution as illegal, arguing in a statement issued to the General Assembly that the formal majority needed for the resolution to pass was the result of US manipulation of UN machinery.68 Before the passage of the resolution Zhou Enlai had cabled the UN warning that, should the fifth session of the General Assembly be held without the participation of the delegate from the PRC, all the resolutions of the GA concerning China would be illegal.69 At the same time as decision-makers were grappling with the question of whether and when to cross the 38th parallel, attention in the State Department turned to contingencies for an alternative legal strategy once the Soviet Union delegate returned to the Security Council and resolutions would again fail to pass due to the exercise of the Soviet Union’s veto power. This alternative legal strategy centred on strengthening the General Assembly of the United Nations in relation to matters involving threats to international peace and security. John Hickerson, Assistant Secretary of State for UN Affairs, recalled that after the Security Council resolutions were passed he started thinking of the eventual return of the Russians to the Security Council: …we had a break on this; the Soviets could have vetoed all of these resolutions, and we couldn’t have gotten the General Assembly in session in less than two weeks. We need a resolution of the General Assembly to close the loopholes so that the General Assembly can move into action if it has to.70

Policy-makers acknowledged that it was: [o]nly a historical accident that prevented the hastily summoned Security Council from finding itself paralyzed by the veto due to the fortuitous absence of the Russian delegate. It was in response to this that “…the United States Government commenced a search for some method within the terms of the Charter by which the United Nations could avoid finding itself veto-bound in any future case of aggression.71

The US attempted to use the General Assembly process to develop a new mechanism to broaden the role of the General Assembly during ‘threats to international peace

68

69 70 71

Declaration of the PRC Foreign Ministry Opposing the Adoption of the United Nations General Assembly of the Resolution to Expand the War of Aggression Against Korea, October 10, 1950, UN Yearbook 1950, at 202. S/1795, Cable dated September 17 1950 from PRC Minister of Foreign Affairs to Security Council President. John D Hickerson, oral history interview, above note 16. RG 59 General Records of the Department of State, Records of the Bureau of International Organization Affairs and its Predecessors, Box 14, File SD/A/243-262, July 21 1951, Internal Policy Paper ‘Legislative History of the “Uniting for Peace” Resolution in the Fifth Session of the General Assembly (1950)’ by W Stratton Anderson Jr. (Office of United Nations Political and Security Affairs, Department of State).

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and security’. That the National Security Council itself dealt with this issue demonstrates the importance those within the White House attached to developing a General Assembly strategy through the development of law, even if at the procedural level.72 In policy paper NSC 85, a possible course of action for the United Nations to deal with aggression through the General Assembly was outlined; this would be the basis of what would later come to be known as the ‘Uniting for Peace’ resolution.73 This strategy reflected not just US efforts to ensure the evolution of alternative legal procedures in support of their action in Korea once Soviet representative Zorin returned to the Security Council. It was also an effort to shape the mechanisms of the United Nations more generally, in a way that matched US foreign policy concern to use the United Nations as a vehicle to pursue the ‘free world’ struggle against the communist bloc. As one internal US policy paper on the United Nations noted: This country is now relying on the United Nations in a number of ways, the broad framework within which the free world holds together as a kind of grand coalition [sic], united in the principles and purposes of the Charter...74

Another US Government policy paper stated that: …the United States Government commenced a search for some method within the terms of the Charter by which the United Nations could avoid finding itself veto-bound in any future case of aggression. Fortunately this proved to be possible. Article 10 of the Charter empowers the General Assembly, in which there is no veto, to make recommendations to Member States on any question or matter within the scope of the Charter which is not currently being dealt with by the Security Council. While the framers of the Charter did not contemplate that the General Assembly would play the principal role in dealing with threats or acts of aggression, they explicitly provided the constitutional basis for the General Assembly to act if the Security Council does not.75

72

73

74

75

For the ‘legal’ status of the resolution, considered part of the ‘materials’ on the international law on the use of force, see Hans Kelsen Recent Trends in the Law of the United Nations (Stevens & Sons Ltd: London 1951) at 927-990; David J Harris Cases and Materials on International Law (Sweet and Maxwell: London 1998) at 968. RG 59 General Records of the Department of State, Records of the Policy Planning Staff 1947-1953, Country and Area Files, Box 31, NSC 85 “Program of United Nations Action to Stop Aggression.” RG 59, General Records of the Department of State, Records of the Policy Planning Staff 1947-1953, Box 31, United Nations 1950-1953, “Role of the United Nations in American Foreign Policy: Selected Issues for S/P discussions”. There is no date mentioned in relation to this draft but it was due to be discussed at an upcoming policy planning staff meeting and distributed on January 31 1950. RG 59 General Records of the Department of State, Records of the Bureau of International Organization Affairs and its Predecessors, Box 14, File SD/A/243-262, “Legislative History of the “Uniting for Peace” Resolution in the Fifth Session of the General Assembly (1950) INTERNAL POLICY PAPER” by W Stratton Anderson Jr., Office of United Nations Political and Security Affairs, Department of State, July 21 1951.

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The Internal Policy Paper set out the legal basis for enhancing the role of the General Assembly, relying in particular on Articles 10, 11 and 12 to provide authority for the General Assembly to make recommendations where international peace and security issues are involved. It was noted that the articles collectively empowered the General Assembly to make recommendations to Member States on any question or matter within the scope of the Charter which the Security Council is unable or unwilling to deal with. While the “…framers of the Charter did not contemplate that the General Assembly would play the principal role in dealing with threats or acts of aggression, they explicitly provided the constitutional basis for the General Assembly to act if the Security Council does not.”76 This was the legal basis Acheson referred to when he first proposed the idea in the General Assembly on September 2077 and which Austin reiterated in the plenary session in the General Assembly on October 6.78 Dulles also referred to this same legal basis when he discussed the proposed Uniting for Peace resolution in the First Committee of the General Assembly.79 The draft resolution proposed by the US recommended that where a permanent member of the Security Council using its veto hampers the Security Council in its ability to deal with peace and security issues, the issue can then be referred to the General Assembly for discussion.80 Dean Acheson argued that the resolution would strengthen the system of collective security and was “…designed to increase the effectiveness of United Nations action against aggression.”81 PRC and Soviet representatives responded to US legal rhetoric by arguing that the Security Council was the only organ of the UN that had the right to take action to maintain international peace and security. Bypassing the Security Council in relation to matters of international peace and security was incompatible with the central mandate of the Security Council stipulated in the Charter and would therefore be

76 77 78 79 80

81

Ibid. A/PV/279, September 20 1950, at 24. A/PV/293, September 9 1950, at 21. A/C.1/SR.354, October 9 1950, at 64. UN Yearbook 1950, at 181. The procedure included four main mechanisms: 1) An emergency session of the General Assembly on 24 hours notice if the Security Council is prevented from acting (embodied in paragraph 1 of the resolution; 2) security or peace patrol to observe and report from any area in which international conflict threatens (embodied in paragraph 3 of the final resolution); 3) The designation by each Member nation of a United Nations unit or units within its national armed forces to be maintained in readiness for prompt United Nations service, and the appointment of a United Nations military adviser (embodied in paragraph 8, 9, 10 of the final resolution) and; 4) A committee to study and report on means, which the United Nations may use through collective action – including the use of armed force – to carry out the purposes and principles of the Charter (embodied in paragraph 11 of the final resolution). Dean Acheson “The Peace the World Wants” Speech Before the UN General Assembly on September 20 1950, Department of State Bulletin, Vol. 23, October 2 1950, pp. 523-529, at 524, 525.

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a violation of the UN Charter.82 In both the First Committee and Plenary session of the General Assembly the Soviet Union representative, Ambassador Vyshinsky, asserted the primacy of the Security Council, arguing that US legal arguments in support of its proposal served only to give a “cloak of legality” to the US proposal.83 Zhou Enlai claimed that the General Assembly resolution was the result of US manipulation of the UN processes though he did not specify how the manipulation manifested itself.84 In response to communist charges that the proposed measures diluted the central authority of the Security Council, John Foster Dulles stated the central ‘constitutional’ argument in favour of the US position. Although the Security Council had primary responsibility and the power of authoritative action and restrictive sanctions, the General Assembly nevertheless had broad residual power under Article 10 to make recommendations on “any matters within the scope of the present Charter – provided the Security Council was not dealing with the matter at the moment.”85 With the bulk of the members of the General Assembly at the time being allies or friends of the US, the Uniting for Peace Resolution was adopted on November 3 1950.86 As will be seen, the resolution provided a mechanism which facilitated US efforts to demonstrate a legal basis for further escalations in its use of force throughout the war. It would appear that PRC discussions about sending Chinese troops to Korea began well before US forces crossed the 38th parallel in early October, with the Chinese leadership having decided on July 7 and 10, 1950, to send troops to the Chinese-Korean border to prepare for a possible intervention into Korea.87 Stalin’s approach to avoiding commitment of Soviet troops was to encourage the PRC to enter the war instead.88 Just as Chinese decision-makers were close to the final

82 83 84

85 86 87 88

See, inter alia, statement by Zhou Enlai PRC Foreign Minister, February 1, 1951, cited in Chiu, above note, 32, at 210. A/C.1/SR.354, October 9 1950, at 84; A/PV/279, September 20 1950, at 28. See, Declaration of the Foreign Ministry Opposing the Adoption of the United Nations General Assembly of the Resolution to Expand the War of Aggression Against Korea, October 10, 1950, cited in Nianlong, above note 34, at 202. UN Yearbook 1950, at 184. General Assembly Resolution 377(V), November 3 1950 (52 against 5 with 2 abstentions). Chen, above note 132, at 135-141. “Ciphered telegram, Filippov (Stalin) to Chinese Foreign Minister Zhou Enlai (via Soviet Ambassador to the People’s Republic of China N. V. Roshchin)”, 5 July 1950; “Ciphered telegram, Stalin to Soviet Ambassador Roshchin in PRC transmitting message to Mao Zedong” July 8 1950; “Ciphered telegram Stalin to Zhou Enlai” August 27 1950, reprinted in Kathryn Weathersby “New Russian Documents on the Korean War” Cold War International History Project Bulletin, Issue 6-7, 1995/1996, pp. 30-84 at 43-45. For more detail and documents on Stalin’s difficult negotiations with Chinese decision-makers in October 1950 over China’s entry into the Korea War, see: Alexandre Y Mansourov “Stalin, Mao, Kim and China’s Decision to Enter the Korean War, September 16-October 15 1950: New Evidence from the Russian Archives” Cold War International History Project Bulletin,

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decision to send troops to assist North Korea repel US/UN forces from its territory, Zhou Enlai issued a protest to the UN. He argued that the US intended to “extend the war of aggression against Korea, to carry out armed aggression against Taiwan, and to extend further its aggression against China.”89 It would appear that Chinese representatives were setting up a situation by which they could cast PRC entry into the war as a ‘defensive’ move, claiming self defence – an argument which would appear more in line with existing international law. This was one of the few instances where Chinese legal rhetoric was employed in offensive diplomacy, as opposed to defensive and reactive references to legal rhetoric in their public diplomacy. A few days later a similar message was reiterated: “We must regard the Korean people’s defensive war as our war, for the American invasion of Korea is as much a threat to us as it is to the existence of a free and independent Korean nation…”.90 This message was further reiterated when on October 25 Chinese communist forces crossed the Yalu River – the border between North Korea and communist China – in order to assist North Korea. In a letter from Zhou Enlai to the Security Council he accused the US of “…violating the territorial sovereignty of China and threatening its security.”91 The PRC stated that the intervention was an effort to help North Korea in their urgent fight against “United States aggression”, a crime which was “…violating the territorial sovereignty of China and threatening its security.”92 They also continued to stress the ‘illegality’ of the initial Security Council vote that authorised the initial entry of US/UN forces, declaring that: “…so called United Nations Command…was engendered illegally in the Security Council under manipulation of the United States during the absence of the permanent members, the Soviet Union and the People’s Republic of China …”.93 The entry of Chinese forces (or ‘volunteers’ as the PRC labeled them) into the conflict considerably complicated matters for the US. General MacArthur called it an ‘entirely new war’. The prospect of a decisive military victory with existing levels of US/UN forces seemed remote; escalating the force used against the North Korean and Chinese communist forces seemed likely to enhance the prospects of a wider world war. The entry of communist Chinese forces was an additional challenge to an already delicate US policy that sought to balance the perceived strategic necessity to use force and the necessity to appear in conformity with international law.

89 90 91 92 93

Issue 6-7, 1995/1996, pp. 94-120. Cable from Zhou Enlai to United Nations Headquarters, 25 September 1950, in Chen, above 132, at 164. Speech by Zhou Enlai, September 30, 1950 cited in Gurtov and Hwang, above note 134, at 51. Italics added. Letter from Zhou Enlai, November 11, 1950, Security Council Official Records, Supplement 5th Year, 1950. S/1902, Statement dated November 11 1950 made by PRC Foreign Minister (relayed by Soviet Representative in the Security Council). S/1898 (No. 38, 6 September 1950) in SP/V/ 496 at 6.

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The balancing of military and politico-legal considerations can, for example, be seen in the response of key decision-makers to General MacArthur’s recommendations to expand the war to the Chinese mainland. US/UN forces were contained to fighting PRC ‘volunteers’ in North Korea, an action supported by General Assembly resolution 376(V) that gave authority for the forces to cross into the North. Given the large Chinese fighting units amassed in Manchuria – the border region between mainland China and North Korea – General MacArthur advocated expanding the war to the Chinese mainland His recommendations for military action expanding the war to the Chinese mainland included blockading the coast of China, destroying China’s capacity to wage war by naval gunfire and air bombardment of China’s military industrial complexes, troop reinforcement of Taiwan and the use of Taiwanese troops to engage in diversionary action against vulnerable parts of the Chinese mainland.94 General MacArthur advised the JCS to order the air force to destroy one of the main Yalu River bridges connecting northeast China (Manchuria) to North Korea.95 In mid November the State Department raised this possibility with allies whose forces were also fighting in Korea and received unanimous opposition to such proposals.96 The position of the Government of The Netherlands sums up the choice US decisionmakers faced were they to pursue MacArthur’s recommendation without allied support, namely that it be considered a unilateral US move which “would afford the basis for a Soviet charge that the United Nations was only a front for US action.”97 The State Department and the JCS rejected much of MacArthur’s plans, in part, to preserve allied unity and because such actions greatly exceed the scope of existing UN resolutions on which US action was based.98 They did allow for limited ‘hot pursuit’ of Chinese MIG fighter planes and the bombing of strategic installations such as the Korean side of Yalu Bridge connecting North Korea and mainland China.99 Truman cited another reason to reject some of MacArthur’s recommendations:

94 95 96

97 98

99

‘The Commander in Chief, Far East (MacArthur) to the Department of the Army’, December 30 1050, FRUS, 1950, Vol. 7, at 1631. Ibid. ‘Selected Records of the Department of State and Department of Defence Relating to the Korean War, 1947-1952’, November 17, 1950, Box 8, Truman Presidential Museum and Library, Independence, Missouri; Testimony of Dean Acheson, in Military Situation in the Far East (Part 3), at 1719, 1732-1733, 1958. ‘Selected Records of the Department of State and Department of Defence Relating to the Korean War 1947-1952’, Ibid. Testimony of General Collins, Military Situation in Far East Hearings (Part 2), at 1263; Testimony of General Collins, in Military Situation in Far East Hearings (Part 3), at 192728; Testimony of Dean Acheson, in Military Situation in the Far East (Part 3), at 1718. Testimony of General Collins, Military Situation in Far East Hearings (Part 2), at 1263; Testimony of General Collins, in Military Situation in Far East Hearings (Part 3), at 1927-28.

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…as President I had to listen to more than military judgements and my decisions had to be made on the basis of not just one theater of operations but of a much more comprehensive picture of our nation’s place in the world. We were in Korea in the name and on behalf of the United Nations. The “unified command” which I had entrusted to [General] Douglas MacArthur was a United Nations command, and neither he nor I would have been justified if we had gone beyond the mission that the United Nations General Assembly had given us.100

A month before MacArthur’s request to expand the war to the Chinese mainland an internal policy planning paper on the possible use of atomic weapons in the Korean War was completed. If atomic weapons were used it would have been difficult for US representatives to continue referring to the legality of the US position and the illegality of the PRC/North Korean position. The paper pointed out that the use of nuclear weapons should be a last resort, risking harm to America’s reputation, running the risk of a third world war and ending America’s system of collective security.101 The paper noted that if a decision to use nuclear weapons were reached it would be necessary to “secure some form of sanction for [that] use from cooperating members of the UN, or be prepared to accept the political damage in return for the strategic gain.”102 The response of allies was unanimous: all were gravely alarmed by the possibility of the use of nuclear weapons.103 It was clear that the US would not get the ‘sanction’ it wanted. Resolve in favour of using the atomic bomb was weakened. The possibility was not completely ruled out104 though fortunately it was never used. With the entry of Chinese forces into the Korean War the US sought to have the PRC labeled an ‘aggressor’. Aggression is clearly recognised by the UN Charter as an illegal use of force. According to Article 2(4) of the UN Charter all uses of force are prohibited except in the case where a State exercises its inherent right to self-defence (Article 51) or via authorisation from the Security Council (Article 39).105 The use of force falling outside the exceptions to the prohibition on the use

100 101

102 103 104 105

Truman, above note 6, at 377-378. ‘Memorandum by the Planning Adviser, Bureau of Far Eastern Affairs (Emmerson) to the Assistant Secretary of State for Far Eastern Affairs (Rusk)’, November 8 1950, FRUS, Vol. 7, 1950, at 1098. Ibid. ‘Telegram from the United States Representative at the United Nations (Austin) to the Secretary of State’, December 1 1950, FRUS, 1950, Vol. 7, at 1300. See ‘Position Paper Prepared for the Truman-Atlee Talks’ [no date], FRUS, 1950, Vol. 7, at 1465. The UN Charter does not define the term of ‘aggression’. The most authoritative definition of the term is to be found in the UN General Assembly Resolution 3314 (1974) on the definition of aggression. As Harris notes, the general definition of aggression found in Article 1 of Resolution 3314 follows the pattern of Article 2(4) of the UN Charter on the prohibition of the use of force. In this respect the definition of aggression provided by the resolution is more a “general definition” than an “enumerative” definition which lists

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of force is illegal, constituting a ‘threat to the peace’, ‘breach of the peace’ or ‘act of aggression’ threatening international peace and security. Pursuant to Article 39 of the UN Charter, the Security Council may in such situations recommend collective measures including the use of force (Article 41) which member States may take to meet the threat to international peace and security. The Uniting for Peace resolution passed in the UN General Assembly on November 3 1950 provided that where the Security Council is unable to exercise its responsibility in relation to threats to international peace and security the General Assembly shall consider the matter “…immediately with a view to making appropriate recommendations to Members for collective measures, include in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.”106 Persuading allies and States friendly towards the US to support such an initiative was not going to be easy in light of their concern for the consequences such a resolution might entail, including the possibility of further aggravating the PRC and the potential for the US to interpret such a resolution as free range for its military actions against the communist forces in Korea. The US therefore embarked on a long diplomatic process towards persuading friendly member States, which formed the majority of member States in the General Assembly at the time, to condemn the PRC as an ‘aggressor’. On a number of occasions in the lead up to proposing a General Assembly resolution to condemn the PRC as an ‘aggressor’, the US acted to appease allies by voting with them on initiatives for a ceasefire. For example, US representatives found themselves agreeing to resolutions calling for a ceasefire despite an unwillingness to negotiate at that time. This unwillingness was due to two reasons, one of which was a general desire to control the negotiation process, which it would relinquish should the unwieldy mechanisms of the UN became involved. In addition, it was not considered the right time given the perceived need to continue the use of force both in military terms as well as to avoid domestic criticism in the press and Congress.107 US officials believed that calls for a ceasefire would not be accepted by the PRC so long as military and political advantage seemed possible. Nonetheless the US agreed to join in proposing a ceasefire to “…reinforce the impressive unity among the free nations of the world in respect of Korea.”108 In expressing support for a variety of resolutions calling for cease-fire negotiations, US

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all the acts that constitute aggression. Harris, above note 72, at 948. Article 1 of Resolution 3314 defining aggression states that “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations...” General Assembly Resolution 377(V), November 3 1950, above note 86. Regarding the issue of domestic and congressional discontent over US support for ceasefire initiatives proposed by allies, see Rosemary Foot A Substitute for Victory: The Politics of Peacemaking at the Korean Armistice Talks (Cornell University Press: Ithaca 1990). ‘Policy Paper for the US Delegation to the UN General Assembly’ September 19 1950, FRUS, 1950, Vol. 7, at 737.

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officials, despite the disadvantages, chose a less militarily favourable policy approach in order to appear consistent with the dictates of international law that States pursue peaceful means of resolving their disputes. US officials hoped that by doing so they could persuade allies to support further military action once the calls for ceasefire were rejected by the communist alliance. As Acheson noted in his testimony during the Senate hearings on the Korean situation: … at the time this [US support for ceasefire resolutions] was going on we were preparing our resolution and getting support for it, which was to declare China an aggressor. Now it was a very important thing in connection with that resolution which we subsequently were able to introduce and have adopted, that we should not close the door to some sort of negotiations, and therefore we voted for this and the other nations were very anxious to try it out, and it was tried out, and it failed, and I think it had a very great effect in bringing the General Assembly overwhelmingly in support of our resolution to declare China an aggressor.109

One of the first appeals for a ceasefire was a six-power resolution submitted on December 7, 1950, to the General Assembly First Committee by the US, Cuba, Ecuador, France, Norway and the UK.110 The resolution affirmed, among other things, the intention to withdraw UN forces as soon as possible and to hold the Manchurian frontier inviolate. US allies hoped that the resolution might be a precursor to Chinese communist willingness to negotiate. For the US the resolution was one step in the process of having China eventually condemned as an ‘aggressor’. Soon after, thirteen Arab and Asian States proposed another ceasefire initiative under the leadership of India’s representative to the General Assembly, Sir Benegal Rau.111 The US, through its representative Warren Austin, reluctantly supported the thirteennation resolution, which proposed that a ‘group of three’ explore the grounds for a Korean cease-fire.112 Austin stressed that any cease-fire would have to be completed before any political settlement could be considered. By voting in favour of

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Testimony of Dean Acheson, Military Situation in the Far East (Part 3), at 2030. Genuine and concerted moves by the US towards negotiating an armistice would have to wait until the US could achieve a more favourable military position. It was Acheson’s view that negotiations should only ever be entered into when in a position of military strength, a view that also reinforced Truman’s attitude. See Foot, above note 58, at 33. See also, Testimony of Dean Acheson, Military Situation in the Far East (Part 3), at 1889-1892. A/C.1/638, December 7 1950, in UN Yearbook 1950, at 244. A/C.1/641, December 12 1950. Voted on December 13 1950 and passed in the First Committee 51 votes in favour 5 against 1 abstention. See UN Yearbook 1950, at 244, 249. Sponsoring nations included: Burma, Egypt, India, Indonesia, Iran, Iraq, Lebanon, Pakistan, Philippines, Saudi Arabia, Syria, and Yemen. UN General Assembly Resolution 384(V), December 15 1950. 51 votes in favour 5 against 1 abstention. The group of three ceasefire committee was composed of: Nasrollah Entezam (Iran), Sir Bengal Rau (India, also president of the General Assembly), and Lester Pearson (Canada).

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such resolutions the US attempted to demonstrate its willingness to pursue such initiatives so as to maintain unity among friendly States in the lead up to its eventual proposal to condemn the PRC as an aggressor. With the Chinese rejection of the 13nation resolution, another General Assembly resolution was proposed by an alliance of Commonwealth countries, which set out five principles of a possible cease-fire.113 Yet again US decision-makers were torn between their own interests to prevent a negotiated settlement at the time and their desire to prevent “…the loss of our [US] majority and support in the United Nations.” As Acheson went on to say, US support for the resolution was given in the “…fervent hope and belief that the Chinese would reject it.”114 In debates on the ceasefire resolutions, the Soviet Union and its allies in the General Assembly First Committee continued to emphasise the legitimacy of the PRC military action and the illegality of the US/UN military action. Of the PRC, the Soviet Union and its allies noted that the “participation of Chinese volunteers in the national struggle of Korea under Korean leadership was in full conformity with the provisions of international law.”115 The US on the other had committed an “act of aggression” in “defiance of the requirements of the [UN] Charter.”116 As hoped by the US, the PRC did reject the ceasefire proposals. Not surprisingly the PRC rejected the proposal at a time when it was in a militarily favorable situation. PRC and North Korean forces had captured Seoul and were advancing south of the 38th parallel, having successfully repelled US/UN forces from North Korea. At this point the US was able to mobilize its diplomatic and military efforts to further pressure the PRC leadership. Acheson was now in a position to justify US calls to have the PRC declared an aggressor: …the United Nations has explored every possibility of finding a peaceful settlement of the Korean question. Now we must face squarely and soberly the fact that the Chinese communists have no intention of ceasing their defiance of the [UN Charter].117

In a separate statement he declared: Peaceful settlement is one of the cardinal purposes of the United Nations Charter. The resort to force in Korea came from the North Koreans first and the Chinese communists second. The United Nations has constantly demanded that this should end and that the

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A/C.1/645, January 11, 1951, 50 votes in favour 7 against, in Yearbook of the United Nations 1951 (Department of Public Information: New York 1952) at 209. Herein after referred to as UN Yearbook 1951. Dean Acheson cited in Foot, above note 107, at 111. UN Yearbook 1950, at 246. Ibid. Statement by Dean Acheson, released to press January 17 1951: “Chinese Communists Reject Ceasefire Proposal” Department of State Bulletin, Vol. 24, January 29 1951, pp. 164.

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United Nations objectives should be attained by peaceful means – we have and still stand for this position.118

In its diplomacy in the United Nations the US embarked upon a diplomatic strategy which proposed that the General Assembly declare the military intervention of the Chinese communists in the Korean War an act of ‘aggression’ and thus an illegal use of force. In another example of the close linkage between military objectives and politico-legal strategy, efforts to seek a finding of aggression against the PRC came at a time of optimistic assessment about the possibility of stabilizing the military front, possibly expanding the military advantage.119 Acheson also made the link between the aggressor resolution and increasing the military pressure on the Chinese and North Korean forces. He conceded to colleagues at a meeting at the Pentagon that if continued force was necessary they must have the PRC branded an aggressor to support their continued application of military force against communist forces.120 The UN General Assembly adopted resolution 498(V) on February 1, 1951, finding that the PRC, by giving direct aid and assistance to those who were already committing aggression in Korea and by engaging in hostilities against the United Nations forces, had itself engaged in ‘aggression’ in Korea. The resolution called upon all States to “refrain from giving any assistance to the aggressors in Korea” and affirmed “the determination of the United Nations to continue its action in Korea to meet the aggression.”121 By pursuing a finding from a General Assembly resolution that the PRC was committing aggression in Korea, US officials succeeded in their efforts to maintain an intense pressure on the Chinese (and the general communist alliance). Given international law clearly prohibits acts of aggression, this strategy served to reinforce the illegality of PRC action and point to the legality of continued US military action taken pursuant to this new General Assembly resolution. The aggressor resolution was intended not to intensify the pressure on the PRC but to add further legitimacy to the forceful military strategy the US felt was needed to force China into negotiating an end to the conflict. Zhou Enlai denounced the General Assembly resolution, declaring that “…the United States resolution slandering China was directly submitted to the United Nations General Assembly as an outright, unlawful by-passing of the Security Council and in violation of the principle of unanimity among the great Powers.”122

118 119 120 121 122

“Statement by Dean Acheson” Department of State Bulletin, Vol. 24, January 29 1951, pp. 164-165, at 165. Testimony of General Omar Bradley, Military Situation in the Far East (Part 2), at 1288-89. ‘Memorandum of Conversation, by the Ambassador at Large (Jessup)’, December 3 1950, FRUS, 1950, Vol. 7, at 1332. General Assembly Resolution 498 (V), adopted 1 February 1951, 44 in favour 7 against 8 abstaining. Statement by PRC Foreign Minister, Zhou Enlai, February 3, 1951, cited in Chiu, above note 32, at 238.

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When the Chinese had entered the Korean War and had had some initial success there was general euphoria in the communist camp,123 but by the end of January 1951 such euphoria had dissipated leaving instead fear, confusion, and at times panic. Stalin, meanwhile, tried to keep the USSR out of direct participation in the war – sending Soviet advisers, pilots and other military personnel but never sending Soviet troops, which would have entailed becoming directly involved in the military struggle, thereby increasing the risk of an expanded military conflict with the US.124 In a cable sent by Mao to Stalin on 1 March, 1951, Mao admitted that a general offensive was no longer possible as the US had superior weapons and dominated. Chinese and Korean troops were sustaining heavy losses and urgently needed air cover by Soviet air forces.125 The conditions now proved favourable for the US to pursue a negotiated settlement of the conflict. In May 1951 the Truman administration adopted NSC 48/5, which outlined the US commitment to end the conflict and secure the security of South Korea through armistice negotiations. This was to be coupled, where necessary, with a ground and air offensive whose legal authority was underpinned by the General Assembly resolution 498(V) which affirmed the determination of the UN (led by the US) in Korea to ‘meet the aggression.’126 The North Koreans and Chinese launched one final offensive that was defeated by allied US/UN forces. By July 1951 Chinese leadership conceded the impossibility of a final military victory and accepted that the time had come to begin ceasefire negotiations.127 It took another two years

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For example, on December 1 1950, Stalin cabled Mao: “Your successes make happy not only myself and my comrades in the leadership, but the entire Soviet people. Let me welcome from all my heart you and your friends in the leadership, your army and the entire Chinese people in connection with the tremendous success in the struggle against American troops.” Ibid., at 89. Ibid., at 90. Ibid. Direct Soviet military support, such as support by Soviet air forces, was not forthcoming, with Stalin careful to keep the Soviet Union away from direct (hot) conflict with the US. ‘Memorandum Containing the Sections Dealing with Korea From NSC 48/5’ May 17 1951, FRUS, 1951, Vol. 7, at 439-42. The US continued to rely on General Assembly Resolution 498 (V), adopted 1 February 1951 that declared the PRC an aggressor and affirmed the UN/US action in Korea to ‘meet the aggression’, for the air offensive they undertook during the armistice talks. Consideration of the Korean question in the General Assembly during 1952 no longer focussed on resolutions seeking further recommendations that could be used in support of US/UN use of force. Discussion in the UN instead centred on examining responsibility for the outbreak of hostilities, the progress (and deadlock of negotiations) and the question of POW repatriation. See UN Yearbook 1952, at 179-203. Chen, above note 27, at 213. The armistice negotiation conference was an exclusively military conference dealing only with issues arising from the cessation of fighting. This was reflected in the fact that it was military personnel rather than diplomatic or State Department/Foreign Ministry personnel who participated in the talks. See Sydney D Bailey The Korean Armistice (Macmillan: London 1992) at 62.

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of frustrated, protracted negotiations coupled with US/UN air offensives under the authority of resolution 498(V), until on July 27 1953 the Korean Armistice Agreement was formally concluded.128

Comparing Existing Empirical Literature on the Korean War and its Theoretical Underpinnings With the Historical Record The first step in the process of testing the theoretical efficacy of an ILI perspective in accounting for the law-State behaviour relationship during the Korean War is to analyse the capacity of rival explanations to account for the historical record presented in the preceding section. Comparing the historical record on the influence of international law on US decision-making and its role in public diplomacy between the US and the communist alliance with existing empirical literature on the Korean War will allow us to evaluate the adequacy of existing theoretical approaches to the lawState behavior relationship. As with the literature on the use of force in general, literature on the Korean War can be evaluated in terms of how the international lawState behaviour relationship is understood and the theoretical assumptions that underpin such analyses. As with the general literature on the use of force, the literature on the Korean War is divisible into three groups: those underpinned by positivist, realist and functionalist assumptions of the international law-State behaviour relationship. By comparing existing literature on the Korean War with the data presented in the historical record we can examine if there is any congruence between the historical record and existing literature. Does the existing literature match what was found in the historical record? If not, what remains unexplained? How does this reflect

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For text of the Armistice Agreement finally decided on see “Annex 1: Armistice Agreement of 27 July 1953” UN Yearbook 1953 at 136-146. Eisenhower asserted in his memoirs that the armistice agreement was finalised due to a carefully worked out strategy of nuclear deterrence, via threats to drop the atomic bomb. See Dwight D Eisenhower The White House Years: Mandate for Change 1953-1956 (Heinemann: London 1966) at 179-180. See also Roger Dingman “Atomic Diplomacy During the Korean War” International Security, Vol. 13(3), Winter 1988, pp. 50-91; Rosemary J Foot “Nuclear Coercion and the Ending of the Korean Conflict” International Security, Vol. 13(3), Winter 1988, pp. 92113; above note 58, at 204-231; Conrad C Crane “To Avert Impending Disaster: American Military Plans to Use Atomic Weapons During the Korean War” Journal of Strategic Studies, Vol. 23(2), June 2000, pp. 72-88. Documents from the Russian archives also suggest another reason other than nuclear deterrence; namely, the death of Stalin, which greatly contributed to the resolution of the negotiations. See Ciphered telegram Shtykov to Vyshinsky re meeting with Kim Il-Sung, May 12 1950, reprinted in Kathryn Weathersby “New Russian Documents on the Korean War” Cold War International History Project Bulletin, Issues 6-7, 1995/1996, pp. 30-40, at 39. For one of the best explorations of the negotiations see: Rosemary Foot A Substitute for Victory: The Politics of Peacemaking at the Korean Armistice Talks (Cornell University Press: Ithaca 1990).

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on the adequacy of the theoretical approaches underpinning the literature in accounting for the relationship between international law and State behaviour during the Korean War?

Comparing Literature on the Korean War Underpinned by a Positivist Perspective With the Historical Record The first group of empirical literature on the Korean War, which reflects a positivist perspective, focuses entirely on the legality or illegality of action undertaken by the US.129 This group does not try to explain the relationship of international law to State behaviour, but focuses on assessing US action in terms of a legal-illegal dichotomy, reinforcing even if not intentionally, the rule-book image that it is possible to objectively distinguish between what is legal and illegal action. While not explicitly addressing how law relates to State foreign policy behaviour, a positivist approach implies that policy-makers should decide policy in accordance with international law; law exists prior to policy. Empirical literature on the Korean War grounded in positivism fails to capture the dynamic taking place between international legal and politico-military considerations. The historical record suggests that a solution to the myriad of questions facing US decision-makers during the Korean War – how to respond to the North Korean invasion of the ROK, whether and when to cross into North Korea, expanding the war, and the timing of armistice negotiations – did not simply present itself out of the existing body of international law. It was not simply a case of applying the rules. Indeed, in some instances, such as the General Assembly procedure outlined by the Uniting for Peace resolution, the law did not even exist prior to the policy. The historical record makes clear the dynamic interaction of legal and political considerations in the decision-making process through which policy emerged. In some instances there was no law to comply with and it was the policy imperative that led US decision-makers to propose new international legal procedures, as evidenced by US

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For those who argue that US action was illegal see: Louise Fisher “The Korean War: On What Legal Basis Did Truman Act?” American Journal of International Law, Vol. 89, 1995, pp. 21-39; Leo Gross “Voting in the Security Council: Abstention from Voting and Absence from Meetings” Yale Law Journal, Vol. 60, 1951, pp. 209-257; Julius Stone Legal Controls of International Conflicts (Gaunt and Sons: Florida 1974) at 229-230; Ernest B Haas “Types of Collective Security: An Examination of Operational Concepts” American Political Science Review, Vol. 49(1), 1955, pp. 40-62. For those who argue that US action was legal see: Myers S McDougal and Richard N Gardner “The Veto and the Charter: An Interpretation for Survival” Yale Law Journal, Vol. 60, 1951, pp. 285-292; Yuen Li Liang “Abstention and Absence of a Permanent Member in Relation to the Voting Procedure in the Security Council” American Journal of International Law, Vol. 44, 1950, pp. 695-708; John W Halderman “Legal Basis for United Nations Armed Forces” American Journal of International Law, Vol. 56, 1962, pp. 971-996, at 975.

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efforts to increase the role of the General Assembly in matters of peace and security, which aided the US diplomatic offensive against communist China once Chinese forces began participating in the conflict. Although international law may not operate as pure politics, neither is it possible to delineate a clear distinction between politics and law – a distinction that underpins the rule-book notion that it is possible to categorize political behaviour in terms of legal or illegal behaviour. An examination of the historical record indicates that international legal argument is more indeterminate than the image of clearly legal and clearly illegal behaviour would suggest. For instance, there were differences of legal opinion as to the legal authority under which the decision to repel North Korean forces could be taken, with argument as to whether it was under Article 39 or Article 51.130 When decision-makers were deciding to cross the 38th parallel two possible legal arguments were available, either based on the authority of existing Security Council resolutions or based on a new resolution either in the Security Council or the General Assembly passed expressly for that purpose.131 The choice between the two competing legal arguments was in each instance determined not by which argument was the most legally ‘correct’ in the sense of being more readily deemed ‘illegal’ but by which argument would afford the best strategic value in allowing the US to act according to the preferred policy course and appear ‘legal’.

Comparing Literature on the Korean War Underpinned by a Realist Perspective With the Historical Record There is a vast body of literature on the Korean War generated by international relations specialists and historians, which rarely if ever mentions international law. This literature reflects a realist outlook, viewing international law as something policymakers may or may not bring into their assessment of foreign policy options. For many, whether examining decision-making of the American or communist side, the role of international law resides in its capacity to justify policy determined by relative power political considerations that enhance the capacity to pursue perceived national interests.132 This legitimising or justifying role for international law is also evident

130 131 132

Above note 18. Above note 56. Berger, above note 48, at 103-108; Bruce Cummings The Origins of the Korean War: Volume II – The Roaring of the Cataract 1947-1950 (Princeton University Press: Princeton 1990) at 634-637; Jon Halliday “The United Nations and Korea” in Frank Baldwin (Ed) Without Parallel: The American-Korean Relationship Since 1945 (Pantheon Books: New York 1973) at 109-110, 132; Jian Chen China’s Road to the Korean War: The Making of the Sino-American Confrontation (Columbia University Press: New York 1994); David Rees Korea: The Limited War (Macmillan and Co: London 1964) at 24; Simmons, above note 1, at 85; I F Stone The Hidden History of the Korean War (Monthly Review Press: New York/London 1952) at 77; William Whitney Stueck Jr The Road to Confrontation:

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in works which take the United Nations as their central focus. For this group, in which the United Nations and international law are generally treated as synonymous, the role of international law was to legitimise the actions of either side.133 Although not explicitly stated, the implication is that while international law may legitimise State behaviour it is not necessarily determinative of policy, let alone important for actual policy outcomes. For a few others international law is entirely absent from their analysis of the Korean War.134 Even writers that have examined the role of the United Nations and its significance for foreign policy decision-making during the Korean War have failed to incorporate the UN Charter or other aspects of international law into their analysis.135 Literature on the Korean War grounded in realism also appears unable to adequately account for the findings of the historical record that legal and strategic considerations interact in the process of foreign policy decision-making and implementation during the Korean War. Given the dynamic process between legal considerations and military considerations in the US decision-making process during the Korean War, it cannot be said that international law is irrelevant or simply used as a justification for policy made on the basis of power political considerations. If international law is irrelevant how can we account for the immense effort by US policy-makers to develop new legal procedures? If international law is only a justification, how can we account for instances where US decision-makers took strategically less decisive action in order to ensure US actions appeared in conformity with

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American Policy Towards China and Korea 1947-1950 (University of North Carolina Press: Chapel Hill 1981) at 177. Leland M Goodrich Korea: A Study of US Policy in the United Nations (Kraus Reprint Co: New York 1972); Tae Ho Yoo The Korean War and the United Nations: A Legal and Diplomatic Historical Study (Libraire Debarax: Louvain 1965); Glenn D Paige The Korean Decision (Free Press: New York 1968). Whiting, above note 26; James McGovern To the Yalu: From the Chinese Invasion of Korea to MacArthur’s Dismissal (William Morrow and Co: New York 1972); Robert Dallek “The Truman Administration” in Ernest R May and James C Thomson Jr (Eds) in American-East Asian Relations: A Survey (Harvard University Press: Cambridge 1972) at 356-373; Michael Yahuda China’s Role in World Affairs (St Martins: New York 1978); Kim Chum-kon The Korean War 1950-1953 (Kwangmyong Publishing Co: Seoul 1980) at 240; Melvin Gurtov and Byong-Moo Hwang China Under Threat: The Politics of Strategy and Diplomacy (Johns Hopkins University Press: Baltimore 1980); Anthony FarrerHockley “The China Factor in the Korean War” in James Cotton and Ian Neary (Eds) The Korean War in History (Manchester University Press: Manchester 1989); Warren I Cohen “The United States and China Since 1945” in Warren I Cohen and Dorothy Borg (Eds) New Frontiers in American-East Asian Relations (Columbia University Press: New York 1983) at 129-167; Merrill, above note 5; William Stueck “The Soviet Union and the Origins of the Korean War” in Baum and Murray, above note 31, at 111-124. Lincoln P Bloomfield The United Nations and US Foreign Policy (Little, Brown and Co: Boston 1967); Denis Stairs “The United Nations and the Politics of the Korean War” International Journal, Vol. 25(2), 1970, pp. 302-320.

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international law? Why did the communist alliance – in a relatively less powerful position than the US according to realist indices of power – seek to present legal arguments in favour of its actions or against the actions of the US even when the position of the PRC would be more readily deemed ‘illegal’? All this suggests the inadequacy of the realist appraisal that international law does not have an important place in State behaviour, especially during war where both sides are using force and it is presumed that relative power considerations prevail over legal considerations.

Comparing Literature on the Korean War Underpinned by a Functionalist Perspective With the Historical Record There is a much smaller group of literature on the Korean War that presents a more nuanced analysis of the role of international law in foreign policy making during the Korean War. Although the literature does not explicitly intend to present a functionalist analysis of international law, it is nonetheless underpinned by certain functionalist assumptions, most paramount being an appreciation of the political functions of law in policy. In the case of the Korean War, international law is recognised for its role in international organisation,136 to constrain action,137 or as the basis to legitimise action.138 Functionalist literature on the Korean War does not reject the positivist outlook as evidenced, for example, by the notion that there are “certain questions of an essentially legal nature”.139 This notion assumes that international law is distinguishable from the operation of power politics. The US used international law as part of its approach to maintain political and military pressure on the communist alliance throughout the Korean War, first in repelling North Korean forces from South Korea and later in meeting the communist Chinese entry into the war and eventually forcing the Chinese communists to agree to negotiate a ceasefire to the war. Functionalist analyses of the Korean War have recognised the importance of the political functions of international law, including the capacity of international law to establish forums, such as inter-governmental organisations like the UN, for debate. As functionalist writers have recognised, both the US and the communist alliance used the UN and the language of its Charter as a forum for political point scoring throughout the Korean War. However, functionalists do not abandon the rule-book image of international law and continue to assume it is possible to distinguish objectively between legal and illegal behaviour. While international law may be employed politically during UN debates, it is still possible,

136 137 138 139

George T Mazuzan “America’s UN Commitment 1945-1953” Historian, Vol. 60(2), 1978, pp. 309-330. Leland M Goodrich “Collective Action in Korea” Current Historian, Vol. 38(226), 1960, pp. 332-336 Foot, above note 107, at 57; Goodrich, above note 133. Goodrich, Ibid., at 113.

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from a functionalist perspective, to determine the side that was acting ‘legally’. Furthermore, by not incorporating power into their discussion, functionalists cannot explain just how international law can be used strategically by a State. International law may have certain political functions but functionalists do not conceive of international law as an important element in the process through which political outcomes are shaped. It is apparent from the historical record that international law was a central component of US diplomatic strategy during the Korean War. Moreover, the historical record indicates the use of international law by the communist alliance in its diplomacy, at least to the extent of responding to US legal rhetoric. The rule-book image of international law implicit in the theoretical approaches that have underpinned existing empirical literature on the Korean War did not hold up when compared with the historical record of the role of international law in US and communist alliance State behaviour during the Korean War. International law did not operate as a body of laws that existed independently of and prior to the process of policy formulation. There was no dichotomous choice between acting legally and acting illegally. Law sometimes emerged as a result of policy imperatives. The policy process did not involve a clear-cut choice between power political interests or ‘complying’ with international law. Law was at times indistinguishable from power interests. International law was used by all States party to the conflict, not just those whose position was more readily deemed ‘legal’ or whose relative power would dispose them to using international law to ‘justify’ policy.

