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Threats of Force

  • Romana Sadurska (a1)

International agreements apparently treat an unauthorized threat of force and the actual use of force as equally grave, yet distinct, wrongs. If, however, formal legal appraisals of specific situations are taken as indicators of existing practice, it seems that the threat of force has no separate significance, as it were, beyond the use of force: either it precedes actual violence and therefore is eclipsed in legal appraisals by the latter, or it is not followed by the use of force and thus ceases to demand prompt legal consideration. Such an attitude toward the question of threat implicitly acknowledges that threats of force are a ubiquitous element of international relations and that they may not be detrimental, indeed may even be beneficial, to the preservation of international order. On the other hand, the attitude of apparent tolerance of threats of force ignores that they produce consequences whether or not they are followed by resort to force and for this reason need to be scrutinized more closely and their lawfulness evaluated. This situation reflects a dissonance between the absolutist aspiration of the international principle prohibiting the threat of force and the complex, often ambiguous and rather pragmatic code applied in international practice.

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1 Article 2(4) of the United Nations Charter provides: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (emphasis added). See also UN Charter art. 39. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV) (Oct. 24, 1970), reprinted in 65 AJIL 246 (1971), proclaims that every state has “a duty to refrain” from a threat or use of force (against the territorial integrity or political independence, etc.) and characterizes them as “a violation of international law.” The Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA Res. 2131 (XX) (Dec. 12, 1965), reprinted in 60 AJIL 663 (1966), provides: “No state has the right to intervene . . . in the internal or external affairs of any other state. Consequently, armed intervention and all other forms of interference or attempted threats . . . are condemned.”

See also Art. 2, Agreement Governing Activities of States on the Moon and Other Celestial Bodies, GA Res. 34/68 (Dec. 5, 1979), reprinted in 18 ILM 1434 (1979) (entered into force July 11, 1984); and Art. 2, Draft Code of Offences Against the Peace and Security of Mankind, [1984] 1 Y.B. Int’l L. Comm’n 4, UN Doc. E/CN.4/SER.A/1984.

2 Commenting on Article 2(4), Schachter observes: “Curiously, it has not been invoked much as an explicit prohibition of such implied threats.” Schachter, , The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1625 (1984). Hopple, , Rossa & Wilkenfeld, , Threat and Foreign Policy: The Overt Behavior of States in Conflict, in 5 Sage Int’l Y.B. Foreign Pol’y Stud., Threats, Weapons and Foreign Policy 19 (McGovan, P. & Kegley, C. W. Jr., eds. 1980), state: “Aside from the work of Charles McClelland, few researchers have attempted to analyze the idea of threat as either a theoretical concept or an empirical phenomenon.” See also id. at 39–40 nn.2–3.

3 E.g., in Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27) [hereinafter Nicaragua v. U.S.], Nicaragua claimed that the United States “in breach of its obligations under general and customary international law, has used . . . the threat of force against Nicaragua” (id. at 19). But the Court concentrated on the actual use of force or acts that, in its interpretation, amounted to the use of force.

4 Schachter, supra note 2, at 1625.

5 Schachter concludes that Article 2(4) has a sufficiently determinate content to provide restraints on the use of armed force, and therefore the interpretive questions concerning the meaning of “threat of force” are “peripheral” to his interest. He admits, nonetheless, that “in some situations” they “are of importance . . . and they indicate that the precise scope of the article requires further definition.” Id. As Stone, , De Victoribus Victis: The International Law Commission and Imposed Treaties of Peace, 8 Va. J. Int’l L. 356, 372 (1968), observes: “It would surely be a massive inadvertence to many sharp and complex legal controversies surrounding article 2(4) . . . to suggest that the exact scope of article 2(4) itself . . . is in any sense ‘clear-cut.’ ”

6 In social practice, this method of influencing human behavior is much more frequently employed than actual physical coercion. McDougal, , Reisman & Willard, , The World Process of Effective Power: The Global War System, in Power and Policy in Quest of Law 353, 376 (McDougal, M. S. & Reisman, W. M. eds. 1985), observe: “much of the strategic use of bases in the world effective power process involves prepositioning and communication rather than actual use.”

7 As Friedrich A. Hayek put it:

By “coercion” we mean such control of the environment or circumstances or a person by another that, in order to avoid greater evil, he is forced to act not according to a coherent plan of his own but to serve the ends of another. Except in the sense of choosing the lesser evil in the situation forced on him by another, he is unable either to use his own intelligence or knowledge or to follow his own aims and beliefs.

Hayek, F., The Constitution of Liberty 2021 (1960).