Understanding the Historical Record on the Influence of International Law on State Behaviour During the Korean War From an ILI Perspective Given the inadequacy of existing theoretical approaches let us now see if ILI can provide a better explanation of the historical record of the role of international law in US and communist alliance foreign policy behaviour during the Korean War. Unlike realism, positivism or functionalism, ILI has reconceived international law as an ideology which States may use as a strategic device to their political advantage. The previous chapter outlined three expectations that an ILI perspective would lead us to anticipate regarding the relationship between international law and State behaviour. ILI hypothesises that to make strategic use of international law involves, firstly, recognising the need to uphold as strongly as possible the ideology of international law and to reconcile this need with other policy factors during the process of policy formulation. Secondly, that States compete to uphold the ideology more strongly – by not highlighting the discrepancy between the idea and reality of international law – than those with which they are in dispute. Thirdly, making strategic use of international law involves recognising the discrepancy between the idea and reality of international law while engaged in strategic planning during internal de-

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cision-making processes, and using the discrepancy to one’s advantage by getting one’s competitor to uphold the ideology in a way contrary to their interests. Let us now test the expectations of an ILI perspective against what has been found in the historical record. In doing so it will be possible to test the relative theoretical efficacy of ILI as compared with positivist, realist and functionalist analyses of the Korean War. It would be expected that the first step in the strategic use of the small set of principles that constitute the idea of international law for political advantage would be for States to recognise the need to uphold the ideology as strongly as possible and so reconcile this need with other policy considerations. We would therefore expect the US to have taken international law into consideration in the process of policy formation. The historical record makes clear that both legal and politico-military considerations were taken into account during the process of US foreign policy formulation. From an ILI perspective the role of international law is not one of determining how States should act to comply with international law or of finding the most suitable legal argument to justify policy. It would instead be expected that US decision-makers would reconcile their policy interests with the need to uphold the ideology of international law as strongly as possible. ILI points to the distinction between complying with international law and upholding the ideology of international law. US foreign policy decisions as to how to respond to the North Korean intervention in South Korea and the PRC entry into the Korean War appear not to be simply a question of complying or not complying with international law. Rather, the process of US decision-making during the Korean War is best viewed in terms of an internal assessment as to the feasibility of presenting US behaviour in such a way that assumes the validity of the ideology of international law. For example, to describe US behaviour as ‘legal’ assumes that the idea that it is possible to objectively distinguish between legal and illegal behaviour is valid and true. Although the initial decision to use force on June 25 1950 was made relatively swiftly, US decision-makers did in fact attempt to reconcile international law with other policy considerations, taking into account likely perceptions of its adversaries in the conflict, in particular those of the Soviet Union and the PRC, military risks, allied opinion, and legal advantage.140 When the use of force was first contemplated by US decision-makers it was quite easy to uphold the ideology, but subsequent decisions where the law did not neatly ‘fit’ policy choices also demonstrate the way in which legal considerations were reconciled with other political and military considerations. In deciding to cross the 38th parallel, whether to use nuclear weapons, whether to extend the war to China, and calling on communists for a ceasefire to hostilities to negotiate an end to the conflict, US policy-makers balanced considera-

140

See above pp. 120-125.

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tions of military risk, allied perceptions and questions of legal advantage.141 The US did care about its legal position, contrary to what realists would lead us to expect. Where its position was more readily deemed ‘illegal’ the US modified aspects of its policy so as to better uphold the ideology of international law and appear in the ‘legal’ right. Let us now look at the remaining two expectations of an ILI perspective. An ILI perspective anticipates that if States in a dispute with each other are to make strategic use of international law they would compete to uphold the ideology more strongly. A State can do so by establishing a binary distinction between the legality of its own position and/or the illegality of the position of its rival. Lastly, an ILI perspective would anticipate that the State which best makes strategic use of international law to gain political advantage is likely to have recognised the discrepancy between the idea and reality of international law and used that discrepancy to its advantage. The relative ‘strength’ with which the US was able to use the ideology of international law can be seen in the decision-making processes and the public legal rhetoric used in US diplomacy during the Korean War. Despite US representatives recognising the highly political context of the Security Council resolution in their internal decision-making – passed in the absence of the Soviet Union from the Security Council142 – US public rhetoric made no reference to this. Truman used the Security Council finding in Security Council resolution 82 that the activities of the North Korean Army in South Korea constituted a ‘breach of the peace’ to cast the North Korean behaviour as ‘illegal’.143 The recommendation in Security Council resolution 83 – that UN member States provide assistance to South Korea ‘as may be necessary’ to repel the armed attack by North Korean forces and restore international peace and security in the area – served to effectively authorise the US use of force and allowed the US to claim that its military action in South Korea was ‘legal’.144 Both forms of rhetoric served to reinforce the rulebook image of international law, in particular the notion that it is possible to distinguish objectively between ‘legal’ and ‘illegal’ action and the notion that it is compulsory for States to comply with the rules of international law. The passage of the Security Council resolution allowed US decision-makers, via their public rhetoric, to present the US deployment of military assistance to North Korea as a multilateral military action recommended by a seemingly neutral Security

141

142 143 144

For the discussion on crossing the 38th parallel see above pp. 133-136; the decision against using nuclear weapons see above p. 144; the decision to reject General MacArthur’s call to extend the war to the Chinese mainland see above pp. 142-144; the discussion on developing new General Assembly procedures for continued legal support for US use of force see above pp. 137-141. Reminiscence of William Sanders (written oral history), August 1975, Truman Presidential Library and Museum, www.trumanlibrary.org/oralhist.sandersw/htm accessed 23/5/02. Above note 24. See for example, Statement by President Truman, issued June 27, 1950 in Public Papers of Harry S Truman (GPO: Washington DC 1971) at 251.

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Council resolution addressed to all members of the UN.145 As a result of the Security Council resolution, US (and allied) forces were able to buttress the weaker South Korean forces to repel North Korean forces. US representatives were thus able to use international law to set up a situation whereby it could legally use considerable military force to repel North Korean forces from South Korea. At the same time legal rhetoric used by US decision-makers presented such action as consistent with international law, reinforcing the legitimacy of its own position as compared with the ‘illegal’ and illegitimate action of the communist side. The strategic use of international law by US representatives during the Korean War was particularly evident when the preferred US action was not readily supported by international law. On these occasions US representatives worked to develop new law, and where this was not possible, to modify the preferred US policy position so as to ensure US actions continued to appear ‘legal’. Here again we see how the US was able, from an ILI perspective, to draw on the discrepancy between the idea and reality for political advantage. Anticipating the Soviet Union’s return to the Security Council, US decisionmakers resolved early in the Korean War to investigate the possibility of broadening the role of the General Assembly on matters relating to international peace and security.146 From an ILI perspective it can be seen that US policy-makers recognised that, despite the image of international law as stable and in existence prior to policy choices, international law in reality evolves alongside political processes. Policymakers proposed a resolution in the General Assembly which would provide a mechanism by which the Assembly could recommend action in matters relating to threats to international peace and security, when the Security Council could not do so as a result of the exercise of the veto by a permanent member. When arguing in favour of the resolution in public debates the US justified the need for an enhanced role for the General Assembly in matters relating to threats to international peace and security in terms of another principle of the ideology of international law, namely that international law can deal with any issue that arises between States. It was argued that the resolution would strengthen the system of collective security and was “…designed to increase the effectiveness of United Nations action against aggression.”147 Any further use of force by the US and its allies without Security Council authorisation would most likely be deemed ‘illegal’. By developing international law, at least at the procedural level, US policy-makers aimed to ensure that any future use of force by the US against North Korean (and later PRC forces) could continue to be described as ‘legal’. In time the US was able to set up a situation that allowed them to draw on this innovation to have China declared an aggressor. Before declaring China an aggressor there were several instances where the US modified its position so as to be able to draw more strongly than the communist

145 146 147

Ibid. Above note 70, 71, 73, 74 and 75. Above note 81.

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alliance on the ideology of international law. On certain occasions during the Korean War, US representatives conceded the need to modify aspects of US behaviour contrary to military advantage – albeit only slightly – so as to accord more closely with existing rules and continue to appear in the legal ‘right’. US representatives were thus able to establish a binary distinction between the legality of the US position and the illegality of the position of the communist alliance during the Korean War. This was apparent in the decisions to cross the 38th parallel, to not expand the war to mainland China, to avoid the use of nuclear weapons, and to begin calls for ceasefire negotiations. While from a military perspective the movement of troops north of the 38th parallel could begin as soon as practically possible,148 the legal basis on which such military action could proceed was more complex. There was uncertainty amongst State Department officials as to whether Security Council resolutions 82 and 83 allowed for expanded military action beyond that which had been authorised. State Department officials believed it best to wait until a new UN resolution would allow the US to legally expand the use of force to North Korean territory north of the 38th parallel.149 When General Assembly resolution 376(V) passed the US was able to cross the 38th parallel and claim that it was acting simply in adherence of the UN Charter objectives to restore international peace and security by taking the necessary steps to ensure conditions of stability throughout Korea.150 While US decisionmakers recognised the reality that there is a large measure of discretion as to the rules one chooses to reinforce, US representatives were able to refer to this resolution in their legal rhetoric to reinforce the aspect of the rule-book image of international law that suggests it is compulsory to comply with the rules of international law.151 Truman rejected General MacArthur’s request to expand the war to northeast China once PRC ‘volunteers’ had entered the war, as the proposal went beyond what the Security Council and General Assembly resolutions allowed.152 A later request by MacArthur for authority to launch an air attack on China’s military industrial complexes and to blockade China’s coast was also denied, the JCS explaining that such action greatly exceeded existing resolutions and would require fresh authority from the UN.153 From the perspective of international law as ideology, expanding the war into China would have weakened US references to the idea that the rules of law can be objectively applied to settle a dispute. By undertaking action which exceeded the UN Security Council authority for US/UN forces to act on the Korean peninsula, the US would have acted in a way that highlighted the discrepancy between the idea and reality of international law, thus weakening the legality of its own

148 149 150 151 152 153

Above Above Above Above Above Above

note note note note note note

49. 56. 66. 66. 99, 94, 100. 98.

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position. By recognising the discrepancy, we can see how the US was able to pursue a course of action that allowed for a clear distinction to be made between the legality of its position and the continued illegality of the PRC and North Korean use of force. This was critical as it allowed the US to maintain allied unity, ensured that the Korean action had the widest possible multilateral support and limited the basis on which the communist alliance could criticise the ‘illegality’ of the US position. Such criticisms could have been used by the communist alliance to at least delay US efforts to get allied support for resolutions supporting continued use of force against North Korean and Chinese forces, or to frustrate US efforts to call for a negotiated settlement. These delays could have been used to the benefit of the communist alliance to allow their armed forces to regroup before a military assault. This regrouping may not have been sufficient to allow the communist forces to achieve a definitive military end to the war but may have helped to capture more territory before negotiating an end to the conflict. Acting contrary to perceived military and political advantage the US also acceded to allied calls for a ceasefire by voting in favour of a number of General Assembly resolutions calling for both warring sides to cease hostilities and negotiate an end to the conflict through peaceful means. In their internal interaction US decision-makers recognised the reality that the rules of international law are not compulsory. For example, while the rules of international law may dictate that States should pursue all peaceful means to end hostilities, decision-makers did not view supporting ceasefire resolutions proposed by allies simply as something they were compelled to do by international law. Indeed US officials were initially reluctant to support the ceasefire resolutions proposed by allies.154 From a military perspective, decision-makers did not wish to commit to a cease-fire with PRC and North Korean forces at the time,155 yet by not at least committing to a resolution calling for both sides to halt hostilities the US risked losing allied support for continued military action.156 US decisionmakers hoped that by supporting the cease-fire resolutions they could appease allies and preserve the ability to continue using force in the event the resolutions were rejected by the Chinese communists.157 The resolution set up a situation such that if the Chinese did reject the ceasefire resolutions it was then open to the US to employ its strategy of calling on the General Assembly to declare China’s action an act of ‘aggression’,158 a category of behaviour considered illegal under international law. Calls by the US and its allies for a ceasefire were presented as the result of a binary choice between acting legally in accordance with the compulsory obligation of States to pursue a peaceful solution to the conflict and acting illegally in defiance of the UN Charter. This distinction was evident when US Secretary of State Acheson noted

154 155 156 157 158

Above Above Above Above Above

note note note note note

114 and 120. 107. 108. 107 and 108. 109.

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of the PRC rejection of the ceasefire proposals: “…the United Nations has explored every possibility of finding a peaceful settlement of the Korean question. Now we must face squarely and soberly the fact that the Chinese communists have no intention of ceasing their defiance of the United Nations Charter.”159 The PRC rejection of the ceasefire calls set up a situation that allowed the US to have China declared an aggressor. By analysing the historical record from an ILI perspective we can see that the US used the discrepancy between the idea and reality of international law when it sought to have the PRC declared an aggressor. At the time, General Assembly votes were a useful mechanism as the majority of its members at the time were US allies heavily reliant on US financial and security support. Voting in the General Assembly declaring China an ‘aggressor’ would thus seem to reflect less the objective determination of illegal behaviour than the subjective reality of alliance structures. Yet publicly the US assumed the possibility of objectively distinguishing between illegal and legal behaviour when it made reference to the General Assembly resolution declaring China an aggressor. The US thus pointed to General Assembly resolution 498(V), which recommended States to take all necessary measures to deal with PRC aggression,160 to establish a binary distinction between the ‘illegality’ of PRC military action during the Korean War and the ‘legality’ of US military action. The US used this resolution to gain legal support for its goal to continue using force against communist forces in North Korea. This served to maintain military pressure on the PRC which would either defeat communist forces outright, or more likely would apply enough military pressure to force the communist alliance to accept calls for a negotiated end to the conflict. By doing so the US could ensure control over its own policy choices as well as influence the policy choices of its rivals, in particular to get the communist alliance to agree to negotiations. As then Secretary of State Acheson noted at the time, if continued force was necessary to eventually compel the PRC to negotiate an end to the conflict, the ‘aggressor’ resolution was important in providing the necessary legal basis for that action.161 Thus the US was able to escalate the military pressure that eventually forced the communists to begin ceasefire negotiations while at the same time continuing to uphold the ideology of international law. There were no instances where US actions or statements contradicted the rule-book image of international law. By taking the legal initiative, the US was able to use international legal argument to shape opportunities for the continued use of force in the pursuit of perceived national interests during the Korean War. Skilful use of international law would appear to have been integral to US foreign policy during the Korean War. The communist alliance attempted to use international law to compete diplomatically with the US, albeit that it upheld the ideology relatively less strongly than the US. An examination of communist alliance responses to US legal rhetoric during

159 160 161

Dean Acheson, above note 117. Above note 121. Above note 120.

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the Korean War indicates several occasions where references to international law by members of the communist alliance served to weaken the political utility to be derived from references to legal rhetoric in the public diplomacy of the communist alliance. Stronger references to the ideology of international law may not have prevented the US from assisting South Korea militarily, but could have gone some way towards getting allies to re-evaluate their support for US resolutions in the United Nations, which would at the very least have frustrated US policy options. The communist side – whether it was the Soviet Union, the PRC or North Korea – can be seen to have upheld the ideology of international law in a number of statements (though they were unlikely to have thought in these terms). They attempted to establish a binary distinction between ‘illegality’ of actions by the US and the implied legality of North Korean and PRC behaviour, thus reinforcing the part of the rule-book image of international law that suggests it is possible to distinguish between legal and illegal behaviour. Arguments were raised against the legitimacy of the Security Council resolutions passed on June 25 and 27, 1950. North Korea, together with the Soviet Union, the PRC and other communist allies, wrote to the Security Council questioning the constitutionality of the Security Council vote. They argued that it was contrary to Article 27(3) of the UN Charter, because of the absence of two permanent members, the Soviet Union and the PRC, whose seat was occupied by the Chinese nationalist representative T. F. Tsiang.162 Similarly the PRC claimed that the resolutions passed in the General Assembly in its absence were ‘illegal’ and ‘null and void’.163 In these arguments the communist side aimed to demonstrate the ‘illegality’ of US/UN action in using force against the North Korean army on the basis of a resolution that did not conform to the rules of voting and was contrary to the provisions set out in the UN Charter. PRC Foreign Minister, Zhou Enlai, also declared the US military support of South Korea an “armed aggression against the territory of China in total violation of the United Nations Charter.”164 PRC Chairman Mao Zedong appealed to the non-intervention principle in Article 2(7) of the UN Charter when he stated that “…the United States is unable to justify in any way its intervention in the internal affairs of Korea, the Philippines, and Vietnam.”165 Zhou Enlai and the Soviet representative to the UN, Jacob Malik, argued that the procedure outlined in the Uniting for Peace resolution extending the role of the General Assembly in peace and security issues overstepped the central authority accorded the Security Council by the UN Charter.166 When the PRC was declared an aggressor in General Assembly resolution 498(V), the PRC claimed the resolution was an “unlawful by-passing of the Security Council and in violation of the principle of

162 163 164 165 166

Above Above Above Above Above

note note note note note

37, 38 and 39. 69. 31. See also above note 37 and 38. 29. 82.

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unanimity among the great Powers.”167 Such arguments upheld the idea of legal/ illegal dichotomy in which the US position was explicitly deemed illegal and the position of the communist alliance implied as ‘legal’, reinforcing the notion that it is possible to objectively distinguish between legal and illegal behaviour. However, from an ILI perspective, the US was able to draw on the obligation of the communists to uphold the ideology in a way that disadvantaged the communist side. The communist alliance would seem to have been ‘taken in’ by US rhetoric, that is, the communists argued for the legitimacy of their actions in terms set up by the US rather than in terms of their own choosing for which there was the potential to do so. This accords with the third expectation of an ILI perspective which predicts that States can make strategic use of international law by upholding the ideology of international law while recognising the discrepancy between the idea and reality of international law, and getting the other side to uphold the ideology in a way that disadvantages that side. Legal rhetoric from the communist side aimed to demonstrate the ‘illegality’ of the Security Council vote authorising the US (and allied) use of force in repelling North Korean forces. The artificial division of Korea at the 38th parallel was recognised internally by policy planning staff.168 And yet the legality of the US occupation of South Korea or the division of Korea at the 38th parallel was never publicly canvassed. By not pursuing such an argument, representatives of the communist alliance ignored a key issue on which the US would be on more or less ‘weaker’ legal ground, and one which could have been used to the advantage of the communist side, at least to the extent of frustrating US efforts to reinforce the legitimacy of its own action in world opinion and in mobilising other nations to take part in and/or support a military conflict in Korea that was potentially illegitimate. In one of the few instances where communist Chinese legal rhetoric was employed in offensive diplomacy, Zhou Enlai issued a protest to the UN just as Chinese decision-makers were close to the final decision to send troops to assist North Korea to repel US/UN forces from its territory. He argued that the US intended to “extend the war of aggression against Korea, to carry out armed aggression against Taiwan, and to extend further its aggression against China.”169 A few days later a similar message was reiterated: “We must regard the Korean people’s defensive war as our war, for the American invasion of Korea is an much a threat to us as it is to the existence of a free and independent Korean nation…”.170 The PRC was preparing the public rationale for its entry into the Korean war on the basis of a right to self defence. Doing so would enable the PRC to establish a distinction between the legality of its own action and the expressed illegality of US behaviour, which would have upheld the idea that it is possible to objectively distinguish between legal and illegal

167 168 169 170

Above Above Above Above

note note note note

122. 47. 89. 90. Italics added.

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action. This message was further reiterated when Chinese communist forces crossed the Yalu River to assist North Korea. The PRC stated that the intervention was an effort to help North Korea in their urgent fight against “United States aggression”, a crime which was “…violating the territorial sovereignty of China and threatening its security.”171 Several statements by the Soviet Union, the PRC and North Korea suggested a discrepancy between the idea and reality of international law which contributed to the communist alliance upholding the ideology of international law weakly. Skillful use of legal rhetoric that demonstrated the legality of PRC or North Korean action or the illegality of US action could have weakened the resolve of US allies in supporting a legally dubious US action. As was evident in the influence of the US allies when responding to MacArthur’s request to expand the war, allied concerns over the legality of certain action did have some sway with US decision-makers.172 A greater split in the US/UN alliance may not have been the decisive factor in winning the Korean War but could have been important in breaking the decisiveness with which the US and its allies acted during the Korean War. Part of the ‘failure’ of the communist alliance was their inability to use the ideology of international law to their advantage in diplomacy with the US. Let us review a number of statements or actions served that served to highlight the discrepancy between the idea and reality of international law and weaken the ability of the communist alliance to employ legal rhetoric strategically in the pursuit of policy goals. The Soviet Union, the PRC and the DPRK condemned Security Council resolutions 82 and 83 authorising UN members to use force to repel the North Korean aggression in South Korea. It was argued that these Security Council resolutions were invalid, in part, due to the absence of the Soviet Union delegate when votes on the resolutions were cast and because the PRC (at that time) was excluded from participating in the Security Council and General Assembly.173 The Soviet Union returned to the Security Council in August 1950 and proposed a number of resolutions which, if passed, would have served to condemn the US and gain support for the policy position of the communist alliance.174 Yet these actions would seem to contradict the position of the Soviet Union and the PRC before the Soviet Union had returned to the Security Council, While the absence of the Soviet Union and the PRC meant that resolutions passed in the Security Council supporting US action were illegal, it seemed that resolutions with the potential to be favourable to the communist side were ‘legal’ despite the continued absence of the PRC from the Security Council. This would seem to contradict the ideology of international law – not so much that

171 172 173 174

Above Above Above Above

note note note note

92. 96. 35, 38, 39 and 42. 41, 43 and 45.

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rules of international law are compulsory but the idea that it is possible to objectively determine legal and illegal positions.175 Although the PRC questioned the legality of General Assembly resolutions supporting US action and passed in its absence,176 it did not reject, and therefore implied acceptance of, the legality of General Assembly resolutions sponsored by the Soviet Union and favouring the PRC position. This would seem to suggest a discrepancy between the idea that it is possible to objectively distinguish what is legal from that which is illegal. On several occasions Zhou Enlai declared that the UN was an agent of US power, declaring that resolution 83 passed on June 27 “was a cover up for United States armed aggression…and intervention in the international affairs of Korea in violation of world peace.”177 In a telegram to the UN Secretary General he went further, suggesting that “[t]he resolution adopted by the Security Council on June 27 [was made] under the instigation and manipulation of the United States Government…”178 The same point regarding US manipulation was made in relation to the Uniting for Peace resolution that developed the capacity of the General Assembly to deal with matters of international peace and security.179 The possibility that the legal mechanisms of the United Nations are an instrument of US policy suggests that international law may not be objective or politically neutral, which would likewise reflect upon the ‘political’ use of the UN mechanisms by members of the communist alliance during the Korean War. This contradictory position would seem to highlight the discrepancy between the idea and reality of international law. In this way the communist side upheld the ideology less strongly than the US. When the PRC entered the Korean War in November 1950 – an action that in the binary framework would be more readily deemed ‘illegal’ than ‘legal’ – it did so on the basis that it was protecting its security and was justified as self-defence. Yet rather than make an affirmative argument in support of this position, it sought to imply its own legality by accusing the US of “…violating the territorial sovereignty of China and threatening its security.”180 This would seem to reinforce the idea that it is possible to distinguish objectively between what is legal and illegal. The implied self-defence argument was underpinned by frequent references by PRC and

175

176 177 178 179 180

It would appear that Security Council delegates also recognised the contradictory position of the USSR. When Soviet representative Malik returned to the council and sought to use the council in proposing resolutions on the Korean matter, his actions ‘drew thinly disguised ridicule from [US representative to the UN] Austin, [United Kingdom representative to the UN] Jebb and [French representative to the UN] Chauval.’ See Whiting, above note 26, at 75. PRC response to the passage the General Assembly resolution 376(v) passed on October 7 1950, see above note 68. Above note 33 and 93. Above note 34. Above note 84. Above note 91.

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Soviet officials to US ‘aggression’.181 However, the inability to substantively elaborate on how US action was ‘aggressive’ seems to undermine their reference to the ideology of international law. This is best understood when compared to the US effort to declare PRC behaviour ‘aggression’. The US was able to present its labelling of China as an aggressor in a way entirely consistent with the dictates of international law, as set out in an authoritative finding of a General Assembly resolution. Frequent and unelaborated declarations of US ‘aggression’ worked against the PRC by diluting the ‘objective’ quality of its position and blurring the distinction between the image of international law as ‘objective’ and the reality that law might not be wholly objective or politically neutral. From an ILI perspective, highlighting the discrepancy between the idea and reality of international law through such statements weakened the strength of appeals to the ideology of international law used to support the communist position. Legal arguments by the communist alliance were unable to draw on the ideology to persuade the US to uphold the ideology in a way that disadvantaged US interests and served the interests of the communist alliance. In contrast, the US assumed the legal initiative and was able to pressure the communist side into a defensive legal posture, with a greater potential to uphold the ideology weakly. Legal rhetoric by the communist alliance would appear not to have had a similar influence over US policy.

Conclusion This case study has analysed a crisis scenario in which both sides were in direct military and diplomatic competition with each other. The case study has tested the efficacy of an ILI perspective against existing literature on the relationship between international law and State behaviour during the Korean War, underpinned by positivist, realist and functionalist perspectives. An investigation of the historical evidence revealed the role of international law during the Korean War and found wanting existing explanations of the law-State behaviour relationship during the Korean War. In testing the expectations of an ILI perspective against the historical record, it was found that an ILI perspective was better able to explain the relationship between international law and State behaviour during the Korean War. It was apparent that the US did not simply comply with international law or use international law to justify behaviour, but endeavoured to uphold and use the ideology of international law strategically in the pursuit of political goals. Until now it has not been apparent just how international law was politically useful for the Americans during the Korean War beyond that of the capacity of international law to justify US behaviour. The legal rhetoric used by the communist alliance upheld the ideology of international law much less strongly than the US side. The communist alliance was therefore less

181

Above note 89 and 90.

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able than the US to use the ideology of international law in the service of its policy interests. It appears that international law was a factor in the process of shaping political outcomes for both the US and communist alliance in the Korean War. Analysis of the historical record from an ILI perspective also adds to existing historiography on the relationship between international law and State behaviour during the Korean War, which has yet to adequately account for the place of international law in US decision-making and implementation and the process of diplomacy between the US and the communist alliance.

CHAPTER FOUR THE PLACE OF INTERNATIONAL LAW IN BRITISH AND AMERICAN FOREIGN POLICY BEHAVIOUR DURING THE SUEZ CRISIS

In the previous chapter we looked at a scenario in which both competing sides sought to use force against the other and were unevenly matched in terms of relative power and where the actions of the competing sides in the conflict differed in terms of the degree of legality as understood in terms of a legal-illegal binary framework. A case study of the Suez crisis represents the second of the cases involving a scenario in which States are unevenly matched in terms of power and in which the preferred policy positions of the competing States differ in terms of the degree of legality. The case to be examined in this chapter involves a dispute between two States, one seeking to use force and the other opposing the use of force. Britain sought to use force against Egypt and aimed to convince the US to support, or at least not oppose, such action. The US opposed Britain’s intention to use force against Egypt, and aimed to prevent, or at least forestall, the possibility of force. Britain’s preferred policy position would more readily be deemed ‘illegal’ than that of the US. The US was relatively more powerful than Britain. In this chapter I will begin with a brief background to the crisis over the Suez Canal. Following on from this historical overview, I will examine the historical record of the influence of international law on American and British foreign policy-making and implementation during the Suez crisis and then compare the empirical literature and its theoretical underpinnings with the historical record. Finally, I will look at the historical record from an ILI perspective and assess the empirical efficacy of an ILI perspective in understanding the relationship between international law and US and British State behaviour during the Suez crisis.

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Background to the Crisis Over the Suez Canal The role of the Suez Canal as an international waterway has a long history. Turning this small canal into a speedy and cheap passage from the Mediterranean to the Indian Ocean and beyond was the dream of Ferdinand de Lesseps, the son of the French Consul in Egypt at the beginning of the nineteenth century. On January 5 1856 that dream started to become reality when the Universal Suez Canal Company, a public company committed to building the canal, published its statutes. The operation of the canal was governed by the 1888 Convention of Constantinople, which stipulated, among other things, the freedom of passage through the canal to all ships of all countries. Of the 400,000 shares that made up the company, de Lesseps had intended that slightly more than half were to be held by the French and the rest divided between Britain, the United States, Russia and Austria.1 At this time the British government under Palmerston was openly hostile towards de Lesseps’ plans. The change in British attitude to the canal came with Disreali’s purchase of Khedive Ismail’s shares.2 This was a prelude to British military action in 1882 in occupying Egypt- an occupation that continued until 1955. Despite an early cool reception to the canal by the then UK government, by 1949 Britain had the highest number of vessels and tonnage passing through the canal.3 The 1956 crisis over the Suez Canal occurred in a different geopolitical and legal context than when Ferdinand de Lesseps developed the Suez Canal. The post WWII world saw the entry into force of the United Nations Charter that established the United Nations; the rise of anti-colonialism and subsequent nationalist movements across a number of regions in the world, including the Middle East; a Cold War of ideological rivalry between the new superpowers of the USSR and USA; and the birth of the Jewish state Israel in 1948 amidst hostile neighbouring Arab States. It was in this context that the Suez crisis occurred. The construction of the High Dam at Aswan was of major political importance to Egyptian President Gamal Abdul Nasser, who had staked his political career on gaining a World Bank loan for building the dam. The dam would provide an overall stimulus to the economy, a cheap source of electric power and the provision of more cultivated land to feed the rising Egyptian population. The continuing power of Nasser was also riding on the success of the Aswan High Dam. Upon the request of the Egyptian Government, the United States in December 1955 joined the United Kingdom and the World Bank in an offer to assist the Egyptians in the construction of the dam on the Nile at Aswan. However, on July 19 1956 the US withdrew its financial support for the dam, citing that: “Developments within the succeeding seven months have not been favourable to the success of the project, and the US government

1 2 3

Harry Browne Suez and Sinai (Longman: London 1971) at 2-3. Ibid., at 3. Disraeli bought 177, 642 shares at a cost of four million pounds. 37.93% of the vessels and 36.73% of the gross tonnage belonged to the United Kingdom – the highest of all the States using the Suez Canal. See Ibid., at 6.

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has concluded that it is not feasible in present circumstances to participate in the project.”4 Seven days later on July 26 1956, the Egyptian President delivered a broadcast address from Alexandria stating that he had signed into law a presidential decree nationalising the Suez Canal Company. The decree announced that an autonomous Egyptian agency under the Ministry of Commerce would operate the canal; stipulated that all employees must discharge their duties; and promised that all shareholders would be compensated according to the value of shares indicated at the close of business on the Paris Bourse the previous day.5 While Egypt’s action had initiated the drama that was to unfold over the coming months, Egypt’s place in the drama of the crisis was more of a supporting cast member to more powerful State actors whose actions propelled the plot of the crisis forward. One such principal State actor was the United Kingdom. Its eagerness to use force to prevent the nationalisation of the canal was principally related to the erosion of its historical position in the Middle East, especially in the context of the general decline of its once great empire – it was a defence of the empire as much as the canal. It appeared that the seizure of the canal was the last straw in a series of increasing concerns regarding the British position in the Middle East. As Cabinet noted, failure to hold the Suez Canal would lead inevitably to the loss, one by one, of all British interests and assets in the Middle East.6 The UK also had the largest financial stake in the operation of the Canal.7 Prime Minister Anthony Eden was himself strongly opposed to Nasser and saw the opportunity to remove him from power.8 In addition to Great Britain both France and Israel were also involved in the military efforts that resulted from Nasser’s attempt to nationalize the Suez Canal.9 In part, French attitudes in the Suez crisis paralleled Britain’s: the nationalisation of the canal threatened substantial economic interests both in terms of their investment in the Suez Canal Company and trade through the canal; they also shared a deep hatred of Nasser. For the French this antagonism was related to its troubles in the French territory of Algeria. The Algerian rebellion for independence, which had erupted in 1954, had continued without respite, and was further fuelled with Egyptian supplies and encouragement, and as such the French were of the view that defeating Nasser would help defeat the Algerian insurrection. The nationalisation of the canal

4 5

6 7 8 9

See text “America’s decision to withdraw her support for the High Dam, July 19 1956” in Browne, Ibid., at 28. Speech by President Nasser, July 26 1956; Presidential Decree on the Nationalisation of the Suez Canal Company, July 26 1956 in The Suez Canal Problem July 26-September 22 1956 (Government Printing Office: Washington DC 1956) at 25-32. CAB 128/30, Part 2, (C.M 54(56)). See above note 3. W Scott Lucas Divided We Stand: Britain, the US and the Suez Canal (Hodder and Stoughton: London 1991) at 142. While the Israelis could have used force against Egypt at any time if they so wished, once drawn into the possibility of acting in collusion with France and Britain, Israel was dependent on the final British decision to use force against Egypt.

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provided the opportunity for this defeat. However, France could not launch an attack on its own and remained dependent on British military support. Despite French enthusiasm, the course of the conflict was ultimately dependent on British decisions to begin and end the use of force. Israel’s role in the crisis was not related to the nationalization of the Suez Canal Company in which it did not have a stake. While Egypt had for some time prevented Israeli ships from passing through the canal, Israel was primarily motivated by the wider Arab-Israeli conflict. Since 1955 (when Israel launched a reprisal attack on Egyptian forces in the Gaza Strip) Israel and Egypt had been on a collision course. Nasser had responded by launching his own ‘fedayeen’ attacks that were continuing at the time of the nationalisation. After discussions with French and British officials, Israeli Prime Minister David Ben-Gurion got his opportunity to launch attacks against Egypt without reneging on his promise to the Knesset to not fight in a war against Western forces. This also gave France and Britain the pretext they had been looking for to use force against Egypt. The final principal actor critical to the course and denouement of the Suez crisis drama was the United States. The Americans interpreted the events in Egypt, set in motion by Nasser’s nationalisation of the Suez Canal, through the lens of its broader Cold War confrontation with the Soviet Union. The US had already been forced to deal with Soviet encroachment into a country it had thought part of the Western sphere, when in 1955 Soviets began arms shipments to Egypt. American decisionmakers understood the opportunity any instability brought on by Anglo-French military action might afford to further Soviet penetration into the Middle East.10 They also feared the prospect of losing access to vital oil supplies from other Middle Eastern oil exporting countries if they were to support any military activities by its allies.11 President Eisenhower’s disinclination to support any use of force was also related to upcoming presidential elections in that year, in which he would campaign as a ‘candidate for peace’.12 All these factors, in particular concern for Soviet intentions, resulted in the US acting during the Suez dispute against the interests of some of its closest allies. Despite the numerous States party to the dispute, the course and resolution of the Suez crisis depended largely on the positions of both the United Kingdom and the United States. While France was keen to use force against Egypt, it did not wish to do so without British involvement, both to augment its relatively weak military and so as not to appear politically isolated in its action. Israel could have used force at any time but having been drawn into the possibility of acting with France and Britain, it too was dependent on what Britain did for the deal to work. Britain was

10 11 12

Henry Kissinger Diplomacy (Touchstone/Simon and Schuster Press: New York 1994) at 522-523. Steven Z Freiberger Dawn Over Suez: The Rise of American Power in the Middle East 1953-1957 (Ivan R Dee: Chicago 1992) at 164. Ibid., at 160.

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the linchpin of those on the side of armed force. The American position was important as it proved to be the single greatest obstacle those wanting force had to overcome. For Britain any efforts to argue for the use of force had to convince the Americans. Let us now examine the role of international law in British and American foreign policy during the Suez crisis as found in the historical record.

The Historical Record of the Influence of International Law on British and American Foreign Policy Behaviour During the Suez Crisis British Prime Minister Anthony Eden was hosting an official dinner for King Faisal of Iraq when he first heard of Nasser’s actions. Eden’s immediate reaction on hearing what Nasser had done was to contemplate military action to secure the canal.13 That same night an emergency meeting was called between British chiefs of staff, the French Ambassador to the UK, Jean Chauvel, and the Chargé d’Affairs of the US Embassy in the UK, Andrew Foster. The meeting concluded that, despite the legality of Nasser’s actions, Britain, possibly with American and French support, needed to use economic, political and military pressure to stop the nationalisation of the Suez Canal company.14 When the Cabinet met the next day, UK Foreign Minister Selwyn Lloyd noted that the nationalisation of the Suez Canal was strictly legal and not a sufficient argument for the use of force: …we should be on weak ground in basing our resistance on the narrow argument that Colonel Nasser had acted illegally. The Suez Canal company was registered as an Egyptian company under Egyptian law; and Colonel Nasser had indicated that he intended to compensate the shareholders at ruling market prices. From a narrow legal point of view, his action amounted to no more than a decision to buy out the shareholders. Our case must be presented on wider international grounds.15

According to the memorandum by Selwyn Lloyd submitted to the Cabinet, actions by the Egyptian Government that might support armed intervention by the British on ‘wider international grounds’ included:

13

14

15

Eden apparently noted this determination to use force on the back of an envelope while still in the midst of the official dinner for King Faisal. “Handwritten notes by Eden”, July 27 1956, cited in Nigel John Ashton Eisenhower, MacMillan and the Problem of Nasser: Anglo-American Relations and Arab Nationalism 1955-1959 (St Martins Press: New York 1996) at 85. Telegram from the Embassy in the United Kingdom to the Department of State, July 27 1956, in Foreign Relations of the United States 1955-1957, Vol. XVI, Suez Crisis July 26-December 31 1956 (United States Government Printing Office: Washington DC 1990) at 3-5. Herein after referred to as FRUS-Suez. CAB 128/30, Part 2, (C.M 54(56)).

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Attack on or interference with British warships. Action endangering the lives of British subjects generally. Refusal to let a British ship pass through the Canal because it had not paid dues to the new Egyptian authority. Seizure or gross interference with the base installations.16 In a telegram to President Eisenhower, Eden noted the importance of ‘wider international grounds’ on which to use force against Egypt, though he did not elaborate on what those grounds might be: … we should not allow [ourselves] to become involved in legal quibbles about the rights of the Egyptian Government to nationalise what is technically an Egyptian company…[rather] we should take issue with Nasser on the broader international grounds.17

Sir Gerard Fitzmaurice, Legal Adviser to the Foreign Office, also reiterated the dubious legal ground of the British decision to use force against Egypt: We are already on an extremely bad wicket legally as regards using force in connection with the Suez Canal. Indeed whatever illegalities the Egyptians may have committed in nationalizing the Suez Canal Company, these do not in any way, as things stand at present, justify forcible action on our part, and such justification could only arise, if at all, from some further and much more drastic step on the part of the Egyptian Government amounting to a closure of the Canal, or at any rate a definite refusal or impeding of passage through it.18

On the other side of the Atlantic, Washington appeared to be more alarmed by the implications of British intentions towards Nasser than by the actions of Nasser himself. Although key decision-makers such as US Secretary of State John Foster Dulles and US Under-Secretary of State Herbert Hoover did not support Nasser’s nationalization of the Suez Canal, they, together with President Eisenhower, did not believe the use of force was the right means of achieving this. Using force would give Nasser opportunities to further inflame the dispute between Egypt and Britain and also create an opportunity for further Soviet inroads into Egypt in particular and the Middle East in general.19 Eisenhower also recognised the threat posed to the

16 17 18 19

Memorandum by Selwyn Lloyd on August 18 1856. CAB 134/1217 (E.C. (56) 26, at 136137 and CAB 134/1216, (Confidential Annex to E. C. (56) 2Oth Meeting), Minute 1. Secret Telegram from Prime Minister Eden to President Dwight Eisenhower, July 27 1956. PREM 11/1100 Minute from Sir Gerard Fitzmaurice to H Beeley (Assistant Under-Secretary of State at the Foreign Office), August 10 1956. FO 731/119727 (JT 1053/89G) Memorandum of a Conversation with the President, July 28 1956, in FRUS-Suez, at 26. Eisenhower noted additional objectives to be kept in mind when dealing with the crisis: not to allow Suez to cause difficulties for the US in maintaining its control over the Panama Canal and not to dilute his (and American) opposition towards colonialism.

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principles of the UN Charter by the likely British use of force. Eisenhower was of the view very early in the crisis that the nationalization of the Suez Canal Company was not a sufficient legal basis for undertaking military action against Egypt. The nationalisation of the Suez Canal Company posed no threat to the territorial integrity or political independence of Britain (or France) sufficient to invoke a right to use force and break with the general prohibition on the use of force laid down in Article 2(4) of the UN Charter. Eisenhower believed that “…some other overt act [by Egypt] would be necessary before [being] justified in adopting [the use of force].”20 Dulles in a meeting with the British Ambassador to the US, Sir Roger Makins, made the views of the US clear: “[w]hile [Dulles] agreed that [Britain’s] attitude should be firm…his view was that so long as there was no interference with the navigation of the canal and no threat to foreign nationals in Egypt, there was no legal basis for military action.”21 American alarm over British intentions was further exacerbated by a telegram from the US Embassy in London which stated that Eden and Macmillan had made clear the British government intention “...to drive Nasser out of Egypt.”22 Eisenhower, on hearing of this, noted that “the British [are] out of date in thinking of [the use of force] as a mode of action in the present circumstances.”23 Eisenhower and his decision-makers “doubted the validity of the legal position that Britain and France were using as justification for talk of resort to force…Nasser was within his rights in nationalising the [Suez] Canal Company” and the US was resolved, consistent with the UN Charter, to seek a peaceful settlement to the dispute.24 Eisenhower, aware of the danger such action might pose to American interests in the Middle East, hoped to prevent or at least forestall such a possibility, when he wrote to Eden urging that peaceful measures to resolve the conflict be used before resorting to force: We recognise the transcendent worth of the Canal to the free world and the possibility that eventually the use of force might become necessary in order to protect international rights. But we have been hopeful that through a Conference in which would be represented the signatories to the Convention of 1888, as well as other maritime nations, there would

20 21

22 23 24

Memorandum of a Conversation Between the President and the Secretary of State, August 14 1956, in FRUS-Suez, at 198-199. Telegram from Department of State to Secretary of State, at Lima, July 28 1956, FRUSSuez, at 24-25. Telegram from Sir Roger Makins to Lloyd, July 30 1956, cited in Wm Roger Louis “Dulles, Suez and the British” in Richard H Immerman (Ed) John Foster Dulles and the Diplomacy of the Cold War (Princeton University Press: Princeton 1990) at 147. Telegram from Embassy in the United Kingdom (Walworth Barbour- Minister Counselor of the Embassy) to the Department of State, July 31 1956, in FRUS-Suez, at 61. Eisenhower Papers, July 31 1956 cited in Scott Lucas Britain and Suez: The Lion’s Last Roar (Documents) (Manchester University Press: Manchester 1996) at 51. Dwight D Eisenhower The White House Years: Waging Peace 1956-1961 (Doubleday: New York 1965) at 39, 44.

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be brought about such pressures on the Egyptian government that the efficient operation of the Canal could be assured for the future. For my part, I cannot over-emphasize the strength of my conviction that some such method must be attempted before action such as you contemplate should be undertaken. If unfortunately the situation can finally be resolved only by drastic means, there should be no grounds for belief anywhere that corrective measures were undertaken merely to protect national or individual investors, or the legal rights of a sovereign nation were ruthlessly flouted… I have given you my personal conviction, as well as that of my associates, as to the unwisdom [sic] even of contemplating the use of military force at this moment.25

The first initiative pursued by the US in a bid to end the crisis peacefully and in an effort to forestall the possibility of Britain using force against Egypt was a major conference of maritime powers. The first London conference of maritime powers was to bring together signatories of the 1888 Convention of Constantinople which created the Suez Canal Company and other major canal users to resolve the status of the canal. In a meeting between Eden and Dulles on August 1 Eden was still insistent on the need for “prompt forcible action”.26 It was on the following day, August 2, after a meeting between Dulles and the French Foreign Minister Christian Pineau and the British Foreign Minister Selwyn Lloyd that plans for the London conference were finally agreed upon.27 In public statements, Eisenhower and Dulles both kept the pressure on Britain in stressing the illegality of using force before seeking a peaceful solution to the conflict and reinforcing America’s commitment to peacefully ending the dispute between Egypt, Britain and France. Eisenhower stressed that the US is “…committed to a peaceful settlement of this dispute nothing else.”28 In a press conference Dulles, in a veiled criticism of Britain and France’s desire to use force, stated: After President Nasser’s action there were some people who counseled immediate forcible action by the governments most directly affected. This, however, would have been contrary

25

26 27 28

Letter from President Eisenhower to Prime Minister Eden, July 31 1956, FRUS-Suez, at 70. Extraordinarily, on the day following this letter, Eden told the Cabinet he was satisfied at the degree of US support for its decision to use force. CAB 128/30, CM (56) 56, August 1 1956. See Foster Dulles Memo 1 August 1956. See Memorandum of a Conversation between Prime Minister Eden and Secretary of State Dulles, August 1 1956, in FRUS-Suez, at 98. See Lloyd-Pineau-Foster Dulles meetings, cited in Lucas, above note 23, at 52. Statement by President Eisenhower, Press conference August 31 1956, cited in Richard Goold-Adams John Foster Dulles: A Reappraisal (Greenwood Press: Connecticut 1962) at 218.