8 Several authors argue that economic coercion applied ad extremis is capable of destruction of values comparable to the effect of the employment of military force. Mcdougal, M. S. & Feliciano, F., Law and Minimum World Public Order 3032 (1961); Higgins, , The Legal Limits to the Use of Force by Sovereign States: United Nations Practice, 37 Brit. Y.B. Int’l L. 269, 27677 (1961); Bowett, D., Self-Defence in International Law 24 (1958). The common law courts more and more often accept the doctrine of economic duress under which the threat goes not to the person, but to his or her economic interests. Cf Farnsworth, E. A., Contracts 259 (1982); Goff, R. & Jones, G., The Law of Restitution 22239 (1986). By contrast, the International Court of Justice interprets the notion of force narrowly. Recently, Nicaragua claimed that the actions of an economic nature taken by the United States caused its economy a loss of $36 million per annum. Nicaragua v. U.S., 1986 ICJ Rep. at 69. The ICJ not only did not consider this issue in the context of Article 2(4), but also did not even find such actions to be a breach of the customary law principle of nonintervention. Id. at 126. But some dicta suggest that the Court’s position is ambiguous: “The element of coercion, which defines, and indeed forms the very essence of prohibited intervention, is particularly obvious in the case of intervention which uses force . . . .” Id. at 108 (emphasis added).

9 In the discussions in the General Assembly’s Sixth Committee in 1952, the Soviet delegate held that the German occupation of Czechoslovakia and Austria in 1938 following a threat of force constituted aggression. 6 UN GAOR C.6 (288th mtg.) at 213, UN Doc. A/C.6/SR.288 (1952). The British delegate, citing the same cases, expressed the opinion that the aggressor might achieve his purpose just as certainly by subverting from within the will to resist of the country attacked as by the use of physical force from outside. 6 UN GAOR C.6 (281st mtg.) at 166, UN Doc. A/C.6/SR.281 (1952).

10 See “The Foundation of International Actors’ Approach to the Threat” infra.

11 If one accepts a functional approach to the interpretation of the term “force,” “armed force” not only means the military, naval or air forces of a state, but also may include its militia, security and police forces, as well as armed bands, subversives, insurgents and guerrilla groups supported by this state and operating against another state. Brownlie, I., International Law and the Use of Force By States 361 (1963).

12 Goodrich, L., Hambro, E. & Simons, A., Charter of the United Nations: Commentary and Documents 48 (3d rev. ed. 1969). Also a recent colloquy on interpretation of Article 2(4), Restraints on the Unilateral Use of Force, 10 Yale J. Int’l L. 261 (1985), including papers by Falk, Gordon, Reisman, Rostow and Schachter. This conclusion, although not contradicted by the travaux préparatoires of the Charter, cannot be said to be clearly confirmed by them. The Brazilian proposal to include the words “and from the threat or use of economic measures” was rejected by 26–2 votes. It is not clear, however, why the amendment was rejected. Possibly, the delegates agreed with the representative of Belgium that, given the phrase “or in any other manner,” the change was superfluous. Docs. 784, I/1/27; 123, I/1/5; 215, I/1/10, 6 UN CIO Docs. 334–35, 559, 609 (1945). See also Paust & Blaustein, , The Arab Oil Weapon—A Threat to International Peace, 68 AJIL 410, 41617 (1974) (arguing in favor of a broad interpretation of “force” in Article 2(4)); Farer, , Political and Economic Coercion in Contemporary International Law, 79 AJIL 405 (1985) (arguing against it).

13 “The best example of . . . ‘concealed threat’ was the first Sputnik of October 1957: this great scientific achievement would have been nothing more if the implication that for the first time the USSR could destroy American cities had not been evident.” Farrands, , The Regional Use of Force, in The Use of Force in International Relations 70, 8485 (Northedge, F. ed. 1974).

14 I. Brownlie, supra note 11, at 364, defines a threat as consisting “in an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.”

15 Corfu Channel case (UK v. Alb.), 1949 ICJ Rep. 4, 27 (Judgment of Apr. 9).

16 Article 36 of the Soviet Law on the State Boundary, Vedomosti SSR, No. 48, 1982, item 891, reprinted in English in 22 ILM 1055 (1983) (entered into force Mar. 1, 1983), provides for the use of weapons against, inter alia, an “intrusion on the territory of the USSR.” See also text accompanying note 83 infra.

17 The British War Blue Book, Misc. No. 9, Documents Concerning German-Polish Relations and the Outbreak of Hostilities Between Great Britain and Germany on September 3, 1939, at 22–28, 37–40 (1939).

18 See Wright, , Gunboat Diplomacy Updated for the 1980’s, Washington Increases Use of Overseas Military Maneuvers, N.Y. Times, Mar. 13, 1983, §4, at 4 , cols. 3, 4, 5.

19 Ratner, , The Gulf of Sidra Incident of 1981: A Study of the Lawfulness of Peacetime Aerial Engagements, 10 Yale J. Int’l L. 59, 6467 (1984).

20 The deployment of Soviet missiles in Cuba was perceived by the United States as a threat justifying the naval blockade of the island.