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to the principles of the United Nations Charter, and would undoubtedly have led to widespread violence, endangering the peace of the world.29

In a cable to US Under-Secretary of State for Political Affairs Robert Murphy, Dulles outlined another reason for pursuing the initiative: FYI Also, we must consider our own position in Panama Canal, which depends upon a treaty, and we would be unwilling to be party to procedure which assumed that United Nations had authority in such matters which could override treaty rights.30

The chief proposal of the conference, held between August 16-23, was to establish an international board to operate, maintain and develop the canal, which intended to recognise Egypt’s sovereignty and fair use of the profits, and to prevent the canal being used as an instrument of national policy.31 In support of the conference Eden affirmed publicly that Britain did not “seek a solution by force”.32 According to those close to Eden, the reason for committing to the conference was quite different. It was hoped that the conference would produce an outcome unacceptable to Nasser, thus providing Britain with a justification to intervene in Egypt.33 The Americans

29 30

31

32 33

Public Broadcast by Secretary of State Dulles, August 3 1956, cited in Ibid., at 215. Telegram From the Department of State to the Embassy in the United Kingdom, in FRUSSuez, at 49. Panama was not invited to attend the conference. Egypt did not attend but the Soviet Union and India represented her interests at the conference. It was not only those in the Eisenhower administration that were aware of the implications of the Suez Canal issue for America’s interests in the Panama Canal. During one of his press conferences President Eisenhower was asked by a journalist whether US acceptance of British plans to internationalise the Suez Canal beyond the terms set out in the 1888 Convention regulating the use of the Suez Canal might be an argument for also internationalising the Panama Canal. Eisenhower was careful to differentiate the two cases, answering that the “conditions aren’t the same [regarding the nationalisation of the Panama Canal]”. See ‘The President’s News Conference of August 1 1956’ in Public Papers of the Presidents of the United States: Dwight D Eisenhower 1956 (US Government Printing Office: Washington DC 1958) at 627. Herein after referred to as Public Papers of Dwight D Eisenhower. See “London Conference on Suez Canal” Department of the State Bulletin, Vol. 35, August 27 1956, pp. 335-339; “Conclusion of London Conference on Suez Canal” Department of State Bulletin, Vol. 35, September 3 1956, pp. 370-374. The proposal was to be presented to Nasser by Australian Prime Minister Robert Menzies. See “Suez Canal Discussions at Cairo” Department of State Bulletin, Vol. 35, September 24 56, pp. 467-475. For the proposal see “The 18-Power Proposal of the First London Conference 16-23 August 1956” in James G Eayrs The Commonwealth and Suez: A Documentary Survey (Oxford University Press: London 1964) at 53-55. From “Extracts from broadcast by the Prime Minister, Sir Anthony Eden, 8 August 1956” in Eayrs, Ibid., at 42. Anthony Nutting No End of a Lesson (Clarkson N Potter Inc Publishers: New York 1967) at 53; see also Hugh Thomas The Suez Affair (Weidenfeld and Nicholson: London 1967) at 64.

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planned to ensure that this would not be possible by anticipating further diplomatic measures to be undertaken in the event Nasser rejected the proposal, which he was expected to do.34 In a letter to Eden, Eisenhower reiterated his opposition to the use of force and urged him to follow the path of negotiation, stating that “…if during this process Nasser himself resorts to violence in clear disregard of the 1888 Treaty [regulating the Suez Canal Company], then that would create a new situation and one in which he and not [Britain] would be violating the United Nations Charter.”35 Prior to the second major diplomatic conference of maritime powers, British policy-makers pursued another strategy in order to create sufficient justification for using force against Egypt. This strategy was called ‘operation PILEUP’ where the walkout of 165 non-Egyptian pilots of the Egyptian Canal Authority would stop traffic through the canal. British decision-makers hoped such an outcome would engender US support for Anglo-French use of military force for the purposes of restoring order on the canal. However, the strategy failed. The walk out of non-Egyptian pilots actually increased the flow of traffic in the canal.36 The second major US diplomatic offensive proposed by Dulles was the second London conference from September 16-October 4, to establish a Suez Canal Users Association (SCUA) to collect tolls and generally manage canal traffic.37 Although ostensibly designed as a response to the likely rejection by Nasser of the first London conference proposal, it also worked to forestall the likelihood of force by Britain and France.38 The strategy was backed with a warning from Eisenhower against “[t]he use of force in violation of the [UN] Charter…”.39 Dulles stated that “…the very first article [of the UN Charter]…says that the purposes of the United Nations is to bring about settlements by ‘peaceful means, and in conformity with the principles of justice and international law.’”40 Eden’s Cabinet accepted the SCUA initiative in the hope its failure would be “a step toward the ultimate use of force.”41 Defence Minister Walter Monkton

34 35 36 37

38 39 40 41

Telegram from the Department of State to Certain Diplomatic Missions, in FRUS-Suez, at 350-351. Letter from President Eisenhower to Prime Minister Eden, September 2 1956, in FRUSSuez, at 357. Cabinet meeting, September 17 1956, CAB 134/1216 EC (56) 29th meeting. Lloyd writes of the farcical attempts to name this initiative. It had first been called the cooperative user’s association but the acronym for this spelt out a ‘dirty Portuguese word’. Other combinations also encountered similar problems, usually in Turkish. SCUA it would seem was ‘clean’ in all languages and was finally agreed by all. Selwyn Lloyd Suez 1956: A Personal Account (Cape: London 1978) at 145. Memorandum of a Conversation between the President and Secretary of State, September 8 1956, in FRUS-Suez, at 434-435. Memorandum of a Conversion between Dulles (US Secretary of State), Lloyd (UK Foreign Secretary) and Pineau (Foreign Minister of France), October 5 1956, in FRUS-Suez, at 642. Department of State Press Release, No.498, September 21 1956, cited in Robert Bowie Suez 1956 (Oxford University Press: London 1976) at 46. Cabinet meeting, September 11 1956, CAB 128/30, CM(56) 64.

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warned of negative consequences in the event force was used without US support.42 Yet for Eden the concern was that SCUA might not fail, which would deprive them of a useful pretext for force against Egypt.43 He told Cabinet on October 24 that “we should never have a better pretext for intervention against him than we had now as a result of his seizure of the Suez Canal.”44 As was hoped Nasser rejected the SCUA proposal. At this stage Britain and France brought the matter of the nationalisation of the Suez Canal before the UN Security Council. According to US Ambassador to the UN, Henry Cabot Lodge, it was designed to placate world opinion and justify their hopes of using force, a position the US could not support.45 The US did not cosponsor the Anglo-French appeal, and in an extraordinary move against two of its closest allies voted in favour of including Egypt’s counter appeal on the Security Council agenda. By October 8, after three days of Security Council debate, Britain and France entered into private talks with Mahmoud Fawzi, Egyptian Foreign Minister.46 On October 14 Lloyd, Fawzi, and a reluctant Mollet agreed on ‘Six Principles’ to be met in settling the dispute, which were adopted by the Security Council, as the first of a two-part resolution.47 Despite the use of the Soviet veto on the second part of the resolution calling for implementation of the principles, Fawzi indicated a willingness to continue talks in a neutral location.48 Astonishingly, on October 14 1956, the same day Eden cabled Lloyd agreeing to further negotiations with Fawzi in Geneva, Eden and Minister of State Anthony Nutting met with two French representatives (Acting Foreign Minister Albert Gazier and General Maurice Challe) at the Prime Minister’s country retreat Chequers. This meeting marked the beginning of concerted ‘collusion plans’ for joint Anglo-French

42 43 44 45 46

47

48

Ibid. Ibid. Cabinet meeting, October 24 1956. CAB 128/30 CM (56) 73. Cited in Louise Richardson When Allies Differ: Anglo-American Relations During the Suez and Falkland Crises (St Martins Press: New York 1996) at 53. British Foreign Minister Selwyn Lloyd was a far more willing participant of these talks than the French Foreign Minister Christian Pineau who thought the whole UN process futile and was hostile to progress in negotiations with Fawzi. The record of the meetings by Ambassador Lodge indicate that Pineau got ‘greener and greener’ as Lloyd looked for a way of making progress to negotiation. Positive replies by Fawzi “…made Pineau feel that we were getting closer to a sensible solution [except that] a sensible solution is not what Mr. Mollet wants.” Memorandum of a Conversation between Secretary General Hammarskjold and the Representative at the UN (Lodge), October 10 1956, in FRUS-Suez, at 690. S/3671, resolution adopted unanimously by the Security Council, October 13 1956, in Yearbook of the United Nations 1956 (Department of Public Information: New York 1957) at 23. Herein after referred to as UN Yearbook 1956. New York to Foreign Office, Cable 834 and 845, October 12 1956, PREM 11/1102.

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military action with Israel.49 At this meeting Challe outlined the possible plan for Britain and France to gain control over the Suez Canal and possibly remove Nasser: Israel should be invited to attack Egypt across the Sinai Peninsula and…. France and Britain, having given the Israeli forces enough time to seize all or most of Sinai, should then order ‘both sides’ to withdraw their forces from the Suez Canal, in order to permit an Anglo-French force to intervene and occupy the Canal on the pretext of saving it from damage by fighting.50

Eden allowed Nutting to inform two Foreign Office personnel of events, but objected vehemently to consultation with Fitzmaurice, the Foreign Office Legal Adviser: My [Nutting] suggestion that at least the Foreign Office Legal Adviser, Sir Gerard Fitzmaurice, should be brought in on a matter which involved taking the law into our own hands met with the flattest of negatives. “Fitz is the last person I want consulted”, Eden retorted. “The lawyers are always against our doing anything. For God’s sake keep them out of it. This is a political affair.”51

Eden was not, however, without legal opinion. It is unclear whether the Lord Chancellor was informed about the plans for collusion. Nonetheless he did provide the legal advice that purported to support such a plan and which in the end became the official British position. The Lord Chancellor’s legal argument was prepared and

49

50 51

For the cable regarding negotiations see Foreign Office to New York, Cable 1198, October 14 1956, PREM 11/1102. This meeting between British and French officials at Chequers marks the beginning of a period of concerted planning for acting in collusion with one another. The prospect of some collaboration between France and Israel had been canvassed on previous dates. For example, early on in the crisis the Egypt Committee of Cabinet endorsed the prospect of discussions with France about joint military action. See CAB 134/1216 E. C. (56) 4th Meeting. The French Foreign Minister Christian Pinau later noted that at a meeting with British representatives on September 23 “Eden showed a good deal of interest [in French military planning with Israel against Egypt]; Lloyd a great deal of reticence…Nevertheless I was able to persuade them to give me a kind of carte blanche to undertake further negotiations with the Israelis.” Account of French Foreign Minister Pineau of meeting with British Prime Minister Anthony Eden, in Terence Robertson, cited in Lucas, above note 8, at 67. Ibid. Ibid., at 95. Even before this, it would appear that some members of the UK Government were not being fully informed of developments. On September 14 1956, the Attorney General wrote to the Foreign Secretary about his frustration (with impressive delicacy of phrasing given the circumstances) at not being kept up to date with developments. He wrote: “I am sure you will appreciate how difficult it is to give a legal opinion without adequate information as to the problems involved…I hope you will not mind my suggestion that it would be a good thing if we could be kept informed of the legal questions that are under consideration…”. Letter from Attorney General Sir Reginald Manningham-Butler to Foreign Secretary Selwyn Lloyd, 14 September 1956. LO 2/825.

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sent to the Prime Minister on October 21 1956, one day before the first tripartite talks between Britain, France and Israel were to begin. In this paper he noted the apparent customary international law right to intervene in foreign territory to protect valuable foreign property and the lives of one’s own citizens when threatened. The Lord Chancellor argued that an Egyptian threat to use force against Britain could open the opportunity for the United Kingdom to intervene to protect its assets and the lives of British nationals based in Egypt.52 The first tripartite talks were held on October 22 when representatives of Britain, France and Israel met at Sèvres, outside Paris. Britain and France were to issue a warning in order to separate the ‘belligerents’ and only when the warning was ignored were they to intervene on the premise of protecting the life of nationals and property. Lloyd insisted at the Sèvres meeting that only a ‘real’ act of war on the part of Israel could justify Britain’s entry into the war. The Israelis would have to significantly threaten the canal.53 By the third day of the meeting the details of the plan had been worked out. Israeli paratroopers would launch a surprise attack on Egypt, and Britain and France would launch their air attacks 36 hours later. By the end of that day the ‘Sèvres Protocol’, outlining the plan, was signed by the representatives of the three governments.54 To his Cabinet on October 24 Eden presented the plan:

52 53

54

Paper prepared by the Lord Chancellor for the Prime Minster, 21 October 1956, PREM 11/1129 Avi Shlaim “The Protocol of Sèvres, 1956: Anatomy of a War Plot” International Affairs, Vol. 73(3), 1997, pp. 509-530, at 517. Eden also insisted on this point in his instructions to Patrick Dean who was to represent Britain on the final day of negotiations, stressing that he was to make it “absolutely clear” that unless the Israelis had advanced beyond the Israeli-Egypt frontier and a threat to the canal had definitely emerged Britain would not enter. Memorandum by Sir Patrick Dean, 1986 and Ben-Gurion’s diary entry October 24 1956 cited in Shlaim, at 517. The plan set out the timetable for action. On October 29 1956 Israel would launch a fullscale attack on Egypt. On October 30 1956 Britain and France would demand Egypt and Israel cease fire and withdraw ten miles either side of the Suez Canal while Anglo-French forces established a ‘temporary’ occupation of the key positions on the canal. The inevitable Egyptian refusal would then prompt and justify British and French bombing early on October 31 1956. An English version of this protocol is published in Kyle, above note 78, at 565-567. Apparently when Eden learned that the collusion plan worked out at Sèvres had been recorded in a formal agreement, he instructed the two foreign officials present at the conclusion of the agreement – Patrick Dean (who signed for the United Kingdom) and Donald Logan – to return to Paris to destroy all copies of the document. Pineau phoned Ben-Gurion in Israel to ensure the Israeli copy was not destroyed, and fearing the British would renege on the agreement, refused to destroy the French copy. See Interview with Donald Logan cited in Lucas, above note 8, at 86. For a fuller, detailed reconstruction of the events of the collusion, see the excellent article by Avi Shlaim, above note 53.

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If [an Anglo-French] operation were launched, Israel would make a full-scale attack against Egypt, and this might have the effect of reducing the period of preliminary bombardment. The second objective of the operation would be to secure the downfall of Colonel Nasser’s regime in Egypt.55

Later he presented more of the plan: The French Government were strongly of the view that intervention would be justified in order to limit hostilities [between Israel and Egypt] and that for this purpose it would be right to launch… military operation against Egypt…56

At the October 29 meeting of the full Cabinet, the Lord Chancellor presented a legal memorandum titled “The Right of Intervention” which formed the legal basis for Britain’s military intervention of Egypt (with France) following the Israeli attack on Egypt. The memorandum concluded that: [w]e have…three good grounds of intervention: danger to shipping in the Canal; the danger to our nationals at Ismailia the danger to the Canal itself and the consequent effects on many nations.57

The public justifications for the use of force were based on this legal advice. In statements given to their embassies, in the House of Commons and the House of Lords, the Government of the United Kingdom, using the legal advice tendered by the Lord Chancellor, presented its actions as in conformity with international law.58 US suspicions that the British were not committed, despite rhetoric, to a peaceful settlement of the dispute, were confirmed when it was uncovered that the British were still engaged in some form of military planning in relation to Egypt.59 Even as the second London Conference was under way, a Special National Intelligence Estimate written by the CIA and intelligence organisations of the Department of State, Defense and the Joint Chiefs of Staff (JCS), speculated that it was possible, though unlikely, that Britain and France might exploit the Arab-Israeli conflict in order to

55 56 57 58

59

CAB 128/30 C.M. 73(56). CAB 128/30 C.M. 74(56). CAB 134/1216 C. M. 75(56); PREM 11/1129 Telegram from Foreign Office to the British Embassy in Jordan, October 30 1956, PREM 11/1129; House of Commons speech, October 30 1956, House of Commons Debates, 5th Series, Vol.557, cols. 1373-1378; House of Lords debate November 1 1956, House of Lords Debates, Vol. 199, col. 1350. Message from the Secretary of State to the President, August 2 1956, in FRUS-Suez, at 110.

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justify using force against Egypt.60 In the days leading up to the Israeli assault on Egypt, reports from the CIA and telegrams between Dulles and the US Embassy in London increasingly pointed to Israeli preparations for war, most likely against Egypt, and with the possible complicity of Britain and France.61 American suspicions of an Israeli attack were confirmed on October 29 when Israeli troops entered Egypt.62 Eisenhower recognised that Israeli, and subsequent British and French, action was unjustified and in violation of the UN Charter.63 Eisenhower wrote to Eden and Mollet urgently expressing his ‘deep concerns’ at the prospect of such and stressing the need for ‘peaceful processes’ to prevail to restore armistice conditions between Israel and Egypt.64 The rationale for the US position is best summed up by Eisenhower when he wrote: “There can be no peace – without law. And there can be no law – if we were to invoke one code of international conduct for those who oppose us- and another for our friends.”65 In a public address to the nation on October 3 Eisenhower stressed that “[t]he peace we seek and need means much more than mere absence of war. It means the acceptance of law…”.66 A draft US resolution in the Security Council called upon Israel to immediately withdraw its armed forces behind established armistice lines between Israel and Egypt, and called upon all members to refrain from the use of force or threat of force in the area in any manner inconsistent with the Purposes of the United Nations.67 Dulles, speaking in favour of the resolution stated: “…if the principle of [the] renunci-

60

61

62

63 64 65 66 67

Special National Intelligence Estimate “The Likelihood of a British-French Resort to Military Action Against Egypt in the Suez Crisis” September 19 1956, in FRUS-Suez, at 528. See also Telegram from the Embassy in France (Dillon) to the Department of State, October 6 1956, FRUS-Suez, at 654-655, and Secretary Dulles phone conversation, October 18 1956, cited in editorial of FRUS-Suez, at 745. Memorandum from the Director of the National Indications Center (Hitchcock) to the Intelligence Advisory Committee of the CIA, October 26 1956, in FRUS-Suez, at 787; Telegram from the Department of State (Dulles) to the Embassy in the United Kingdom, October 26 1956, in FRUS-Suez at 790; Telegram from the Department of State (Dulles) to the Embassy in France, October 29 1956, FRUS-Suez, at 815. This was also the same day that the USSR invaded Hungary. When Eisenhower heard the news of Israel’s attack on Egypt and knowing the intelligence suspicions of the role of Britain and France in the action, he was incredulous: “I just can’t believe it. I can’t believe they [Britain and France] would be so stupid as to invite on themselves all the Arab hostility to Israel.” President Eisenhower, cited in Richardson, above note 45, at 81. Memorandum from Eisenhower to Dulles, November 1 1956, in Goold-Adams, above note 28, at 209, 211. Message from President Eisenhower to Prime Minister Eden and Prime Minister Mollet, October 30 1956, in FRUS-Suez, at 866. President Eisenhower in ‘Radio and Television Report to the People on the Developments in Eastern Europe and Middle East’ in Public Papers of Dwight D Eisenhower, at 1966. Address to the Nation by President Eisenhower, October 3 1956, in Public Papers of Dwight D Eisenhower, at 2011. S/3710, US draft resolution, in UN Yearbook 1956, at 26.

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ation of force as a method of settling disputes is no longer respected, if a nation subject to injustice has the right to resort to force to correct that injustice, the UN Charter would be torn to shreds…”.68 Britain and France, using their veto power in the Security Council for the first time, ensured the resolution did not pass.69 The Security Council was eventually rendered powerless due to the veto power of the British and French who used their vote to ensure that two other resolutions proposed by the Soviet Union failed to gain passage.70 With the Security Council unable to act, the US supported a Yugoslav proposal to bring the matter before an emergency session of the General Assembly pursuant to the ‘Uniting for Peace’ procedure outlined in General Assembly resolution 337(V).71 Following the UN Charter obligation to refrain from the use of force and to restore international peace and security, the US introduced to the General Assembly a resolution calling on all parties now involved in hostilities in the area to agree to an immediate cease-fire.72 Dulles declared that “[t]he resort to force, the violent armed attack by three of our members [Britain, France and Israel] upon a fourth [Egypt], cannot but be treated as a grave error, inconsistent with the principles and purposes of the [UN] Charter…which renounces the use of force.”73 Two further resolutions were adopted: one a Canadian resolution to establish a United Nations Emergency force of peacekeepers to secure and supervise the cessation of hostilities; and a strongly worded General Assembly resolution authorizing the Secretary-General

68 69

70 71

72 73

Statement by Dulles, October 31 1956, cited in Bowie, above note 40, at 62. S/3710 was put to a vote on October 30 1956: seven votes in favour two against (United Kingdom and France) and two abstentions (Australia and Belgium) in UN Yearbook 1956, at 34. Even more oddly, voting on this resolution saw the US and Soviet Union voting on the same side. S/PV/749 (October 30 1956, No.749). General Assembly Resolution 377(V), November 3 1950. This manoeuvre is interesting when compared with its development and use during the 1950-1953 Korean War. Firstly, the procedure was devised by the Americans to circumvent any Soviet use of its veto in the Security Council but was now being used by the US against its own allies. Secondly, when the resolution was first proposed during the Korean War, the Soviet Union along with the PRC rejected the legality of this procedure. In this case the Soviet Union supported US efforts to invoke the resolution to move the issue of Israeli aggression against Egypt to the General Assembly. Later the PRC even supported moves which, for the first time, created a United Nations peacekeeping force constituted under the ‘Uniting for Peace’ emergency measures. General Assembly Resolution 997, adopted by the assembly November 2 1956, 64 in favour 5 against 6 abstentions. Statements by Dulles, November 1 1956, cited in Goold-Adams, above note 28, at 230.

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to gain the compliance of Britain and France to the first cease-fire resolution.74 On November 7, the British Cabinet decided to accede to the calls for a ceasefire.75

Comparing the Existing Empirical Literature on British and American Foreign Policy Behaviour During the Suez Crisis and its Theoretical Underpinnings With the Historical Record Let us now compare existing literature on British and American foreign policy behaviour during the Suez crisis and its theoretical underpinnings with the historical record. The analysis in this section will be expected to reflect on the adequacy of realist, positivist and functionalist theoretical perspectives underpinning existing accounts of British and American foreign policy decision-making and implementation during the Suez crisis.

Comparing the Literature on British and American Foreign Policy During the Suez Crisis Underpinned by a Realist Perspective With the Historical Record Literature on British and American foreign policy during the Suez crisis underpinned by realism has turned its attention to a myriad of political interpretations of British and American policy during the Suez crisis. This body of literature seeks to explain the failure to secure British foreign policy goals via the use of force, including: a lack of decisiveness on the part of Prime Minster Eden;76 failure to properly appreciate American intentions and misjudgment of the Anglo-American relationship;77

74

75

76

77

General Assembly Resolution 998, adopted by the assembly November 4 1956, 57 in favour zero abstentions 19 abstaining. Like adding salt to a wound, the US voted with the majority on this resolution rather than abstain from voting. CAB 128/30 C. M. 80(56). France also agreed to the cease-fire on the same day as Britain. Israel agreed to the ceasefire on November 8. This, however, was not the end. The ceasefire took another month to fully confirm, with the British attaching various conditions to its withdrawal. On December 3 Lloyd announced the full cease-fire of hostilities by the British and French. Within three weeks Britain received the desperately needed loan and aid package to forestall further damage to its economy which had been put under strain by the Suez affair. The US had leveraged this package against Britain promising to approve the financial aid package only if Britain agreed to end hostilities with Egypt. David Carlton Britain and the Suez Crisis (Blackwell: Oxford 1989) at 38; Thomas, above note 33, at 1; Anthony Verrier Through the Looking Glass: British Foreign Policy in an Age of Illusions (Jonathan Cape: London 1983) at 121. Carlton, Ibid., at 38; Richardson, above note 45; Freiberger, above note 11, at 12; Geoffrey Warner “Review Article: The United States and the Suez Crisis” International Affairs, Vol. 67(2), 1991, pp. 303-317, at 316; Lloyd, above note 37, at 253.

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limitations of the British institutional setting itself;78 a misguided priority to save British pride in the region;79 and failure to understand the significance of Nasser’s actions in the context of Middle East regional politics as opposed to its supposed influence on British power in the region.80 International law remains absent from the analysis. Some of the few who have explicitly mentioned international law with regards to the collusion plan have included Donald Neff, who noted the role of law in terms of its role as a ‘diplomatic nicety’,81 and Johnman, who set out the way in which law was ‘manipulated’ for policy ends.82 In his account of the early decision-making of the British Cabinet, Keith Kyle reinforced the notion of law providing a justification for State behaviour when he suggested that the “dictates of respectability required some legal cover” for the proposed policy of force against Egypt.83 According to Lawrence and Collins, the British action demonstrated how law does not constrain State behaviour, while the American response represented how “...the calculation of costs, risks and interest [is] couched in the language of the law.”84 Others, rather than noting international law explicitly, suggest the collusion was an attempt to ‘legitimise’ the British use of force.85 There have also been realist analyses of American foreign policy during the Suez crisis. In the bulk of these studies international law is entirely absent from the evaluation of political dimensions of American foreign policy during the Suez crisis. The American decision to oppose Britain is understood entirely in terms of America’s Cold War priorities to contain the Soviet Union in the Middle East.86 The apotheosis

78

79

80 81 82

83 84

85

86

Leon D Epstein British Politics in the Suez Crisis (Pall Mall: London 1964) at 32; Roy Fullock and Geoffrey Powell Suez: The Double War (Leo Cooper: London 1979) at ix; Keith Kyle “The Gulf War: Lessons of Suez” The World Today, Vol. 47, 1991a, pp. 416419, at 217; Keith Kyle Suez (Weidenfeld and Nicholson: London 1991b) at 8. Anthony Adamthwaite “Suez Revisited” International Affairs, Vol. 64, 1987-1988, pp. 449464, at 453; Nutting, above note 33, at 17; Anthony Eden Full Circle (Cassell and Company Ltd: London 1960). Lucas, above note 8. Donald Neff Warriors at Suez (Linder Press: New York 1981) at 315. Lewis Johnman “Playing the Role of a Cassandra: Sir Gerard Fitzmaurice, Senior Legal Advisor to the Foreign Office” in Saul Kelly and Anthony Gorst (Eds) Whitehall and the Suez Crisis (Frank Cass: London 2000) Kyle (1991b), above note 78, at 138. Wolfgang Friedman and Lawrence A Collins “The Suez Canal Crisis of 1956” in Lawrence Scheinman and David Wilkinson (Eds) International Law and Political Crisis (Little, Brown and Co: Boston 1968) at 121, 122. Roy Braddon Suez: Splitting of a Nation (Collins: London 1973) at 48; Ashton, above note 13, at 94; Lord Butler The Art of the Possible: The Memoirs of Lord Butler (Hamilton: London 1971) at 190; Nutting, above note 79, at 17; Kennett Love Suez: The Twice Fought War (Longman: London 1970) at 353. Dean Acheson Power and Diplomacy (Harvard University Press: Massachusetts 1958) at 110-111; D Cameron Watt “Demythologizing the Eisenhower Era” and Harold Beeley “the Middle East” in W M Roger Louis and Hedley Bull (Eds) The Special Relationship:

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of a realist analysis of international law is presented by Henry Kissinger, who criticized US policy during the Suez crisis for believing in “the notion that international relations could be exhaustively defined by international law [and]…unaffected by national interests or geopolitics or alliances.”87 Kissinger left intact the image of international law as a self contained, virtually comprehensive set of rules distinct from the operation of power politics, and preferred instead to criticise a policy which appeared to him to favour law over cold hard considerations of the national interest. Such a view is underpinned by a classic realist paradigm which incorporates the positivist rule-book image of international law and thus assumes that international law is either irrelevant to considerations of national interest or at best only a justification for policy made on the basis of power political interests. The historical record indicates clearly the inadequacy of literature on the Suez crisis underpinned by a realist perspective. The realist appraisal that law was of little relevance to either British or American foreign policy, beyond its capacity to justify foreign policy, appears to overlook the historical evidence that indicates international law had a more substantial influence on American and British foreign policy behaviour. In the case of British policy, the realist interpretation that international law was either irrelevant or a convenient cover for policy ends, somehow manipulated to justify policy, does not seem accurate. The historical record suggests that legal considerations were an important element taken into account by both British and American decision-makers in the formulation and implementation of foreign policy during the Suez crisis. Realism, with its emphasis on tangible manifestations of power, would predict that to the extent international law might factor in State behaviour it would be to justify policy where law supported the preferred course of action. Where the State is relatively less powerful and in a ‘weaker’ legal position – in that its preferred policy would more readily be deemed ‘illegal’ – realism would predict that law would be of little relevance to the process of policy formulation and implementation. A realist perspective would predict that international law would be irrelevant to a State where policy interests and law do not coincide, and especially where that State is competing against a relatively more powerful State and law is not a manifestation of realist defined tangible power. What a realist perspective cannot explain is the place of law in the behaviour of a State that was relatively less powerful and more readily deemed ‘illegal’ than the State with which it is in dispute, as was the case with Britain vis-à-vis the US during the Suez crisis. The historical record on American foreign policy behaviour during the Suez crisis also highlights the inadequacy of realist analyses of US foreign policy during the Suez crisis. It is a realist analysis that assumes that, to the extent law might feature in State behaviour, law follows the formulation of policy: policy predates legal considerations. Only where there might be a coincidence between the rules of inter-

87

Anglo-American Relations Since 1945 (Clarendon Press: Oxford 1986); Ashton, above note 13; Freiberger, above note 11. Kissinger, above note 10, at 544.

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national law and a State’s preferred policy might law be useful in terms of its capacity to justify behaviour determined on other political grounds. It is certainly true that the chosen US policy was much closer to what might be classified as ‘legal’. However, the historical record suggests that the relationship between international law and US foreign policy-making and implementation was more complex than simply finding the relevant law with which to justify the preferred policy.

Comparing the Literature on British and American Foreign Policy During the Suez Crisis Underpinned by a Positivist Perspective With the Historical Record Literature on the Suez crisis underpinned by a positivist perspective does not aim to understand the relationship of international law to foreign policy per se, but focuses on assessing British actions in terms of a legal-illegal categorization. This reflects a positivist perspective which assumes that States should comply with an objective, politically neutral set of rules, which can be applied to all foreign policy challenges. Political considerations therefore need not, in fact should not, be taken into account. Literature underpinned by a positivist perspective focuses on the various legal issues relating to the British action to use force against Egypt. Some authors have contended that the nationalisation of the Suez Canal Company contravened the 1888 Constantinople Convention establishing the company and guaranteeing the operation, maintenance and safety of the waterway. The use of force it is contended was legal in this case to secure the rights of users to free navigation of the canal.88 Others have argued that the nationalization of the canal was legal. As the Suez Canal Company was strictly an Egyptian company, which Egypt had every right to nationalise, Britain’s use of force was illegal.89 Another argument has suggested that the AngloFrench use of force was not properly legal and a more appropriate means of resolving the dispute would have been recourse to either the International Court of Justice or the mechanisms of the United Nations for a peaceful solution to the dispute.90 Wright has gone further to describe the use of force by Britain (and France and Israel) as an act of aggression with no legitimate justification whether as self-defense or to

88

89 90

Thomas T. K. Huang “Some International and Legal Aspects of the Suez Canal Question” American Journal of International Law, Vol. 51, 1957, pp. 277-307, at 278; Norman J Padelford “The Panama Canal and the Suez Crisis” Proceedings of the American Society of International Law, April 225-27 1957, pp. 10-20, at 15, 17. Robert Delson “Nationalization of the Suez Canal Company: Issues of Public and Private International Law” Columbia Law Review, Vol. 57(6), June 1957, pp. 755-786, at 784-785. George A Finch “Navigation and the Use of the Suez Canal” Proceedings of the American Society of International Law, April 25-27 1957, pp. 42-56, at 44-46, 48-49. For a more forceful statement by the same author on the illegality of Anglo-French intervention, see “Post Mortem on the Suez Crisis” American Journal of International Law, Vol. 51, 1957, pp. 376-380.

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secure freedom of navigation.91 Yet Goodhart has argued that Britain was entitled to intervene to protect what it regarded as a vital national interest.92 The influence of a positivist framework can also be elucidated as much by what has been overlooked as by what has been implied or expressed stated. For instance, there has been no analysis of the legal status of the US position during the Suez crisis. The US appeal to ‘peaceful measures’ by which to counter both Britain’s intentions and actual use of force, was uncontroversial in that there appeared to be no dispute as to its legality. The importance of law for peace was best summed up by Eisenhower when he stated: “there can be no peace – without law.”93 The notion that if all States obeyed law there would be world peace, is underpinned by a positivist outlook that assumes an objective, politically neutral set of rules with which States should comply. When a State assumes a ‘peaceful’ policy its position more readily accords with action considered ‘legal’ and is thus uncontroversial from the perspective of positivism. An examination of the historical record reveals that literature underpinned by positivist assumptions appears inadequate in explaining the place of international law in British and US foreign policy decision-making and implementation during the Suez crisis. The co-existence of legal and political considerations contradict the positivist assumption that States should comply with international law, a notion that implies the possibility of being able to objectively determine what action is legal and what is illegal. Yet, the historical record suggests it was not even clear which law British decision-makers were to comply with, as evidenced by the fact that opinions on the questions differed among policy-makers themselves. A positivist perspective leads us to anticipate that a State whose preferred course of action would be more readily deemed ‘illegal’ – as was the case with the British position during the Suez crisis – should modify its policy so as to comply with the dictates of international law irrespective of other political considerations. Yet the fact that British policy-makers were taking both legal and political considerations into account in the process of policy formulation suggests that international law did not provide the ‘solution’ to British decision-makers as to how to act, a solution in compliance with the dictates of international law. But British policy-makers did take account of, and make reference to, international law in both the process of foreign policy decisionmaking and implementation during the Suez crisis. It would also be expected that the solution to the dilemma of how to act would be easiest for the State whose preferred course of action is more readily deemed

91

92 93

Quincy Wright “Intervention 1956” American Journal of International Law Vol. 51 1957, pp. 257-276, at p. 273. Geoffrey Marston “Armed Intervention in the 1956 Suez Canal Crisis: the Legal Advice Tendered to the British Government” International and Comparative Law Quarterly, Vol. 37(4), 1988, pp. 773-817, at 800-801. Wright, Ibid., at 252. ‘Radio and Television Report to the American People on the Developments in Eastern Europe and Middle East’ in Public Papers of Dwight D Eisenhower, above note 30, at 1966.

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‘legal’. It would be expected that a State in a stronger legal position would act in accordance with international law unhindered by political considerations. The historical record on the place of international law in US foreign policy decision-making and implementation during the Suez crisis suggests that the determination of how to respond to Britain’s desire to use force against Egypt was not simply a question of choosing that which was unequivocally ‘legal’. While the preferred course of US policy was more readily deemed legal, both legal and political considerations factored strongly in the determination of US policy. What remains unaccounted for and which positivism cannot adequately explain is the place of international law in British and American foreign policy and formulation, other than in terms of compliance with international law, which presupposes the existence of legal considerations prior to, and independent of, other policy considerations.

Comparing the Literature on British and American Foreign Policy During the Suez Crisis Underpinned by a Functionalist Perspective With the Historical Record Literature on British and American foreign policy during the Suez Crisis underpinned by a functionalist perspective looks at international law and the political functions that law played in the respective foreign policies of the various actors involved in the Suez crisis. According to Bowie, law was important during the Suez crisis even if it did not entirely ‘control’ the behaviour of State actors. Rather, “…law was made operative largely to the extent that the parties conformed to it or utilized it as an instrument of policy to demand, defend or define policy positions.”94 The US not only conformed to international law itself in seeking a peaceful settlement to the Suez dispute but it also sought to “induce compliance with [international law] by the other parties to the dispute [Britain, France, Egypt]”95 through the application of US pressure. Britain on the other hand could not speak publicly of the desire to rid Egypt of Nasser and focused instead on the canal “to justify their demands regarding the canal in terms which would appear legitimate to others.”96 Henkin has suggested that law did have some influence on the decision of British decision-makers to pursue peaceful means first, rather than use force as an initial response to news about the nationalisation of the Suez Canal Company.97 Ultimately, however, when Great Britain and her allies used force “…international law failed in its primary purpose: to maintain order by deterring violations of agreed norms.”98 Yet, Henkin argued,

94 95 96 97 98

Bowie, above note 40, at 115. Ibid., at 100. Ibid., at 103. Louis Henkin How Nations Behave: Law and Foreign Policy 2nd Edition (Columbia University Press: New York 1979) at 257. Ibid.

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law was ultimately vindicated despite its violation when the violations were judged and condemned by much of the world, the unlawful actions undone, and the law of the UN Charter reaffirmed.99 Functionalist analyses of the Suez crisis have usefully gone beyond the approaches of positivism and realism to the extent of recognising the political functions that law played in British and US policy during the Suez crisis. However, functionalists continue to assume that international law operates according to the positivist rule-book image of international law, and do not abandon entirely the realist dichotomy between power politics and law. While international law may indeed play the political functions that functionalists have identified in the Suez crisis, by not eschewing positivism and realism entirely, functionalists cannot go further to explain how international law can be used strategically by the US and Britain. From the historical record it would appear that empirical accounts of the Suez crisis have provided an incomplete account of the influence of international law on British and American foreign policy behaviour during the Suez crisis. The historical record would seem to indicate a far more complex picture, in which international law did feature strongly in American and British decision-making and diplomacy was an important political mechanism through which both British and American foreign policy objectives were pursued during the crisis. This story, which has not been apparent in existing accounts of the Suez crisis, can be largely attributed to the theoretical underpinnings of those accounts reflecting the inadequacy of realist, positivist and functionalist explanations of the relationship between international law and State behaviour.

Understanding the Relationship Between International Law and State Foreign Policy Behaviour During the Suez Crisis From an ILI Perspective Let us now test the expectations of an ILI perspective against the historical record to assess the relative theoretical efficacy of an ILI perspective as compared with positivist, realist and functionalist analyses of US and British foreign policy decisionmaking during the Suez crisis. An ILI perspective would lead us to expect a State to make strategic use of international law by, first, recognizing the need to uphold as strongly as possible the ideology of international law and so reconcile this with other policy considerations in the process of policy formulation. We would thus expect both Britain and the US to have taken international law into consideration during the process of policy formation. Indeed, British officials recognised early on in the crisis that Egypt’s position was more or less ‘legal’ under the terms of the 1888 Convention regulating the Suez

99

Ibid., at 265.

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Canal.100 As the Americans and some inside Whitehall recognised, nationalisation of the canal by itself did not justify using force, at least not until peaceful measures to resolve the dispute over the status of the canal had been explored.101 British officials were therefore in a difficult position insofar as reconciling their preferred position with international law in such a way as to persuade the US to support (or at least acquiesce to) their chosen course. While there did not appear to be anything in international law on which to base their action, British policy-makers built a case for using force against Egypt that could appear ‘legal’. Thus British decision-makers undertook a number of measures, including participating in two diplomatic conferences initiated by the US and attempting to engineer congestion on the canal, so as to be able to present its eventual use of force against Egypt as ‘legal’. Even Britain’s collusion with France and Israel was an attempt (albeit misguided) to reconcile the political necessity to use force with the necessity to appear ‘legal’. Eden was insistent that Britain would not intervene unless Israel undertook action that clearly threatened the safety of the canal.102 As Lloyd noted, only a real act of war could precipitate Britain’s entry so as to ensure that her entry was not related to the nationalisation of the canal but to Israel’s actions threatening the safety of the canal and the lives of nationals.103 Only then could it be possible to present the British position as ‘legal’. This suggests that even a State relatively less powerful than its competitor (as the UK was against the US) seeks to uphold the ideology of international law. Moreover, even if a State’s preferred policy may be more readily deemed ‘illegal’, as was the case with the UK, it is possible to uphold the ideology of international law (even if not very strongly). This is significant as it suggests that the rule-book image of international law is more politically important than realists have assumed. International law would appear to be of strategic importance for all States in the pursuit of political goals, regardless of whether the State is ‘powerful’ in realist terms and regardless of whether the State’s position is more readily deemed ‘legal’. For the US it was much easier to reconcile international law with other policy considerations. The US policy goal of forestalling and later seeking to end Britain’s use of force against Egypt was a position more easily supported by existing international law, given that the use of force is illegal except in self defence – a situation which did not accord easily with Britain’s potential use of force against Egypt. In canvassing the means by which to forestall and eventually end the British use of force,

100

101

102 103

CAB 128/30, Part 2, (C.M 54(56)); Memorandum by Selwyn Lloyd on August 18 1856. CAB 134/1217 (E.C. (56) 26, at 136-137 and CAB 134/1216, (Confidential Annex to E. C. (56) 20th Meeting, Minute 1. Letter from President Eisenhower to Prime Minister Eden, 31 July 1956, in FRUS-Suez, at 70; Minute from Sir Gerard Fitzmaurice to H Beeley (Assistant Under-Secretary of State at the Foreign Office), 10 August 1956. FO 731/119727 (JT 1053/89G). Above note 53. Above note 53.

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decision-makers took account of the likely British responses, benefits to US interests and considerations of legal advantage. The place of international law in US State behaviour during the Suez crisis was not one of working out how to act legally or comply with international law. An ILI perspective points to the distinction between complying with international law and upholding the ideology of international law. An ILI perspective would also anticipate that if States are to make strategic use of international law, they would compete with each other to uphold the ideology most strongly and to do so while recognising the discrepancy between the ideology and reality. It would be expected that the State that gains political advantage is likely to have best used the discrepancy to its advantage. Given that the preferred US position was more readily deemed ‘legal’, it was much easier for the US to compete with the UK to draw more strongly on the ideology of international law by establishing a binary distinction between the legality of US behaviour and the illegality of the British position. The US had at its disposal a basis in existing international law on which they could claim a right to restrict British actions: the UN Charter obligation for all States to settle their disputes peacefully. US officials attempted to forestall possible British and French use of force by making frequent reference to the burden of responsibility placed on all States in the international system by the UN Charter to pursue all possible means for a peaceful settlement before the use of force is employed.104 Once Britain did use force, a similar argument was used by the US when it led efforts in the General Assembly in support of a resolution calling for a ceasefire between Egypt and the Britain-FranceIsrael alliance. Such statements served to establish a clear binary distinction between the legality of the US position – reinforcing the idea that international law is compulsory – and the illegality of the British position both before and during its use of force against Egypt. The discrepancy between the idea and reality of international law was well recognised by decision-makers in their internal interaction with each other in the process of policy planning. Eisenhower recognised that invading Egypt simply because it nationalized a company ‘would be interpreted by the world, as power politics…’105 preferring instead to pursue a diplomatic strategy which enabled US officials to speak of ‘peaceful’ and thus lawful action. Discussions of the details of diplomatic strategies such as the first London conference and SCUA were also interpreted in terms of the political advantage they provided during the policy planning stage. Forestalling Britain’s use of force against Egypt preserved the status quo in the Middle East avoiding the possibility of further Soviet encroachment in the region. The London conferences were also beneficial to the US in controlling the involvement of the

104

105

See for example, Letter from President Eisenhower to Prime Minister Eden, 31 July 1956, in FRUS-Suez, at 70; Memorandum of a Conversion between Dulles (US Secretary of State), Lloyd (UK Foreign Secretary) and Pineau (Foreign Minister of France), October 5 1956, in FRUS-Suez, at 642. See, above note 25.