21 N.Y. Times, Oct. 6, 1985, §1, at 22, col. 5.

22 Id., Oct. 26, 1984, at A12, col. 4. The air raid on Tripoli in 1986 confirmed this interpretation.

23 5 Whiteman, M., Digest of International Law 71415 (1965).

24 Consider the threatening postures of the United States and Iran in the Persian Gulf during the second half of 1987.

25 Cf. Christol & Davis, , Maritime Quarantine: The Naval Interdiction of Offensive Weapons and Associated Matériel to Cuba, 1962, 57 AJIL 525, 52930 (1963). See generally, on the strategies of enforcement, Reisman, Sanctions and Enforcement, reprinted in McDougal, M. S. & Reisman, W. M., International Law Essays 428 (1981).

26 The Soviet threat of invasion of Poland in 1980 and 1981 (see text accompanying notes 96–103 infra) was reinforced by a Soviet media campaign accusing Solidarity of terrorism and alleging that the events in Poland constituted a fundamental threat to postwar European borders and Soviet strategic interests.

27 Hopple, Rossa & Wilkenfeld, supra note 2, at 44. McDougal, Reisman & Willard, supra note 6, at 378, list the following potential responses to threat: (1) flight and its variants, accommodation and self–subordination; (2) approach and confrontation; (3) encirclement; and (4) penetration.

28 I owe the clarification of this point to Paul Finn.

29 Consider, e.g., a Swedish threat to sink foreign submarines. See infra text accompanying notes 82–86.

30 The perception of “reasonableness,” of course, is conditioned by personal factors. A threat can be effective, even though there exists a reasonable alternative. A threatened person may be cowardly, or paranoid, or opportunistic, or simply ignorant. Admittedly, in foreign–policy matters responses to threats are more rationally calculated because of the often collective character of decision making. This rationality should not, however, be overestimated. Its limits are explored in Jams, I., Victims of Groupthink 2135 (1972); Jams, I. & Mann, L., Decision Making: A Psychological Analysis of Conflict, Choice, and Commitment (1977).

31 Although a threat may be grounded in the objective reality, it is always interpreted by the target in terms of its own biases, values and interests.

32 Hopple, Rossa & Wilkenfeld, supra note 2, at 32, observe: “An individual who ranks a given value higher is more likely to be sensitized to perceive threats in that area.”

33 A threat may fail despite its objective credibility if the target does not recognize it as such. Consider Stalin’s perception of the Barbarossa Plan.

34 McDougal & Reisman, The Prescribing Function in the World Constitutive Process: How International Law Is Made, reprinted in M. S. McDougal & W. M. Reisman, supra note 25, at 355.

35 McGinley, , Ordering a Savage Society: A Study of International Disputes and a Proposal for Achieving Their Peaceful Resolution, 25 Harv. Int’l L.J. 43, 5960 (1984), states: “Even the most sacred principles of international law are of no consequence . . . when vital national interests—the power and authority of the elite—are involved.”

36 In a family, rules of obedience to parents are reinforced by a system of sanctions and so are the rules established by a band of thugs offering paid “protection” to their victims. Certain social sanctions may, in fact, be illicit by the standards of state-made law. Cruel corporal punishment, even if meant to support an unobjectionable rule, can qualify as child abuse, while “protection” is punishable as extortion.

37 It is instructive for our purpose to consider the function of ritualization in controlling intraspecific aggression among animals. See Lorenz, , Ritualized Fighting, in Aggression, Hostility and Violence: Nature or Nurture? 44 (Maple, T. & Matheson, D. eds. 1973). Lorenz observes: “intraspecific aggression is, in Man, just as much a spontaneous instinctive drive as in most other higher vertebrates.” Id. Storr, , Possible Substitutes for War, id. at 306, 309 , adds: “The idea that we can get rid of aggression seems to me to be nonsense.”

38 In the Cuban missile crisis, the choice of a naval blockade “had the advantage of being a low-level action that would serve as a non-humiliating warning and would still ‘maintain the options’. . . permitting a gradual, controlled escalation later on, if necessary.” I. Jams, supra note 30, at 144.

39 See the correspondence from the British and Argentine representatives to the President of the Security Council in the Supplements for 1982 and 1983 of the Official Records.

40 The United Kingdom made a considerable financial effort to improve its military capabilities in the South Atlantic, including the building of a military airfield and connected radar and communication facilities. 38 UN SCOR Supp. (July–Sept. 1983) at 59–60, UN Doc. S/15938, and (Oct.–Nov. 1983) at 85, UN Doc. S/16135 (1983) (letters dated Aug. 25 and Nov. 9, 1983, from the British representative to the President of the Security Council). Cf. The Times (London), Oct. 8, 1983, at 5.

41 Consider the dynamics of midair interception of an aircraft: when two fighters force an aircraft to land, after firing warning shots, is it still a threat of force or is it already a limited use of force?