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United Nations in the scenario until such a time as it suited US interests. The London conferences were believed to also have the advantage of avoiding the establishment of an unwelcome precedent of UN involvement in disputes over the status of waterways thus avoiding the possibility of UN involvement in any future dispute over the Panama Canal, where important US interests were perceived to be at stake.106 In public rhetoric no mention was made of such interests, only that the initiatives facilitated States meeting their obligations under international law to resolve disputes peacefully. US recognition and use of the discrepancy between the idea and reality of international law is also evident when we examine US decision-making and legal rhetoric in response to Britain’s use of force. The US opposed Britain’s use of force, fearing repercussions of such action to US interests in the Middle East. In this case, US interests in opposing Britain’s use of force against Egypt were not distinct from international law, which prohibits the use of force except in self defence under Article 51 of the UN Charter, or through Security Council authorisation under Article 39 of the UN Charter, neither of which were met by Britain’s use of force. US rhetoric made no reference to its political interests in preventing Britain’s use of force against Egypt and instead focused on the legal case against Britain’s use of force. Thus US rhetoric stressed the illegality of Anglo-French-Israeli military action against Egypt. Statements by US representatives made reference to the use of force being a violation of the UN Charter or a violation of the rule of law in international relations.107 Such statements served to reinforce the possibility of distinguishing objectively between legal and illegal action. US efforts in the UN in support of a General Assembly resolution calling for a ceasefire and an end to hostilities108 was not justified on the basis of using any means necessary to pursue US national interests to stop Britain’s use of force. Rather such efforts were justified on the basis that the US was supporting the rule of law and seeking to restore international peace and security pursuant to the UN Charter, which reinforced the notion of the compulsory obligation of States to comply with international law. US statements made a relatively stronger reference to the ideology than British statements, as there were no instances where American statements indicated the discrepancy between the idea and reality of international law. American representatives in their public rhetoric and private statements with British officials never once pointed to the discrepancy between the idea and reality of international law, though of course it was much easier not to point to the discrepancy since the US position was one more readily deemed ‘legal’. British decision-makers also recognised the discrepancy in the process of policy formulation – although they were unlikely to have thought in these terms – but were

106 107 108

See comments by Dulles in above note 30 and 38. Message from President Eisenhower to Prime Minister Eden and Prime Minister Mollet, October 30 1956, in FRUS-Suez, at 866; UN Doc S/3710, October 30 1956. Resolution 377(V) (UN DOC S/PV/750).

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less successful in using the discrepancy to gain political advantage. Very early on in the crisis, British decision-makers recognised that the Egyptian nationalisation of the Suez Canal was not strictly illegal and as such Egypt was never overtly accused of acting illegally in nationalising the canal. Instead British officials focussed on what UK Foreign Minister Selwyn Lloyd called ‘wider international grounds’109 which could establish a binary distinction between the legality of UK action and the implied illegality of Egypt’s position. In the process of formulating policy, British decisionmakers recognised that international law is not entirely distinguishable from politics. Participating in the two London conferences and negotiations with Egypt in the Security Council was not distinct from British political interests in participating in such initiatives. It was anticipated that such efforts were likely to fail and bring Britain closer to the aim of using force against Egypt with US support or acquiescence.110 Publicly of course British representatives continued to reinforce the notion that international law is somehow separate from, and superior to, politics, and that the rules of international law are compulsory. Thus British representatives couched their government’s participation in negotiations at the London conferences and in the Security Council in terms of the UN Charter obligation that States pursue peaceful measures short of the use of force to resolve their disputes. Britain’s recognition and use of the discrepancy between the idea and reality of international law is also evident in the process by which its officials formulated the collusion plans. The collusion with France and Israel intended to create a situation that might provide Britain with an opportunity to use force against Egypt to safeguard its perceived national interests in Egypt and secure US support or acquiescence for the action. Recognition of the indeterminacy of legal argument is evident in that as collusion planning proceeded the legal argument in support of the action being planned was still being worked out. Yet the public legal justification Britain relied on – that the action was necessary in order to prevent danger to shipping through the canal, to protect the lives of nations, and to prevent damage to the canal itself111 – reinforced the possibility of objectively distinguishing between legal and illegal action.

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Memorandum by Selwyn Lloyd on August 18 1856. CAB 134/1217 (E.C. (56) 26, at 136137 and CAB 134/1216, (Confidential Annex to E. C. (56) 20th Meeting, Minute 1. Action by Egypt that would allow for the use of force on ‘wider international grounds’ included either: an attack on or interference with British warships; an action endangering the lives of British subjects generally; refusal to let a British ship pass through the Canal because it had not paid dues to the new Egyptian authority; or seizure or gross interference with the base installations. Harold Macmillan Riding the Storm 1956-1959 (Harper and Row: New York 1971) at 104. Later in this same volume he writes: “I admit that my judgement was wrong. I felt that the American Government, while publicly deploring our action, would be privately sympathetic, and thus content themselves with formal protests.” (at 149). CAB 134/1216 C. M. 75(56); PREM 11/1129

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Removing the dualism between the idea and reality of international law can explain why British policy-makers did deem it important to have some legal justification, even if not very convincing, for the decision to use force. The influence of international law on British foreign policy behaviour was not one of working out how to act legally as a positivist might expect. Once British policy-makers believed that their actions could be described with some legal justification, they felt free to pursue what appeared otherwise to be strongly in their interests. Removing the dualism between the idea and reality of international law would also appear to provide a fresh perspective of what is traditionally regarded by realists as the cynical exploitation of international law to cover political action. After all, to cynically exploit international law would at least require that there be some coincidence between the preferred course of action and international law, which was not the case with the British position. It is now apparent that British decision-makers were not simply using international law to justify British policy but, from an ILI perspective, were drawing on the ideology of international law strategically so as to persuade the US to leave them free to use force against Egypt. International law acted as an integral strategic component in the pursuit of a specific British policy goal – to have the US support or acquiesce to Britain’s desire to use force against Egypt. British representatives were, however, unable to take full advantage of legal rhetoric in the pursuit of this goal. By stressing the importance of States pursuing all peaceful measures before using force, the US was able to persuade Britain to play its part in upholding the idea that international law is compulsory for all States. The UK Government only began pursuing a (grudging) policy of peaceful settlements once US representatives, including President Eisenhower and especially Secretary of State Dulles, made very clear the official US position against any use of force to resolve the Suez dispute.112 Eden hoped that Nasser would reject participating in the two diplomatic conferences, and having satisfied all peaceful means of settling the Suez dispute, leave Britain free to use force and appear in the ‘legal’ right.113 Rather than argue the merits of using force on legal terms of their own choosing, UK Government officials were persuaded to delay their use of force and pursue political solutions through diplomatic conferences. They did so in the hope of persuading US officials to leave them free to use force – either by explicit support or at least by US acquiescence and non opposition to such action – once all other avenues for a peaceful resolution of the dispute had been exhausted. Even in the desperate collusion with France and Israel,

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On August 1 Eden was still insistent with Dulles on the need for “prompt forcible action”. See Foster Dulles Memo 1 August 1956. See Memorandum of a Conversation between Prime Minister Eden and Secretary of State Dulles, August 1 1956, in FRUS-Suez, at 98. On August 2 after Dulles had met with Lloyd and Pineau (Foreign Ministers of Britain and France respectively) plans for the first London Conference were settled. See LloydPineau-Foster Dulles meetings, cited in, above note 23, at 52. Nutting, above note 33, at 53; Thomas, above note 33, at 64.

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British officials hoped they could present their action to the world, and in particular the Americans, in a way that appeared consistent with the rules of international law. Despite attempting to appear in the ‘legal’ right, there were several instances in which British representatives, while upholding the ideology of international law through statements that made reference to international law, did so relatively weakly by highlighting the discrepancy between the idea and reality of international law. British legal rhetoric was thus unable to persuade US officials not to oppose or at least acquiesce to Anglo-French intentions to use force. For example, private discussions between British and American officials undermined British efforts to use the ideology to influence the US to support its position. Despite public rhetoric committing to peaceful measures to resolve the Suez dispute – in the hope failure would lead to the use of force with US support – senior British officials including Eden and Macmillan suggested to American officials that they were prepared to do anything ‘to get rid of Nasser’.114 It would seem that such candour was the result of the perceived ‘special relationship’ that was thought to exist between the two countries. Yet despite being close allies, Britain and America had opposing views on how to act in response to Egypt’s nationalisation of the Suez Canal. British officials aimed to secure (at best) support or (at least) acquiescence from the Americans in relation to joint British military action with the French against Egypt. It was difficult to speak of force as a last resort and the compulsory obligation of all States to pursue peaceful measures while showing no diminution in the desire to use force. Doing so would appear to have highlighted the discrepancy between the idea of international law and reality, undermining the ability to use international law for political advantage – in this case to be left free to use force against Egypt. The US was not taken in by UK legal rhetoric. A more skilful use of international law by the Americans, which did not highlight the discrepancy between the image and reality of international law, served US interests. The US was able to use the ideology to wield influence over the policy choices of rival States in a way that suited US interests. Strong reference to the ideology of international law was one component of US power during the Suez crisis: international law was a significant factor contributing to a positive policy outcome for the US during the crisis. This case study thus also provides a new perspective on American legal rhetoric during the Suez crisis and the relative political utility of that rhetoric. There is no doubt that the US, being the stronger of the two, was able to exert a greater influence over Britain than vice versa.

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See for example, Telegram from Embassy in the United Kingdom (Walworth BarbourMinister Counselor of the Embassy) to the Department of State, in FRUS-Suez, at 61.

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Conclusion The analysis in this chapter affirms the empirical efficacy of an ILI perspective as compared with realist, positivist and functionalist perspectives in accounting for the place of international law in US and UK State behaviour during the Suez crisis. An examination of the historical record from an ILI perspective also reveals what has not been apparent before: that a relatively powerful State whose preferred policy might more readily be deemed ‘legal’, as was the case with the US, did not simply use international law to justify their policy as realists suggest, or comply with international law as positivists and functionalists suggest. Law was integral to the process of US foreign policy decision-making and implementation during the Suez crisis. Moreover, it is also now apparent that a relatively less powerful State whose preferred position is more readily deemed ‘illegal’ than its rival, as was the case with the UK, can draw on international law for political advantage, albeit in this case less successfully than the US. This is a new finding that goes beyond the realist prediction that in ‘high’ politics scenarios such as the use of force, international law is irrelevant to relatively less powerful States where there is no coincidence between political interests and international law. The analysis in this chapter thus also adds to existing historiography on the relationship between international law and State behaviour during the Suez crisis, which has overlooked the place of international law in US and British decisionmaking and implementation, and the place of international law in the process of diplomacy between the US and the UK during the Suez crisis.

CHAPTER FIVE THE PLACE OF INTERNATIONAL LAW IN STATE BEHAVIOUR DURING THE CUBAN MISSILE CRISIS1

In the previous chapter we looked at a scenario where the State aiming to use force is less powerful and whose preferred policy would more readily be deemed ‘illegal’ than the rival State seeking to oppose the use of force. This chapter will examine the third case study, focussing on the Cuban Missile Crisis (CMC). In the CMC the US responded to the secret Soviet deployment of medium and long range missiles to Cuba with a blockade on Soviet ships to Cuba and a threat to escalate to an overt use of force if the Soviet Union did not stop the deployment of its missiles to Cuba. The Soviet Union was faced with the prospect of opposing this threat of force by either negotiating an end of the crisis or escalating the conflict. The CMC involves a scenario in which the State employing threats of force, the US, was relatively more powerful but whose preferred policy would more readily be deemed ‘illegal’ than the State responding to the threat of force, which in this case was the Soviet Union. This chapter will proceed by first outlining the historical background to, and geopolitical context of, the CMC. The chapter will then examine the historical record of the influence of international law on American and Soviet State behaviour during the CMC. The chapter will then compare the historical record against existing empirical studies of the CMC and its theoretical underpinnings to assess the adequacy of rival theoretical explanations in accounting for the relationship of international law to US and Soviet Union foreign policy behaviour during the CMC. Finally, the chapter will analyse the historical record from an ILI perspective, to assess the relative empirical efficacy of an ILI approach in explaining the historical record.

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Parts of this chapter have also formed the basis of previously published work. See Shirley V Scott and Radhika Withana “The Relevance of International Law for Foreign Policy Decision-making When National Security is at Stake: Lessons from the Cuban Missile Crisis” Chinese Journal of International Law, Vol. 3(1), 2004, pp. 163-187.

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Background to the Crisis The Cuban revolution was close to four years old when the CMC began. Fidel Castro had consolidated his power internally, having within a year of his victory over the Batista dictatorship resolved any ambiguity about his relationship to communism. Mutual hostility between Castro and the Americans, signalled by declining American economic assistance to Cuba, an American trade embargo on Cuba and the failed Bay of Pigs invasion in 1961 by Cuban refugees trained by the CIA and sanctioned by President Kennedy, removed any basis for accommodation. Within three years of the revolution the Cuban economy (almost entirely dependent on American trade prior to 1959) was effectively integrated into the Soviet bloc. Furthermore, Soviet arms defended Cuban soil, which lay a mere 90 miles off the Florida coast. It was this presence of Soviet arms in Cuba, especially the subsequent Soviet deployment of missiles to Cuba that triggered the crisis. These developments took place against the backdrop of another serious Cold War confrontation between the two superpowers that had yet to be resolved at the time of the missile deployment to Cuba: the dispute over the status of West Berlin. Since 1949 Berlin had been split into two opposing sides: Soviet occupied East Berlin and Allied occupied West Berlin. By 1958 Khrushchev was demanding the withdrawal of the Allied powers from West Berlin and the handing over of the city to the Soviet allied German Democratic Republic. In 1960, talks were scheduled in Paris between Khrushchev and Eisenhower; however, with the shooting down of a US reconnaissance plane 11 days prior to the conference, the talks collapsed. They were not resumed until June 1961 when newly elected President John F Kennedy met Khrushchev for the Vienna summit between the two leaders. This meeting resolved nothing and the Berlin issue remained unresolved at the time of Soviet military activity in Cuba. Furthermore, the issue of American missile bases in Turkey and Italy – in the figurative backyard of the Soviet Union – continued to occupy Khrushchev’s mind. It was in this geopolitical context that the CMC took place. For the Soviet Union the decision to deploy missiles to Cuba was inspired not only by the desire to deter an attack on its new ally and to redress the strategic imbalance between the US and the Soviet Union with respect to the ‘nuclear’ gap, but to “remind Washington of Soviet power.”2 The American response to the deployment of missiles to Cuba was grounded in a mixture of the old Monroe Doctrine and the new Cold War strategic priorities. The Monroe Doctrine had compelled American leaders since its inception in the ninetheenth century to resist all powers outside the Western Hemisphere from gaining entry into the region. The Cold War heightened this imperative to resist the entry of foreign communist powers into the region.

2

Aleksandr Fursenko and Timothy Natfali One Hell of a Gamble: Khrushchev, Castro, and Kennedy, 1958-1964 (W. W. Norton and Company: New York 1997) at 183.

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By the (northern) summer of 1962, enough Soviet hardware and personnel had arrived in Cuba to alarm the US administration. American suspicions were further increased when Castro announced on September 25 1962 that a port was being built in the Bay of Havana ostensibly for the Russians to harbour their Atlantic fishing fleet. By August 20 US reconnaissance had revealed an increase in the flow of Soviet shops to Cuba suspected of carrying Soviet military equipment and personnel.3 U2 over-flights revealed that eight Surface-to-Air (SAM) missile sites were under construction.4 By October 16 evidence emerged of the extremely rapid construction of a Soviet medium-range-missile base in Cuba.5 This marked the beginning of the crisis for the US, triggering the mobilization of the Kennedy administration decisionmaking processes manifested in, though not limited to, the Executive Committee (Excomm) of the National Security Council.6 Astonishingly, given the propensity

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[CIA Director McCone] ‘Memorandum on Cuba’, August 20 1962, in Mary S McAuliffe CIA Documents on the Cuban Missile Crisis 1962 (CIA: Washington DC 1992) at 139-147. Herein after referred to as CIA Documents. See also Robert Beggs Flashpoints: The Cuban Missile Crisis (Longman: London 1971) at 14-15. Memorandum ‘U-2 Overflights of Cuba 29 August through 14 October 1962’, in CIA Documents, at 127. CIA Memorandum, ‘Probable Soviet MRBM Sites in Cuba’, October 16 1962, in CIA Documents, at 139-147. President Kennedy (secretly) recorded these Excomm meetings which have since been transcribed and forms one of the documentary sources on which this case study draws. See, Ernest R May and Philip D Zelilow (Eds) The Kennedy Tapes: Inside the White House During the Cuban Missile Crisis (Belknap Press: Cambridge MA 1997). Herein after referred to as The Kennedy Tapes. Key members of the Excomm included: President Kennedy, Vice-President Lyndon Johnson; Dean Rusk, Secretary of State; George Ball, Under Secretary of State; Llewellyn Thompson, former Ambassador to the Soviet Union; Aldai Stevenson, US representative to the UN; Robert McNamara, Secretary of Defence; Theodore Sorensen, President Kennedy’s personal assistant; McGeorge Bundy, National Security Adviser; Douglas Dillon, Secretary of the Treasury; and Robert Kennedy, Attorney-General. Excomm met between October 16-29, 1962. Elizabeth Kohn has suggested that Excomm was important mostly for its role in reinforcing and validating decisions reached by President Kennedy outside Excomm. She notes that military planning for a blockade had begun as early as October 1, 1962, well before the Excomm had been convened. See Elizabeth Kohn “President Kennedy’s Decision to Impose a Blockade in the Cuban Missile Crisis: Building Consensus in the Excomm After the Decision” in James A Nathan (Ed) Cuban Missile Crisis Revisited (St Martins Press: New York 1992) at 219. This is not surprising since pre-planning can be dated as far back as May 22, 1962, when Robert Kennedy asked his Assistant Attorney-General Norbert Schlei to investigate the legal basis on which action might be taken if the Soviets were to install long range missiles in Cuba. See, Letter from Norbert Schlei to Abram Chayes dated May 22 1968, reprinted in, Abram Chayes The Cuban Missile Crisis (Oxford University Press: London 1974) at 132. See also Norbert A Schlei, recorded interview by John Stewart, February 20-21 1968, at 6, John F Kennedy Presidential Library Oral History Project. Despite planning and decisions made pre-Excomm noted by Kohn, examination of Excomm decision-making during the actual crisis period, when real evidence for the deployment of Russian missiles

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of leaks to the press from US Government departments (then and now), the innercircle of Kennedy’s team was able to keep secret their awareness of the deployment of missiles while deciding on how to respond. On October 23 1962, a naval quarantine on ships bound for Cuba carrying offensive weapons was announced, declaring to both the world, and in particular the Soviets, American knowledge of activities in Cuba. A few days later, in one of the most dramatic meetings in the history of the UN Security Council, the US Ambassador to the UN, Adlai Stevenson, confronted the Soviets and presented to the world evidence of missiles in Cuba. Following the implementation of the quarantine, Kennedy and Khrushchev as well as members of their respective administrations worked through a series of diplomatic negotiations which diffused the crisis, resulting in the dismantling and removal of all Soviet missiles from Cuba. The CMC has been considered the closest the world has come to nuclear war and represented the height of Cold War tensions. The dilemma faced by US President John F Kennedy and Soviet Premier Nikita Khrushchev has been described as being “like a man in a field between a swarm of bees and herd of bulls. He knew if he took a false step, he’d be stung to death or trampled to death. Or both.”7 For those involved on either side it was the most difficult of their experience in government.8 Let us now examine the historical record as found in archival and other sources regarding the role of international law in the process of US foreign policy decisionmaking and the role of international law in US-Soviet diplomacy during the CMC.

7 8

to Cuba was found, serves as an important primary source of internal debates involving international law and national security issues. From the film ‘The Missiles of October.’ Robert Kennedy is quoted by Dobrynin as saying that “…today I will finally be able to see my kids, for I have been entirely absent from home.” See Telegram from Soviet Ambassador to the USA Dobrynin to USSR MFA, October 28 1962 in “Foreign Ministry Documents” Cold War International History Bulletin, Issue 5, Spring 1995, pp. 63-77, at 76. Herein after referred to as CWIHP, Issue 5. In his memoir, Dobrynin also described the stress he felt and also witnessed in Robert Kennedy and others during the CMC. See passim Anatoly Dobrynin In Confidence: Moscow’s Ambassador to America’s Six Cold War Presidents (1962-1986) (Times Books: New York 1995). Khrushchev also noted how worried he was throughout the period. See Jerold L Schecter and Vyacheslac V Luchkov (Eds) Khrushchev Remembers: The Glasnost Tapes (Little, Brown and Company: Boston 1990) at 172.

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The Historical Record of the Influence of International Law on American and Soviet State Behaviour During the Cuban Missile Crisis From late July 1962 US intelligence had noted changes in the quantity of Soviet deployments of military aid to Cuba.9 While there was no evidence yet of any installation of long range surface to surface missiles with nuclear capacity, the US Government moved to issue a warning to the Soviet Union that the US would not tolerate the installation of long range missiles. With this in mind the Attorney-General Robert Kennedy asked Assistant Attorney-General Norbert Schlei to do “…a serious study of whether the United States, could as a matter of international law, take action to prevent long-range missiles from being installed in Cuba, and perhaps of what form that action might take.”10 The first legal advice tendered on the subject noted that the US could take forcible action if necessary to prevent the installation by the Soviet Union of offensive weapons in the Western Hemisphere under the principle of self-defence in Article 51 of the UN Charter. It was also noted that it would be extremely difficult to defend legally if the US acted unilaterally and it would be important to involve the Organisation of American States (OAS) in support of such action. On the matter of the particular type of action to be taken, the central determinant was whether any intended action conformed with the principle of proportionality.11 The action would be legal so long as it was closely related to the threat and was the least aggressive, least violent, narrowest response adequate to meet the threat. The shipment of missiles, it was suggested, could be met by a visit and search blockade which would assert the right to stop only traffic carrying offensive weapons.12 This initial memorandum also noted the Monroe Doctrine as a legitimate basis for action. This nineteenth century doctrine formulated by the fifth American Presi-

9

10 11 12

‘Timetable of Soviet Military Buildup in Cuba July-October 1962’ in CIA Documents, above note 3, at 7-8. One memorandum noted an unusually large shipment of Soviet military aid suggested a ‘striking change in Soviet policy towards Cuba.’ See Memorandum from the President’s Special Assistant (Schlesinger) to the President’s Special Assistant for National Security Affairs (Bundy), August 22 1962) [Document no. 383], in Foreign Relations of the United States, 1961-1963, Vol. X Cuba 1961-1962, www.state.gov/www/ about_state/history/frusX/376_390.html, accessed 12/05/02. Herein after referred to as FRUS (X). (Document no.383 also includes the ‘Current Intelligence Memorandum’). Letter from Norbert A Schlei to Abram Chayes dated May 22 1968, in Chayes, above note 6, at 132. On the principle of proportionality see David J Harris Cases and Materials on International Law (Sweet and Maxwell: London 1998) at 894-896. ‘Memorandum for the Attorney General Re: Legality Under International Law of Remedial Action Against Use of Cuba as a Missile Base by the Soviet Union’, in Chayes, above note 6, at 108-116. Copies of the memorandum were sent to the President and Secretary of State Dean Rusk. Schlei in his letter to Chayes thought it likely that McNamara, Dillon, Bundy and Allen Dulles were also sent copies. See, Chayes, above note 6, at 133.

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dent, James Monroe, espoused the doctrine of American opposition to European countries in the affairs of the Americas and has been fundamental to American foreign policy in Latin America since its proclamation.13 Not being part of international law per se, reference to the doctrine in public statements was short lived. Kennedy apparently snapped angrily at its potential inclusion in his September 4 speech, although no reason was given as to why it should not be mentioned.14 However, Rostow, counselor to the Department of State, was clearer in his dislike for the doctrine, favouring treaty law that espoused the basic principle of hemisphere protection implicit in the Monroe doctrine. In a memorandum to Bundy on August 31 he wrote: It may be crucial to any set of moves that we make that we establish a clear legal basis for our action…. The optimum legal basis is not the raw Monroe Doctrine. I think we should look hard at the Rio Treaty and the Punta del Este resolutions which bear on indirect aggression…it may be extremely important within the hemisphere to distinguish defensive from offensive installations, downplaying what has already been delivered by references to Indonesia, Iraq etc. …Here is where the legal foundation for our position is important. The Soviets may argue that we have employed nuclear weapons close to their borders. Our response should be that this hemisphere has set up its own regional security arrangements; that the US is part of this hemisphere; and that we intend by our own force and with those allies who read the hemispheric documents as we do to enforce those regulations.15

The legal argument was being developed and planning was in process for Kennedy’s warning speech of September 4 that would make the distinction in law between defensive and offensive weapons. The distinction was not a matter of semantics but a crucial one in terms of international support for any action undertaken by the US and in the building of a legal case for its action. As noted by Bundy: …there will be a distinct [psychological and political] difference in impact between missiles for defensive use against aircraft and missiles capable of use against the United States. The impact of anti-aircraft missiles would be less in the US and in the hemisphere – and

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Gordon Connell-Smith The Inter-American System (Oxford University Press: New York 1966) at 10. Letter from Schlei to Chayes, in Chayes, above note 6, at 133. For a similar negative attitude towards the mention of the Monroe Doctrine, see ‘The Monroe Doctrine and Cuba’ Cuba File, Country Files of the Assistant Legal Advisor for Inter-American Affairs, 19581965, General Records of the Department of State, Record Group 59, US National Archives, College Park, MA. Memorandum from the Counselor of the Department of State and the Chairman of the Policy Planning Council (Rostow) to the President’s Special Assistant for National Security Affairs (Bundy), August 31 1962, [Document no. 400], in FRUS (X) www.state.gov/www/ about_state/history/frusX/391_405.html accessed 12/05/02. Emphasis added.

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international acceptance of action against defensive installations would be lower than in the case of action against missiles posing a direct nuclear threat to the US.16

Policy-makers were adamant that the line drawn between the acceptability of deploying defensive weapons to Cuba and the unacceptability of deploying offensive weapons to Cuba have a legal basis. Hence Rostow’s advice to the President on September 3: If we are to put ourselves in a position at home and abroad to back this line effectively with the full weight of US force and commitment, the line should be carefully grounded in law. Although the Monroe Doctrine is emotionally acceptable to most Americans as a legal basis for US military action, it is not acceptable to our allies, either in the Hemisphere or abroad….I believe it is possible and essential for us to establish our position in terms of our interpretation of [Rio Treaty and OAS Charter] commitments. The Communist position will, undoubtedly, be that we have established on the Eurasian land mass military installations proximate to their borders, including nuclear delivery capabilities. Our reply must be and can be that by regional security action, provided for under the Charter of the United Nations this Hemisphere operates under a different set of rules than the Eurasian land mass.17

The general tone of the September 4 speech was to be “low key, factual, somewhat legalistic, confidant.”18 The speech that was delivered fulfilled these requirements, stressing that “[t]here is no evidence of any organized combat force in Cuba from any Soviet bloc country…of the presence of offensive ground to ground missiles; or of other significant offensive capability either in Cuban hands or under Soviet direction or guidance. Were it to be otherwise, the gravest issues would arise.”19

16

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Memorandum from the President’s Special Assistant for National Security Affairs (Bundy) to President Kennedy, August 31 1962, [Document no. 401], in FRUS (X) www.state.gov/ www/about_state/history/frusX/391_405.html accessed 12/05/02. Defensive weapons included surface to air missiles that would substantially increase the defensive capabilities of Cuba and the Soviet Union, would make reconnaissance over-flight and other clandestine operations difficult and dangerous and increase the problem of neutralising air defense capabilities in the event of open conflict, but would not carry an increased direct threat to the safety of the US mainland. On the other hand, ‘offensive’ missiles like surface to surface missiles with nuclear warheads were considered a significant military threat to continental USA. Memorandum from the Counselor of the Department of State and Chairman of the Policy Planning Council (Rostow) to President Kennedy, September 3 1962, [Document no. 406], in FRUS (X) www.state.gov/www/about_state/history/frusX/406_420.html accessed 12/05/ 02. Ibid. Italics added. ‘Soviet Military Aid to Cuba’, Statement by the President, September 4 1962, Richard P Stebbins (Ed) Documents on American Foreign Relations (Harper and Row: New York 1963) at 367. Herein after referred to as Documents on American Foreign Relations. The same position was endorsed a month later in a communiqué issued at the conclusion of

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Prior to Kennedy’s warning speech of September 4 no representative of the Soviet Union had issued any formal statement on the deployment of military aid to Cuba. Had Kennedy not issued that warning the Soviets would have continued their deployment of military aid to Cuba in secret. Soviet security organs had assured Khrushchev that it was possible to keep the deployment secret despite frequent American U2 spyplane flights across Cuban territory. They were confident that palm trees on the island would keep the missiles from being seen from the air.20 Not long after Kennedy’s September 4 speech, the USSR asserted that armaments and military equipment being sent to Cuba were “exclusively for defensive purposes.”21 They continued this assurance even after the deployment of long-range missiles, which had sparked a crisis for the US officials. In separate meetings with President Kennedy and the AttorneyGeneral Robert Kennedy, the Soviet Foreign Minister Andrei Gromyko, unaware the US had evidence of such a deployment, continued to stress the “exclusively defensive character of armaments being sent to Cuba.”22 The level or urgency among US policy-makers changed significantly on October 15, with the first clear reconnaissance photography providing evidence for the deployment of Medium Range Ballistic Missiles (MRBMs) and Intermediate Range Ballistic Missiles (IRBMs), both types capable of reaching mainland USA and with a strike range, respectively, of between 700-1100 nautical miles and 2000-2200 nautical miles. The situation had now intensified into a crisis due to the presence of ground-to-ground offensive weapons and the Soviet denial of their presence in Cuba. For US policy makers, to allow this would be to signal US capitulation to Soviet power. On October 15, the first meeting of the Excomm was convened. Excomm members initially canvassed five possible means by which to get the USSR to remove its existing missiles in Cuba and to prevent their further deployment: a restricted air strike on the three bases being established in Cuba, a broader strike on the three bases plus the Strategic Air Missile sites and anything else connected

20

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a meeting of Latin American Republics with Secretary of State Dean Rusk in Washington on October 3. See ‘Reaction in the Americas’, Documents on American Foreign Relations, at 370-372. Schecter and Luchkov, above note 8, at 171. The Soviets wanted to keep the missile deployment secret until November 1962, when Khrushchev would be in Havana to sign a military agreement with Cuba intended to coincide with US congressional elections. The Soviets had hoped to present the US with a fait accompli at a moment when the US would be distracted by congressional elections. See Carlos Lechuga In the Eye of the Storm: Castro, Khrushchev, Kennedy and the Missile Crisis (Ocean Press: Melbourne 1995) at 7. Statement by the Soviet Government, September 11 1962, reprinted in Beggs, above note 3, at 32. Cable from Soviet Foreign Minister on October 18 1962, Meeting with President Kennedy, 20 October 1962 [excerpts]; “Russian Documents on the Cuban Missile Crisis” Cold War International History Project Bulletin, Issue 8-9, 1996/1997, at 280; Telegram from the Soviet Foreign Minister Gromyko to the Communist Party CPSU, 20 October 1962 [excerpt], CWIHP, Issue 5, Spring 1995 at 67-69.

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with the missiles, broader strikes plus a blockade on Soviet ships carrying cargo to Cuba, diplomatic consultation, and invasion.23 No option was dismissed during the early stages of deliberation although diplomatic consultation was regarded as least desirable. Rusk emphasized that the US needed to appear to be strong in the face of this challenge. Were the US to be seen to be ignoring or down playing the threat the Soviet hand would be free to intervene in other parts of Latin America and weaken the inter-American alliance as well as jeopardize other international interests and the general strength of the Western Hemisphere.24 Excomm members initially favoured an air strike although there were differences of opinion as to whether it should be broad or limited. Kennedy appeared in favour of a direct (limited) strike rather than what he considered to be the more hazardous option of a broad strike.25 Rusk was of the opinion that the US had to act in order to demonstrate its resolve, having threatened the Soviets earlier of serious consequences should evidence of offensive missile deployments by the Soviet Union to Cuba be found; the US he said, should not be seen to “back down”.26 If the US was to respond forcefully with an air strike, Rusk believed that the “Rio Pact [the Inter-American Treaty on Reciprocal Assistance] is…clearly our strongest legal basis for action we can take…”.27 Noting that the US had tried Japanese war criminals because of their sneak attack on Pearl Harbor, George Ball argued in a separate memorandum that a surprise attack “…would alienate a great part of the civilized world by behaving in a manner wholly contrary to our traditions, by pursuing a course of action that would cut directly athwart everything we have stood for…and condemn us as hypocrites in the opinion of the world.”28 During the Excomm meetings Robert Kennedy agreed with Ball’s Pearl Harbor analogy, asking what an air attack would imply about the “…kind of country we are.”29 US Ambassador to the UN Adlai

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26 27 28

29

Canvassed at Tuesday October 16, 1962 11.50am Cabinet room meeting in The Kennedy Tapes, at 66. Dean Rusk, Tuesday October 16 1962, 11.50am Cabinet room meeting in Ibid, at 54. President Kennedy, Tuesday October 16 1962, 6.30pm Cabinet room meeting in Ibid, at 94. It was around this time that evidence for the deployment of medium-range ballistic missiles was displayed. See ‘Memorandum from Arthur C Lundahl- Director National Photographic Interpretation Centre to the Director of the CIA and Director of the Defence Intelligence Agency’, CIA Documents, at 155 Rusk, Tuesday October 18 1962, 11am Cabinet room meeting, in Kennedy Tapes, at 127. Rusk, Ibid, at 129. ‘Memorandum by George Ball’ in Laurence Chang and Peter Kornbluh (Eds) The Cuban Missile Crisis, 1962: A National Security Archive Document Reader (The New Press: New York 1992) at 121-122. Robert Kennedy, Tuesday, October 18 1962, 11am Cabinet room meeting, in Kennedy Tapes, at 149.

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Stevenson flatly rejected the surprise air strike option and the favoured the blockade option.30 An invasion was not ruled out, but this risked escalation into general war and the potential of many deaths.31 President Kennedy did not seem keen on an invasion because US allies might perceive it as resulting from a “fixation by the US” rather than a “serious military threat”.32 A blockade was also considered, but while this might stop more missiles coming into Cuba it would not eliminate, nor give Russia any incentive to remove, those already in place.33 Reference was made to the law pertaining to blockades although understanding of these laws appears to have been very cloudy at this stage. George Ball, Under Secretary of State, referred to two kinds of blockade: a ‘simple search’ and a blockade that stops ships from going beyond a certain pre-determined line; he envisaged a US blockade doing both.34 Dean Rusk also favoured a blockade; he believed that it could be announced by a “straight declaration of war” which would bring certain legal advantages (he did not elaborate as to what these advantages were).35 In a separate meeting on October 19, the day before the legal presentation in Excomm, State and Justice Department legal advisers met in George Ball’s office in the State Department to discuss the legal position of the US.36 Katzenbach (Assistant Attorney- General) thought that action could be justified on the principle of selfdefense found in the provisions of Chapter 7 of the UN Charter. On the other hand Meeker was more confident of a legal argument based on the provisions in Chapter 8 of the UN Charter. Meeker noted that a defensive quarantine of Cuba would involve a use of force which had to be considered in relation to the UN Charter, which contained a general prohibition against the use of force except in limited situations such as armed attack, which this situation was not, or in cases of collective action voted by the Security Council or General Assembly, which could not be obtained. The provisions in Chapter 8 of the UN Charter outlining regional arrangements

30

31 32 33

34 35 36

Stevenson also suggested the US withdraw its missiles from Turkey and relinquish its base in Guantanamo Bay, the latter idea sharply rejected by President Kennedy. Comments by Ambassador Stevenson, Editorial notes on October 20 1962 meeting (2.30pm Oval room of the Executive Mansion) in Ibid., at 198-199. McNamara and Thompson Thursday October 18 1962, 11am Cabinet room meeting, in Ibid., at 136, 144. President Kennedy Thursday 18 October 1962, 11am Cabinet room meeting, in Ibid., at 134. It was in this connection that Excomm members first mooted the Turkey-Cuba missile swap: Soviet removal of missiles from Cuba in exchange for American removal of missiles from Turkey. See Thursday October 18 1962, 11am Cabinet room meeting, in Ibid., at 144. George Ball, at Tuesday October 16 1962, 6.30pm Cabinet room meeting, Ibid, at 113. Dean Rusk, at Thursday October 18 1962, 11am Cabinet room meeting, Ibid, at 129. Other matters were also canvassed but the principal focus here is on the discussion of international law. Those present at the meeting included: Rusk, Ball, Thompson, Johnson (U Alexis), Martin, Meeker, Dillon, McNamara, Gilpatric, Nitze, Taylor, Kennedy (Robert F), Katzenbach, McCone, Cline, Bundy, Sorensen, and Acheson.

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relating to the maintenance of international peace and security as appropriate for regional action could be used. Meeker suggested that: …a case could be made under the Charter for the use of force if it were sanctioned by the American Republics acting under the Rio Treaty. The Organ of Consultation, pursuant to Article 6 and 8 of the Rio Treaty, could recommend measures, including the use of armed force…if the contention were advanced that a defensive quarantine voted under the Rio Treaty constituted “enforcement action” under Article 53 of the United Nations Charter, and therefore required the authorization of the Security Council, we would be able to make a reasonably good argument to the contrary. While our ability to persuade seven members of the Security Council to vote with us on this issue might be uncertain we would in any event be able to prevent a vote going against our position.37

In the Friday October 19 Excomm meeting, the choice had reduced to two options: air strikes and a blockade. In military terms, air strikes could neutralize the chance of danger to the US of missiles being used, however, most Excomm members favoured a blockade, despite the move being a less forceful action. The blockade was also favoured despite the possibility of it being disliked by some allies concerned that the action might force the Berlin issue.38 On October 20 Leonard Meeker, Deputy Legal Adviser to the State Department,39 addressed Excomm members and the term ‘defensive quarantine’ as opposed to ‘blockade’ was introduced into the deliberations.40 Meeker suggested that a ‘defensive quarantine’ was possible via the Rio Treaty of the OAS, Article 6 of which charges the OAS Organ of Consultation to decide matters threatening the interAmerican system and Article 8 of which provides for collective action, including

37

38 39 40

Record of meeting, October 19 1962, [Document no. 31], in Foreign Relations of the United States, Vol.11 www.state.gov/www/about_state/history/frusXI/26_50.html accessed 12/05/02. Herein after referred to as FRUS XI. Martin (Assistant Secretary of State for Inter-American affairs) estimated that the US could secure 14 votes in the OAS already and was hopeful that with further discussion with other OAS member States in the next 24 hours, he could be able to increase the vote to 19 States favouring the US proposal. For a similar opinion on the provisions of Chapter 8 of the UN Charter see International Legal Situation with Respect to Cuba, Bolivia to Dominican Republic File, Office of the Assistant Legal Adviser for Inter-American Affairs, General Records of the Department of State, Record Group 59, US National Archives, College Park, MA. The Kennedy Tapes, 173-188. Abram Chayes, Chief Legal Adviser to the State Department, was out of the country during the week of important decision-making. Chayes, above note 6, at 6. Editors Comments about activities on Thursday October 18 1962, Oval Office meeting near midnight, in The Kennedy Tapes, at 171. (Meeker’s consultation with Excomm members occurred at the State Department).

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the use of force, to deal with threats to peace and security.41 While not infallible it was the most secure legal position of the alternative arguments available. A blockade was regarded as an act of war under customary international law.42 Members of Excomm wanted the US to board but did not wish to instigate an act of war; they were eager to use, and to be seen to be using, minimum force. The defensive quarantine, a hybrid of the two blockade types, was designed to permit the US to take action without it being characterised as an act of war. It is unclear as to exactly when President Kennedy began to favour the quarantine over the air strike option, but the clarification of the law regarding a blockade does appear to have helped crystallize a solution. “It became plain to all, after hearing from Justice and State department lawyers, that a declaration of war was not needed in order to impose a blockade and that an alternative consistent with the UN Charter was to obtain authorisation from the OAS.”43 While Kennedy was not prepared to negotiate with the Russian leader as a first step, the possibility of negotiation after the blockade (or ‘quarantine’ as it was by now being referred to) was left open;44 plans were prepared for a limited air strike should Khrushchev reject an offer to negotiate. The defensive quarantine was to be justified to the USSR and the broader world community as a new legal development for the nuclear age. Given that nuclear brinkmanship had not historically been the concern of international law, new legal developments were necessary to fill the gap.45 The quarantine did not carry the risks

41

42

43 44 45

Inter-American Treaty of Reciprocal Assistance (Rio Treaty) 1947, 21 UNTS 77. Article 6 states “If the inviolability or the integrity of the territory or the sovereignty or political independence of any American State should be affected by an aggression which is not an armed attack or by an extra-continental conflict, or by any other fact or situation that might endanger the peace of America, the Organ of Consultation shall meet immediately, in order to agree …the measures which must be taken in case of aggression to assist the victim of the aggression or, in any case, the measures which should be taken for the common defense and for the maintenance of the peace and security of the Continent.” Article 8 states that “For the purposes of this Treaty, the measures on which the Organ of Consultation may agree will comprise one or more of the following: recall of chiefs of diplomatic missions; breaking of diplomatic relations; breaking of consular relations; partial or complete interruption of economic relations or of rail, sea, air, postal, telegraphic, telephonic, and radiotelephonic or radiotelegraphic communications; and use of armed force.” Abram Chayes, Thomas Ehrlich and Andreas F Lowenfeld International Legal Process: Materials for an Introductory Course (Vol 2) (Little, Brown and Company: Boston: 1969) at 1109-1113. Editors of the transcripts, referring to the discussions of Saturday October 20 1962, 2.30 pm Oval room of the Executive Mansion meeting, The Kennedy Tapes, at 189. Editors, Ibid., at 189. While this argument was not explicitly detailed in the transcripts or by the Editors of The Kennedy Tapes, it was this legal justification that was presented to the Excomm and to the world. See elsewhere comments by assistant legal counsel Leonard C. Meeker “Role of Law in Political Aspects of World Affairs” The Department of State Bulletin, Vol. 48, January 21 1963, pp. 83-88.

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associated with an invasion or air strike but was seen as a way of sending a message to the Russians that they were not going to be ‘let off’. And so, despite reservations as to how strong it would appear in the eyes of the ‘free world’ and to the domestic constituency, as well as reservations on the part of the Joint Chiefs of Staff and some Pentagon officials as to its strategic value,46 Excomm members came gradually to the consensus view that the quarantine action would be used as the first option. For the next 48 hours deliberations in Excomm focused on drafting the presidential address to the nation which would announce the US response to nuclear weapons build up in Cuba by the Soviets. Even at this stage, military preparations for an air strike were not abandoned and planning for an air strike continued in anticipation of Soviet retaliation to the quarantine. In addition the US Government transmitted 15 Presidential letters and documents to 441 recipients and provided briefings to 95 foreign ambassadors as well as special briefings to Prime Minister MacMillan, General De Gaulle, Prime Minister Nehru, Chancellor Adenauer, Prime Minister Diefenbaker, Mayor Brandt and Prime Minister Fanfani. Finally on October 22 at 7pm US eastern daylight time all normal television programming was preempted by the address. The US first disclosed its knowledge of the development of a Soviet missile base in Cuba in Kennedy’s presidential address announcing the quarantine. Kennedy claimed that “the presence of these large, long-range, and clearly offensive weapons of sudden mass destruction constitutes an explicit threat to the peace and security of all the Americas, in flagrant and deliberate defiance of the Rio Pact of 1947…[and] the Charter of the United Nations.”47 The US here stopped short of labeling Soviet actions illegal but depicted them in such a way as would justify as legal any potential use of force in response. Kennedy appealed to a broad understanding of what constituted a threat to peace and security in his assertion that: nuclear weapons are so destructive and ballistic missiles are so swift that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace...We are calling tonight for an immediate meeting of the Organ of Consultation, under the Organization of American States, to consider this threat to hemispheric security and to invoke articles 6 and 8 of the Rio Treaty in support of all necessary action.48

This and other public US statements made the distinction between ‘offensive’ and ‘defensive’ weapons which the US Government’s lawyers had advised as far back as mid-August. In his ‘Broadcast Report to the People’ of October 22 1962 President

46 47

48

President Kennedy, Saturday October 20 1962, 2.30pm Oval Room of the Executive Mansion, in The Kennedy Tapes at 189-203. “Soviet Offensive Weapons System in Cuba: President Kennedy’s Broadcast Report to the People, October 22 1962” reprinted in, Documents on American Foreign Relations, at 375. Ibid, at 376-378.