42 According to Lorenz: “[A]bnormally high intensity of ritualized activity causes true aggression in Freud’s sense, that is to say a recrudescence of the phylogenetically older, unritualized behavior patterns. In other words, ritualized redirection suddenly breaks down and the partners proceed to fight with a fury never otherwise observed in goose combat.” Lorenz, supra note 37, at 53.

43 Nicaragua v. U.S., 1986 ICJ Rep. at 99–105. Both the United States and Nicaragua claimed that Article 2(4) expressed customary and general international law. Id. at 99. See also I. Brownlie, supra note 11, at 112; Gordon, , Article 2(4) in Historical Context, 10 Yale J. Int’l L. 271, 274, 275 (1985).

44 Nicaragua v. U.S., 1986 ICJ Rep. at 531 (Jennings, J., dissenting).

45 Parties to the 1928 Kellogg-Briand Pact (Treaty for the Renunciation of War as an Instrument of National Policy, reprinted in 4 Hudson, M. O., International Legislation 2522, 252425 (1931)) declared that “they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.” Waldock, , General Course on Public International Law, 106 Recueil des Cours 1, 231 (1962 II), holds that “[t]he illegality of recourse to . . . armed intervention not amounting to war was not established beyond all doubt by the law of the League, or by the Nuremberg and Tokyo Trials. That was brought about by the law of the Charter . . . .” Although Brownlie presents the most comprehensive argument in support of the thesis that “[b]y 1939 a norm of illegality [of the use of force for selfish purposes] had appeared as a part of customary law” (I. Brownlie, supra note 11, at 424), he admits reluctantly that “a reader may feel justified in doubting the validity of a customary rule which derives from the practice of a period in which lawlessness seemed to be rife” (id. at 425).

46 A treaty can generate a rule that, “while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention.” North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 41 (Judgment of Feb. 20).

47 Nicaragua v. U.S., 1986 ICJ Rep. at 531 (Jennings, J., dissenting).

48 Id. at 531.

49 I. Brownlie, supra note 11, at 364, 431. Schachter, supra note 2, at 1625, observes: “the applicability [to threats of force] of article 2(4) in principle can hardly be denied.”

50 Cf. UN Charter art. 2(4); GA Res. 2131 (XX), supra note 1; Nicaragua v. U.S., 1986 ICJ REP. at 131: “Every State possesses a fundamental right to choose and implement its own political, economic and social systems.”

51 See Dinstein, , International Law as a Primitive Legal System, 19 N.Y.U. J. Int’l L. & Pol. 1 (1986).

52 Art. 2(6).

53 Article 2 states: “The Organization and its Members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following Principles . . . .”

54 But, as James Crawford pointed out to me, an environment in which threats of force are regularly used is likely to be very unstable. Cf. note 42 supra.

55 Cf. the diplomatic correspondence ensuing from the Caroline incident. 2 Moore, J., Digest of International Law 412 (1906); 29 Brit. & Foreign St. Papers 1138 (1840–41) (self-defense may involve “nothing unreasonable or excessive”; “the act, justified by the necessity of self-defence, must be limited by that necessity and kept clearly within it”).

56 I. Brownlie, supra note 11, at 282.

57 Russell, B., Power: A New Social Analysis 57 (1957).

58 Homans, G., The Human Group 282 (1951), writing about social control, observes: “no custom is self-sustaining. . . . A regularity of behavior persists, similar events recur in similar circumstances, only because departure from regularity is met by resistance. Nor is the resistance mere inertia.”

59 Hobbes, T., Leviathan, ch. 17, at 223 (Penguin, ed. 1981), warned that “Covenants, without the Sword, are but Words, and of no strength to secure a man at all.”

60 Kelsen, H., General Theory of Law and State 29 (1961), states: “a rule is a legal rule because it provides for a sanction.”

61 According to Austin, J., The Province of Jurisprudence Determined 127 (1965), international law is not positive law because there is lacking a determinate sovereign that the nations habitually obey and because the international system of rules is supported only by moral sanctions.

62 UN Charter, ch. VII.

63 Coll points out that “[t]he world was to be managed by the great powers, which would use their preponderance of force to keep the peace and punish future aggressors.” Coll, , The Limits of Global Consciousness and Legal Absolutism: Protecting International Law from Some of its Best Friends, 27 Harv. Int’l L.J. 599, 608 (1986).

64 Franck, , Who Killed Article 2(4)?, 64 AJIL 809, 810 (1970); Murphy, J., The United Nations and the Control of International Violence 21 (1983). Bowett, , Reprisals Involving Recourse to Armed Force, 66 AJIL 1, 2 (1972), writes: “It cannot be doubted that a total outlawry of armed reprisals, such as the drafters of the Charter intended, presupposed a degree of community cohesiveness and, with it, a capacity for collective action to suppress any resort to unlawful force which has simply not been achieved.”

65 Although limited violence is more common in international relations than full-fledged war, some writers argue that the latter cannot be excluded as a mechanism for enforcing international law. An act of legitimate self-defense “may amount to or may result in war.” Jessup, P., A Modern Law of Nations 163 (1968). Kelsen, H., Principles of International Law 2329 (1952), argued that international law authorizes two types of sanctions: reprisals and war. Despite the fact that war had been outlawed by the Kellogg-Briand Pact, Kelsen thought that the prohibition concerned only a war of aggression and not a war in

response to aggression. Id. at 26–27.

66 Henkin, L., How Nations Behave 97 (1979), observes that gross violations of international law occur much less frequently than transgressions in small matters because states anticipate that the response will be proportionate and try to avoid serious consequences. Cf. Lasswell, H., Power and Personality 181 (1948), who noted:

When anthropologist Hallowell visited the Salteaux people, he was struck by their politeness and friendliness in dealing with one another and with him. Gradually he learned that this had a potent sanction in the expectation that the other fellow might secretly have more magical power than you had.

Law is socialized retaliation.

67 I. Brownlie, supra note 11, at 431–32, accepts the lawfulness of actions in the following circumstances: in individual or collective self-defense (excluding anticipatory self-defense); when authorized by a competent international organ; where a treaty confers a right to intervene; to terminate acts of trespass; and when arising from natural catastrophe. Schachter, supra note 2, at 1620, sees the following as lawful: self-defense against an armed attack (including anticipatory self-defense); armed assistance (if requested) to another state subject to an unlawful attack; and intervention to protect the state’s own nationals in a foreign country who are in imminent peril (I. Brownlie, supra note 11, at 433, considers the legality of humanitarian intervention to be “doubtful”).

68 Reisman, , Criteria for the Lawful Use of Force in International Law, 10 Yale J. Int’l L. 279, 281 (1985), identifies the following circumstances in which “one finds varying support for unilateral uses of force”:

self-defense, which has been construed quite broadly; self-determination and decolonization; humanitarian intervention; intervention by the military instrument to replace an elite in another state; uses of the military instrument within spheres of influence and critical defense zones; treaty-sanctioned interventions within the territory of another state; use of the military instrument for the gathering of evidence in international proceedings; use of the military instrument to enforce international judgments; and countermeasures such as reprisals and retorsions.

Reisman cautions, however, that these categories “are not determinative.” Any action must be measured by the criteria of the “maintenance of the minimum order” and “enhancement of the ongoing right of peoples to determine their own political destinies.” Id. at 282. Coll, supra note 63, at 613, interprets Article 2(4) as involving no more than “a good faith commitment to abstain from clear aggression that involves a disproportionate use of force and violates other principles of the Charter” (emphasis in original). Interpretation of the concept of “clear aggression” should be guided by “the principles of prudence and the just war tradition.” Id. at 613–14.

69 Bowett, supra note 64, at 10–11.

70 Farer, supra note 12, at 411. A contrary view was taken by Stone, J., Conflict Through Consensus: United Nations Approaches to Aggression (1977). Paust and Blaustein, supra note 12, at 410, argue that economic coercion may amount to aggression. The resolution on the Definition of Aggression, GA Res. 3314 (XXIX) (Dec. 14, 1974), reprinted in 69 AJIL 480 (1975), does not include economic aggression (Article 1 defines aggression as “the use of armed force”). The effectiveness of the Arab oil embargo probably changed the developing countries’ assessment of the lawfulness of economic coercion.

71 Case Concerning the Air Services Agreement of 27 March 1946 (U.S. v. Fr.), 18 R. Int’l Arb. Awards 417, 443 (1978), 54 ILR 304, 337 (1979).

72 The reluctance of the ICJ to consider economic coercion as illicit might be due to such considerations. Cf. supra note 8. Seidl-Hohenveldern, , The United Nations and Economic Coercion, 18 Revue Belge de Droit International 9, 14 (1985), argues:

Larger States often consider even the prohibition of the use of armed force hardly compatible with their interests. . . . If [they ] would [be] deprived even of their means of economic retaliation, or see their use submitted to severe restrictions, I would be afraid that they would then brush aside as unrealistic any rule attempting to restrict their freedom of action and would resort even to armed force in defence of their rights.

Cf. Wallensteen, , Economic Sanctions: Ten Modern Cases and Three Important Lessons, in Dilemmas of Economic Coercion: Sanctions in World Politics 87, 127 (Nincic, M. & Wallensteen, P. eds. 1983), who says: “effective economic sanctions, in some situations, reduce the incentive for military action.” But Deese, , The Vulnerability of Modern Nations: Economic Diplomacy in East-West Relations, id. at 155, 169 , points out that economic coercion, if not carefully planned and executed, may precipitate the use of armed force.