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Kennedy asserted that “[w]ithin the past week unmistakable evidence has established the fact that a series of offensive missile sites is now in preparation on [Cuba].”49 Later that night a resolution of the Council of the OAS voted 19-0 (with one abstention by Uruguay which recorded its affirmative vote the next day) to recommend under Articles 6 and 8 of the Rio Treaty all measures including the use of force to prevent Cuba from receiving materials from Soviet powers that threatened the peace and security of the hemisphere.50 Articles 6 and 8 of the Rio Treaty provided for use of force against aggression even where there had not been an armed attack. In contrast, Article 51 of the UN Charter, which had been referred to in the original legal advice by Schlei,51 provides for collective self-defence only ‘if an armed attack occurs’. In a statement delivered a few hours after the Presidential address, Khrushchev accused the US of “cynically flouting international standards and the principles of the UN charter…the blockade of Cuba by the United States is an unheard of violation of international law…”;52 a view reiterated in both a letter sent from the USSR to the Security Council and in a draft resolution introduced to the Security Council by the USSR.53 Other Soviet statements also denied the legitimacy of the quarantine, referring instead to an “actual blockade of Cuba by the United States.”54 However by October 24, Soviet ships near the quarantine line began turning back. Apparently Khrushchev did not want to test the US quarantine with ships carrying nuclear weapons, out of fear that an inspection of cargo would provide the US with an opportunity to gain intelligence on Soviet weapons technology.55 More ships from the Soviet Union were nonetheless still heading to Cuba. That night the US Ambassador to the UN, Adlai Stevenson, asked U Thant, Secretary-General of the UN, to send a private message of concern to Khrushchev,

49 50

51

52 53

54 55

Ibid., at 374. ‘OAS Organ of Consultation Resolution’, Department of State Bulletin, Vol. 47, November 12 1962, pp. 722-23. The quarantine was set to begin at 2pm Greenwich time October 24 1962 and the interception zone set at 200 miles off the coast of Cuba. See “Interdiction of the Delivery of Offensive Weapons to Cuba: Presidential Proclamation 3504 23 October 1962”, reprinted in, Documents on American Foreign Relations, at 383-384. ‘Memorandum for the Attorney General Re: Legality under International Law of Remedial Action against use of Cuba as a missile base by the Soviet Union’ in Chayes, above note 6, at 110. Statement by the Soviet Government, October 23 1962, reprinted in Beggs, above note 3, at 40. S/5186, Letter from USSR to Security Council, October 23 1962, in Yearbook of the United Nations 1962 (Office of Public Information: New York 1964) at 104. Herein after referred to as UN Yearbook 1962. S/5187, USSR sponsored draft resolution introduced into Security Council meeting on October 23 1962, in UN Yearbook 1962, at 106. The resolution was not put to a vote. Letter from Khrushchev to Bertrand Russell, October 24 1962, in Beggs, above note 3, at 43-44; Chairman Khrushchev to U Thant, October 26 1962 UN Press Release SG/1357. Keith Eubank The Missile Crisis in Cuba (Krieger: Malabar 2000) at 65.

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requesting him to hold his ships away from Cuban waters while efforts were made to reach a negotiated outcome.56 U Thant agreed and sent his message on the morning of October 25. US decision-makers did not want the case brought to the UN by the Soviet Union since this might give the impression that the US was the aggressor. Secretary Rusk pointed out that following President Kennedy’s speech the US “would either be in the posture of a complainant or of a defendant.”57 Sorensen favoured the complainant role, stating that “our posture should be to accuse the Soviets of being the aggressors…”.58 Stevenson insisted that the US “should take the initiative by calling a UN Security Council meeting to demand an immediate missile standstill in Cuba.”59 In a letter to the President of the Security Council of October 22, Adlai Stevenson noted that the US was bringing the matter to the Council “in accordance with its obligations under the United Nations Charter”; the US proposed the “prompt and effective” discharge of the Council’s responsibilities for the maintenance of international peace and security.60 The US went on to introduce a resolution based on Article 40 calling “for immediate dismantling and withdrawal from Cuba of all missiles and other offensive weapons and the dispatch to Cuba of a United Nations observer corps to assure and report on compliance.”61 Valerian Zorin, President of the Security Council and Soviet representative to the UN, also put forward a draft resolution, which condemned the US for “…violating the United Nations Charter” and called for an end to the quarantine measures and to “interference in the internal affairs of Cuba.”62 Stevenson addressed the Council and accused the Soviet Union of creating a threat to international peace and security by secretly installing weapons in Cuba.63

56

57 58 59 60 61 62 63

See Memorandum of Telephone Conversation Between President Kennedy and the Under Secretary of State (Ball) [Document no. 63]; Memorandum of Telephone Conversation Between President Kennedy and Under Secretary of State (Ball) [Document no. 64]; Memorandum of Telephone Conversation Secretary of State (Rusk) and the Under Secretary of State (Ball) [Document no.65]; Memorandum of Telephone Conversation Between the Under Secretary of State (Ball) and the Representative to the United Nations (Stevenson) [Document no. 66]; Memorandum of Telephone Conversation Between the Under Secretary of State (Ball) and the President’s Special Assistant for National Secretary Affairs (Bundy) [Document no. 67], October 24 1962, in FRUS XI, http://www.state.gov/www/about_state/ history/frusXI/51_75.html accessed 12/5/02. Ibid. Ibid. Minutes of the 506th Meeting of the National Security Council, October 21 1962 in FRUS XI, www.State.gov/www/about_State/history/fruxXI/51_75.html accessed 12/5/02. S/5181, Letter from the United States to the Security Council, October 22 1962, in UN Yearbook 1962, at 104. S/5182, US sponsored draft resolution introduced into Security Council meeting on October 23 1962, in UN Yearbook 1962 at 104. The resolution was not put to a vote. S/5187, above note 53, at 106. UN SC Official Records 1025th Meeting, October 25 1962, at 1.

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In the meantime Anatoly Dobrynin informed Robert Kennedy in a meeting between the two at the Soviet Embassy in Washington that Soviet ships would not be told to abide by the quarantine which was “…a violation of international norms of freedom of navigation.”64 A similar message was sent from Khrushchev to Kennedy announcing that the Soviet Government will “strictly observe the norms of regulating navigation on high seas in international waters [and]…cannot give instructions to the captains of Soviet vessels bound for Cuba to observe the instructions of the American naval forces blockading the island.”65 On October 26, one day after what was a heated debate in the Security Council, the quarantine threat was for the first time tested as more ships headed to the quarantine line. US personnel boarded the ship Marucla, which was found to contain various cargo but no missiles, and was subsequently allowed to proceed to Cuba. The seriousness of US intentions to enforce the quarantine had been demonstrated.66 That evening a letter arrived from Khrushchev containing the seeds of a solution that would be acceptable to the US: the Soviet Union would be prepared to dismantle and remove missiles in Cuba and direct all ships en route to Cuba to turn back upon assurances from America not to invade Cuba.67 The following day a second letter arrived from Khrushchev which was markedly less conciliatory than the first, demanding as quid pro quo for the removal of Soviet missiles from Cuba the removal of American missiles from Turkey.68 Since the Joint

64

65 66 67

68

Telegram from Soviet Ambassador to the USA Dobrynin to the USSR MFR, October 24 1962, CWIHP, Issue 5, at 73. Khrushchev put this more colourfully in a letter to Bertrand Russell where he described US action as ‘piracy and banditry’. Letter from N S Khrushchev to Bertrand Russell, October 24 1962, reprinted in Beggs, above note 3, at 43. Letter from Khrushchev to Kennedy, October 24 1962, reprinted in The Kennedy Tapes, at 390-391. Eubank, above note 55, at 72. Letter from Khrushchev to Kennedy, October 26 1962, reprinted in The Kennedy Tapes, at 484-491. Fursenko and Naftali have explained how Khrushchev arrived at the decision of sending this conciliatory letter at the October 25 Presidium meeting. See Fursenko and Naftali, above note 2, at 259-260. Letter from Khrushchev to Kennedy, October 27 1962, reprinted in Ibid., at 505-508. Thompson hypothesised that the changed tone of the second letter represented the pressure of those inside the Soviet Government urging Khrushchev for a more forceful tone. For Thompson’s comments, see October 27 1962, 10am Cabinet Room meeting, in Ibid., at 509. Dobrynin’s account seems to back this hypothesis. In trying to account for the differences in the two messages he notes that Khrushchev was anticipating an American air strike on the missile bases in Cuba. Afraid to complicate the urgent search for a settlement by insisting on the removal of missiles from Turkey, Khrushchev simply sought assurance that the US would not invade Cuba. Under pressure from some of his colleagues he made a desperate, last minute attempt in the second letter to obtain a deal to swap Russian missiles in Cuba for the American missiles in Turkey. Dobrynin, above note 8, at 86.

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Chiefs of Staff were pressing for an air strike and invasion within 48 hours, Kennedy convened a smaller group of the Excomm to discuss in more detail the issue of the missile swap, an idea that had earlier been raised in Excomm but which had not been explored in much detail.69 This group authorised Robert Kennedy to tell Dobrynin, Soviet Ambassador to the US, that the missiles in Turkey would be removed but required that the deal be kept secret so that it would appear as if they were being removed for factors other than those related to the Cuban crisis.70 Kennedy’s letter to Khrushchev on October 27 made no mention of the missile swap replying positively to the first Khrushchev letter as if the second had not been received.71 In it, Kennedy pledged not to invade Cuba on the condition that the missiles in Cuba were dismantled and rendered inoperable under a scheme of UN observation and supervision.72 Robert Kennedy met with Dobrynin that same night.73 The next day Dobrynin informed Robert Kennedy of Khrushchev’s intention to accept the deal regarding the missile swap and the dismantling of rocket bases in Cuba under international control.74 On

69

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71 72 73

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Record of meeting, October 19 1962, [Document no. 31]; Minutes of the 505th Meeting of the National Security Council, 20 October 1962, [Document no. 34], FRUS XI, www. state.gov/www/about_state/history/frusXI/26_50.html visited 12/5/02. This smaller group consisted of Dean Rusk, Robert McNamara, Robert Kennedy, George Ball, Roswell Gilpatric, Llewellyn Thompson, Theodore Sorensen, and McGeorge Bundy. Letter from Dean Rusk to James Blight, cited in James G Blight and David A Welch On the Brink: Americans and Soviets Reexamine the Cuban Missile Crisis (Noonday Press: New York 1990) at 83. Letter from Kennedy to Khrushchev, October 27 1962, reprinted in The Kennedy Tapes, at 603-604. Ibid., at 604. President Kennedy was not only committed to a private trade, but in the event this was rejected, had resolved to make a public overture in favour of such a trade in order to end the crisis. According to Bernstein, if a Soviet response was not forthcoming following Robert Kennedy’s private discussions with Dobrynin, President Kennedy had resolved to instruct Rusk to contact Columbia University Professor Andrew Cordier to prepare a draft statement for U Thant, who would publicly issue the proposal of a missile swap. President Kennedy did this without the input of Excomm. In the end the proposal did not have to be issued. Barton J Bernstein “The Cuban Missile Crisis: Trading the Jupiters in Turkey?” Political Science Quarterly, Vol. 90, 1980, pp. 97-125. See Telegram from Soviet Ambassador to the USA Dobrynin to USSR MFA, October 28 1962, CWIHP, Issue 5, above note 8, at 76. Fursenko and Naftali have suggested that the no invasion pledge made by Kennedy was sufficient to force Khrushchev to back down. Khrushchev had decided to accept Kennedy’s offer not to invade Cuba as a sufficient concession before pulling the missiles out of Cuba. Though it was not all of what he had asked for in his October 27 letter to Kennedy, the offer not to invade Cuba was in line with the Soviet Union’s minimum criteria for withdrawing the missiles. It was in the midst of asking his Presidium to support him in accepting Kennedy’s offer not to invade Cuba in exchange for the Soviet withdrawal of missiles from Cuba that he received a telephone call from Foreign Minister Gromyko informing of the missile swap offered by Robert Kennedy to Dobrynin. See Fursenko and Naftali, above note 2, at 283-285.

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Sunday October 28 the ship Grozny, en route to Cuba and approaching the quarantine area in the Caribbean Sea region, turned back. Khrushchev issued a message announcing that the Soviet Government would dismantle and remove its missiles from Cuba and was willing to assist the acting Secretary-General and representatives of the Soviet Union, the United States and the Cuban Republic in the dismantling and surveillance of the missiles.75

Comparing the Existing Literature on the CMC and its Theoretical Underpinnings With the Historical Record Let us now compare existing literature on the CMC and its theoretical underpinnings with the historical record. The analysis in this section will be expected to reflect on the adequacy of realist, positivist and functionalist theoretical perspectives underpinning existing accounts of US and Soviet Union foreign policy behaviour during the CMC.

Comparing Literature on the CMC Underpinned by a Realist Perspective With the Historical Record Historiography of the CMC contains several works that focus on political issues largely excluding legal considerations. Such analyses, grounded in a realist perspective of the law-State behaviour relationship either ignore international law all together, or deem it peripheral at best, or irrelevant at worst, in understanding the political dynamics of the crisis. Those who ignore international law in their analyses depict the crisis as an unqualified triumph,76 or the result of careful planning, limited force, and wise diplomacy.77 Bernstein, less effusive but no less complimentary, suggests

75

76

77

Message from Khrushchev to Kennedy, October 28 1962, reprinted in The Kennedy Tapes, at 630-635. While the dangerous period of the crisis ended at this point there were several months of negotiation regarding the details for UN supervision, the schedule for removing the missiles etc that had to be worked out. However, the negotiation in this period was carried out with significantly less tension than the high periods of the ‘crisis’. This phase simply worked out the details (albeit in a long and drawn out process) of the accepted agreement that had concluded the period of tensions from October 15-28. Robert Kennedy Thirteen Days (Macmillan Press: London 1969); Arthur M. Schlesinger Jr A Thousand Days: John F Kennedy in the White House (Andre Deutsch: London 1966); Theodore C. Sorensen Kennedy (Pan Books: London 1965). See Elie Abel The Missiles of October: Twelve Days to World War Three – An Account of the Cuban Crisis of 1962 (Macgibbon and Kee: London 1966); Ted Bundy “The President and the Peace” Foreign Affairs, Vol. 42(3), 1962, pp. 355-65; Roger Hilsman To Move a Nation (Dell Publishing: New York 1964); Roger Hilsman The Cuban Missile

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the resolution of the crisis was a result of the private deal to trade American missiles in Turkey for Russian missiles in Cuba.78 Robert McNamara, who served as Secretary of Defense during the crisis, triumphantly declared in the aftermath of the crisis that “there is no such thing as strategy only crisis management.”79 Alexander George and associates saw in the CMC, an example of coupling coercive measures with the tools of overt diplomacy such as negotiation, albeit with a recognition of the limitations of such a strategy. Such authors view the CMC as a triumph of American coercive diplomacy and Soviet capitulation in the face of overwhelming American might.80 Others have interpreted the crisis as irresponsible, arguing that Kennedy risked war for domestic political gain and that the outcome was just the result of luck.81 Paterson has suggested that the deployment of Soviet missiles to Cuba was perceived as a ‘crisis’ due in part to Kennedy’s strong ideological position against communism, personal antipathy towards Castro and the lessons from history not to appease those they fear.82 Other writers have referred to international law but have done so in such a way as to downplay its influence. Allison, for example, suggested that the blockade was euphemistically called a ‘quarantine’ in order to circumvent the “niceties” of international law.83 According to James Nathan, Cuba epitomized the decline of inter-

78

79 80

81

82

83

Crisis: The Struggle Over Policy (Praeger: Westport 1996); Alberta Wohlstetter and Robert Wohlstetter ‘Controlling the Risks in Cuba’, Adelphi Papers, Number 17, 1965. Bernstein, above note 73; “Reconsidering the Missile Crisis: Dealing With the Problem of the American Jupiters in Turkey’” in, Nathan, above note 6, at 55-129; Richard M Pious “The Cuban Missile Crisis and the Limits of Crisis Management” Political Science Quarterly, Vol. 116(1), 2001, pp. 81-105. Cited in Carol Bell The Conventions of Crisis: A Study in Diplomatic Management (Oxford University Press: Oxford 1971) at 2. Alexander L George, David K Hall and William E Simons The Limits of Coercive Diplomacy: Laos, Cuba, Vietnam (Little, Brown and Company: Boston 1971). See also James Nathan “The Heyday of the New Strategy: The Cuban Missile Crisis and the Confirmation of Coercive Diplomacy” Diplomacy and Statecraft Vol. 3(2), July 1992, pp. 303-342. See I. F. Stone “The Brink” New York Review of Books, 14 April 1966; Fursenko and Natfali, above note 2, at 240-289. For a good review of both sides of the traditionalrevisionist debate see Richard Ned Lebow “The Traditional and Revisionist Interpretations Revisited: Why Was Cuba a Crisis?” in Nathan, above note 6, at 161-186. Thomas G Paterson “Fixation with Cuba: The Bay of Pigs, Missile Crisis, and Covert War Against Castro” in Thomas G Paterson (Ed) Kennedy’s Quest for Victory: American Foreign Policy 1961-1963 (Oxford University Press: New York 1989) at 150 Graham T. Allison The Essence of Decision: Explaining the Cuban Missile Crisis (Little, Brown and Company: Boston 1971) at 57. This study was re-published in 1999 with several updates, taking into account the criticisms of the book over the last 25 years and the greater availability of primary documents. The three basic models in the original study remain, albeit with further elaboration, clarification, and re-evaluation in light of criticisms. However, the evaluation of international law remains the same. See Graham T Allison and Philip Zelikow Essence of Decision: Explaining the Cuban Missile Crisis (Second Edition) (Longman: New York 1999).

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national law in the face of threats to the national interests.84 Weldes sees the debates on how best to describe the quarantine/blockade as “concern over choice of terminology”,85 nothing more. Still others have suggested that international law was irrelevant to the policy process and outcome of the crisis. Pachter thought the US actions were ‘without sanction’ and represented, instead, the application of realpolitik.86 Gerberding concluded: “[i]nternational law is…a tool, not a guide to action…[i]t does not have a valid life of its own; it is a mere instrument, available to political leaders for their own ends, be they good or evil, peaceful or aggressive…[The Cuban Missile Crisis] merely reconfirms the irrelevance of international law in major political disputes.”87 The gap between the findings of the historical record and existing literature reflects on the inadequacy of the realist underpinnings of existing literature on the CMC. Existing historiography on the CMC underpinned by realism assumes that law is of little relevance to more powerful States except insofar as law might justify policy made on the basis of other ‘political’ considerations. Yet the historical record reveals that, far from simply relying on existing law to justify policy, the US actively sought to create new law. This cannot be reconciled with a realist perspective that would predict that law is of little relevance where the preferred policy does not coincide with existing law. This suggests that international law was more important than simply justifying US behaviour. Existing historiography on the CMC has paid very little attention to the place of international law in the implementation of Soviet foreign policy. This reflects the realist assumption that a State in a relatively less powerful position to its competitor (as the Soviet Union was vis-à-vis the US) – in terms of realist indices of power such as military or economic superiority – is unlikely to derive any benefit from international law. However, the historical record reveals that the Soviet Union, the weaker of the two competing sides in the CMC, did make reference to international law in its diplomacy with the US during the CMC. What remains unexplained is why less powerful States appear to make reference to international law despite what realists tell us of laws limited value to less powerful States.

84 85 86 87

James A Nathan Anatomy of the Cuban Missile Crisis (Greenwood Press: Westport 2001) at 122. Jutta Weldes Constructing National Interests: The United States and the Cuban Missile Crisis (University of Minnesota Press: Minneapolis 1999) at 83. Henry M Pachter Collision Course: The Cuban Missile Crisis and Coexistence (Pall Mall Press: London 1963) at 134. William P Gerberding “International Law and the Cuban Missile Crisis” in Lawrence Scheinman and David Wilkinson (Eds) International Law and Political Crisis: An Analytic Casebook (Little, Brown and Company: Boston 1968) at 209-10. For a further realist understanding of the Cuban crisis and American foreign policy, see, Gerberding United States Foreign Policy: Perspective and Analysis (McGraw Book Company: New York 1966) at 271-295.

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Comparing Literature on the CMC Underpinned by a Positivist Perspective With the Historical Record Those who apply a positivist analysis of the international law-State behaviour relationship concern themselves exclusively with legal consideration of the crisis and the legal efficacy of the quarantine action. This group can be divided into those who deem the US action illegal and those that deem it legal. Arguments concerning the illegality of US action include its procedural invalidity at the OAS;88 the quarantine’s contravention of the freedom of the high seas;89 that the quarantine concept lacks legal foundation, and is at best an illegal blockade;90 that it contravenes the prohibition on threats of force in Article 2(4) of the UN Charter;91 that the threat of the Soviet deployment of missiles to Cuba does not constitute a threat to security sufficient to invoke self defence under Article 51 of the Charter;92 and that the action contravened the requirement for Security Council authorisation to undertake enforcement action via a regional organisation pursuant to Article 53 of the UN Charter.93 On the other hand there are also arguments that suggests the US action was legal. In this group it is suggested that the voting in the OAS on the US action was valid;94 that the quarantine could be construed as an enforcement action and therefore an appropriate measure for implementation by a regional agency in the settlement of a local dispute in accordance with Article 52(1 and 2) of the UN Charter;95 that it was a valid development of international law for new circumstances;96 that if

88 89 90 91 92 93

94

95 96

William L Standard “The United States Quarantine of Cuba and the Rule of Law” American Bar Association Journal, Vol. 49, 1963, pp. 744-748, at 746. Quincy Wright “The Cuban Quarantine” Proceedings of the American Society of International Law, April 25-27, 1963, pp. 9-10 at 9. Ibid., at 10. James S Campbell “The Cuban Missile Crisis and the UN Charter: An Analysis of the United States Position” Stanford Law Review, Vol. 16, December 1963, pp. 160-176 at 162. Ibid. Pasquale Pierrone “The Use of Force in the Framework of the Organization of American States” in Antonio Cassese (Ed) The Current Legal Regulation of the Use of Force (Martinus Nijhoff Publishers: Dordreecht: 1986) at 228. Joseph B McDevitt “The UN Charter and the Cuban Quarantine” JAG Bulletin, April-May 1963, pp. 71-80, 75; Edward De Re “The Quarantine of Cuba in International Law” JAG Bulletin, January-February 1964, pp. 3-14, at 11. Andrew J Valentine “US Navel Quarantine of Cuba: A New Wine in a New Bottle” The Federal Bar Journal, Vol. 41, 1963, pp. 244-266, at 246-247. Chayes, above note 6, at 7; “Law and the Quarantine of Cuba” Foreign Affairs, Vol. 41, 1963, pp. 550-57; Leonard C Meeker “Defensive Quarantine and the Law” American Journal of International Law, Vol. 57, 1963, pp. 515-524, at 515-516; McDevitt, above note 94, at 72; Re, above note 94, at 9; John M Raymond “Legal Implications of the Cuban Crisis” Santa Clara Lawyer, Vol. 3, 1963, pp. 126-134, at 131; Eustace Seligman “The Legality of US Quarantine Action Under the United Nations Charter” American Bar Association Journal, Vol. 49(20), February 1963, pp. 142-145, at 142.

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Article 2(4) of the UN Charter is understood broadly, the action is valid;97 and that it was a legitimate act of self defence under Article 51 of the UN Charter98 and customary international law.99 The historical record reveals that while legal considerations were taken into account in US foreign policy decision-making and implementation, law did not provide decision-makers with the solution as to how to act in response the Soviet deployment of missiles to Cuba. This is a finding that would appear to depart from assumptions that underpin the legal literature on the CMC which has examined whether US action during the CMC was ‘legal’ or ‘illegal’. Such literature, underpinned by positivism, has assumed that it is possible to distinguish objectively between action that is legal and action that is illegal, and that decision-makers should act legally, thus implying that where an action is likely to be ‘illegal’ policy should be modified so as to be ‘legal’. Yet the historical record reveals that there was no clear distinction between what was legal and what was illegal as evidenced by the difference of opinion among decision-makers as to the correct ‘legal’ action. The historical record also reveals that while the preferred US policy would more readily be deemed ‘illegal’, US decision-makers did not change their policy so as to be ‘legal’. The process of policy formation was not of deciding how to act legally or comply with international law. Indeed, in deciding on imposing a quarantine on Soviet ships carrying missiles and related equipment to Cuba, there was no law on the establishment of a quarantine with which to comply. It would also appear that the positivist assumption that law can provide a solution as to how to act does not hold up when the historical record of the role of international law in Soviet foreign policy is examined. Despite being in the stronger ‘legal’ position – an assessment recognised by US decision-makers when they conceded that the Soviet deployment of missiles was not categorically ‘illegal’ – Soviet policy was unable to capitalize on this advantage and was unable to reinforce the ‘legality’ of its position and persuade the US not to oppose the Soviet deployment of missiles to Cuba. For the Soviet Union, a solution to the foreign policy challenge of persuading the US not to oppose the deployment of Soviet missiles to Cuba was more complex than simply acting in accordance with international law.

97 98

99

Charles G Fenwick “The Quarantine Against Cuba: Illegal or Legal?” American Journal of international Law, Vol. 57, 1963, pp. 588-597, at 592-597; Re, above note 94, at 10. Carl Q Christol and Charles R Davies “Maritime Quarantine: The Naval Interdiction of Offensive Weapons and Associated Material to Cuba, 1962” American Journal of International Law, Vol. 57, 1963, pp. 525-543, at 533-39, 543; Daniel G Parton “The Cuban Quarantine: Some Implications for Self Determination” Duke Law Journal, Vol. 1963, pp. 696-721, at 697. Christol and Davies, Ibid.

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Comparing Literature on the CMC Underpinned by a Functionalist Perspective With the Historical Record A third group of literature on the CMC underpinned by functionalism recognises the role of international law in foreign policy in terms of a number of the ‘functions’ law fulfills in foreign policy. On the basis of his study of US decision-making during the CMC, Chayes proposed three functions which law could be postulated to affect in the course of policy formulation and execution; namely, law acts as a constraint, as a basis for justification, and provides organisational structures, procedures, and forums.100 Henkin suggests that US decision-makers, in deciding between options, weighed among other things whether such options were legal or not. This made the quarantine option the most compelling.101 For Henkin this illuminates an unaccounted aspect of law’s influence: law shaped the actions of the US because it was in its interests to do, among those interests being “…the desire to comply with legal commitments to those institutions and their members.”102 According to Alford, law functioned to coordinate the various policies of the State actors through institutional forums such as the UN.103 Mallison and McDougal each examine international law in terms of its function to facilitate ‘effective world order’.104 While functionalists have recognised that international law fulfilled some important political functions in US policy during the CMC, they have also continued to perceive of international law in terms of the positivist rule-book image of international law whereby it is possible to distinguish between ‘legal’ and ‘illegal’ behaviour. Thus functionalists have assumed that international law functioned to ‘constrain’ US policy during the CMC where policy was understood to be ‘illegal’. What functionalism cannot explain is how the US was able to use international law as part of its approach to the crisis and achieve its policy objective of having the Soviet missiles removed from Cuba despite being in a weaker ‘legal’ position than the Soviet Union. Moreover, functionalism cannot explain how the Soviet Union, despite being in a stronger legal position, was unable to persuade the US not to oppose its deployment of missiles to Cuba. By accepting the realist dichotomy between power and law, functionalism is unable to account for the way a State can make strategic use of international law (and the corollary of this where international law might be a strategic liability for a State.)

100 101 102 103 104

Chayes, above note 6, at 7. Louis Henkin How Nations Behave: Law and Foreign Policy (2nd Edition) (Columbia University Press: New York 1979) at 289. Ibid., at 292. Neil H Alford “The Cuban Quarantine of 1962: An Inquiry into Paradox and Persuasion” Virginia Journal of International Law, Vol. 4, 1964, pp. 35-73. William T Mallison Jnr, “Limited Naval Blockade or Quarantine-Interdiction: National and Collective Defence Claims Valid Under International Law” The George Washington Law Review, Vol. 131, 1962-63, pp. 335-98; M. S. McDougal “The Soviet-Cuban Quarantine and Self Defence” American Journal of International Law, Vol. 57, 1962, pp. 597-604.

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Understanding the Relationship Between International Law and State Behaviour in the Cuban Missile Crisis From an ILI Perspective From the historical record it is clear that existing empirical studies of the CMC have not adequately accounted for the influence of international law on US and Soviet foreign policy during the CMC. The relationship between international law and State behaviour would appear to be more dynamic and complex than has been suggested by existing studies, and reflects on the inadequacy of theoretical assumptions regarding the law-State behaviour relationship underpinning existing empirical literature on the CMC. Given that realist, positivist and functionalist assumptions underpinning existing empirical literature have been found to be inadequate when compared with the historical record, let us now see what more we can learn of the relationship between international law and State behaviour during the CMC when the historical record is examined from an ILI perspective. An ILI perspective hypothesises that the ideology of international law operates as a strategic device at the disposal of States in the international political system in the pursuit of perceived policy goals. An ILI perspective anticipates that for a State to make strategic use of international law involves, firstly, recognising the need to uphold the ideology of international law as strongly as possible and to reconcile this need with other policy considerations. It would therefore be expected that the need to uphold the ideology of international law strongly would be reconciled with other policy considerations during the process of policy formulation. From the historical record it is apparent that US decision-makers endeavored to reconcile international legal considerations with political and military considerations. Well before the crisis had started, Attorney-General Robert Kennedy, acting with the support of President Kennedy, commissioned legal advice from his department regarding the possible range of actions the US could take under international law to prevent the installation of Soviet long range missiles in Cuba.105 US Policy-makers such as Bundy and Rostow were also cognizant of the political importance of preventing the installation of Soviet missiles in Cuba, recognising the threat such an action posed to US supremacy in the Western Hemisphere.106 While no particular action had been decided at this stage, what is interesting is the efforts of policy-makers to balance both political and legal considerations in deciding how to act should the Soviets install long range missiles in Cuba. The balancing act between legal and political considerations was also apparent in the period of decision-making once evidence had come to hand of the installation of Soviet long range missiles. Initially deliberations in Excomm canvassed five possible options regarding how the US should act. These options were examined not just in terms of their political and military feasibility. Some options elicited

105 106

Above note 10. Above note 16 and 17.

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discussion about the potential legal advantage attached to them. US Secretary of State Dean Rusk, for instance, initially thought that a declaration of war prior to an invasion of Cuba might possess certain legal advantages, though he was unclear on the precise detail of the potential advantage.107 Discussion also turned to the Rio Treaty as the most likely basis on which to base a possible blockade of Soviet ships to Cuba, an action favoured by several Excomm members as the most desirable action insofar as maintaining world support for the US.108 State and Justice department legal advisers were also focussing on the Rio Treaty in the development of the possible legal arguments for US action.109 The legal presentation by State department lawyer Leonard Meeker also favoured the blockade option, which he termed a ‘quarantine’, as being the option which could be defended legally via an OAS resolution consistent with Article 6 and 8 of the Rio Treaty.110 Significantly, insofar as reconciling legal and political considerations, US decision-makers ultimately decided to impose a quarantine on Soviet ships to Cuba. Despite questions as to the strategic value of the quarantine, it was the action that could most readily be supported by international law and left open the possibility of escalating to more forceful action and in such a way as to be able to continue to present US action as being ‘legal’. The need to uphold the ideology of international law as strongly as possible and so reconcile legal and non legal considerations explains why the US, with a relatively weaker legal position but being relatively more powerful than the Soviet Union, was concerned with international law. Far from ignoring international law where law and policy did not coincide, decision-makers were working out both how to act and uphold the ideology strongly. There are two other expectations of an ILI perspective that we would expect to see reflected in the historical record and which can help us to better understand the relationship between international law and State behaviour during the CMC. It would be expected that in making strategic use of international law a State would do well to uphold the ideology more strongly than the State with which it is in dispute, by establishing a binary distinction between the legality of its own position and the illegality of its rival’s position, and doing so while recognising the discrepancy between the idea and reality of international law and using that discrepancy to one’s advantage. US decision-makers in their internal interactions and strategic planning recognised that the Soviet Union had not done anything categorically illegal by deploying weapons to Cuba. Hilsman wrote, for instance, that “…the basic Soviet motives were not in fact belligerent or aggressive per se [they were] defensive.”111 Chayes recalled after the event the difficulty in developing the US legal position: “…we never took

107 108 109 110 111

Above note 35. Above note 27, 28, 29 and 30. Above note 37. Above note 39 and 40. Hilsman, above note 77, at 91.

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the position that Soviet deployment was illegal, in fact, our legal problem was that their action wasn’t illegal…”.112 Decision-makers in their internal interactions in determining policy and tactics did not uphold the ideology of international law and recognised the indeterminacy of legal argument. It was well recognised, for example, that the legality of the US position was to be derived (at least in part) by appearing legal, which implies, contrary to the rule-book image of international law, that it is not always possible to distinguish objectively between legal and illegal action. US decision-makers took great care in casting their own position in the strongest possible legal terms: [o]fficials of the government were well aware of the novelty and difficulty of the question presented [re the quarantine action]. They were concerned that any actions to be taken by the United States should rest on the soundest foundation in law and should appear in that light to all the world, including the government of the Soviet Union…No new doctrines of wide application were enunciated. One single situation was considered on its individual facts and the limited action decided upon rested on the narrowest and clearest of grounds.113

From an ILI perspective we can see that in seeking to make it appear as if the US position had a strong legal foundation, the US adopted a dual strategy: to cast the Soviet Union as acting ‘illegally’ by arguing that the Soviets had deployed ‘offensive’ weapons, and developing a new category of law so as to be able to cast US action as being ‘legal’. While there was no clear distinction between ‘illegal’ offensive missiles and ‘legal’ defensive missiles, Rostow recognised the importance of being able to establish such a distinction in order to distinguish the ‘legality’ of US missiles installed in Europe and other parts of the world, from the illegality of Soviet missiles installed in Cuba. He noted that “…it may be extremely important within the hemisphere to distinguish defensive from offensive installations, downplaying what has already been delivered…The Soviets may argue that we have deployed nuclear weapons close to their borders.”114 Chayes has explained the strategic thinking behind establishing a distinction between offensive and defensive weapons: The offensive/defensive distinction grew out a legal memo written by Norbert in response to the question: What can we do if the Soviets put missiles in Cuba? The answer was – nothing, if the missiles are defensive in nature. That’s why the President chose to speak of “offensive” missiles in his September 4 statement, which I believe was the first time that the distinction between offensive and defensive missiles was made. That language

112 113 114

Chayes, cited in Blight and Welch, above note 70, at 40. Blight and Welch, Ibid. Above note 15.

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was chosen because we were anticipating a legal basis for a response just in case the Soviets did deploy missiles in Cuba.115

The distinction between the acceptability of defensive weapons and the unacceptability of offensive weapons was the foundation on which subsequent US legal strategy rested. This distinction attempted to align ‘offensive’ behaviour with threats of force, which is expressly forbidden under international law. This would be sufficient to invoke Article 6 of the Rio Treaty which allowed for State parties affected by an ‘aggression which was not a armed attack’ to decide on measures in defense of such aggression. We can now see from an ILI perspective that Kennedy’s September 4 warning speech first establishing a distinction between ‘illegal’ offensive weapons and ‘legal’ defensive weapons, was drawing on that aspect of the ideology which suggests that it is possible to distinguish objectively between legal and illegal behaviour. This set up a situation so that if the Soviet Union did deploy medium and long range missiles, the US could present the Soviet action as ‘offensive’ and therefore ‘illegal’. Decision-makers also had to grapple with the difficulty of describing the US position as ‘legal’. Here again by recognising the discrepancy between the idea and reality of international law in internal interactions determining policy and tactics, US decision-makers were able to develop a legal strategy that established a clear binary distinction between the legality of US action and the illegality of Soviet action. Not only was opinion divided as to which legal provision the US could rely on to support possible US action, but legal advisers also proceeded to modify existing law in order to be able to describe US action as ‘legal’. In the first instance, reference to the Monroe doctrine was dropped in favour of reference to Rio Treaty provisions, as it was recognised that while the Monroe doctrine might be ‘emotionally’ acceptable for Americans it had no legal basis.116 Legal opinion was initially divided as to which legal provision to use in support of the US action. Schlei and Katzenbach thought the self-defense provisions in Article 51 under Chapter 7 of the UN Charter would be sufficient.117 Meeker on the other hand was not confident that the US could get the support it needed in the Security Council in order to invoke Chapter 7 rights, but thought Chapter 8 of the UN Charter covering regional arrangements relating to the maintenance of international peace and security could be used.118 This would allow the US to invoke the relevant provisions in the Rio Treaty (Articles 6 and 8) to portray its actions as being ‘legal’. There was still the problem that existing law did not support the preferred course of US action. Despite there being nothing in existing international law that could

115 116 117 118

Chayes, cited in Blight and Welch, above note 70, at 40. See above note 19 for President Kennedy’s September 4 statement referred to by Chayes. Above note 17. Above note 37. Ibid.

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be used to support a policy intended to blockade all Soviet missiles heading to Cuba, US decision-makers endeavoured during the CMC to bring about change to the rules of international law by developing the ‘quarantine’ concept so as to have international law evolve in a way that suited the US position. The ‘quarantine’ concept allowed the US to stop and where necessary board Soviet ships to Cuba while appearing in the ‘legal’ right. The quarantine could be justified by an OAS resolution pursuant to Article 6 of the Rio Treaty providing for collective action against threats to the region not involving a prior armed attack.119 Further, the quarantine was justified on the basis of being a new development for the nuclear age.120 In formulating the new term of ‘quarantine’, decision-makers sought to strengthen the purported legality of the US position by upholding, in public rhetoric, the image of international law as objective and timeless in the sense of predating policy. When Kennedy spoke of the quarantine publicly he justified it as a development for the nuclear age and not something recently invented by them.121 From this point on US legal rhetoric stressed continually the legality of US actions under the Rio Treaty, reinforcing the idea that the obligations of international law are compulsory, in contrast to Soviet actions that appeared to threaten the ‘peace and security’ of the hemisphere.122 There were no instances in US rhetoric or actions that highlighted the discrepancy between the idea and reality of international law. From an ILI perspective a State would do well to recognise the discrepancy between the ideology and reality of international law and to use the ideology to improve its position. The US in its legal strategy was far more successful than the Soviet Union in achieving this due to its early initiative in ensuring it set up a very clear distinction between the legality of its own action and the purported illegality of Soviet behaviour. US officials were well aware that they were in the weaker legal position: they had deployed similar missiles in other parts of the world and there was nothing in international law that explicitly prevented what the Soviet Union was doing. There was the potential for the Soviet Union to have made better strategic use of international law so as to enhance the perceived ‘legality’ of its deployment of missiles to Cuba. Possible legal preludes to the deployment of missiles would have been to bring Cuba into the Warsaw Pact alliance, or at the very least, to have formalized the defence alliance between Cuba and the Soviet Union through some other treaty arrangement. Such arrangements would have expressly made subsequent Soviet deployment of missiles to Cuba ‘legal’, making the task even more difficult for the US. Given that the US recognised that the Soviet deployment of missiles was

119 120 121 122

“Department of State Memorandum: Legal Basis for the Quarantine of Cuba” in Chayes, above note 6, at 110. “Soviet Offensive Weapons Systems in Cuba: President Kennedy’s Broadcast to the People, October 23 1962”, in Documents on American Foreign Relations, at 376-378. Ibid., at 376. Ibid., at 375.

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not illegal – after all the Soviets had lived with US missile deployments to States that were part of the NATO defence alliance and situated close to the Soviet Union – an alliance between Russia and Cuba under the umbrella of a formal defence pact would likely have been powerful in persuading the US not to oppose Soviet action, or at the very least made it even more difficult to oppose. Such a move would have placed the US in a difficult position: to determine an argument to oppose the Soviet deployment of missiles to Cuba as a result of a formal (treaty) alliance without threatening its own deployment of missiles under the NATO defence alliance. Such a legal strategy would have allowed the Soviets to use international law to discriminate against US interests and exert some influence on the direction of US policy, at least to the extent of delaying the inevitable or making the task of appearing legally valid that much more difficult for the US. It is clear that US policy-makers saw a difference between ‘a member of the Warsaw Pact’ and ‘just a communist country.’123 Indeed the lack of a public treaty (such as in the form of a defense pact) between the Soviet Union and Cuba regarding their strategic alliance seems to have played a part in US assessments of potential Soviet reaction to the possible use of US military force. The Department of State Special National Estimate reasoned, partly on the basis that there was no military defense treaty linking the Soviet Union and Cuba, that the Soviet Union was unlikely to attack the US from bases in either the Soviet Union or Cuba should the US use force.124 Chayes has noted in retrospect that “…from the American point of view it would have been very difficult to generate world support or an effective operational plan if the Soviets had deployed above board. The net benefit for the Soviets might very well have been greatest with an open deployment.”125 It is clear that some formalised arrangement expressly ‘legalizing’ the Soviet deployment of missiles may well have had some influence on US strategic assessments as to how to respond to the deployment of missiles. When Soviet representatives did use international law in their diplomacy with US counterparts they were less successful in using international law for political advantage despite being in the stronger ‘legal’ position. The Soviet Union for its part appeared to be on the defensive in terms of upholding the ideology of international law. From the time of Kennedy’s first speech on September 4 warning of dire consequences should evidence of Soviet offensive weapons deployment to Cuba be found until the resolution of the crisis, the Soviet Union competed to uphold the ideology of international law in terms set by the US. The Soviet Government insisted that the

123 124 125

Comments by William J Fulbright, Monday October 22, 2pm Cabinet Room Meeting, in The Kennedy Tapes, at 271. ‘Special National Intelligence Estimate’, October 19 1962 [Document 32], in FRUS XI www.State.gove/www/about_State/history/FRUSXI/26_50.html accessed 5/5/04. Chayes, cited in Blight and Welch, above note 70, at 42.

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weapons sent to Cuba were ‘exclusively for defensive purposes’126 and condemned the US actions “aimed at violating the UN Charter…”.127 In doing so the Soviet Union was interacting with the US on the basis of the notion that it is possible to distinguish between legal and illegal behaviour. However, Soviet statements made a relatively weaker reference to the ideology by highlighting the discrepancy between the ideology and reality of international law. While Khrushchev did maintain that Soviet missiles were ‘defensive’,128 he later went on to argue against the possibility of categorically distinguishing between offensive and defensive capability,129 thus undermining his ability to interact on the basis of a clear legal-illegal dichotomy. While the US claimed its action was a ‘defensive quarantine’ the Soviet Union described it as an illegal blockade,130 which undermined the possibility of interacting on the basis of a clear legal-illegal distinction. By rejecting the term ‘quarantine’ and accusing the US of legislating international law,131 statements by Soviet representatives denied the possibility that international law is universal, prior to policy and politically neutral. Rather than using the discrepancy between the reality of the indeterminacy of distinguishing between legal and illegal, law and policy (as opposed to the image of a clear dichotomy), the rhetoric of the Soviet Union served to undermine their use of the ideology of international law. An ILI perspective points to the way the Soviet Union did make strategic use of international law, albeit less successfully than the US. This would appear to go beyond a realist perspective, which assumes that international law is of little relevance for a State in a relatively less powerful position than its competitor, as the Soviet Union was vis-à-vis the US. It would appear that the Soviet Union did use international law, not to justify its position, as realists would contend, but as a strategic tool with which the Soviet Union could improve its position. However, from an ILI perspective, a State that is unable to uphold the ideology of international law as strongly as its rival is unlikely to derive the political benefit of employing legal argument. Where reference to the ideology of international law highlights the discrepancy between the idea and reality of international law, a State is unlikely to be able to improve its position by reference to the ideology, as was the case with the Soviet Union during the CMC. An ILI perspective would also appear to go beyond the positivist image of international law conveyed by positivism which assumes that law can determine appropriate foreign policy behaviour. Positivists therefore assume that international

126 127 128 129 130 131

Statement by the Soviet Government, September 11 1962, reprinted in Beggs, above note 3, at 32. Above note 62. Letter from Khrushchev to Kennedy, October 23 1962, reprinted in The Kennedy Tapes, pp. 321-322, at 321. Ibid., at 321; Letter from Khrushchev to Kennedy, October 26 1962, reprinted in The Kennedy Tapes, pp. 485-491, at 486. Above note 52, 53 and 54. Above note 67.