73 Reisman, , International Incidents: Introduction to a New Genre in the Study of International Law, 10 Yale J. Int’l L. 1, 1213 (1984), defines “incident” as an “overt conflict between two or more actors in the international system” that is resolved in “some non-judicial fashion.” The incident, in contrast to “practice,” “takes a single critical event as a prism through which the reactions of elites to particular behavior may be examined and assessed as an indication of their views of law.”

74 According to Donelan and Grieve, “The latter full United States estimate was that 42 MRBMs and 24–32 IRBMs (Intermediate Range Ballistic Missiles) arrived in Cuba or were on their way.” Donelan, M. & Grieve, M., International Disputes: Case Histories 1945–1970, at 234 n.4 (1973).

75 47 Dep’t St. Bull. 715, 716, 718 (1962); Sohn, L., Cases on the United Nations 993 (1973).

76 Proclamation No. 3504, Interdiction of the Delivery of Offensive Weapons to Cuba, 27 Fed. Reg. 10,401 (1962), reprinted in 57 AJIL 512 (1963) [hereinafter Proclamation].

77 M. Donelan & M. Grieve, supra note 74, at 236.

78 L. Sohn, supra note 75, at 1006.

79 Id. at 1010.

80 The United Kingdom and Canada had some reservations, but “public opinion of these countries was won by the publication of the aerial photographic evidence of the Soviet missile sites.” M. Donelan & M. Grieve, supra note 74, at 235.

81 L. Sohn, supra note 75, at 1013.

82 Submarine Defense Commission, Countering the Submarine Threat, App. 2, at 81 (S.O.U. No. 13, 1983) [hereinafter Report].

83 Sec. 15, Ordinance Containing Instructions for the Armed Forces in Times of Peace and in State of Neutrality, id. at 82.

84 Report, note 82 supra, at 83, 90.

85 Id. at 104–05; Sadurska, , Foreign Submarines in Swedish Waters: The Erosion of an International Norm, 10 Yale J. Int’l L. 34, 3738 (1984).

86 The Submarine Defense Commission alleged, however, that the submarines belonged to the Soviet Union. Report, note 82 supra, at 41.

87 Including the Soviet Union, which has a similar domestic statute. See note 16 supra.

88 Sadurska, note 85 supra, at 51–52.

89 Cf Chayes, A., The Cuban Missile Crisis 23 (1974).

90 D. Bowett, supra note 8, at 188–89; M. S. McDougal & F. Feliciano, supra note 8, at 232–41; Fitzmaurice, , The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 Recueil des Cours 1, 171 (1957 II) (supporting the lawfulness of anticipatory self-defense). I. Brownlie, supra note 11, at 275–79; P. Jessup, supra note 65, at 166–67; L. Henkin, supra note 66, at 141–44 (rejecting the right of anticipatory self-defense).

91 29 Brit. & Foreign St. Papers, supra note 55, at 1138; 2 J. Moore, supra note 55, at 412. The debate in the Security Council following Israel’s attack on a nuclear reactor in Iraq indicates that many states consider Webster’s formula to be an accurate statement of the existing customary rule. The action of Israel was judged unlawful for failing to meet this standard of behavior. 36 UN SCOR (2285–88th mtgs.), UN Docs. S/PV. 2285–88 (1981).

92 I. Janis, supra note 30, at 150; M. Donelan & M. Grieve, supra note 74, at 234.

93 I. Janis, supra note 30, at 159.

94 Wright, , The Cuban Quarantine, 57 AJIL 546, 54950 (1963). But McDougal, , The Soviet–Cuban Quarantine and Self-Defense, 57 AJIL 597 (1963), argues that the blockade was justified anticipatory self-defense.

95 See text accompanying note 83 supra.

96 The Soviet command planned the invasion by 1 East German, 2 Czechoslovak and 15 Soviet divisions for December 8, 1980. Kuklinski, , Wojna z narodem widziana od środka (The war against the nation as seen from within), Kultura, No. 4/475, 1987, at 22 . Colonel Kuklinski was the chief of strategic planning and defense in the Polish General Staff and played a key role in the preparation of martial law while secretly reporting to the United States on the military plans.

97 See text accompanying notes 101–02 infra.

98 N.Y. Times, Nov. 27, 1980, at All, col. 1; Carter, J., Keeping Faith: Memoirs of a President 584 (1982).

99 J. Carter, supra note 98, at 584.

100 Ascherson, N., The Polish August 216 (1981). Similar actions involving 32 combat helicopters and 47 military aircraft in total took place on Apr. 3 and 8, 1981. Kuklinski, supra note 96, at 35.

101 N.Y. Times, Mar. 19, 1981, at A3, col. I; id., Mar. 27, 1981, at All, cols. 1–6; id., Apr. 8, 1981, at A8, col. 1. According to Kuklinski, supra note 96, at 31, 150,000 soldiers participated in the maneuvers, including 30,000 on Polish territory. The evidence presented by Kuklinski suggests that the maneuvers were conceived so as to be easily transformable into an invasion. Id. at 31–35.

102 Id. at 37–38.

103 According to Kuklinski, the news about the Soviet plans to intervene in November 1980 shocked General Jaruzelski and his staff. Id. at 23. They were clearly aware that “[i]f they don’t strike first, the Red Army together with the other armies of the Warsaw Pact will do the job for them.” Id. at 25.

104 See Contemporary Practice of the United States, 76 AJIL 379, 382–84 (1982).

105 This did not prevent the United States from selling 100,000 tons of grain to the Soviet Union after only 2 months of interruption of deliveries. Rousseau, , Chronique desfaits internationaux, 85 Revue Générale de Droit International Public 543, 610 n.98 (1982).

106 DeSouza, , The Soviet, Gas Pipeline Incident: Extension of Collective Security Responsibilities to Peacetime Commercial Trade, 10 Yale J. Int’l L. 96, 99100 (1984).

107 Sanctions against the Soviet Union were lifted on Nov. 13, 1982. N.Y. Times, Nov. 14, 1982, §1, at l.col. 6.

108 Although the Commission of the European Economic Community took decisions reducing by half imports of manufactured goods from the Soviet Union, EEC member states effectively eroded the prohibition by claiming exceptions. Rousseau, supra note 105, at 610.

109 Cf. the declaration adopted by the member states of the EEC on Jan. 4, 1982, quoted in id. at 609.

110 During the general debate in the General Assembly, 76 speakers representing all geographic areas strongly criticized the Soviet action. “Of the eight speakers who defended the Soviet action, only one was from outside the Soviet bloc.” Summary of Developments During 23d Session of the U.N. General Assembly, Contemporary Practice of the United States, 63 AJIL 569, (1969).

111 Note that the invasion of Czechoslovakia did not involve many casualties, which makes the comparison, and contrast, with the Polish situation so much more telling.

112 Proclamation, note 76 supra, 57 AJIL at 512. Meeker, Defensive Quarantine and the Law, 57 AJIL 515, 523(1963).

113 47 U.S. Dep’t St. Bull. 723 (1962).

114 Proclamation, note 76 supra, 57 AJIL at 512. See also Dep’t of State, Memorandum: Legal Basis for the Quarantine of Cuba, reprinted in A. Chayes, note 89 supra, at 143.

115 Cf. text accompanying note 75 supra.

116 E.g., no state ever challenged the validity of the air defense identification zone (ADIZ) established by Australia. Pyman & Morris, , Australia and International Air Law, in International Law in Australia 456, 46061 (Ryan, K. ed. 1984). Under domestic regulations pertaining to an ADIZ, interception procedures include implicit and explicit threats of force. Procedures for Aircraft Operating in an ADIZ, Aeronautical Information Pub. RAC/OPS–0–101 (Sept. 4, 1980). The ICAO Council adopted an “attachment” (“Interception of Aircraft,” applicable Nov. 26, 1981) to Annex 2 (“Rules of the Air”) of the Chicago Convention recommending that states refrain from the use of weapons in all cases of interception of civil aircraft; reprinted in 22 ILM 1185 (1983).

117 37 UN SCOR Supp. (July–Sept. 1982) at 21, UN Doc. S/15307 (1982) (letter dated July 22, 1982 from the representative of the United Kingdom to the President of the Security Council claiming the measure was taken in accordance with Article 51).

118 Argentina considered the British action a military threat and called for negotiations, “within the framework of the United Nations and in accordance with the relevant resolutions,” on the final settlement of the dispute. Id. at 24, UN Doc. S/15313 (1982) (letter dated July 26, 1982 from the Argentine representative to the President of the Security Council).

119 The Western alliance probably appreciates the strategic value of the Falklands in countering the Soviet threat in the South Atlantic, particularly as the importance of access to Antarctica is growing.

120 3 de Vattel, E., The Law of Nations, bk. III, ch. III, §45, at 250 (Carnegie trans. 1916) (1758).

121 M. Donelan & M. Grieve, supra note 74, at 235.

122 On Dec. 10, 1980, the episcopate issued a communiqué warning: “None may act in such a manner as to drive our fatherland into danger of losing freedom or its existence as a sovereign state.” Quoted in N. Ascherson, supra note 100, at 222.

123 See, e.g., letter from the Central Committtee of the CPSU to the Central Committee of the PCP, June 5, 1981: “[W]e, like the other fraternal parties, are disturbed by the fact that the offensive by antisocialist forces in Poland threatens the interests of our entire commonwealth, its cohesion, its integrity and the security of its borders . . . .” N.Y. Times, June 11, 1981, at A8, col. 4.