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law can provide a solution to the Soviet foreign policy dilemma of convincing the US not to oppose the Soviet deployment of missiles to Cuba, a solution with which the Soviet Union could either comply or not comply. Although the position of the Soviet Union was more readily deemed ‘legal’ from a positivist perspective, Soviet representatives were unable through their legal rhetoric to establish the ‘legality’ of their position or the ‘illegality’ of the US position. Significantly for our understanding of the relationship between international law and State behaviour, it is possible for one’s position to be more readily deemed ‘legal’ yet make a relatively weaker reference to the ideology of international law, as was the case with the Soviet Union’s position during the CMC. The US was able to use the discrepancy between the idea and reality of international law – without highlighting the discrepancy – to make a strong reference to the ideology. While recognising the weakness of its own position in terms of international law, the US was publicly able to make reference to the ideology of international law to prevent the further deployment of nuclear missiles to Cuba. This enabled the US through its rhetoric to set up a situation whereby, if the Soviet Union did not act the way the US wanted by stopping further shipment of missiles and removing what was already in Cuba, the US would use military force to achieve the same ends. What was in reality an ultimatum by US representatives to their Soviet counterparts was presented, via reference to the ideology of international law, as something that was reasonable and proportionate. After all, the missiles threatened the security of the hemisphere and the Soviet Union had been given an opportunity to end the dispute peacefully. In the zeal of the Soviet Union to deploy weapons surreptitiously, Soviet decision-makers seemed to have failed to assume the legal initiative, a task made easier by the fact that the Soviet position could more readily be described as ‘legal’ – a fact recognised by US representatives themselves. Rather than adopt a strategy which reinforced the legality of its own position (nothing in international law prevented them from acting as they did) and reinforce the legitimacy of its position, the Soviet Union left the field of legal rhetoric open to the US to exploit to its advantage. Unable to present an affirmative legal defense for its deployment of missiles to Cuba the Soviet Union faced a quarantine on Soviet ships carrying military material to Cuba and the prospect of further military action if it did not stop its deployment of missiles to Cuba and remove those already installed on the island. Determined to avoid an escalation of the conflict into a full scale war, Khrushchev sought to negotiate an end to the conflict which included the removal of Soviet missiles from Cuba. Thus it is now apparent that international law was central to the diplomatic process by which both sides competed with each other. Moreover, international law was integral to the process by which the US was able to achieve its policy goals to have the Soviet missiles removed from Cuba.

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Conclusion This case study confirms the greater explanatory capacity of an ILI perspective than positivism, realism and functionalism in understanding the relationship between international law and State foreign policy behaviour in the CMC. Whereas realist, positivist and functionalist perspectives underpinning existing empirical literature on the CMC were found to be inadequate in accounting for the place of international law in US and Soviet Union behaviour during the CMC when compared with the historical record, analysis of the historical record from an ILI perspective appeared to confirm the expectations of an ILI perspective regarding the law-State behaviour relationship. Analysis of the historical record from an ILI perspective illuminates new findings regarding the place of international law in US and Soviet foreign policy during the CMC and in doing so this case study also contributes to historiography on the CMC which has yet to adequately account for the place of international law in the US and Soviet foreign policy during the crisis. It is now apparent that even where there is no convergence between political interests and international law, law would appear to feature in the process of foreign policy-making and implementation of powerful States, as evidenced by the US position during the CMC. An ILI perspective also highlights that despite being in a less powerful position than the US, the Soviet Union also attempted to use international law for political advantage in its diplomacy with the US. Like the US, the Soviet Union drew on international law as a vehicle through which to compete with the US diplomatically. Significantly, despite being less powerful than the US, Soviet representatives ascribed some importance to legal rhetoric as evidenced by frequent references to international law in Soviet statements, albeit less strongly than references to the ideology by US representatives. Skilful use of the ideology of international law was an important factor in the process of shaping the positive outcome for US policy during the CMC. Relatively weaker references to the ideology of international law by Soviet representatives was a factor in the process of shaping the outcome of Soviet acquiescence to US priorities to remove Soviet missiles from Cuba.

CHAPTER SIX THE PLACE OF INTERNATIONAL LAW IN STATE BEHAVIOUR DURING THE DOMINICAN REPUBLIC CRISIS

In the previous case study on the Cuban Missile Crisis we looked at a scenario in which a State employing threats of force was more powerful and in a weaker legal position that the State opposing the threat of force. The last of the possible use of force scenarios, involving asymmetries of power and legality, is that where a State using force is more powerful and its actions more readily deemed ‘illegal’ than the State it is competing against. Such a scenario is represented by the 1965 US intervention in the Dominican Republic. In this case the US intervened militarily in the Dominican Republic which several Latin American States opposed. In this case the preferred policy of the US was more readily deemed ‘illegal’ than that of a collective of Latin American States opposed to the basis of US intervention in the Dominican Republic. The collective of Latin American States, while relatively less powerful than the US, sought to oppose the basis of US intervention in the Dominican Republic in order to limit the projection of US power in the region. This chapter will proceed, first, by briefly outlining the historical background to the US intervention in the Dominican Republic. Following on from this historical overview, I will examine the historical record of the influence of international law on American foreign policy-making and implementation as well as the responses of Latin American States to US legal rhetoric used in diplomacy during the crisis. After comparing the adequacy of existing literature on the Dominican Republic and its theoretical underpinnings with the historical record, I will examine the historical record from an ILI perspective in order to assess the relative explanatory capacity of an ILI perspective in understanding the place of international law in American and Latin American foreign policy during the Dominican Republic crisis.

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Historical Background to the US Intervention in the Dominican Republic The Dominican Republic is located in the midst of a major American trade and communication artery of great strategic value to the US.1 Two chief historical forces shaped the US relationship with the Dominican Republic in the period leading up to, and including, the US military intervention in the island on April 28 1965: the US-Latin American/Caribbean relationship underpinned by the Monroe doctrine, and the Cold War doctrine of containment. The Monroe doctrine underpinned the pattern of US-Dominican relations since the nineteenth century and provided the context for US political, economic and military interference since that time. US Cold War containment policy in the post WWII era underpinned US relations with Latin America, including the Dominican Republic, and provided the context in which the 1965 intervention occurred. Both forces shaped not only US responses to events in the Dominican Republic, but also other Latin American and Caribbean reactions to the US action in the Dominican Republic. The intervention in the Dominican Republic in 1965 was the first direct US intervention in a crisis situation in Latin America. Whereas in other interventions in Guatemala and Cuba the US trained and supported the intervening forces, in this case US forces intervened directly to prevent left wing radicals from seizing power.2 In the early part of the 1960s the US set the pattern of increasing interference in the Dominican Republic. The US moved from a position of trying to persuade the then President, Rafael Trujillo, to leave peacefully to be followed by some kind of moderate (US friendly) successor regime, to a covert plan to support opponents to overthrow the regime. While the US may have viewed Trujillo as an ally against communism, by this time he was seen as a negative catalyst for the possible spread of communism in the region, especially in the wake of Castro’s ascendancy to power in Cuba. US policy-makers feared that if Trujillo was overthrown a political vacuum could be filled by a Castro-backed government, which would soon be followed by Haiti, leading to a line of other communist governments stretched throughout the Caribbean threatening the Panama Canal and vital sea lanes. With the backing of the CIA a small group of Dominican anti-Trujillo forces assassinated him on May 30, 1960.3 The assassination of Rafael Trujillo marked the beginning of worsening political instability. After Trujillo, leadership was assumed by the leftist Juan Bosch, whose short-lived regime was overthrown in September 1963 in a military coup (instigated

1 2 3

Howard J Wiarda and Michael J Kryzanek The Dominican Republic: A Caribbean Crucible (Westview Press: Boulder 1982) at 125. Abraham F Lowenthal The Dominican Intervention (Harvard University Press: Cambridge MA 1972) at 1. David W Dent The Legacy of the Monroe Doctrine: A Reference Guide to US Involvement in Latin America and the Caribbean (Greenport Press: Westport 1999) at 146.

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by the US). Bosch’s removal was followed by the suspension of the 1963 Constitution resulting in military rule. Two years after this, military units loyal to Bosch orchestrated another coup to remove the civilian regime of Donald Reid Cobral in an effort to restore Bosch as president and re-institute the Constitution. Cobral was replaced by José Rafael Molina Ureña who was sworn in as acting President pending the return of Bosch. Loyalists encountered mounting opposition from Air Force General Elias Wessin Y Wessin. Armed strife between the various factions of the military continued, and disorder and chaos followed as weapons were distributed to civilians.4 The rapid escalation of developments in the Dominican Republic toward the end of April 1965 appears to have surprised both US Embassy officials in Santo Domingo and State Department officials in Washington.5 As the situation on the island escalated to crisis point the Johnson administration faced the prospect of possible military intervention to safeguard the Caribbean and Latin America as a hemisphere free of communist influence (with the exception of Cuba). Information from the US Embassy in the Dominican Republic was crucial to the formulation of the US Government decision to intervene. In the period prior to the intervention, Johnson turned to US sources in the Dominican Republic: Ambassador to the Dominican Republic W Tapley Bennett Jr., Chargé d’Affairs William Connett, former Ambassador John Martin, and the CIA. On April 28 1965, a US backed three men military junta, headed by Colonel Bartolome Benoit, was selected to govern the country. The junta declared martial law but was unable to enforce it without a firm assurance of support from the US. The US Ambassador in Santo Domingo, William Tapley Bennett, received a communiqué from Benoit requesting US “…temporary intervention and assistance in restoring order.”6 Bennett transmitted the message recommending intervention. Johnson subsequently dispatched 400 Marines to the Dominican Republic. In the following days a second, much larger, intervention of US troops was undertaken by the US to prevent the takeover of ‘conspiratorial forces against the Western Hemisphere’, as was frequently cited by government officials. It was hoped these justifications would be sufficient to persuade members of the OAS not to oppose, and instead support, American action. Let us now turn to an examination of the historical record regarding the role international law played in the US decision to use force, its implementation of that decision, and Latin American reaction to the policy.

4

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For an excellent detailed overview of these background events that precipitated the crisis see Jerome Slater Intervention and Negotiation: The United States and the Dominican Revolution (Harper and Row Publishers: New York 1970) pp. 1-44; Lowenthal, above note 2, at 6-61. Lowenthal, above note 2, at 63. Lowenthal, Ibid., at 99.

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The Historical Record of the Role of International Law in US and Latin American State Behaviour During the Dominican Republic Crisis In a telegram to Secretary of State Dean Rusk on April 25 1965, the Chargé d’Affairs of the US Embassy in the Dominican Republic, William Connett, wrote that the “…situation [in the Dominican Republic has become] extremely confused and…no identifiable authorities [are] exercising any effective control over government.”7 The coup against the Cabral Government and the subsequent contest was a struggle for control between the consitutionalist (communist) rebels who called for the return of the deposed President Juan Bosch, and loyalists mostly from the military opposed to Bosch’s return. In a telegram to Rusk, Connett wrote of his concerns regarding the possible return of Bosch to the Dominican Republic, fearing Bosch’s return would work in favour of the communist rebels whom the US opposed.8 By early morning that same day embassy officials informed the US Government that the Cabral Government was deteriorating rapidly. Initial reports from the embassy noted that there was no immediate threat to the lives of American citizens and other foreign nationals.9 By April 28 this had rapidly changed and Bennett sent a telegram to the State Department to inform them that American lives had been endangered by rebels who fired their guns inside the Embajador Hotel in which the evacuees had been gathered.10 In a further message cabled to the State Department he wrote: “country team unanimously of opinion that, now that we have request from military junta for assistance, time has come to land the Marines. American lives are in danger…I recommend immediate landing.”11 While the communist threat certainly dominated deliberations in the period leading up to the decision to intervene, there was also another imperative considered by decision-makers, especially by Johnson: not to alienate the US in the region by the US intervention in the Dominican Republic. Given the history of US intervention in the region throughout the history of US-Latin American relations, and Latin American sensitivities to the projection of US power in the region, Johnson understood the need to ensure that US intervention in the Dominican Republic was perceived as ‘legitimate’. He did not want the action to appear simply as the projection of US power in the region with little regard for the States in the region. Johnson and his colleagues were therefore careful not to align the US intervention in the Dominican

7 8 9 10 11

Embtel 21043 (Santo Domingo) Connett to Rusk, April 24 1965, “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library. Embtel 21043 (Santo Domingo) Connett to Rusk, April 25, 1965, “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library. Telephone Call 15a(Santo Domingo) Connett to Sayre, April 25 1965, “Dominican Republic, Box 8” National Security Council File, National Security File, LBJ Library. Embtel 23323 (Santo Domingo) Bennett to Rusk, April 28 1965, “Dominican Republic, Box 4” National Security Council File, National Security File, LBJ Library. Embtel 24340 (Santo Domingo) Bennett to Rusk, April 28 1965, “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library.

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Republic with power political considerations. Instead they endeavoured to present US action as the ‘right’ action to take in the interests of regional security and the course of action which was dictated by international law. While the US did not refer the matter of the Dominican Republic to the OAS prior to their large-scale intervention – citing slow institutional machinery in addressing matters – they were always concerned to ensure regional support for their action. Indeed Johnson was quite clear, despite his dislike for the OAS, of the need to avoid the US being caught alone, isolated from hemispheric opinion, and of the need to get Latin American support for US intervention.12 Initial reports from the embassy were relatively mild, simply expressing ‘concern’ over communist activity;13 later reports noted the ‘deep involvement’ of communist rebels in the insurrection14 and then the ‘extraordinary speed’ of communist rebels in capitalizing on the situation,15 until Bennett wrote on April 28: I recommend serious thought be given in Washington to armed intervention which would go beyond the mere protection of Americans and seek to establish order…if present efforts of forces loyal to the government fail, power will be assumed by groups clearly identified with the Communist Party…we should intervene to prevent another Cuba from arising out of the ashes of this uncontrollable situation.16

While the US Embassy told the head of the Dominican military General Wessin, that there were no plans to use US forces to prevent a communist takeover,17 in

12

13 14 15 16 17

Lowenthal, above note 2, at 117. The US did not in the end wait for the OAS to meet, as US officials felt its somewhat cumbersome machinery would delay the intervention and deployment of US troops, though US officials did inform the OAS of the deployment of US troops to the Dominican Republic and called for a special meeting of the Organ of Consultation. As Mann explained later: “…[the US Government] did not consider it necessary to wait until innocent civilians had been killed in order to prove to the most skeptical that lives were in danger. Had we done this we should have been derelict in our duty to our citizens. These facts are also obviously relevant to the assertions that we should have left those desiring evacuation on the beach until the complex machinery of the OAS was able to function.” Thomas Mann “The Dominican Crisis: Correcting Some Misconceptions” Department of State Bulletin, Vol. 53, November 8 1965, pp. 730-738 at 734. (Address made before the Inter-American Press Association at San Diego, California, October 12 1965). Embtel 20932 (Santo Domingo) Bennett to Rusk, April 24 1965, “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library. Embtel 21442 (Santo Domingo) Bennett to Rusk, April 26 1965 “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library. Embtel 23323 (Santo Domingo) Bennett to Rusk, April 28 1965, “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library. Embtel 24436 (Santo Domingo) Bennett to Rusk, April 28 1965, “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library. Embtel 21313 (Santo Domingo) Connettt to Rusk, April 26 1965, “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library.

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correspondence with the State Department Connett recognised that “…nothing short of major US involvement could prevent Bosch’s return at this stage…”.18 The dilemma for US officials was that they simply could not just intervene on a whim, especially to prevent a communist takeover. As Connett noted: …commitment of US Combat forces in present circumstances would have extremely serious implications for our foreign relations and particularly serious repercussions in Latin America. We could be cast in a role of interventionist power opposing popular revolution of democratic elements overthrowing unpopular constitutional regime [sic]…19

While there was some discussion of the need to protect the lives of US citizens and other foreign nationals, the wider imperative of preventing a communist takeover does appear to have been the over-riding imperative of US decision-makers. Indeed statements by Thomas Mann in the Senate Foreign Relations Committee hearings on May 14 seem to indicate the greater salience of the communist threat in the administration’s thinking. From the beginning [US efforts] have been directed toward a cease-fire and the restoration of order; to help non-communist Dominican elements on both sides to reach agreement on a provisional government that could guide the country to elections; and to the achievement of effective OAS collective action at the earliest possible time.20

In response to a question from Senator Lausche about the situation in the Dominican Republic had the US not intervened, Mann stressed that the communist forces in the rebel movement would have been in effective control had it not been for the US. He later added (as an after thought) that without the US intervening, the lives of American nationals on the island would have been endangered.21

18

19 20

21

Embtel 21442 (Santo Domingo) Connett to Rusk, April 26 1965, “Dominican Republic, Box 4” National Security Council History File, National Security File, LBJ Library. Ellsworth Bunker, US Ambassador to the OAS at the time, has since conceded that Bennett overestimated the communist threat. Transcript, Ellsworth Bunker Oral History Interview III, 12/10/83, by Michael L Gillette, at 11. LBJ Library. Ibid. Opening Statement of Undersecretary Mann at July 14, 1965 Hearing of Senate Foreign Relating Committee on Dominican Situation, at 6-7, July 13 1965 in Records Relating to the Dominican Republic Crisis 1965-1966; Undersecretary for Economic Affairs Mann; General Records of the Department of State, Record Group 59, National Archives II, College Park, MA. For an excellent account of the politics behind the Senate hearings into the US intervention in the Dominican Republic see Peter G Felten “The Path to Dissent: Johnson, Fulbright, and the 1965 Intervention in the Dominican Republic” Presidential Studies Quarterly, Vol. 26(4), 1996, pp. 1009-1018. Senator Laushe’s initial question was not a leading question, in that he did not ask whether the communists would have taken control had the US not intervened. Rather he asked an open question: “what would have been the situation in the Dominican Republic if the

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When it came to determining the public justification offered for the US deployment of Marines to the Dominican Republic, some within the administration, such as McGeorge Bundy and Bill Moyers, recognised that the justification should only be based on the need to protect the lives of American and foreign nationals.22 Such a justification at least provided some legal cover via the customary international right to use force to protect the lives of nationals.23 Undersecretary of State Thomas Mann also understood this necessity when he rang Ambassador Bennett with instructions to obtain a written statement from Colonel Benoit, Head of the Provisional Government of the Dominican Republic, seeking US military assistance to restore order and specifically mentioning the need to protect the lives of foreign nationals.24 Adlai Stevenson even rejected any implied reference to communist threats, such as Dean Rusk’s suggestion that the US intervention aimed to protect ‘free institutions’.25 Thus, just four days after violence had begun, President Johnson ordered the landing of Marines in Santo Domingo and declared:

22 23 24

25

United States had not stepped in?” Mann’s answer addressed the threat posed by the communists. As his later response about the danger to the lives of American citizens indicates, the question was open enough to be answered in several ways. It is perhaps illustrative of the greater concern in the possible communist takeover of the Dominican Republic that his response dealt first with this issue rather than with the lives of Americans on the island. See Senate Committee Hearings Mann-Vance July 14-15 1965, at 2-3 in Records Relating to the Dominican Crisis 1965-1966; Undersecretary for Economic Affairs; Records of the Department of State, Record Group 59, National Archives II, College Park MA. See also Mann’s oral history interview in which he recites both reasons for the 1965 intervention in the Dominican Republic. Transcript, Thomas C Mann Oral History Interview I, 4/11/68, by Joe B Frantz, at 13. LBJ Library, http://www.lbjlib.utexas.edu/johnson/ archives.hom/oralhistory.hom/Mann-t/MANN.PDF, accessed 2/3/04. Lowenthal, above note 2, at 105. For differing opinions on the legal status of intervention to protect the lives of nationals, see Chapter One, pp. 13-14. Lowenthal, above note 2, at 104. The message from Benoit relayed to the State Department by the US Embassy stated: “…American lives are in danger and conditions are of such disorder that it is impossible to provide adequate protection. Therefore I ask you for temporary intervention to restore public order in this country.” Embtel 24640 (Santo Domingo) Bennett to Rusk, April 29 1965, “Dominican Republic, Box 4”, National Security Council History File, National Security File, LBJ Library. When the embassy received the formal request on Wednesday April 28, marines had been on Dominican soil for several hours. Richard Walton (Biographer of Adlai Stevenson), cited in Thomas M Franck and Edward Weisband “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own” Stanford Law Review, Vol. 22, 1970, pp. 979-1014, at 1010.

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I have ordered the Secretary of Defense to put the necessary troops ashore in order to give protection to hundreds of Americans who are still in the Dominican Republic and to escort them to safety back to this country.26

Although the Marine landing had boosted the junta, the US attempted to ‘maintain a position of impartiality’.27 This did not seem the case for representatives of some Latin American States. The first marine landing of troops in the Dominican Republic attracted much criticism from OAS members opposed to the US position. Criticism challenged the legal validity of US action, drawing on the principle that safeguards States from interference in their domestic affairs enshrined in Article 2(7) of the UN Charter and Articles 15 and 17 of the OAS Charter. Juan Bosch declared in an interview published in The New York Times on May 2 that there was “absolutely no [legal] justification” for the landing of US troops in the Dominican Republic”, noting that the fear of another Cuba had been the main inspiration behind the decision to land troops.28 The US had become identified with the military junta controlling the island. The Peruvian Premier, Fernando Schwalb Lopez Aldana, said that it was “truly lamentable that in this case it has damaged the sovereignty of an independent nation” and condemned all interference against the sovereignty of the State.29 The Argentine Foreign Minster, Miguel Angel Zavala Ortiz, noted his government’s strict adherence to the principle of non-interference.30 Chile’s State newspaper declared that the American marine landing had the “appearance of virtual intervention.”31 On April 30 the US began the process of convoking a meeting of the Organ of Consultation of Foreign Ministers (Organ of Consultation).32 A subsequent resolution called upon all warring factions to cease hostilities and establish an international zone of refuge in Santo Domingo and sent a committee of the representatives of five OAS States to the Dominican Republic to engineer a cessation of hostilities and secure

26

27 28 29 30 31 32

“Statement by the President, April 28 1965”, US Senate Committee on Foreign Relations, 89th Congress, 1st session, Background Information Relating to the Dominican Republic (US Government Printing Press: Washington DC 1965) at 51. Lowenthal, above note 2 , at 105. New York Times, May 2 1965, at 1, 4. Cited in Richard W Mansbach (Ed) Dominican Crisis 1965 (Facts of File Inc: New York 1971) at 43-44. Cited in Mansbach, Ibid., at 44. Ibid., at 44. ‘Resolution of the Council of the Organisation of American States, Convoking a Meeting of Consultation of Foreign Ministers of the American Republics, Adopted April 30 1965’ reprinted in Richard P Stebbins (Eds) Documents on American Foreign Relations 1965 (Harper and Row: New York 1966) at 235-236. Herein after referred to as Documents on American Foreign Relations 1965. The resolution was passed 18 in favour 1 against (Uruguay) 1 abstention (Dominican Republic).

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the safety of foreign nationals.33 The same day the US submitted for consideration a draft resolution to the Organ of Consultation requesting member States capable of doing so to offer military contingents in order to assist the Committee in its mission: this was the first step in the creation of the Inter-American Peace-keeping Force (IAPF) so as to convert the continued intervention into a legitimate peacekeeping operation which had the advantage of strengthening the purported legality of the US military presence in the Dominican Republic.34 Around the same time as the US submitted its peace-keeping proposal to the OAS, US military involvement in the Dominican Republic was subjected to strong criticism. The Soviet Union was quick to criticise the US in the UN Security Council where the matter was also being heard. Ambassador Fedorenko, Soviet representative in the Security Council, accused the US of engaging in a “criminal invasion of the territory of another country with the aim of interfering in its domestic affairs” in violation of Article 2(7) of the UN Charter, which prohibits intervention in matters essentially within the domestic jurisdiction of a State.35 The Venezuelan representative, Enrique Tejera Paris, accused the US of violating the OAS Charter; Chilean representative Alejandro Magnet called for the withdrawal of US forces; and Mexican representative Rapheal de la Colina accused the US of acting unilaterally.36 It was reported at the time that “what is unprecedented…is the unanimous condemnation of US intervention by the governments of Latin America, whatever their political complexion…”.37 Latin American governments argued, pursuant to Article 17 of the OAS, that the “territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, under any grounds whatever.”38 By May 2, just four days after the first Marine landing, most of the civilians had been evacuated from Santo Domingo. More forces were needed to counter the increasingly tense military situation, despite efforts to secure a ceasefire. Ellsworth Bunker, US Ambassador to the OAS, stressed that the US military presence was not an “intervention” but was solely for humanitarian purposes.39 In a television address

33

34

35 36 37 38 39

“OAS Resolution Calling for Ceasefire” Department of State Bulletin, Vol. 52, May 17 1965, at 741. Introduced by the US, adopted April 30 1965 by a vote of 16-0, 4 abstentions (Chile, Mexico, Uruguay and Venezuela). Transcript, Ellsworth Bunker Oral History Interview III, 12/10/83, by Michael L Gillette, at 11. LBJ Library, http://www.lbjlib.utexas.edu/johnson/archives.hom/oralhistory.hom/ BUNKER-E/bunker3.pdf, accessed 2/3/04. S/PV/1196 (May 3 1965, No. 1196) at 6, 10. Cited in Mansbach, above note 29, at 52. Observer newspaper, cited in Mansbach, Ibid, at 52. Ibid. Though he recognised later (and possibly at the time) that the entry of US Marines into the Dominican Republic was in fact an ‘intervention’ which had to be ‘converted’ into a peace-keeping operation via an OAS resolution. See Transcript, Ellsworth Bunker Oral History Interview III, 12/10/83, by Michael L Gillette, at 11. LBJ Library, http://

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on May 2, President Johnson declared that the US “…supports no single man or any single group of men in the Dominican Republic.”40 The legal basis for such a statement was elaborated by Thomas Mann, Under Secretary of State, when he said that the US had not taken sides as it would have amounted to taking sides in an internal struggle.41 On the other hand President Johnson stated: “We in this hemisphere must also use every resource at our command to prevent the establishment of another Cuba in this hemisphere.”42 Although US decision-makers wanted to avoid the Dominican Republic becoming another communist enclave in the region, US statements were careful to avoid the appearance of supporting loyalist forces sympathetic to the anti-communist regime of Cobral. Such support had the potential of appearing as a foreign State intervening in an ongoing civil conflict, support for which is hard to find in international law.43 Instead, US decision-makers internationalised the communist threat by reference to the integrity of the Western Hemisphere. By doing so US officials could present US intervention in the Dominican Republic not as an incursion into a civil conflict, but as an effort to uphold the non-intervention principle central to the inter-American system. The legal arguments regarding intervention to protect US lives and to protect the integrity of the Western Hemisphere were employed in an effort to avoid the appearance that the US was intervening in a civil conflict, which was clearly illegal under international law. As the humanitarian argument no longer appeared possible with the evacuation of most civilians, US representatives fell back on arguments of a communist threat to the region, to justify the second and much larger phase of the intervention. Yet there was the issue of how to get around the principle of non-intervention at the heart of the inter-American system,44 codified in articles 15 and 17 of the OAS Charter. This was also the principle the US drew upon to justify the second, much larger, marine landing in the Dominican Republic. Leonard Meeker, chief legal officer, wrote: We landed troops in the Dominican Republic in order to preserve the lives of foreign nations – nationals of the United States and many other countries. We continued our military presence in the Dominican Republic for the additional purpose of preserving the

40 41 42 43

44

www.lbjlib.utexas.edu/johnson/archives.hom/oralhistory.hom/BUNKER-E/bunker3.pdf accessed 2/3/04. ‘Statement by President Johnson, May 2 1965’ in “US Acts to Meet Threat in Dominican Republic”, Department of State Bulletin, Vol. 52, May 17 1965, pp. 744-748, at 747. Statement by Undersecretary of State Thomas Mann, New York Times, May 2 1965, at 2. Statement by President Johnson, above note 40, at 742. According to Malanczuk, international law general forbids foreign States from intervening in the internal affairs of another State, and in particular, taking sides in a civil conflict. See Peter Malanczuk Akehurst’s Modern Introduction to International Law (Routledge: London 1997) at 319-324. Jack W Hopkins Latin America in World Affairs: The Politics of Inequality (Barrons Educational Series: New York 1977) at 55.

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capacity of the OAS … to achieve peace and justice through securing a cease-fire and through reestablishing orderly political processes within which Dominicans could choose their own government, free from outside interference.45

Outside interference included the: …modern day reality that an attempt by a conspiratorial group inspired from the outside to seize control by force can be an assault upon the independence and integrity of a State. The rights and obligations of all members of the OAS must be viewed in light of that reality.46

Such ‘conspiratorial groups’ included communist groups trained and supported by Cuba and other ‘Sino-Soviet’ threats. Meeker’s argument was repeated, virtually to the letter, by Stevenson during Security Council debates on the US intervention in the Dominican Republic, in which he stated: Participation in the inter-American system, to be meaningful, must take into account the modern day reality that an attempt by a conspiratorial group to seize control by force can be an assault upon the independence and integrity of a State. The rights and obligations of all members of the OAS must be seen in the light of this reality.47

In support of this position the State Department pointed to resolutions adopted in 1962 in Punta del Este at the 8th OAS Meeting of Consultation of Ministers of Foreign Affairs of the American Republics, which urged member States to take action against communist (Sino-Soviet) intervention in the hemisphere.48 It was well recognised that justifying the US position based on a request from the Dominican Republic or with particular reference to the civil dispute “…would have amounted to taking sides in the internal struggle and would, therefore, have resulted in actual interference with the freedom of the Dominican people to choose their own government. Such a course of action would have been inconsistent with the principles that govern the interAmerican system.”49 Not all agreed with the official legal justification provided by the US for the major intervention. Abe Fortas, who was to be appointed as Justice of the Supreme Court in October 1965, wrote a memorandum (in his personal capacity) to Security Advisor

45

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47 48 49

Leonard C Meeker “The Dominican Situation in the Perspective of International Law” Department of State Bulletin, Vol. 53, July 12 1965, pp. 60-65 at 62. Italics added. (Address made before the Foreign Law Association, New York, June 9 1965). Internal Opinion of the State Department Legal Adviser, “Legal Basis for the United States Actions in the Dominican Republic” at 5, May 7 1965; “Dominican Republic, Box 7”. National Security Council History File, National Security File, LBJ Library. S/PV/1200 (May 5 1965, No. 1200) at 13. Meeker, above note 45, at 61-62. Internal Opinion of the State Department Legal Adviser, above note 46, at 3.

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McGeorge Bundy critical of the legal position adopted by the US in the Dominican Republic crisis. Fortas wrote that not only was the US legal position, as a matter of legal analysis, open to effective challenge, but that it would obscure the US’ best position for intervening in the Dominican Republic which was based on moral and pragmatic considerations, and that sponsoring the legal principles underpinning the US legal position in this case could harm US interests in the future.50 Senator William Fulbright, Chairman of the Senate Foreign Relations Committee, also severely criticized the US position as a mere excuse for what was otherwise clearly illegal.51 Few States were taken in by US legal rhetoric. As Abe Fortas predicted the US legal position was subjected to much criticism. There was widespread unease among members of the OAS at the actions of the United States and especially US arguments supporting intervention on the basis of the non-intervention principle. Several Latin American and Caribbean States, including Argentina, Chile, Costa Rica, Ecuador, El Salvador, Mexico, Nicaragua, Uruguay, Panama and Peru at various times throughout the crisis both before and after the vote for the IAPF vigorously opposed US involvement in the Dominican crisis as a violation of the non-intervention principle and in violation of the OAS Charter.52 The Peruvian Minister For External Relations declared that the deployment of US Marines in the Dominican Republic “violated the sovereignty of an independent State…[and has] violated the agreement [OAS Charter] of non aggression and non-interference in the domestic affairs of American countries.”53 The Venezuelan President, Raúl Leoni, and the Chilean President, Eduardo Frei, accused the US of acting unilaterally and violating the principles of non-interference at the heart of the OAS system.”54 Uruguay’s representative to the Security Council, Ambassador Valazquez, affirmed the principle of non-interference “at the very heart of the whole [inter-American] system central to which is Articles 15 and 17 of the OAS Charter which the US was violating as a result of its military action in the Dominican Republic.”55

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51 52

53 54 55

Memorandum from Abe Fortas to McGeorge Bundy, May 6 1965, Legal Basis for United States Actions in the Dominican Republic, “Dominican Republic, Box 7”, National Security Council History File, National Security File, LBJ Library. In a subsequent oral history interview, Abe Fortas noted that if he had been asked at the time whether to send troops in or not he would have answered no, given that the communist participation was ‘slight’ and Latin American sensitivity to external interference high. Transcript, Abe Fortas Oral History Interview, 14/8/69, by Joe B Frantz, at 22, LBJ Library, http://www.lbjlib.utexas. edu/johnson/archives.hom/oralhistory.hom/fortasa/fortas01.pdf, accessed 2/3/04 Speech by Senator Fulbright on September 15 1965 “The Situation in the Dominican Republic” Congressional Record, Vol.89, 1965, at 23856. Records Relating to the Dominican Crisis 1965-1966; Undersecretary for Economic Affairs; Records of the Department of State, Record Group 59, National Archives II, College Park MA. S/PV/1196 (May 2 1965, No. 1196) at 10. Ibid. Ibid., at 3-4.

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Another argument given by the US was that it was upholding the competence of the OAS to take collective peace-keeping efforts pursuant to Article 33 and 52 of the UN Charter.56 This argument was used by Adlai Stevenson in Security Council debates that examined the US intervention in the Dominican Republic.57 He also stated that the “United States forces came into the Dominican Republic at the request and with the authority of the remaining authorities in the city of Santo Domingo.”58 This position also attracted widespread criticism during debate in the Security Council on the US intervention in the Dominican Republic.59 On May 3 the Council convened to consider the armed intervention of the United States in the Dominican Republic. Ambassador Valazquez of Uruguay did not accept Stevenson’s argument of the primacy of regional organisations over the competency of the UN to deal with a case of clear ‘aggression’ by the US.60 He described the US intervention as the assertion of a new “Johnson Doctrine” which entails that “…while revolutions are prima facie the internal affairs of countries and for them alone to deal with, they cease to be so and become matters calling for hemispheric action when their object is to establish a communist dictatorship – this seems to go beyond the body of norms existing in the inter-American system.”61 He stated further that the principle of non intervention at the heart of the inter-American system is not applicable to the continent as a whole.62 Even the British representative, while trying to support the US position,

56

57 58 59

60 61 62

Memorandum from Meeker to Mann ‘Dominican White Paper’ at 44-46, September 3 1965; Records Relating to the Dominican Crisis 1965-1966; Undersecretary for Economic Affairs; Records of the Department of State, Record Group 59, National Archives II, College Park MA. S/PV/1200 (May 5 1965, No. 1200) at 18. S/PV1200 (May 5 1965, No. 1200) at 8; S/PV/1214 (May 21 1965, No, 1214) at 73-75. Little was decided in the Security Council in terms of a long-term solution, given the polarization of members and the failure of resolutions due to the veto power. The immediate results of the May debates were the adoption and rejection of various resolutions. One resolution called for a strict cease-fire, which invited the Secretary-General to send a representative to the Dominican Republic to report to the Security Council on the situation and called upon all concerned to cooperate with the representatives. See Security Council Resolution 203, passed unanimously on May 14 1965. The Council also adopted a French resolution requesting that the suspension of hostilities in the Dominican Republic be transformed into a permanent cease-fire and invited the Secretary-General to submit a report to it on the implementation of the resolution. See Security Council Resolution 205 passed unanimously on May 22 1965. A soviet draft resolution (S/6328), that strongly condemned the United States intervention and demanded an immediate withdrawal of all troops, was defeated due to US veto power. See Yearbook of the United Nations 1965 (Columbia University Press: New York 1967) at 142. S/PV/1204 (May 11 1965, No. 1204) at 8-10. S/PV/1198 (May 4 1965, No. 1198) at 4. S/PV/1198 (May 4 1965, No. 1198) at 6.

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stressed the competency of the UN to hear the dispute, noting that “…the responsibility lies not only with OAS. Responsibility lies with this Council.”63 It should be noted that there was agreement with US policy but that the opposition was directed towards the manner and basis on which the policy of intervention was carried out. This reflected the compromise of the essential Latin American dilemma during the crisis. Voting for the resolution appeared to legitimise the intervention, but to not vote and allow for an OAS role in the intervention would be to lock Latin America out of all possible influences over US policy in this instance. Moreover, there was the impact a negative vote may have had on the OAS. While many may regard the OAS as a rubber stamp on US action in the region, it is still nonetheless a forum which can be used by Latin American States to exercise some influence over US policy. Negative votes had the potential to result in what occurred in the Security Council during the Cold War, where the US simply bypassed the body. While the resolution creating the Inter American Peace Force passed in the end, it did so with the barest of a two-thirds majority, reflecting the difficulty in finding a majority consensus: five States opposed the resolution – Peru, Ecuador, Mexico, Chile and Uruguay – with Venezuela abstaining.64 The resolution of the OAS was interesting in the absence of any mention regarding the communist threat to the hemisphere or in the Dominican Republic. Members of the OAS were careful to ensure that authority for the IAPF was not based on the US interpretation of the nonintervention principle, which seemed to broaden the principle as to allow military intervention into a country in the region in order to prevent communist intervention in the region.65 The formal basis for the resolution authorising the IAPF cited only the need to restore order in the Dominican Republic and made no mention of the imperative to prevent the takeover of the island by communist forces working from outside.

63 64

65

S/PV/1207 (May 13 1965, No. 1207) at 58-60. ‘Resolution of the Tenth Meeting of Consultation of the Ministers of Foreign Affairs of the American Republics, Establishing an Inter-American Force for the Dominican Republic, Adopted May 6 1965’ reprinted in Documents on American Foreign Relations 1965, at 251-253. The slim margin on which the resolution passed was further complicated by the fourteenth vote in favour of the IAPF which was provided by the Dominican delegate on the Council, who was opposed to the constitutionalists and only represented the overthrown Cabral Government. While the US had repeatedly stated that the Dominican Republic was in a state of civil war with no legitimate authority, this vote was highly dubious. When the Council’s Credentials Committee noted this and suggested the Dominican seat be declared vacant, the Council majority (including the US) refused to act. See Slater, above note 4, at 101. A subsequent resolution guiding the operation of the IAPF was passed: ‘Resolution of the Tenth Meeting of Consultation, Establishing Command and Guidance Arrangements for the Inter-American Force, Adopted May 22 1965’ (passed unanimously) reprinted in Documents on American Foreign Relations 1965, at 257. From Country by Country Views, Records Relating to the Dominican Crisis 1965-1966; Undersecretary for Economic Affairs; Records of the Department of State, Record Group 59, National Archives II, College Park MA.

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It took another four months to restore order in the Dominican Republic and ensure the effectiveness of the ceasefire arrangements agreed to by both sides involved in the conflict on the island. With the IAPF deployed, civilian authorities in the Dominican Republic addressed the matter of negotiations aimed at a political settlement. On June 2 the OAS appointed a three-member mediation team with representatives from Brazil, El Salvador and the US. After several months of frustrated and laborious negotiation a provisional government under the leadership of Hector Garcia Goday was instituted on September 3, as an interim regime to administer the country until elections were held in mid 1966 under the auspices of the OAS.66

Comparing Existing Empirical Literature on the US Intervention in the Dominican Republic and its Theoretical Underpinnings With the Historical Record Let us now compare existing literature on the Dominican Republic crisis and its theoretical underpinnings with the historical record. This will enable us to examine the adequacy of the theoretical perspectives underpinning existing accounts of US and Latin American State behaviour during the Dominican Republic crisis.

Comparing the Literature on the US Intervention in the Dominican Republic Underpinned by a Positivist Perspective With the Historical Record Literature underpinned by a positivist perspective focuses on examining the purported legality or illegality of the US military intervention in the Dominican Republic. There have been a number of studies which have asserted the illegality of US action. Some have suggested that the use of coercive measures must also be proportionate; it is suggested that because America’s intervention was not proportionate it was illegal.67 Indeed the landing of Marines has been described as an ‘outright invasion’ of a sovereign State.68 Others have suggested that the intervention was illegal, as the

66

67

68

‘Resolution of the Tenth Meeting of Consultation, Designating an Ad Hoc Committee on Restoration of Democratic Order in the Dominican Republic, Adopted June 2 1965’ reprinted in, Documents on American Foreign Relations 1965, at 263-264. Ved P Nanda “The United States Action in the 1965 Dominican Crisis: Impact on World Order- Part I” Denver Law Journal, Vol. 43, 1966, pp. 439-479; “The United States Action in the Dominican Crisis: Impact on World Order- Part II” Denver Law Journal, Vol. 44, 1967, pp. 224-274; Pasquale Pierrone “The Use of Force in the Framework of the Organization of American States” in Antonio Cassese (Ed) The Current Legal Regulation of the Use of Force (Martinus Nijhoff Publishers: Dordreecht: 1986) at 230. Franck and Weisband, above note 25, at 1010.

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crisis in the Dominican Republic was a civil war, a domestic matter for which there is no right to third party intervention.69 The humanitarian argument regarding the rescue of American and foreign nationals has also been considered illegal given the strong prohibition against the use of force in the UN and OAS charters.70 These studies, which have asserted the illegality of US action, reiterate the positivist assumption that it is possible to objectively determine whether an action is legal or illegal. These studies, which have asserted the illegality of US action, reflect a positivist perspective which assumes the possibility of being able to objectively determine the legality or illegality of US action. The literature on the Dominican Republic crisis grounded in a positivist perspective does tell us a great deal about the possible illegality of the US intervention in the Dominican Republic. However, when the historical record is compared against expectations of a positivist perspective, it becomes apparent that existing literature on the Dominican Republic crisis has not been able to completely account for the place of international law in US foreign policy decision-making and implementation during the Dominican Republic crisis.

Comparing the Literature on the US Intervention in the Dominican Republic Underpinned by a Realist Perspective With the Historical Record Literature that focuses on the ‘political’ aspects of the crisis also provides insights into its (implicit) theoretical assumptions regarding the influence of international law on foreign policy. According to Felten, the deployment of thousands of troops to save American lives was a ‘pretext’ for military intervention to assist rightist generals.71 Others have suggested that avoiding another Cuba, already ‘lost’ to communism, influenced America’s policies towards the Dominican Republic and was the overriding reason for American intervention in 1965.72 Lowenthal has argued that although the American intervention was a success, the US position “was never neutral”.73 According to Gleijeses the legal justification offered by Johnson – to protect the lives of foreign and American nationals – was a “pretext to mask an

69 70 71 72

73

Charles G Fenwick “The Dominican Republic: Intervention or Collective Self Defense” American Journal of International Law, Vol. 60, 1966, pp. 64-67, at 64 A J Thomas Jr and Ann Van Wynen Thomas The Dominican Republic Crisis 1965 (Oceana Publications: New York 1967) at 10. Felten, above note 20, at 1011. Wiarda and Kryzanek, above note 1, at 127, 153; Piero Gleijeses The Dominican Crisis: The 1965 Constitutionalist Revolt and American Intervention (Johns Hopkins University Press: Baltimore 1978) at 293. Lowenthal, above note 2, at 136.

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aggression against a weaker neighbour.”74 The OAS for its part has been interpreted as a weak institution ineffective in dealing with the events dictated by a powerful America.75 Though not specifically mentioning international law, Schoonmaker does note the difference between “presenting the intervention as a humanitarian effort and play[ing] down the political aspects of the action.”76 More damning were Friedman and Collins who saw in the American intervention in the Dominican Republic a case where “national interest and considerations of power politics prevailed far more obviously over arguments of international law…international law had to take a back seat.”77 These studies, while not rejecting the positivist notion that it is possible to determine objectively action that is legal or illegal, have suggested that international law is nonetheless of little or no importance to State behaviour, especially for a major power in dispute with relatively less powerful rivals. To the extent that law was involved in American policy during the Dominican Republic intervention, it served to justify US action taken on political grounds. There would appear to be aspects of the historical record that a realist perspective cannot explain. Why would a State that is relatively more powerful than its competitors and its preferred policy more readily deemed ‘illegal’ make reference to international law, if as realists tell us, international law is only relevant where the preferred policy coincides with the dictates of international law? How to explain why a relatively powerful State would modify its behaviour, even slightly, so as to appear in the legal right? The corollary of this position is reflected in the literature on the Latin American position during the 1965 Dominican Republic intervention. In this group of literature, authors have emphasised the relative powerlessness of the region when confronting its superpower neighbour. Latin American States on their own and collectively through the OAS, it is suggested, were unable to match American power.78 With no reference to international law the typically realist assumption underpinning this group of literature is that law could not have been relevant to the power struggle between the weak Latin American states and the powerful US. Some have recognised the value of international law for States in Latin America in safeguarding their interests against the US in non-military scenarios but are still of the view that, in the case of military

74 75 76 77

78

Gleijeses, above note 72, at 290. Ibid., at 300. Herbert G Schoonmaker Military Crisis Management: US Intervention in the Dominican Republic 1965 (Greenwood Press: New York 1990) at 42. Wolfgang Friedman and Lawrence A Collins “The Suez Canal Crisis of 1956” in Lawrence Scheinman and David Wilkinson (Eds) International Law and Political Crises (Little, Brown and Co: Boston 1968) at 123. Jack W Hopkins Latin America in World Affairs: The Politics of Inequality (Barrons Educational Series: New York 1977) at 46-47; Jerome Slater “The Limits of Legitimization in International Organizations: The OAS and the Dominican Republic” International Organization, Vol. 23(1), 1969, pp. 48-72; Gaddis Smith The Last Years of the Monroe Doctrine 1945-1993 (Hill and Wang: New York 1994); Dent, above note 3, at 146-147; Friedman and Collins, Ibid., at 124.

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force as in the Dominican Republic, law is of little value to a group of less powerful Latin American States against the more powerful US.79 A realist perspective would not appear to offer an adequate explanation of the historical data where the less powerful Latin American States did make reference to international law in their diplomacy with the US and benefited in the pursuit of their interests by so doing. Realism assumes that law lacks power in its own right and would not be of use for relatively less powerful States in the pursuit of their interests. Yet realism would appear unable to account for the way Latin American States relatively less powerful than the US were able to challenge and eventually influence the basis of US military action in the Dominican Republic through references to international law in their diplomacy with the US.

Comparing the Literature on the US Intervention in the Dominican Republic Underpinned by a Functionalist Perspective With the Historical Record One study attempted to test the capacity of international law to constrain US action through an examination of the 1965 Dominican Republic crisis. While not explicitly identifying with a functionalist perspective this study is underpinned by an understanding of international law in terms of its ability to function as a constraint on government action. The study finds that international law did not act as a constraint on US policy: “…the United States response raises fundamental questions about the ability of international law to constrain governmental actions, particular when national security interests are perceived to be involved.”80 Law served only to “…justify ex post facto, essentially political actions on legal grounds…”.81 This study indicates the limitations of a functionalist perspective which does not completely eschew positivism or realism. To ask whether law can constrain government action presumes, like positivism, that it is possible to distinguish between legal and illegal behaviour and select the ‘legal’ option. Yet from the historical record it is clear that, for Latin American States opposed to the basis of US intervention in their region, the chosen course of action which would more readily be deemed ‘legal’ was not distinct from what was in their national interest. Although the US position might more readily have been deemed ‘illegal’, it is apparent from the historical record that law was a factor taken into account in the process of policy formulation. By

79 80 81

Gordon Connell-Smith The Inter-American System (Oxford University Press: New York 1966) at 12-13, 26. Daniel I Papermaster “The United States Intervention in the Dominican Republic in 1965” Texas International Law Journal, Vol. 24, 1989, pp. 463-497, at 496. Ibid., at 464. See also Lawrence Friedmann “United States Policy and the Crisis of International Law” American Journal of International Law, Vol. 59, 1965, pp. 857-871, at 857.

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not entirely abandoning positivism and realism, functionalism cannot explain the way in which international law might be of value to States beyond that of constraining State behaviour or justifying State behaviour, but as a strategic device available to all States whether powerful or not.

Understanding the Relationship Between International Law and State Foreign Policy Behaviour During the Dominican Republic Intervention From an ILI Perspective An ILI perspective hypothesises that the power of international law resides in a small set of ideas about international law, referred to as an ideology, and that international law is a source of power in world politics. States can, therefore, make strategic use of international law. ILI predicts that for a State to make strategic use of international law involves, firstly, recognising the need to uphold the ideology as strongly as possible and to reconcile this with other policy considerations during the process of policy formulation. Secondly, in making strategic use of international law it would be expected that States compete to uphold the ideology more strongly than those with which they are in dispute. Thirdly, an ILI perspective predicts that States making strategic use of international law recognise the discrepancy between the ideology and reality and use the discrepancy to one’s advantage. An ILI perspective would lead us to expect that for a State to make strategic use of international law it would first aim to uphold the ideology of international law as strongly as possible by reconciling legal issues with other policy considerations in the process of policy formulation. While policy-makers themselves may not think in these terms, an ILI perspectives allows us to interpret the strategic use of international law by States in this way. Most significantly in relation to the first of the ILI expectations, US decision-makers examined legal considerations alongside the process of deciding what to do about events in the Dominican Republic, in the hope that the US position could be presented in terms that upheld the ideology of international law. In the lead up to deciding how to act in response to the deterioration of events in the Dominican Republic, US decision-makers were particularly concerned to avoid the island being taken over by communist rebels, and were keen to use force to prevent such a possibility.82 At the same time President Johnson was concerned to avoid the US being isolated in the region and did not want to alienate America’s Latin American neighbours.83 Decision-makers recognised that they could not simply intervene as they deemed necessary and that they needed to establish the appropriate legal basis upon which such action could be justified. It was recognised that preventing a communist takeover of the Dominican Republic was not a sufficient basis for

82 83

Lowenthal, above note 2, at 79; above note 20 and 21. Above note 12.

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supporting US action as it was clearly not an action supported by international law.84 The initial deployment of 400 Marines to the Dominican Republic was instead justified on the basis of protecting the lives of American and foreign nations, which was believed to be a more appropriate basis on which to justify the deployment of military personnel to the Dominican Republic.85 The search for an appropriate legal basis for a possible US military intervention in the Dominican Republic occurred at the same time as deciding how to respond to the deterioration of civil order on the island. Later, when the US deployed more Marines and most US and foreign nationals had been evacuated, a new legal basis needed to be worked out. It was at this point that legal adviser Leonard Meeker devised the novel argument that the US was continuing its military presence in the Dominican Republic in order to protect the Latin American region from outside interference.86 What is significant in this case is that it was considered important by US decision-makers to have some legal basis for this second, larger deployment of Marines. Although they may not have thought in these terms, it would appear that once policy-makers were confident that US action could be described as being ‘legal’ (thus reinforcing the legal-illegal distinction), they clearly felt free to pursue what appeared otherwise to be strongly in the interests of the US. The place of international law in the process of US foreign policy-making was not only one of working out how to act legally or comply with international law. It was not simply a matter of finding the right law with which to justify policy as realists might predict, as part of the legal basis for the US intervention in the Dominican Republic had not existed prior to the US decision to intervene in the Dominican Republic in 1965. An ILI perspective takes us further in our understanding of the relationship between international law and US behavior, pointing to the distinction between upholding the ideology as opposed to complying. An ILI perspective also helps us appreciate what realism cannot explain: why a relatively more powerful State than the State(s) it is competing against and whose position would more readily be deemed ‘illegal’ even bothered to consider legal issues. An ILI perspective also takes us further in our understanding of the relationship between international law and US behaviour by pointing to the distinction between using law to justify behaviour and the strategic use of international law for political advantage. In this case, advantage entailed ensuring that the US was not diplomatically isolated in the region by negative appraisals of its military intervention in the Dominican Republic. Let us now look at the legal rhetoric employed by US representatives in US diplomacy during the Dominican Republic intervention and the responses to US legal rhetoric by representatives from Latin American countries. This will allow us to understand the significance of the historical record to the remaining two ILI expectations.

84 85 86

Above note 18. Above note 22. Above note 45 and 46.

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US behaviour was always presented in such a way that established a binary distinction between the legality of US action and the illegality of communist groups in the Dominican Republic and communist States outside the Dominican Republic. US decision-makers nonetheless recognised the discrepancy between the idea and reality of international law and sought to use it to best suit American interests, as current international law did not support action favoured by policy-makers. Legal adviser Meeker noted the danger of appearing to take sides in a civil war that was clearly ‘illegal’ under international law. US decision-makers were careful in the first phase of military deployment to present their legal rhetoric in terms of protecting the lives of American and foreign nationals.87 Consistent with the second ILI expectation, this served to establish a binary distinction between the ‘legality’ of US action and the illegality of those on the island whose activities were endangering the lives of US and foreign nationals. If it was difficult for US representatives to cast its intervention as ‘legal’ while US and foreign nationals were still on the island, it became even more difficult once US and foreign nationals were removed to safety in May 1965. With no more foreign personnel in need of protection, the US sought to broaden the legal basis for the continued presence of US forces in the Dominican Republic beyond the apparent right to use force to protect the lives of nationals abroad. In order to establish a broader ‘legal’ mandate for the continued US presence in the Dominican Republic and thus maintain a legal-illegal binary distinction, the US submitted a proposal to the OAS for an Inter-American Peace-keeping Force (IAPF). The resolution submitted to the OAS by the US proposed that an IAPF be authorised to ‘restore order in the island’. Such a resolution would allow US forces on the island to have the ‘legal’ cover of an OAS resolution rather than appear to be in the Dominican Republic simply to support anti-communist forces and appear to be taking sides in an internal dispute. To get around the non-intervention principle at the heart of the OAS system, US legal adviser Meeker argued that the US was protecting the region from the external communist interference behind the instability in the Dominican Republic. Meeker suggested that the US in initiating resolutions in the OAS that proposed military action in the Dominican Republic on the grounds of acting against external communist interference in the region helped preserve the capacity of the OAS in responding to threats to the region.88 By this argument the US was undertaking a strategy of seeking to bring law into line with its preferred policy. Unwilling to modify policy to match existing law, US officials aimed instead to offer a new interpretation of the meaning of non-interference. Until then the principle had underpinned the independence of individual States in the inter-American region rather than the region as a collective,89 and has been described as the first “US assertion of a right to invade a State within the inter-American system in the name of regional

87 88 89

Above note 22. Meeker, above note 45, at 62. Italics added. Above note 45 and 46.

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or hemispheric security.”90 In doing so, such an argument aimed to modify existing interpretations of the principle in existing law so as to bring international law in line with its preferred policy position. While those inside the White House and the State Department were clear that this was indeed a struggle for the political soul of the Dominican Republic, in public they tried to differentiate ‘political’ interference in the internal affairs of a State and their own ‘legal’ position. US decision-makers aimed to ensure that it was possible to present the US position in terms that would appear ‘legal’, which reinforced the idea that it is possible to distinguish objectively between action that is ‘legal’ and that which is ‘illegal’. In this way the US could establish a binary distinction between the ‘legality’ of US action and the ‘illegality’ of “conspiratorial groups inspired from the outside” threatening the Dominican Republic and the inter-American region.91 By drawing on international law in its diplomacy with Latin American States during the crisis, US officials no doubt hoped to convince those in Latin America States that the US intervention was not a partisan intervention in a civil dispute, but that international law supported its intervention to protect the lives of nationals and to protect the region from outside intervention. Existing historiography on US foreign policy during the Dominican Republic crisis has not accounted for the strategic significance of international law for US foreign policy relating to the Dominican Republic intervention. Existing literature, underpinned by a realist perspective, has certainly conceded that international law was a convenient cover or justification for US policy92 that served to “mask an aggression against a weaker neighbour.”93 Some have even gone so far as to suggest that “national interest and considerations of power politics prevailed far more obviously over arguments of international law [and that law] had to take a back seat.”94 However, what existing historiography has not perceived is the way in which international legal rhetoric was used by policy-makers as a strategic device of US foreign policy. International law did not simply justify US foreign policy but international legal rhetoric was integral to American diplomacy, which sought to have its policy towards the Dominican Republic accepted, or at the very least not opposed, by Latin American States. An ILI perspective anticipates that States would do well to recognise the discrepancy between the ideology and reality and to use the discrepancy for political advantage. As we have seen, US representatives can be understood to have recognised

90

91 92 93 94

Isaak I Dore “The United States, Self Defense and the UN Charter: A Comment on Principle and Expediency in Legal Reasoning” Stanford Journal of International Law, Vol.24 (1), 1987, pp. 1-19, at 11. See above note 46. Papermaster, above note 81, at 464. Gleijeses, above note 72, at 290. For a similar sentiment see Schoonmaker, above note 76, at 42. Friedman and Collins, above note 77, at 123.

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the discrepancy between the idea and reality and attempted to use the discrepancy to support the US intervention – although they were unlikely to have thought in these terms. Prima facie the legal strategy adopted by the US, especially in the second phase of its intervention in the Dominican Republic, would seem to be a clever move on the part of the US to extend the interpretation of the key organizing principle of the region in a way that suited its interests. However, the US was unable to make full strategic use of international law. Several statements by US representatives served to highlight the discrepancy between the idea and reality of international law, making a relatively weaker reference to the ideology than Latin American States opposed to US action in the Dominican Republic. President Johnson let slip that the intervention was “to prevent another communist State in this hemisphere.”95 Adlai Stevenson’s comments in the UN went the furthest in explicitly stating that the US had intervened in the internal affairs of another State when he suggested the US had chosen to support the non-communist loyalist forces over the communist rebels.96 All such statements taken together served to undermine the case it was building to support the legality of its behaviour. Given that international law does not, in general, sanction third party intervention in a civil dispute, such statements would seem to suggest that the US had overstepped the norm of noninterference and accounts for why it has been easy or other States to see that international law served as a convenient cover for US action in the Dominican Republic. The statements made by Johnson and Stevenson suggested that the US action was indeed ‘illegal’ and diluted the distinction the US tried to maintain between its own legality and the implied illegality of interference by communist ‘conspiratorial groups’ inspired from outside the ‘Western Hemisphere’.97 The statements served to betray the political reality of US actions and failed to persuade Latin American States to fully support US policy on US terms. The US was unable to utilize the full strategic potential of the rule-book image of international law to its advantage. An examination of the way certain Latin American States made strategic use of the ideology of international law enables us to understand the contribution of international law to their achievement of certain political goals. References to international law by US officials did not convince Latin America of the legitimacy of the US mission. This meant the US was unable to convince several Latin American States not to oppose US action. The US was unable to avoid, as Johnson had hoped to be able to do, being isolated in the region by negative opinion of its actions. The US was also forced to change the basis upon which the IAPF was authorised, thus subscribing a potential basis on which it could project power in the region. Given the centrality of the non-intervention principle in the OAS system and the perceived importance of the principle among Latin American States in safeguarding their sovereignty, it is not surprising that US reinterpretation of the principle to

95 96 97

Above note 40. Above note 59. Above note 45.

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justify its intervention in the Dominican Republic, drew much negative reaction from those in the inter-American system. The acceptance of the new US interpretation of the non-intervention principle as a basis for intervention in the Dominican Republic would serve as a dangerous precedent for Latin American States, faced in the future with the prospect of American intentions to use force against them in the name of ‘hemispheric security’. Latin American States critical of the US thus had their own political motives for opposing the US the basis of US intervention in the Dominican Republic. While there was never any question that Latin American States, greatly dependent on US military and economic support, would not authorise an Inter-American Peace Force (IAPF),98 several Latin American States were able to draw on the ideology of international law to limit the projection of US power in the region. Consistent with an ILI perspective, Latin American States that opposed the US position were able to uphold the ideology relatively more strongly than the US and used the discrepancy between the ideology and reality to their advantage in order to challenge and limit the basis on which the US sought to justify its intervention in the region, and thus project power in the region. The first deployment of US Marines to the Dominican Republic in April 1965 that marked the beginning of the US military intervention in the Dominican Republic received strong criticism, being described by officials from Peru, Argentina, and Chile, among others, as a threat to sovereign independence, a breach of the principle of non-interference, or simply an illegal intervention.99 Consistent with the expectations of an ILI perspective, such arguments established a clear binary distinction between the ‘illegality’ of US action and the ‘legality’ of the position adopted by those Latin American States opposing US intervention in the Dominican Republic. Such arguments reinforced the notion that it is possible to distinguish objectively between legal and illegal action, as well as reinforced the idea of the political neutrality and universality of international law. Part of the justification used by the US for its intervention in the Dominican Republic, especially its second, larger deployment of Marines to the island, rested on the argument of preserving Latin America from further communist incursions, an argument underpinned by a broad interpretation of the principle of non-intervention.100 Despite being both economically and militarily dependent on their powerful neighbour, Several Latin American States acted via international law to raise objections to the basis on which the US justified the second phase of intervention by US Marines in the Dominican Republic in May 1965. There was unanimous condemnation for what was described as an ‘illegal’ US intervention to circumscribe the principle of non-intervention. Statements made reference to how US actions undermined this

98 99 100

The resolution authorizing US forces to restore order in the Dominican Republic was eventually passed. See above note 64. Above note 29. John Carey and J Bruce Irving “The Dominican Crisis: A Case Study of Law in Action at the Security Council” ABA Section on International and Comparative Law Bulletin, Vol. 9, 1965, pp. 23-34 at 28.

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principle and compromised the principle of sovereign equality on which the InterAmerican system was based.101 Although a peace-keeping force was inevitably authorised to restore peace in the Dominican Republic, no reference was made to preserving Latin American from communist intervention. By drawing on the notion that international law is universal in the sense that it treats all States equally, Latin American States were able to change the basis on which the US action was formally authorised by the OAS, preserving an interpretation of the principle of non intervention that did not further circumscribe the position of Latin American States vis-à-vis the US. The basis on which the US had, in part, justified its intervention was rejected, ensuring that US power to intervene in the region was not increased. Strong references to the ideology of international law afforded power to the Latin American position and contributed to a favourable political outcome: to ensure that the legal basis on which the US could intervene in the region on future occasions was not enlarged. This was an outcome achieved despite Latin American States opposed to the US during the Dominican Republic crisis lacking (realist-defined) power when measured against the US. By demonstrating the way in which US action did not uphold the idea of international law – the part which portrays international law as universal as expressed through the norm of non intervention – Latin American States were able to cast US action as being ‘illegal’. In this way Latin American States were able to point to the illegitimacy of US behaviour – that it was an aggressive intervention in the region inconsistent with being a peace-loving member of the international community – while at the same time pursuing its political goal of limiting the expansion of the legal basis on which the US could project power in the region. From a realist perspective it might be suggested that the achievement of the Latin American States in changing the basis on which the US was authorised to have its forces on the island was not of much help. After all, the US continued its military presence in the Dominican Republic. However, such an interpretation would appear to overlook the very tangible, if modest, benefits to flow to States in Latin American by having modified the basis on which the US presence in the Dominican Republic was authorised. The collective of dissenting Latin American States reinforced an interpretation of the non-intervention principle that preserved for them a modicum of independence from their giant neighbour. Even this little independence would have been all but extinguished had the US interpretation of the principle of non-intervention not been challenged. The significance of this rests in limiting what could otherwise have been a carte blanche for US military intervention in the Dominican Republic and in similar situations in the future. Existing historiography of the Dominican Republic intervention, which has examined the position of Latin American States during the crisis, has emphasized the relative lack of power possessed by Latin American States during the crisis. It

101

Above note 52; Carey and Irving, Ibid.

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has been assumed that the region simply acquiesced to overwhelming US power.102 Law, according to such studies, had no part to play in the diplomacy between the US and Latin American States or in the achievement of their respective political goals.103 Given that realism perceives power in terms of tangible manifestations of power such as military and economic superiority, it is not surprising that existing accounts of the response of Latin American States to the US intervention in the Dominican Republic have not accounted for the role of international law. Realism would predict that law is of little value to Latin American States opposed to the use of force in the Dominican Republic by the US, a militarily and economically superior power to Latin American States. It is now apparent that international legal rhetoric was indeed an important strategic device for Latin American States opposed to US action in the region during the Dominican Republic intervention. Latin American States opposed to the basis of US action in the Dominican Republic used legal rhetoric to pursue the goal of limiting the basis on which the US could exercise power in the region. Latin American States were able to use international law strategically during the Dominican Republic crisis to limit the basis on which the US was able to intervene in the Dominican Republic. Law was also useful in preparing for future crises that might prompt US military intervention in the region by preventing an enlargement of the basis on which the US could project its military power in the region. Law did not take a back seat but was integral to the process of diplomacy between the US and Latin American States during the US intervention in the Dominican Republic.

Conclusion This case study confirms the greater explanatory capacity of an ILI perspective than positivism, realism and functionalism in understanding the relationship between international law and State behaviour in the Dominican Republic crisis. Existing empirical studies of the US intervention in the Dominican Republic grounded in realism, positivism and functionalism have not told us the whole story regarding the place of international law in US decision-making and implementation during its military intervention in the Dominican Republic. Nor have existing empirical studies told us the whole story regarding the place of international law in diplomacy between the US and Latin American States during the crisis. An examination of the historical record from an ILI perspective suggests a very different story in which a collective of relatively less powerful States was able to draw on the ideology of international law to compete with the relatively more powerful US. This sheds light on what has previously been obscured: the strategic use of international law by relatively less

102 103

Hopkins, above note 78, at 46-47; Slater, above note 78, at 48-72; Smith, above note 78; Dent, above note 3, at 146-147; Friedman and Collins, above note 77, at 124. Connell-Smith, above note 79, at 12-13.

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powerful (in terms of realist indices of power) States in competition with a more powerful rival where the use of force is involved. An examination of the historical record from an ILI perspective also allows us to better appreciate the relationship between international law and US State behaviour. We can now appreciate the importance of international law for a relatively powerful State such as the US which aims to use force against another State despite the preferred action being more readily deemed ‘illegal’. Far from international law being irrelevant in such a scenario, as realists would predict, this case study highlights the important place of international law in US foreign policy behaviour. Law was a part of the process of US foreign policy formulation during the Dominican Republic crisis. The US also sought to use international law strategically for political advantage, by drawing, albeit less strongly, on the ideology of international law in its diplomacy with Latin American States opposed to the basis of US action in the Dominican Republic. An element of US foreign policy ‘failure’ was its inability to draw on the ideology of international law in such a way as to persuade Latin American States not to oppose the US use of force in the Dominican Republic.

CHAPTER SEVEN CONCLUSIONS CONFIRMING THE EMPIRICAL EFFICACY OF AN ILI PERSPECTIVE AND EXAMINING THE IMPLICATIONS OF THE CASE STUDY FINDINGS FOR A GENERALIZED UNDERSTANDING OF THE INTERNATIONAL LAW-STATE BEHAVIOUR RELATIONSHIP DURING INTERNATIONAL CRISES

There were a number of questions, identified at the beginning of this book, regarding the place of international law in foreign policy decision-making and implementation during international crises to which we did not know the answer. Where does law fit into the making and/or implementation of foreign policy where the use or threat of force is a possibility? What, if any, political significance does legal argument possess in scenarios involving the threat and/or the use of force? It is now possible to propose answers to these questions. This chapter will proceed in two parts. Part One will compare the case study outcomes based on an ILI perspective with those based on a positivist, realist or functionalist perspective of the international law-State behaviour relationship, in order to examine the contribution of an ILI approach to better understanding the place of international law in the decision-making and implementation of foreign policy in the use of force cases investigated. Part Two will generalize from the case study findings and explore the implications of the study findings for understanding the relationship between international law and State behaviour during international crises in general. The chapter will conclude by examining the potential for exploring the nexus between international law and State behaviour during international crises beyond the cases examined in this book and present some new perspectives on current and emerging research questions involving use of force issues which an ILI perspective can help elucidate.

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PART ONE: CONFIRMING THE EMPIRICAL EFFICACY OF A THEORISATION OF INTERNATIONAL LAW AS IDEOLOGY – A COMPARISON OF CASE STUDY OUTCOMES BASED ON AN ILI PERSPECTIVE WITH THOSE BASED ON REALIST, POSITIVIST AND FUNCTIONALIST PERSPECTIVES OF THE PLACE OF INTERNATIONAL LAW IN STATE BEHAVIOUR DURING INTERNATIONAL CRISES The question that this book has sought to address is: where does international law fit into the making and/or implementation of foreign policy where a State is considering and/or may use force? It has been the hypothesis of this book that an ILI perspective offers a better explanatory model by which to account for the place of international law in State behaviour during international crises involving the threat and/or use of force than explanations grounded in positivism, realism or functionalism. So as to confirm or reject this hypothesis, a multiple case study methodology was adopted to test the ability of each theoretical perspective to explain the historical record regarding the place of international law in State behaviour in the particular use of force cases chosen for investigation. A comparison of the case study findings based on an ILI perspective with those based on a positivist, realist and functionalist perspective now allows us to answer the questions posed at the beginning of this book. An ILI perspective was found to offer the best explanation of the historical record regarding the place of international law in State behaviour in the particular use of force cases chosen for investigation. Each case study confirmed the expectations of an ILI perspective regarding the place of international law in State behaviour outlined at the beginning of this book. This is consistent with what Yin has called literal replication logic,1 whereby each case study reflects the same results regarding the efficacy of the theory being tested. The case study findings appear to confirm the hypothesis posed at the beginning of this book: an ILI perspective does offer a better explanatory model than realism, positivism and functionalism by which to account for the place of international law in State behaviour where the use of force is involved. As expected from a multiple case study methodology, across case comparison adds a further layer of evidence regarding the overall efficacy of an ILI approach as compared to rival explanations2 in explaining the case study outcomes, and makes subsequent generalizations based on the case studies ‘compelling’ and ‘robust’.3 Let

1 2

3

Robert K Yin Case Study Research: Design and Method (2nd Edition) (Sage Publications: Thousand Oaks 1994) at 46. Steven Van Evera Guide to Methods for Students of Political Science (Cornell University Press: Ithaca 1997) at 88. Contrasting results that can be explained in terms of the theory hypothesised to be the better explanatory model is referred to by Yin as ‘theoretical replication’, in that negative outcomes (inability to make strategic use of international law relative to one’s rival) can be explained by the theory. Yin, Ibid., at 48. Herriott and Firestone, cited in Yin, Ibid., at 45.

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us now look more closely at the ILI expectations of the international law-State behaviour relationship during international crises that were confirmed by the case studies examined in this book. Comparing the case study outcomes based on an ILI perspective with realist, positivist and functionalist perspectives of the international law-State behaviour relationship will allow us to elucidate the place of international law in State behaviour during international crises.

Expectation 1: To make strategic use of international law a State would do well to recognise the need to uphold the ideology of international law as strongly as possible and reconcile this need with other policy factors in the process of policy formation Analysis of the historical record of the place of international law in the formulation and implementation of foreign policy in relation to the crises chosen for investigation from a realist, positivist, functionalist and ILI perspective, found in each of the case studies that an ILI perspective was best able to explain the relationship between international law and State behaviour. Consistent with the first of the ILI expectations, the relationship of international law to the process of foreign policy formulation where questions of the threat or use of force are involved can best be viewed in terms of States recognising the need to uphold the ideology of international law and reconciling this need with other policy considerations. Thus, we saw in each of the case studies that international law was taken into consideration during the process of policy formulation and reconciled with political and military considerations. This was evident in US decision-making processes during the Korean War, the US and British decisionmaking processes during the Suez crisis, and US decision-making processes in the CMC and the Dominican Republic crisis. Such findings are contrary to the expectations of a realist perspective which would predict that international law is largely irrelevant to the process of policy formulation, or serves merely to justify behaviour determined on other grounds when law and political interests coincide. This would imply that to the extent that law is taken into account by States in determining how to act in a particular scenario involving the threat or use of force, legal considerations follow the determination of policy; policy predates law. In the case of the US position during the Suez crisis, legal and political considerations coexisted in the process of policy formulation. International legal considerations featured as part of the policy process and were reconciled with other policy considerations. An ILI perspective thus allows us to apprehend the place of international law in State behaviour beyond the capacity of international law to justify State behaviour where law and political interests coincide. Most significantly an ILI perspective goes further than a realist perspective to explain the place of international law in State behaviour where the preferred policy position did not readily accord with international law – such as in the US position during the Korean War, the CMC and the Dominican Republic crisis and the British position during the Suez crisis. This too contributes to our understanding of the relationship between international

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law and State behaviour during international crises. Contrary to realism, we can now apprehend the important place of international law in the process of policy formulation even where there is no convergence between the preferred policy course and the rules of international law. Questions of international law appear to be an important consideration where the preferred policy course and international law coincide, but also where there is no such convergence. In confirming the first expectation of an ILI perspective, the case studies also take us beyond a positivist perspective regarding the law-State behaviour relationship where the use of force is involved. The place of international law in the process of policy formulation was not one of working out how best to comply with international law. Even where the preferred policy was one more readily deemed ‘legal’ – as was the case with the US position during the Suez crisis – international law did not provide the ‘solution’ to the policy dilemma faced by the US as to how to forestall, and later end, the use of force by Britain (and France) against Egypt, a solution understood in binary terms of acting legally or illegally. By analysing the historical record from an ILI perspective, it would appear that the relationship between international law and State behaviour is best understood in terms of the US balancing considerations regarding the opinion of allied and adversary States towards the course of US policy, along with considerations of legal advantage. Where the preferred policy was one more readily deemed ‘illegal’ – as was the case with the US position during parts of the Korean War, the US position in the CMC and the Dominican Republic crisis and the British position during the Suez Crisis – international law did not provide the solution of how to act in terms of a choice of not complying with international law, or modifying policy so as to be in compliance with international law, as would be expected from a positivist perspective. The historical record reveals that States were not faced with a binary choice between acting ‘legally’ and ‘illegally’. The ‘legal’ course of action did not dictate the particular policy course, but legal considerations did play a part in reconciling the preferred course of action with international law. An examination of the US position in the Korean War and the British position in the Suez crisis revealed that legal considerations co-existed with other policy factors in the process of policy formulation. Legal considerations did not exist prior to the formulation of policy dictating behaviour that would comply with international law. Rather, legal considerations helped to reconcile the preferred course of action with international law such that the resulting US action in the Korean War and the resulting British action in the Suez crisis were the outcome of an internal assessment as to the feasibility of describing such action as ‘legal’. Such findings are best viewed not in terms of compliance with international law but in terms of States recognising the need to uphold the ideology of international law and reconciling that need with other policy considerations. Similarly, US efforts to create new law during the Korean War, the CMC and the Dominican Republic crisis was an effort to reconcile political interests with consideration of legal advantage. US efforts to created new law in these cases is best viewed not in terms of complying with international law but in terms of recognising the need to uphold

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the ideology of international law and thus reconciling this need with other policy considerations. Confirming the first of the ILI expectations in each of the case studies takes us further in our understanding of the law-State behaviour relationship during international crises, pointing to the distinction between complying with international law and upholding the ideology of international law. This also goes beyond a functionalist perspective which would lead us to expect international law to function politically in some way, but which cannot explain how international law can be used strategically, as considerations of legal advantage during the process of policy formulation would indicate.

Expectation 2: During the course of a dispute a State would do well, in making strategic use of international law, to compete to draw on the ideology of international law more strongly than the State(s) with which it is in dispute The second expectation of an ILI perspective anticipated that in order to make strategic use of international law, a State would do well during the course of a dispute to uphold the ideology more strongly than the State with which it is in dispute by establishing a binary distinction between the ‘legality’ of its own actions and/or the ‘illegality’ of its rival’s position. The ideology is upheld more strongly where the discrepancy between the ideology and reality is not apparent. The ideology is upheld weakly where the discrepancy between the ideology and reality is highlighted through actions or statements by a State that contradict its rhetoric. Each of the case studies confirmed the second of the ILI expectations. The side which drew on the ideology relatively more strongly than its rival during the course of the particular crisis, by establishing a binary distinction between the legality of its own behaviour and/or the illegality of its rivals, and not highlighting the discrepancy between the idea and reality of international law, was better able to use international law to pursue its policy objectives. International law can be powerful in its own right and can have a material influence on a State’s ability to pursue its interests. The ideology of international law can be used to improve or maintain one’s position of power relative to a rival State. This is important for understanding the law-State behaviour relationship as it suggests that during international crises, where the threat or use of force is involved, the ideology of international law is a form of power that all States can use (if upheld strongly). By comparing the case study outcomes in relation to the second ILI expectation, new possibilities regarding the law-State behaviour relationship during international crises can be illuminated.

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A State that is relatively more powerful than the State with which it is in dispute can be further advantaged in achieving its political objectives by upholding the ideology of international law more strongly than its rival The US was relatively more powerful than its rivals in both the Korean War and the Suez crisis. The case studies examining US decision-making during the Korean War and Suez crisis demonstrate that international law was an important strategic tool like other indices of power such as relative geopolitical strength or military superiority. Legal advantage cannot be separated from other policy tools. The US was able to use the ideology of international law in the Korean War to set up a situation such that if the communist alliance did not desist from using force in Korea and agree to a negotiated settlement of the conflict, the US would be justified in its continued use of force until such a time as the communist alliance agreed to begin ceasefire negotiations. Likewise, in the Suez crisis, US power was not distinct from US use of the ideology of international law. From an ILI perspective we can see that by drawing on the ideology, the US was able to continue maintaining the pressure on the UK. The US was able to apply its economic superiority as well as use the ideology to condemn the illegality of Britain’s use of force against Egypt and to place Britain under great diplomatic pressure in the UN. Eden’s cabinet cited the sustained pressure the UK was under in the UN as part of the reason for agreeing to end hostilities with Egypt.4 There were no instances in US rhetoric, both during the Korean War and the Suez crisis, which highlighted the discrepancy between the idea and reality of international law. International law is not distinct from realpolitik. Beyond simply justifying behaviour, international law would appear to possess strategic value in its own right even for States that possess other realist indices of power.

A State that is relatively less powerful than the State with which it is in dispute can be further disadvantaged in achieving its political objectives by upholding the ideology of international law more weakly than its rival The case studies shed light on the place of international law in State behaviour during international crises where a State’s preferred behaviour would most readily be deemed ‘illegal’ and that State is less powerful than its competitor in terms of traditional realist indices of power. Given the primacy of power in the realist paradigm, legal considera-

4

This is in addition to the leverage the US had over the UK in easing the financial strain Britain was feeling at the time due to its Suez misadventure. See Chapter 4, p. 150-151.

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tions can at best only adjust to the realities of power politics.5 Law is not powerful in its own right and serves at most to justify policy underpinned by military and/or economic power. It follows that if realism predicts, in general, that law does not matter to the process of calculating interests and policy formulation, then it is more or less irrelevant for States which lack even tangible manifestations of power recognised by realists. This is the ‘worst case’ realist scenario represented by the position of the communist alliance during the Korean War and the British position during the Suez crisis. During the Korean War representatives of the communist alliance sought through their rhetoric to establish a binary legal-illegal distinction. While rarely referring to their own action as ‘legal’, members of the communist alliance did point to the ‘illegality’ of US action and so imply the ‘legality’ of behaviour undertaken by the communist alliance. Despite being in the weaker legal position, in that their action would more readily be deemed ‘illegal’, members of the communist alliance consistently referred to the illegality of US action during the Korean War, taken without proper authorisation by the UN,6 which reinforced that part of the ideology that suggests that it is possible to distinguish objectively between legal and illegal action. Looking at the British position during the Suez crisis7 we saw that British policymakers did take international law into consideration during the process of policy formation. Britain also drew on the ideology of international law so to convince US officials not to oppose British policy to use force against Egypt in response to Egypt’s nationalisation of the Suez Canal. Publicly the British position was presented in terms of its commitment to pursue a peaceful solution to the crisis. Such statements reinforced the Chapter Six UN Charter rules for peaceful settlement of disputes and served to uphold the idea that the rules of international law are compulsory. When Britain eventually used force against Egypt, it did so on the basis of protecting the lives of British nationals in Egypt and to separate the two warring sides of Egypt and Israel so as to restore international peace and security. Such arguments served to reinforce the idea that it is possible to distinguish objectively between legal and illegal action. In drawing on the ideology, British officials hoped to convince their American counterparts to at least acquiesce to Britain’s use of force against Egypt. However, in both cases the ideology was upheld weakly, in that the discrepancy between the idea and reality of international law was highlighted by several statements and actions, thus weakening the success with which the ideology of international law was used to gain favourable policy outcomes. During the Korean War, legal rhetoric by the communist alliance was unable to draw on the ideology to persuade the US to uphold the ideology in a way that disadvantaged US interests and served

5

6 7

Christopher C Joyner “International Law and the Conduct of Foreign Policy” in Shirley V Scott and Anthony Bergin (Eds) International Law and Australian Security (Australian Defence Studies Centre: Canberra 1997) at 7. See Chapter Three, pp. 98-102, 104-105, 108-109, 114-116. See Chapter Four, pp. 139-151.

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the interests of the communist alliance. Legal rhetoric by the communist alliance would appear not to have had an influence over US policy. Similarly, in the Suez crisis British statements and actions that highlighted the discrepancy between the idea and reality of international law did not serve the British goal of convincing the US not to oppose Britain’s use of force against Egypt. These two cases show how States can be disadvantaged, not just by lacking realist indices of power, but also by upholding the ideology of international law relatively weakly. However, these two cases also serve to highlight the political significance of the rule-book image of international law, which is robust even in cases where a State has limited power and is in a weak legal position. Contrary to realist oriented analyses, ILI demonstrates how, despite a weak legal position and limited power, States do attempt to utilise international law in the pursuit of their policy interests. Although reference to the ideology was weak in that the rhetoric that was used pointed to the discrepancy between the idea and reality of international law, what is interesting is the reference to international law in situations realism is unable to explain.

A State that is relatively more powerful than the State with which it is in dispute can be disadvantaged in achieving its political objectives by upholding the ideology of international law more weakly than its rival From an examination of the US position in the CMC and Dominican Republic crisis, we observed how in each scenario the US – relatively more powerful than its competitor in terms of realist indices of power, but whose preferred behaviour would more readily be deemed ‘illegal’ – attempted to use international law strategically for political advantage. It was, however, only in the CMC that the US was able to gain political advantage from drawing on the ideology. In the CMC the US was able to draw on the ideology in such a way that its actions or rhetoric did not point to the discrepancy. In the CMC strong references to the ideology that did not highlight the discrepancy between the idea and reality of international law facilitated US efforts to persuade the Soviet Union to stop the deployment of nuclear missiles and to negotiate the removal of existing missiles from Cuba. In the Dominican Republic crisis, several statements did point to the discrepancy between the idea and reality of international law, thus weakening the political advantage to be gained from drawing on the ideology of international law. Several statements by US representatives pointed to the discrepancy between the idea and reality of international law, which made clear the ‘real’ reason for the US intervention: namely to prevent a communist takeover in the Dominican Republic, which was clearly an illegal intervention in the internal affairs of another State. In the case of weak references to the ideology in public statements by the US during its intervention in the Dominican Republic, the US was

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unsuccessful in achieving its expressed interest of persuading Latin American States not to oppose its action, which in turn undermined its prestige in the region.8

A State that is relatively less powerful than the State with which it is in dispute can be advantaged in the pursuit of its political objectives by upholding the ideology of international law more strongly than its rival The case studies illuminate the place of international law in State behaviour during international crises where a State’s preferred behaviour would more readily be deemed ‘legal’, but where the State is less powerful than the State with which it is in dispute. This scenario is represented by the position of Latin American States opposed to US military intervention in the Dominican Republic, and the position of the Soviet Union during the CMC. Latin American States opposed to US military intervention in the Dominican Republic intervention were able to uphold the ideology relatively more strongly than their rival, the US, and use the ideology to achieve their political objectives. In contrast, the Soviet Union during the CMC was unable to employ legal rhetoric to support its existing and continued deployment of missiles to Cuba, despite being in the stronger ‘legal’ position than the US. The Soviet Union was unable to gain political advantage from drawing on the ideology. During the Dominican Republic crisis there were no instances in which statements by Latin American officials highlighted the discrepancy between the ideology and reality of international law. From an ILI perspective, Latin American States were thus able to uphold the ideology more strongly than their American counterparts, who did highlight the discrepancy between the idea and reality of international law in some of their statements. Strong reference to the ideology of international law in the rhetoric of Latin American States engaged in diplomacy with American counterparts appears to have been an important factor in ensuring that the legal basis of American military intervention in the Dominican Republic was not one that further weakened the principle of non intervention in the region. Despite other weaknesses, international law was used to the political advantage of a State that otherwise lacked power. While it may be easier for a State to uphold the ideology where its preferred behaviour would more readily be deemed ‘legal’, it is possible to be in a stronger legal position and uphold the ideology relatively more weakly than one’s rival, as was the case with the Soviet Union in its dispute with the US during the CMC. In looking at Soviet responses to US legal rhetoric during the CMC from an ILI perspective, it was apparent that Soviet representatives were unable to uphold the ideology more strongly than the US. There were several statements by Soviet representatives9

8 9

See Chapter Six, pp. 200-211. See Chapter Five, pp. 178-181.

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that served to highlight the discrepancy between the idea and reality of international law, thus weakening references to the ideology and diluting the strategic utility of the ideology in persuading the US not to oppose its deployment of missiles to Cuba. Relatively strong references to the ideology of international law can explain the strategic utility of appeals to international law in the pursuit of particular foreign policy goals in the case of Latin American States during the Dominican Republic crisis. Relatively weak references to the ideology of international law can explain why appeals to international law were of less strategic value for the Soviet Union during the CMC.

Expectation 3: A State would do well to recognise the discrepancy between the idea and reality of international law and use the discrepancy to its advantage The last of the ILI expectations would lead us to expect a State to make strategic use of international law by recognising the discrepancy between the idea and reality of international law and using the discrepancy to its advantage. Thus it would be expected that in a State’s internal process of policy formulation the ideology would not be upheld. The determination of how to act, what legal strategy to adopt and the expected legal rhetoric to use would proceed on the basis that that ideology is not necessarily true. It would be expected that the public legal rhetoric used would uphold the ideology of international law without pointing to any obvious discrepancy between the ideology and reality. In this way a State may gain advantage by either being able to pursue its perceived policy interests relatively unhindered by opposition and/or to convince the State(s) with which it is in dispute to uphold the ideology in such a way that it disadvantages the rival State. The third ILI expectation was confirmed in a number of instances in each of the case studies examined in this book, including US decision-making during the Korean War, PRC planning to enter the Korean War, US and British decision-making during the Suez crisis, and US decision-making during the CMC and the Dominican Republic crisis. In these instances, decision-makers did not uphold the ideology of international law in the process of policy formulation but did so publicly in the legal rhetoric used to support the particular course of action pursued. Confirming the third of the ILI expectations is important for moving beyond positivist, realist and functionalist perspectives of the place of international law in State behaviour during international crises. Significantly, it is now apparent that the place of international law in foreign policy determination and implementation is not simply a matter of States acting according to the rule-book image of international law. States do not simply comply with international law as positivists hope they will. Neither do States ignore international law if the preferred State behaviour may not be supported by existing international law, or merely use international law to justify policy if policy and law coincide, as realists tell us. Rather, the strategic value of international law derives,

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in part, from States recognising that the rule-book image is not entirely true and using the discrepancy between the image and reality during the process of policy formulation so as to pursue a particular course of action and uphold the rule-book image of international law in public rhetoric. Thus we can apprehend the political significance of the rule-book image of international law, which may not be wholly true and which need not be believed to be true during the process of foreign policy decision-making, but which States can use to their advantage during international crises through public legal rhetoric that assumes the image to be true.

PART TWO: IMPLICATIONS OF THE CASE STUDY FINDINGS FOR A GENERALIZED UNDERSTANDING OF THE INTERNATIONAL LAW-STATE BEHAVIOUR RELATIONSHIP DURING INTERNATIONAL CRISES It has been the contention of this book that the limitations of existing empirical and theoretical accounts of the relationship between international law and State behaviour during international crises can be attributed to the paucity of a theoretical ‘space’ in which to examine the interaction between international law and politics. It was hypothesized that an ILI perspective was likely to provide a better explanation of the place of international law in the decision-making and implementation of foreign policy where the use or threat of force was a possibility than rival explanations grounded in positivism, functionalism or realism. The analysis, at least in relation to the case studies, has confirmed the empirical efficacy of an ILI perspective as compared with rival explanations of the law-State behaviour relationship during international crisis. Let us now examine the implications of the case study findings for a generalized understanding of the international law-State behaviour relationship during international crises. There would appear to be two implications to be drawn from the case study findings for a generalized understanding of the relationship between international law and State behaviour during international crises.