124 The Reagan administration does not seem to find repugnant the idea of intervention into internal affairs of a country in order to induce its government to install democracy. Nicaragua v. U.S., 1986 ICJ Rep. at 383 (Schwebel, J., dissenting). But the International Court of Justice did not endorse this policy. “[N]o such general right of intervention, in support of an opposition within another State, exists in contemporary international law.” Nicaragua v. U.S., 1986 ICJ Rep. at 109.

125 2 Oppenheim, L., International Law 154 (7th ed. 1948), states that Article 2(4) does not exclude “the use of force in fulfilment of the obligations to give effect to the Charter.” Fitzmaurice, supra note 90, at 171–72. Stone, J., Aggression and World Order 10001 (1958), expresses the view that states may use force to vindicate a right. The travaux préparatoires imply that the framers intended to prevent any loopholes from being included in the prohibition in Article 2(4). Doc. 784, 1/1/27, 6 UNCIO Docs. 334–35 (1945); Doc. 885, 1/1/34, id. at 400. This aspiration is consonant with the original design of the collective security system. Stone, J., Of Law and Nations 5, 8 (1974), however, argues that the use of force to accomplish some just end is permissible under Article 2(3) of the Charter.

126 1949 ICJ Rep. at 27.

127 The Albanian Government alleged that the British ships “were manoeuvring and sailing in diamond combat formation with soldiers on board; the position of the guns was not consistent with innocent passage; the vessels passed with crews at action stations.” Id. at 30. The Court refuted the allegations of noninnocent passage but admitted that the purpose of the British action was “to demonstrate such a force that she [Albania] would abstain from firing again on passing ships.” Id. at 31.

128 Id. at 30–32.

129 For criticism of the “unfortunate implications” of this point of the Court’s decision, see I. Brownlie, supra note 11, at 283–89. The arbitral tribunal in the U.S.-France aviation dispute found that the threat of economic action to retaliate for the violation of an international obligation was lawful. See text accompanying note 71 supra.

130 Schachter, supra note 2, at 1626.

131 Id.

132 Even this part of the ruling is not free of ambivalence. The Court made no reference to the Charter provisions on the use of force. By admitting the evidence (mines) that the United Kingdom had obtained in an illegal way, the Court allowed the violator to enjoy the benefits of the lawless act and de facto recognized that some instances of the use of force even in violation of territorial sovereignty may be tolerated. Cf. Reisman & Freedman, , The Plaintiff’s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication, 76 AJIL 737, 74648 (1982). Consider also the response of the ICJ to the failed hostages rescue operation in the Iranian desert. The Court declined to say that it was either morally or legally impermissible and made no reference to Article 2(4). Instead, it awarded reparations to the United States without deducting any amount to compensate Iran for the violation of its territorial sovereignty. United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 43–44 (Judgment of May 24).

133 One of the arguments legitimizing humanitarian intervention is that it does not purport to affect political independence and that the breach of a state’s territorial integrity is only temporary. Waldock, supra note 45, at 240. By this standard, Israel’s Entebbe operation was lawful, while the U.S. intervention in Grenada attracted overwhelming condemnation by the United Nations, including the Western allies. GA Res. 38/7 (Nov. 3, 1983).

134 Apr. 29, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS 205.

135 U N Doc. A/CONF.62/122, opened for signature Dec. 10, 1982, reprinted in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea, UN Sales No. E.83.V.5 (1983).

136 Bowett, supra note 64, at 11, observes: “it may be that the more relevant distinction today is not between self-defense and reprisals but between reprisals which are likely to be condemned and those which, because they satisfy some concept of ‘reasonableness,’ are not.”

137 Proclamation, note 76 supra, 57 AJIL at 513.

138 Id.

139 M. Donelan & M. Grieve, note 74 supra, at 236.

140 Sadurska, supra note 85, at 50.

141 Schachter, supra note 2, at 1625. Schachter goes on to say: “A blatant and direct threat of force, used to compel another state to yield territory or make substantial political concessions (not required by law), would have to be seen as illegal under article 2(4). . . .” Id.

142 Cf. Kelsen, H., Pure Theory of Law 88, 21213 (1970); Reisman, , Looking, Staring and Glaring: Microlegal Systems and Public Order, 12 Den. J. Int’l L. & Pol’y 165, 174 (1983).

143 Schachter observes on the General Assembly resolution criticizing the Soviet invasion of Afghanistan and its effect on the attitudes of Islamic countries and some Western European Communist parties:

One could not say that the resolution itself determined the attitude of these bodies, but the fact that it was used widely to underline and record the condemnation is evidence of its effect. At the very least, it was viewed as a political setback for the USSR with a potentially long-term negative effect on its claim as champion of national sovereignty.

Id. at 1622.

* I gratefully acknowledge useful comments and criticism of Christine Chinkin, James Crawford, Paul Finn, David Mason and Wojciech Sadurski.

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