Beyond Understanding International Law as a Vehicle for Cooperation and Peace Between States and Towards an Understanding of International law as a Vehicle for Inter-State Competition During International Crises One of the implications of the case study findings would appear to be that international law need not (always) be a mechanism which provides the ‘solution’ to the phenomenon of international violence and a vehicle for State co-operation and the

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pursuit of peace, and may in fact serve as a vehicle through which States compete.10 This analysis does not suggest that international law cannot be a medium for cooperation. It is true that where there is a conflict of interest between two or more States the processes of international law may be useful for mediating and resolving the dispute. States can both cooperate and compete through the same processes. In the case of international crises, however, much of the attention on international law thus far has focussed on its capacity to engender cooperation among States. What has been less examined is how States compete using international law during use of force episodes. Discussions regarding war and peace which either implicitly or explicitly give expression to a utopian view of international law as an avenue for world peace and cooperation are underpinned by a rule-book image of international law. It is a utopian vision underpinned by the assumption that international law is a set of objective, politically neutral set of rules, external to the State, which can deal with virtually any issue that arises between States. This implies that if States were to abide by the rules of international law, international peace would follow. Hence the declaration of President Bush Snr at the end of the Cold War that a New World Order had emerged, “united…by the rule of law”.11 Boyle has suggested that had the US supported the League of Nations, the system – its laws and institutions – might have prevented WWII.12 David Kennedy has suggested that the blueprint for the UN Charter – that stands at the centre of the international law on the use of force – reflects the Wilsonian peace through law tradition.13 Kelsen also argued in favour of the possibility of peace via international treaty.14 Clark and Sohn proposed plans for ‘world peace through world law.’15 Oppenheim, who elaborated one of the earliest positivist accounts of international law, listed a number of goals that law could facilitate, including: peace among nations and the governance of their interaction, the peaceful settlement of international disputes, and the establishment of rules for

10

11

12 13

14 15

For the view that international law can promote cooperation over conflict, see Christopher C Joyner “Dissecting the Lawfulness of United States Foreign Policy: Classroom Debates as Pedagogical Devices” ILSA Journal of International and Comparative Law, Vol. 9(2), 2003, pp. 331-344, at 334. See, President George H Bush, “The UN: World Parliament of Peace” UN General Assembly, October 1 1990, http://bushlibrary.tamu.edu/research/papers/1990/90100100.html, accessed 23/5/03. Francis A Boyle Foundations of World Order: The Legalist Approach to International Relations 1898-1922 (Duke University Press: Durham 1999) at 150. David Kennedy, cited in Carl Landauer “Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter” European Journal of International Law, Vol. 14(4), 2003, pp. 767-799, at 775-776. Hans Kelsen Peace Through Law (University of North Carolina Press: Chapel Hill 1944). Grenville Clark and Louis B Sohn World Peace Through World Law: Two Alternative Plans (Harvard University Press: Cambridge MA 1967).

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the conduct of war.16 Brownlie has described the propensity of international lawyers to “…pontificat[e] about ‘peace’ and the ‘right to peace’ in the abstract.”17 In ILI terms, such views serve to reinforce the image of international law as a set of objective rules external to the State that is virtually comprehensive and able to deal with any issue that arises between States. Koskenniemi has recognised that international lawyers may be more cynical of their discipline than they let on, knowing that international law cannot live up to its utopian aspirations.18 Yet outwardly they must remain committed to their faith in the utopian ideals of international law: “[t]o struggle for ‘world peace through law’, ‘world order models’, the rights of future generations, ‘fairness’ or indeed global governance is far from a recipe for diplomatic success. But we would not recognize the [legal] profession for what it is if it did not hark back to such objectives.”19 The desire, at least on the part of international lawyers, to narrow the gap between these objectives of international law and ‘reality’ explains why international crises tend to dominate the imagination of international lawyers. As Charlesworth has noted, international crises have the central role of structuring thinking about international law for international lawyers, and although not the only issue to spur the development of international law, crises continues to be the one that animates the minds of international lawyers the most.20 It has been in reference to various international crises played out in the UN that some writers despair that the political and legal institutions of the UN are more “battlefield” than “peace conference”.21 Harking back to such

16 17

18

19 20 21

Lassa Oppenheim “The Science of International Law: Its Task and Method” American Journal of International Law, Vol. 2, 1908, pp. 313-356, at 313-314. Ian Brownlie “The Principle of Non-Use of Force in Contemporary International Law” in W E Butler (Ed) The Non-Use of Force in International Law (Martinus Nijhoff: Dordrecht 1989) at 17. Martii Koskenniemi “Between Commitment and Cynicism: Outline for a Theory of International Law as Practice” in UN Office of Legal Affairs Collection of Essays by Legal Advisers of State, Legal Advisers of International Organizations and Practitioners in the Field of International Law (United Nations: New York 1999) at 495. Ibid., at 498. Hilary Charlesworth “International Law: A Discipline of Crisis” The Modern Law Review, Vol. 65, May 2002, pp. 377-392, at 382. Inis L Claude Jr “UN Efforts at Settlement of the Falkland Islands Crisis” in Albert C Coll and Anthony C Arend (Eds) The Falklands War: Lessons from Strategy, Diplomacy and International Law (George, Allen and Unwin: Boston 1985) at 122. For Claude it is incongruous with the cooperative spirit of international law that each State would undertake “to secure the blessing of the UN for its own cause and to call down a UN curse upon that of the opponent” (at 122). However, it would be entirely consistent with an ILI perspective. In the case described by Claude, such efforts indicate a reference by States to the idea that the rules of international law are compulsory, and that it is possible to distinguish objectively between legal and illegal action. For the notion of international law as a basis for cooperation, see also Louis Henkin How Nations Behave: Law and Foreign Policy (2nd Edition) (Columbia University Press: New York 1979) at 3. A liberal

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objectives of international law reinforces the rule-book image of international law, which is the implicit goal of those within the discipline of international law. This is true not just of positivists, but also functionalists, who, despite their efforts to contextualise the operation of law, do not reject the rule-book image of international law in its entirety or the utopian goals for peace, collective security, and greater world cooperation to which the rule-book image gives rise.22 The realist appraisal that international law is irrelevant or used only to justify State behaviour during international crises derives from an assessment that the positivist rule-book image – and the myth of world peace via law implicit in this rule-book image of international law – fails to deter or stop the use of force in a world of competing power interests.23 Accounts of the use of force in international crises underpinned by positivism, functionalism or realism have sought to test the rule-book image of international law. The image is tested against reality by positivists who ask whether a particular State action is legal or not24; by functionalists who ask what functions law plays in foreign

22

23

24

theory of international law also predicts that a world of liberal States, committed to the rule of law and possessing a greater propensity to comply with rules, will foster greater cooperation and peace in the world. See Anne-Marie Slaughter “International Law in a World of Liberal States” European Journal of International Law, Vol. 6, 1995, pp. 503-38. For example, Henkin, Ibid., at 137; Myers S McDougal Studies in World Public Order (Yale University Press: New Haven 1960); McDougal and F P Feliciano Law and Minimum World Public Order: The Legal Regulation of International Coercion (Yale University Press: New Haven 1961). Charles W Kegley Jr and Gregory A Raymond “International Legal Norms and the Preservation of Peace, 1920-1964: Some Evidence and Bivariate Relationships” International Interactions, Vol. 8(3), 1981, pp. 171-187, at 182. For more on the relationship between the disappointment with a positivist rule-book image of international law and a realist rejection of international law see, Shirley V Scott “Is There Room for International Law in Realpolitik?: Accounting for the US Attitude towards International Law” Review of International Studies, Vol. 30, 2004, pp. 71-88. Craven, Marks, Simpson and Wilde, reflecting on a letter by legal academics to the Guardian newspaper (of which the authors were among the signatories) in the lead up to the 2003 Iraq war, arguing that a possible war in Iraq lead by US and allied forces would be ‘illegal’, ask the question: “[w]hy were we encouraging faith in international law as an agent of justice and peace [by publishing a letter on the legal merits of a possible war in Iraq]…”. Matthew Craven, Susan Marks, Gerry Simpson and Ralfe Wilde “We Are Teachers of International Law” Leiden Journal of International Law, Vol. 17, 2004, pp. 363-374, at 371. The myth that international law can be a vehicle for peace, cooperation and justice underpins the rule-book image of international law. Legal argument, which serves to reinforce the rule-book image of international law thus continues to perpetuate the myth of international law as a vehicle for peace, cooperation and justice. This can explain why legal argument that asserts a particular action (or future action) to be either ‘legal’ or ‘illegal’ – the type of debate undertaken by Craven et al in the letter to the Guardian – reinforces the rule-book image of international law and serves to encourage faith in law as an agent of justice and peace.

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policy; and by realists who ask what ‘impact’ international law has on State behaviour and conclude that its impact is very small or largely irrelevant. Testing the rule-book image of international law to live up to its goals of peace and cooperation is a result of theoretical perspectives that have not fully explained the relationship between international law and State behaviour. An analysis underpinned by an ILI perspective does not take the rule-book image of international law at face value and instead seeks to explain the significance of the discrepancy between the rule-book image of international law and reality. Rather than test the rule-book image of international law and see whether international law somehow managed to constrain State behaviour during international crises, ILI examines the political significance of the rule-book image of international law. An ILI perspective thus directs attention towards an examination of the political influence of international law on foreign policy processes during ‘high’ politics scenarios involving threats and the use of force. We have seen in the case studies examined from an ILI perspective that State representatives used international law as a strategic device to pursue particular policy goals. It would appear that there is another dimension of international law other than in the sense of constraining certain State action and being a vehicle for peace and cooperation among States. International law may also be a vehicle for inter-State competition during international crises where the use or threat of force is a possibility. This alternative understanding of international law during international crises whereby law is a vehicle of inter-State competition makes the ‘battlefield’ metaphor particularly apt for understanding the international law-State behaviour nexus during international crises. The diplomatic dimension of State behaviour during international crises appears from the case studies to be as important as the military dimension. Realists have traditionally focused on the military or coercive elements in their analysis of episodes involving threats or the use of force.25 One aspect of this is the Clausewitzian view that sees a clear demarcation between political and military aspects of force (neither one of which involves international law).26 Others have examined how the use of force or cautious threats of force can be an instrument of policy.27 Kissinger, one of the leading realist practitioners of the Cold War era, recognised that the concept of realpolitik included, at times, both the application of force and diplomacy, yet he too failed to account for the significance of international law in diplomatic strategy during international crises. In his masterly and erudite book titled Diplomacy, not one entry in the index refers to international law. To the extent international law is mentioned it is associated with utopian Wilsonianism, an approach that contrasts power and interest with law; the ‘real world’ of international relations has little to do with quaint ideas about international rules of conduct in world poli-

25 26 27

See Chapter One, pp. 34-43. See Carl Von Clausewitz On War (Penguin: London 1982). See Chapter One, pp. 36-37.

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tics.28 In general, realists have not attempted to integrate international law with diplomacy in their discussion of episodes involving the threats or the use of force. This is in large part a result of the law-power politics dichotomy central to realism. The dualism between law and power politics is also accepted by positivism. Thus, while a positivist perspective may recognise the importance of diplomacy in the operation of international law, a positivist conceptual framework is unable to explain what if any political value international law might possess as a mechanism through which States compete with each other.29 Functionalist international lawyers have recognised that international law is integral to the language of diplomacy between States, both in general30 and with specific reference to international crises.31 Diplomacy is contrasted with the use of force: “[t]o the extent that national interests are increasingly pursued through diplomacy, the world community will have less violence.”32 This analysis differs from existing accounts of the law-State behaviour relationship during international crises by providing an explanation of the law-State behaviour relationship during international crises that can account for diplomacy that makes reference to international law and reconcile this to power politics. As can now be seen from the case studies, skilful reference to international law can, in itself, be important to political outcomes for States involved in an international crisis involving the use of force. While the application of coercive threats or military force remains important, the ‘battlefield’ of diplomatic interaction whereby States compete with each other through legal rhetoric is also an important mechanism through which States can derive political advantage in the pursuit of perceived national interests. Thus a dimension of international law unaccounted for by existing mainstream explanations of the relationship between international law and State behaviour during international crises has been an understanding of international law as a medium through which States compete with each other in the pursuit of perceived political goals.

28 29

30 31

32

Henry Kissinger Diplomacy (Touchstone Books: New York 1994) at 226, 544-545. There is a more narrow understanding of diplomacy, relating not to the broader processes through which States interact with one another, but in terms of the formal representation of governments at diplomatic and consular levels. In this sense positivists focus on the laws regulating diplomatic and consular relations. See for example, Harold Nicholson Diplomacy (Oxford University Press: London 1950); G E do Nascimento e Silva Diplomacy in International Law (A W Sijthoff: Leiden 1972). For example, Joyner, above note 10, at 335. For example, Francis A Boyle World Politics and International Law (Duke University Press: Durham 1985) at 82-83; Richard A Falk “The Relevance of Political Context to the Nature and Functioning of International Law: An Alternative View” in Stanley Hoffman (Eds) The Relevance of International Law: Essays in Honor of Leo Gross (Schenkman Publishing Co: Cambridge MA 1968) at 135-136; Henkin, above note 21, at 50. B S Murty The International Law of Diplomacy: The Diplomatic Instrument and World Public Order (New Haven Press: New Haven 1989) at 7.

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Where a relatively strong reference to the ideology of international law is made, it is possible to discern a number of ways in which State representatives may use international law to compete with rivals to pursue perceived political goals during international crises. A State may, for example, derive political advantage through the use of legal rhetoric that makes reference to the ideology of international law in terms of securing international support for an intended military action, which carries with it a number of advantages. Such support would enhance the perceived legitimacy of the action itself; international support for a particular action involving the use of force might also enhance the military capabilities of one side against a rival State without such support. This provides us with an understanding of the law-State behaviour relationship during international crises that has not been apparent before: skilful use of international law could be integral to the process of shaping opportunities to threaten or use force in the pursuit of perceived national interests. During international crises, strong reference to the ideology of international law might also serve the diplomacy of a State that attempts to influence the course of policy in a rival State. It might for example delay the use of force, or persuade the State intending to use force to do so on a legal basis that actually serves its own interests but gives the appearance of being dictated by the necessities of international law. Unlike mainstream expectations about the relationship between international law and State behaviour during international crises, States do not simply comply with international law or use it merely to justify State behaviour. Rather, it would appear that States uphold what is referred to as the ideology of international law in public rhetoric and do so for clear strategic ends: to persuade a rival to act in a way that suits one’s own interests and disadvantages one’s rival. Even in certain circumstances where threatening or using force would be more readily deemed ‘illegal’, reference to international law in one’s diplomacy with a rival State may be used for political advantage. By using legal rhetoric that reinforces the ideology of international law and downplays the discrepancy between the image of law and political reality, a State could set up a situation such that what might otherwise be considered ‘aggressive’ or ‘illegal’ can be presented as ‘legal’, reasonable and appropriate. By doing so a State may be able to exert influence on the policy choices of a rival State by threatening the future use of force on that State if it does not act in a way that is politically beneficial to the State threatening force, while at the same time continuing to uphold the ideology of international law. States can also compete with each other during international crises by employing strong reference to the ideology of international law to influence the legal framework in which inter-State diplomacy takes place. Such a strategy could serve the purpose of forcing a rival State to assume a defensive legal posture. By seizing the legal initiative and being ‘pre-emptive’ in one’s legal strategy it may be possible to set the legal framework in which the political dispute is to be played out. This would have the advantage of setting the terms of the diplomatic dispute that parallels the military conflict such that the terms of the legal debate suits one’s own interests and limits the capacity of one’s rival to pursue its interests and appear consistent with

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the ideology of international law. This suggests that even during ‘high’ politics scenarios where armed force is threatened or used, international law can be both advantageous and detrimental to a State’s ability to influence another State’s policy. It could be suggested that international law ultimately serves to reinforce the status quo and as such the strategic use of international law is more relevant to those States that are, in relative terms, more powerful than other States in the international political system. However, as the Dominican Republic case study demonstrated, it is possible for relatively less powerful States to use international law in the pursuit of certain political interests vis-à-vis a great power, even during episodes involving the use or threat of force which have traditionally been seen as the greatest ‘test’ for the efficacy of international law. The efficacy of international law is manifest as a strategic device of foreign policy that both relatively powerful and less powerful States may utilise in their diplomacy to pursue perceived national interests. It is now apparent that international law plays an integral part in the process of competition between States. It is possible to apprehend how States in dispute with each other during a conflict involving the use of force, are not simply competing with each other through their armed forces. States also compete to gain political advantage relative to their rivals through references to legal rhetoric in their diplomacy with each other during episodes involving the use or threat of force. Based on an analysis of the case studies it is possible to categorize the diplomatic dispute that occurs in tandem with the military conflict as a competition not just between armed forces, but between words and ideas. This departs significantly from what has been the traditional view of international law during international crises: as a process by which States might cooperate in the pursuit of peace.

Beyond an Understanding of the Efficacy of International Law as a Deterrent to the Use of Force Perhaps the most striking implication to be derived from the case study findings for a generalized account of the relationship between international law and State behaviour during international crises – at least since the entry into force of the UN Charter in 1945 – is that the efficacy of international law during international crises need not depend on the capacity of international law to prevent the use of force or stop it once begun. The notion that international law operates according to the rule-book image of international law has given rise to the myth that international law is a vehicle for peace and cooperation. The ultimate test of the effectiveness of the system of international law has thus been its capacity to prevent States from using force against other States. Certainly realist accounts of the relationship between international law and State behaviour during international crises have long assumed that international law cannot prevent or stop the use of force and have ‘tested’ the relevance of international law against that assumption, concluding that law is either irrelevant or serves

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to justify State behaviour. The capacity of law to prevent the use of force is an implicit assumption underpinning the positivist interpretation of the relationship between international law and State behaviour during international crises. Positivists assume that policy-makers should take law into account where the use of force is a possibility and, where the use of force would be deemed ‘illegal’, law would be expected to deter the option of using force. Functionalists provide a broader interpretation of the political functions of international law yet do not depart from the positivist rule-book image of international law. Thus functionalists continue to assume that it is possible to categorize State behaviour in terms of ‘legal’ and ‘illegal’ action, and as such, continue to assume implicitly that the relevance of law during international crises is contingent on the capacity of law to deter the use of force. An analysis from an ILI perspective does not deny that law is unable always to prevent or stop the use of force, though the legal prohibition on the use of force does make it easier to uphold the ideology of international law when not using force. This analysis goes much further than traditional realist assumptions and certainly beyond positivist and functionalist approaches, to suggest that the efficacy of international law during international crises need not depend on the capacity of international law to deter the use or threat of force by a State. As was apparent in the case studies, international law did not deter the use of force yet law continued to have an important place in State behaviour during international crises. International legal considerations were an important part of the process in deciding to use force. For example, on occasions – such as the process of US decision-making during the CMC – international law served to solidify the opinion of US decision-makers in favouring the quarantine, an action that effectively threatened the Soviet Union with the promise of US military action if it did not remove Soviet missiles from Cuba. International law did not deter the use of force and served to influence the decision in favour of force. Once a legal argument could be made to support the quarantine in a way that upheld the ideology of international law, the US was free to act in a manner consistent with its political interests. In another example, we saw in the examination of US decision-making during the Korean War the way in which international legal considerations did not temper the decision to use force and instead served to facilitate a decision towards the use of force. Once it was possible to argue publicly that the decision to use force was consistent with the dictates of international law, the US was free to use force in a manner consistent with its interests. Far from deterring the use of force by States, international law was extremely important for the success with which States were able to pursue their political objectives once force was threatened or used. As we saw in each of the case studies, the State that was able to uphold the ideology relatively more strongly than the State with which it was in dispute appeared to gain political advantage in the pursuit of its political objectives. Testing the efficacy of the system of international law in terms of its capacity to prevent the use of force suggests that what is crucial for the continuation of the system of international law on the use of force is compliance with its rules. From an ILI perspective we know that the influence of the system of international law

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derives from a small set of inter-related ideas concerning the nature of international law – referred to as the ideology of international law. What is crucial for the continuation of the ideology of international law is the demonstrated acceptance of the idea of international law by States. For the system of international law to continue requires that the ideology of international law is reinforced by States. An ILI perspective thus helps to illuminate why the efficacy of international law during international crises need not depend on the capacity of international law to deter the use of force. The continuation of the system of international law does not rely upon States complying with international law but upholding the ideology of international law. When viewed in this light it is possible for a State to use force and uphold the ideology of international law, thus ensuring the continuation of the system of international law. It may be argued that such an implication presents an overly pessimistic picture. If international law cannot necessarily prevent the use of force nor stop it once started, law would seem to be incapable of providing a solution to the problem of inter-State violence. A solution to the problem of armed conflict between States would seem to be presented in the UN Charter which seeks, among other things, to outlaw the use of force and “maintain international peace and security…and to bring about by the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace…”.33 Yet in reality the solution to the problem of international conflict cannot be derived from prescriptions dictated by international law. To assume that peace or at least the non-use of force may be made possible by an international legislative act, which is then complied with by States, is to assume that the goals of States are the same as the objectives set out in a particular piece of international law. However, the goals of international law cannot be separate from the goals of States in the international system. The idea that the goals of international law – such as preventing the use of force between States, the peaceful settlement of disputes or cooperation – constrains the coercive self-help tendencies of States in world politics reinforces a particular idea of international law. Such a picture is associated with the portrayal of international law as ultimately distinguishable from, and superior to, politics and able to deal with any issue that arises between States, including those that may bring States into direct military conflict with one another. While international law may moderate the goals of States which would otherwise bring them into conflict, it is also true that international law can be used to pursue goals that inevitably bring States into conflict, including direct military conflict. International law may not dictate the goals States wish to pursue or the actions they undertake such that it deters States from using or threatening force. International law would appear to have a more important place in State behaviour where the threat or use of force is involved. It serves as an important strategic device which States may use to improve or maintain their position of power in world politics.

33

Article 1(1) of the UN Charter.

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CONCLUDING OBSERVATIONS: NEW AVENUES FOR RESEARCH EXPLORING THE NEXUS BETWEEN INTERNATIONAL LAW AND STATE BEHAVIOUR DURING INTERNATIONAL CRISES We would thus appear to have finished at a different point to that at which we started in terms of understanding the relationship between international law and State behaviour during international crises. We can now look beyond States simply complying with international law, using international law to justify behaviour, or simply ignoring international law where law does not readily support their preferred behaviour. From an ILI perspective, international law would appear to be an important element of political power that States use to compete with each other diplomatically during episodes involving threats and/or the use of force. Although the findings in this book were based on use of force cases that took place during the Cold War, an ILI perspective appears to provide a basis on which to shed new light on international crises from both the Cold War and post-Cold War period. It would appear that a number of new stories are waiting to be told. At the end of the Cold War, then US President George H Bush triumphantly declared the emergence of a New World Order, which would be an era of peace, marked by increased global cooperation, and united by the rule of law.34 In light of the case studies, this statement would appear to contain an erroneous view of Cold War international history, one in which law is devoid of any relevance. The picture of a dramatic shift from a Cold War world of conflict to a New World Order based on cooperation and law can now be seen to be largely the expression of a myth about international law implicit in the ‘idea’ of international law – that law is a vehicle for peace and cooperation. As was seen in the case studies on use of force episodes during the Cold War, State representatives – whether representing the US, communist China, the UK, Latin America or the former Soviet Union – were always careful in their rhetoric to demonstrate their commitment to international law. Informed by an ILI perspective that recognises the importance of law for the process of diplomatic competition between States even during episodes that threaten national security, it would appear that any account of the Cold War that does not deal with international law is incomplete. As one Cold War historian has suggested (without mentioning international law), military power alone is not sufficient for explaining the Cold War.35 Recognising the importance of law for the process of diplomatic competition between States during use of force episodes as informed by an ILI perspective would also appear to have relevance for understanding events in the post-Cold War world.

34

35

President George H Bush “The UN: World Parliament of Peace”, Address before the 45th Session of the UN General Assembly, October 1, 1990 http://bushlibrary.tamu.edu/research/ papers/1990/90100100.html accessed 1/6/04. John Lewis Gaddis We Now Know: Rethinking Cold War History (Clarendon Press: Oxford 1997) at 284.

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Since the end of the Cold War much has been written about the ascendancy of the United States to sole superpower status. Some have seen in this a dangerous development in which the US is largely free to use force unconstrained by a rival State, let alone by international law.36 Thus according to Kohen, US policy under the administrations of Bush Snr, Clinton and Bush Jr, has displayed some common characteristics. These include, for example, the view that: “[t]he use of force is considered an instrument of foreign policy…[and that] [t]he use of force by the United States is not conditioned by the respect for international law.”37 However, such an analysis would seem to obscure the ways in which successive US Governments since the end of the Cold War have appealed to international legal rhetoric during episodes involving the use of force, and moreover, the way in which such rhetoric has served US interests. Kohen suggests numerous episodes involving the use of force since the end of the Cold War that have been dubiously justified on the basis of a right to individual or collective self defense, very few of which have been condemned as ‘illegal’ by the Security Council or General Assembly.38 According to Kohen this cannot be seen as an endorsement of the US position as it has not led States to change the existing prohibition on the use of force, either during the Cold War or now.39 However, from an ILI perspective, the fact that the international community sees no need to change the existing rules of international law on the use of force indicates how the US has successfully used the ideology of international law to its advantage. The US accepts the continued prohibition on the use of force and appeals to the self defence exception, reinforcing the idea that it is possible to distinguish objectively between legal and illegal behaviour and that the rules of international law are compulsory for all States. This obscures the reality that the distinction between what is ‘legal’ or ‘illegal’ cannot be objectively made, since the US right to veto in the Security Council is an important political tool that can control formal condemnations of action taken by a member of the United Nations. This is a considerable source of legal power the US possesses but which is obscured by appeals to the ideology of international law. That the international community to varying degrees has not changed its position on the prohibition on the use of force indicates only that they have been ‘taken in’ by US legal rhetoric that has obscured relative US power in the system. After all, the existing use of force regime – which the US had the greatest hand in creating –

36

37

38 39

For recent publications on the US attitude towards international law see Phillipe Sand Lawless World: America and the Making and Breaking of Global Rules (Allen Lane: London 2005) and John E Murphy The United States and the Rule of Law in International Affairs (Cambridge University Press: Cambridge 2004). Marcelo G Kohen “The Use of Force by the United States After the End of the Cold War, and its Impact on International Law” in Michael Byers and Georg Nolte (Eds) United States Hegemony and the Foundations of International Law (Cambridge University Press: Cambridge 2003) at 201. Ibid., at 202. Ibid., at 221-222.

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serves to reinforce the status quo that works in the favour of the US position in world politics.40 This would suggest that those seeking to understand the preponderance of US power in world politics, and investigating ways in which to counter it, should not discount the influence of international law during episodes involving the use of force. As Joseph Nye has suggested, the sources of US power are likely to be both ‘hard’ and ‘soft’ with both reinforcing each other.41 In this regard, one topic on which analysis would do well to focus is that as to how the rules pertaining to the use of force have served to entrench US power in the system.42 This would also serve as a basis on which to assess the extent to which suggestions on the obsolescence of the UN Charter regime,43 post-September 11 2001 changes to international law,44

40

41

42

43

44

Circumstantial evidence of the extent to which the UN Charter is an instrument of US power conceived by and for US interests can be seen in the two opening lines of the Preamble to the UN Charter, which echoes the two opening lines of the US Constitution. Hans Kelsen, cited in Carl Landauer “Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter” European Journal of International Law, Vol. 14(4), 2003, pp. 767-799, at 779. Joseph A. Nye, Jr. Bound to Lead: The Changing Nature of American Power (Basic Books: New York 1990); The Paradox of American Power: Why the World’s Only Superpower Can’t go it Alone (Oxford University Press: New York 2002). One study by Boyle has applied regime theory to examine how the US, as regime hegemon, was instrumental in the development of the United Nations Charter and its rules pertaining to the use of force. Yet Boyle’s analysis does not go far enough in that he accepts that once the regime is established its rules provide an objective standard by which to examine State behaviour. His analysis therefore reinforces the rule-book image of international law, especially the notion that the rules of international law are politically neutral and external to the State, and distinct from the operation of politics and the notion that it is possible to objectively distinguish between legal and illegal behaviour. See Francis A Boyle “International Law and the Use of Force: Beyond Regime Theory” in Lisa B Miller and Michael J Smith (Eds) Ideas and Ideals (Westview Press: Boulder Co 1993) at 391. Others such as Hans Kelsen and Alf Ross have examined the politics of how the UN Charter was developed. Yet again, however, they have done so from the perspective of criticizing the Charter for ‘ceding law to politics’, a view based on the assumption that law can be somehow distinct from the operation of politics. See Landauer, above note 40, at 798. See for example, Anthony Clark Arend “International Law and the Recourse to Force: A Shift in Paradigms” Stanford Journal of International Law, Vol. 27(1), 1990, pp. 1-47; “International Law and the Preemptive Use of Military Force” The Washington Quarterly, Vol. 26(2), Spring 2003, pp. 89-101. Of course, these relatively recent claims of the death of the UN Charter regime are not new and were made during the Cold War as well, one of the most famous being Thomas Franck “Who Killed Article 2(4)? Or Changing Norms Governing the Use of Force by States” American Journal of International Law, Vol. 64, 1970, pp. 809-837. Michael Byers “Terrorism, the Use of Force and International Law after 11 September” International and Comparative Law Quarterly, Vol. 51(2), 2002, pp. 401-414.

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and current calls to reform the UN and the Secretary-General’s own plans for reform,45 either further entrench or roll-back US influence over the use of force regime. An ILI perspective that illuminates the way in which legal rhetoric is important for the process by which States compete through their diplomacy with each other during use of force episodes would not only seem to shed new light on the sources of US power, but would also have the potential to shed new light on the so called America-Europe divide that was evident during the lead up to the 2003 Iraq War. Academic and popular commentary has suggested a great divide between those in the international community committed to cooperation, diplomacy and international law – associated largely with the European position – and the position held by the US, which is intent on exercising power, using force, and eschewing diplomacy and international law.46 In this schema, the process of treaty making, negotiations and the other aspects of diplomatic life in relation to international law is viewed as a strategy largely left to the ‘weak’ Europeans.47 Of course, the official European position is not monolithic on any issue, least of all the use of force, as the lead up to the 2003 Iraq War made evident.48

45

46

47

48

A/57/387: Report of the Secretary-General, Strengthening the United Nations System, 9 September 2002. For a general article appealing for reform of the UN see David Rieff “Hope is Not Enough” Prospect, October 2003, pp. 26-32. For a selection of such views, see for example, Ivo H Daalder “The Use of Force – US and European Perspectives” Leiden Journal of International Law, Vol. 16, 2003, pp. 171180; Robert Kagan “The Power Divide” Prospect, August 2003, pp. 20-27, at 20; Michael Monniger “Interview: Emmanuel Todd” Prospect, June 2003, pp. 24-25; Jed Rubenfeld “Two World Orders” Prospect, January 2004, pp. 32-37. For media/popular commentary on the same issue, see for example: Christopher Kremmer “Putting the World Back Together Again” Sydney Morning Herald, March 22-23, 2003, at 11; Robert Manne “A Mission in Iraq Built on a Lie” Sydney Morning Herald, June 16, 2003, at 13; Ignacio Ramonet “Lawless War” Le Monde Diplomatique, April 2003, http://mondediplo.com/2003/ 04/01lawlesswar accessed 2/04/03. For example, the American version of Kagan’s Prospect article cited above (note 46) was called ‘Power and Weakness’ with the latter associated with the ‘European’ emphasis of treaty making and negotiations, in contrast to the American position associated with considerations of power politics, see Robert Kagan “Power and Weakness” Policy Review, June 2002, www.policyreview.org/JUNE02/Kagan.html accessed 1/12/03. In a subsequently published book based on this article, Kagan expands on the power-weakness idea to contrast the utopian ‘paradise’ of the European world view with the American real world power politics world view where, it is implied, law is immaterial to power. See, Of Paradise and Power: America and Europe in the New World Order (Knopf: New York 2003). Britain and Spain led European States in favour of US action in Iraq and endorsed the ‘legality’ of such action. See for example: S/PV.4707- Security Council, 58th Session, 4707th Meeting, February 14 2003, Statement by Foreign Minister of Spain (Palacio Vallelersundi), at 16-17 and Statement by Foreign Minister of UK (Jack Straw), at 17-18; S/PV.4714Security Council, 58th Session, 4714th Meeting, March 7 2003, Statement by Foreign Minister of Spain (Palacio Vallelersundi), at 23 and Statement by Foreign Minister of

Conclusions

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An examination from an ILI perspective of the legal rhetoric employed by American representatives arguing in favour of the ‘legality’ of using force against Iraq and European representatives arguing that the use of force in Iraq would be ‘illegal’, points to a different reading whereby both American and European representatives need not be viewed as differing in their attitude towards international law, at least in relation to the use of force: both sides would appear to be using law in their diplomacy to pursue their respective political objectives. European States that used international law in their diplomacy to cast the US use of force on Iraq as ‘illegal’ were in fact competing with the US using the ideology of international law, and in particular that part of the ideology that suggests it is possible to distinguish objectively between what is illegal from what is legal. The way in which the US made reference to the ideology of international law in its references to international law leading up to and during the Iraq War has already been demonstrated.49 This would seem to suggest the potential for analysing and rethinking the assumptions about international law that have coloured analyses of the so-called Europe-America split. While there may well be differences, it would appear that the attitude towards international law is not one of them. Rather, it would appear that the so-called Europe-America split has been a debate underpinned by an assumption that international law operates according to its image: that those against the ‘illegal’ use of force are for peace and the rule of law, those who use force ‘illegally’ are opposed to peace and the rule

49

UK (Jack Straw), at 27; S/PV.4721- Security Council, 58th Session, 4721st Meeting, March 19 2003, Statement by Spain’s Ambassador to the UN (Inocencio F Arias), at 15-16 and Statement by UK Ambassador to the UN (Jeremy Greenstock) at 19; S/PV.4726 (Resumption 1)- 58th Session, 4726st Meeting, March 27 2003, Statement by Spain’s Ambassador to the UN (Inocencio F Arias), at 29 and Statement by UK Ambassador to the UN (Jeremy Greenstock) at 23. France and Germany led those opposed to US action in Iraq and sought to cast potential US action as ‘illegal’. While such rhetoric rarely declared explicitly that the US action was ‘illegal’, rhetoric used by European representatives, such as those of France and Germany, frequently implied the ‘illegality’ of any State (though clearly directed chiefly at the US) that sought to use force in Iraq. See for example: S/PV.4707Security Council, 58th Session, 4707th Meeting, February 14 2003, Statement by Foreign Minister of France (Dominique de Villepin) at 11; S/PV.4714- Security Council, 58th Session, 4714th Meeting, March 7 2003, Statement by Foreign Minister of Germany (Joschka Fischer), at 9; S/PV.4721- Security Council, 58th Session , 4721st Meeting, March 19 2003, Statement by Foreign Minister of Germany (Joschka Fischer), at 4 and Statement by Foreign Minister of France (Dominique de Villepin), at 7; S/PV.4726 (Resumption 1)58th Session, 4726st Meeting, France’s Ambassador to the UN (Jean-Marc de La Sabliere), at 28. Shirley V Scott “Assessing the Significance for International Law of the Use of Force Against Iraq: The Contribution of Inter-Disciplinary Theorising”, Referred Paper presented to the Australian Political Studies Association Conference, University of Tasmania, Hobart, 29 September-1 October 2003, www.utas.edu.au/government/APSA/RefereedPapers.html, accessed 7/12/03.

252

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of law. This would appear to obscure how both the US and Europe are in fact closer in their attitude towards international law than has been suggested to date. There is also another interesting relationship which will become more important to global power relations in time, namely that between the United States and the People’s Republic of China (PRC), the latter touted to be the next great geopolitical rival of the US.50 Should China become the main strategic rival of the US, China is likely to pose a threat to two important US goals in the post-Cold War world: the continued victory of liberal democratic values over other political values and continued US military preponderance.51 China has already demonstrated its willingness to use force in pursuit of important national interests, as evidenced by its military confrontations with Vietnam (1974 and 1988) and the Philippines (1994) over title to territory in the potentially oil and gas rich South China Sea.52 The PRC has also reserved the right to use force to ‘reunify’ China and Taiwan and to safeguard ‘China’s sovereignty and territorial integrity’.53 In these incidents and the more recent spyplane incident with America in 2001, China has demonstrated its willingness to compete diplomatically with rival States through rhetoric that makes reference to international law.54 How might China’s future challenge to the status quo affect the development of international law, and in which direction might such developments proceed? These would appear to be questions that many of those seeking to understand the sources of possible Chinese influence in any future global struggle with

50 51

52

53 54

Aaron L Friedberg “The Struggle for Mastery in Asia” Commentary, Vol. 110(4), 2000, pp. 17-37; “Facing China” Commentary, Vol. 111(2), 2001, pp. 16-23. Aileen San Pablo-Bavera “The China Factor in US Alliances in East Asia and the Asia Pacific” Australian Journal of International Affairs, Vol. 57(2), July 2003, pp. 339-352, at 342, 340. A good collection of the public rhetoric (including references to international legal rhetoric) used by the PRC during its conflict with the Philippines over the status of Mischief Reef can be found at: http://subcontinent.com/sapra/world/w_1999_01_21.html accessed 16/06/04. (document titled: Chinese Territorial Assertions: The Case of the Mischief Reef). It is true, as Joyner has suggested, that “the Cold War’s passing brought a sense of rapprochement to Asia” making military conflict over the Spratly Islands (the most contested part of the South China sea area) less acceptable to governments with competing interests in the region. See, Christopher C Joyner “The Spratly Islands Dispute: Rethinking the Interplay of Law, Diplomacy, and Geo-Politics in the South China Sea” International Journal of Marine and Coastal Law, Vol. 13(2), 1998, pp. 193-236, at 211. However, the increasing significance of Asia as the next theatre of conflict in the likely geopolitical contest between the US and China may well increase the possibility of military conflict in the South China Sea region (and in particular over the Spratly Islands). PRC White Paper- The One China Principle and the Taiwan Issue, Released February 21 2000, http://www.taiwandocuments.org/white.htm accessed 16/06/04. For legal rhetoric used by the PRC during the EP3 spy-plane incident, see: Spokesman Zhu Bangzao Gives Full Account of the Collision Between US and Chinese Military Plane, www.defense-aerospace.com accessed 9/06/04.

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the US have not examined.55 For instance, in Aaron Friedberg’s now famous analysis of this potential ‘struggle for mastery in Asia’, his review of political/diplomatic dimensions of PRC influence makes no mention of international law and how it might be one part of that realm of competition.56 These are but some of the areas relating to the use of force in which there is much scope to examine the political influence of international law on how States compete with each other. In the present world order, it is likely that the use of force will involve the US as the major power in the system. However, as with most aspects of world politics, this is not a permanent reality, with the likely ascendance of China to superpower status pointing to possible change in the global political system in the future. Whoever the State actors are, looking at the political significance of legal argument to State behaviour involving questions of the threat or use of force will enable a better understanding of how States complete with each other through international law in the pursuit of their political objectives.

55

56

For works which have begun the process of looking at the influence of China on international law see Jeanette Greenfield China’s Practice on the Law of the Sea (Clarendon Press: Oxford 1992); James V Fienerman “Chinese Participation in the International Legal Order: Rogue Elephant or Team Player?” China Quarterly, Vol. 141, 1995, pp. 186-210; Ann Kent “China’s International Socialization: The Role of International Organizations” Global Governance, Vol. 8, 2002, pp. 343-364. Friedberg (2000), above note 50. See also, Jing-dong Yuan “Friend or Foe? The Bush Administration and US China Policy in Transition” East Asia Review, Vol. 15(3), 2003, pp. 39-64.

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INDEX

A Acheson, Dean, 43, 94, 95, 108 Austin, John, 19 B Bay of Pigs, 166 Bush, G H, 236 Bush, G W, 34 C Caroline Case, 10, 14, 16 Carr, E H, 40 Case study method, 80 Castro, Fidel, 198 China see Peoples’ Republic of China Cold war, 82, 93, 138, 165, 166, 198, 236 Constructivism, 55, 56 Corfu Channel case, 19, 72 Covenant of the League of Nations, 8 Crisis management, 32, 36 Critical legal studies, 53 Cuban missile crisis, 3, 27, 37, 42, 46, 82, 227 Cuban missile crisis and the Soviet Union, 167-182 Cuban missile crisis and the US, 167182

Cuban missile crisis and the UN, 176, 178, 179 D Democratic People’s Republic of Korea, 91 Deterrence, 31 Diplomacy, 2, 116 Diplomacy – Coercive diplomacy, 32, 33 Dominican Republic crisis and Latin America, 198, 201, 204, 205, 208, 209 Dominican Republic crisis and the OAS, 201, 204, 205, 206, 207 Dominican Republic crisis and the UN, 204 Dominican Republic crisis and the US, 198, 199, 200-211 Dominican Republic, 3, 28, 82, 227 E Eden, Anthony, 136, 139, 141, 145, 146, 147, 148 Eisenhower, Dwight D, 140, 142, 144, 149, 159, 162 Environment, 2

286

Index

F Foreign policy decision making, 6 France, 136 Functionalism, 50, 51, 62, 79, 86, 122-123 Functionalism and Cuban missile crisis, 187 Functionalism and Korean war, 122123 Functionalism and Suez, 156-157 Functionalism and the Dominican Republic crisis, 214-215 G General Assembly, 24 General Assembly and Cuban missile crisis 174 General Assembly and Korean War, 105, 106, 107, 109, 114, 115, 116 General Assembly and the Suez crisis, 150-151 H Hart, H L A, 22 Human rights, 2 I Ideology theory, 63, 65 International Law as Ideology (ILI), 61, 63, 66-70, 86-88 ILI and Cuban missile crisis, 188-195, 227, 228, 232, 233, 234 ILI and Korean war, 123-134, 227, 228, 230, 231, 234 ILI and Suez, 157-163, 227, 228, 230, 231, 232, 234 ILI and the Dominican Republic crisis, 215-222, 227, 228, 232, 233, 234 Il-Sung, Kim, 93 Iraq war, 248 Israel, 136

J Johnson, Lyndon B, 200 K Kelsen, Hans, 22 Kennedy, John F, 166, 172, 174, 176, 177, 179, 181 Kennedy, Robert, 169, 180, 181 Khrushchev, Nikita, 178, 180, 181 Kissinger, Henry, 44 Korean Peninsula, 93 Korean war, 2, 28, 82 Korean war and the US, 94-118 Korean War and the UN, 95, 96, 97, 98, 100-118 L Latin America – and the Cuban missile crisis, 170-173 Latin America – and the Dominican Republic crisis, 198, 201, 204, 205, 208, 209 Liberal theory of international law, 58 M MacArthur, General, 111, 112 Mao Zedong, 99 McNamara, Robert, 32 Morgenthau, Hans, 41, 42 N National Security Strategy, US, 35 New Haven School see functionalism Newstream, see critical legal studies Nicaragua (merits), 10, 12, 13, 75 North Korean Army, 91, 93, 97 Nuclear deterrence, 31 O OAS and Cuban missile crisis, 169, 175, 176, 178 Oppenheim, Lassa, 21

Index

Organisation of American States (OAS), 3, 28, 82, 227 P Peoples’ Republic of China, 91, 98, 99, 108, 109, 110, 112, 115, 117 Policy Oriented jurisprudence see functionalism Positivism, 19, 62, 79, 85-86 Positivism and Cuban missile crisis, 185-186 Positivism and Korean war, 119-120 Positivism and Suez, 154-156 Positivism and the Dominican Republic crisis, 211-212 Post-positivism, 64 R Realism, 39, 44, 62, 66, 67, 79, 120122 Realism and Cuban missile crisis, 182184 Realism and Korean war, 120-122 Realism and Suez, 151-154 Realism and the Dominican Republic crisis, 212-214 Rusk, Dean, 96, 105, 173, 174 S Security Council, 2, 18, 72, 97, 101 Security Council – the Suez Crisis, 149-150 Security Council – the Cuban missile crisis, 134, 179 Security Council – the Korean War, 106, 107, 108, 109 Self defence, 12, 69, 96, 112 Self defence – Anticipatory self defence, 16, 17, 74 Self defence – Pre-emptive self defence, 16 Self defence – Humanitarian intervention, 15

287

Soviet Union, 91, 93, 105, 108 State behaviour, 3 Strategy, 31 Suez crisis, 3, 27, 46, 182, 227 Suez crisis and the UK, 135, 136, 137, 138, 157-163 Suez crisis and the US, 135-151 Suez crisis and UN, 136 T Terrorism, 17, 74 Thucydides, 40 Trade, 2 Trujillo, Rafael, 198 Truman, Harry S, 94, 95, 104 U United Nations – and the Korean war, 94-118 United Nations – and the DR crisis, 95, 96, 97, 98, 100-118 United Nations – and the Cuban missile crisis, 176, 178, 179 United Nations – and the Suez crisis, 136 United States – and the Korean war, 94-118 United States – and the Suez crisis, 135-151 United States – and Cuban missile crisis, 167-182 United States – and the Dominican Republic crisis, 198, 199, 200-211 Use of force, law, 2, 8-18 W War, theories of, 31, 32, 35 Webster, Daniel, 10 World War I, 9, 40 World War II, 41, 62, 83, 93, 136