It is time for a fresh look at the norm of nonintervention in domestic affairs, as applied to nonforcible efforts to influence another state’s internal politics. The existence of such a norm is widely proclaimed, and it is commonly assumed to be a legal obligation rather than a mere practice of comity or aspirational objective. For governments, scholars and international organs alike, the “rule” against interference in internal politics seems to be an article of faith; but despite the frequency of its incantation in international discourse, how the norm applies to nonforcible conduct is inadequately understood.

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

The Alien Tort Statute, originally enacted as section 9 of the Judiciary Act of 1789, grants the district courts original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 1980 the United States Court of Appeals for the Second Circuit breathed new life into these little-used and somewhat mysterious provisions. The case was Filartiga v. Pena-Irala, in which a Paraguayan family brought suit against a former Paraguayan police chief for the torture and death of one of its members. The court upheld federal jurisdiction under the Alien Tort Statute. Finding state torture to be a violation of “modern international law,” it pronounced itself willing to enforce this law even as between aliens whenever personal jurisdiction could be obtained over the defendant.

The bicentennial of the United States Constitution has been marked by much celebration and some stocktaking. The Framers have been fully—if not fulsomely—praised, and there appears to be general enthusiasm about the legacy they left us. However, as regards the constitutional dispositions for the conduct of foreign affairs, there appears to have been little attention to the Framers and little inclination to celebrate what they ordained. Few have taken this occasion to expose how we got where we are from where they were; efforts to take stock have been hampered by uncertainty and shouted down in controversy.

As this discourse is devoted to the sources of international law in Soviet doctrine and the diplomatic practice of the USSR, I think that it is necessary to begin by characterizing my understanding of the contemporary Soviet doctrine of international law.

In Western countries, the Soviet doctrine of international law is often regarded as monolithic, without internal contradictions and discussions. It is not so, though I would agree that there are some grains of truth in those allegations. On certain questions we have had too much unanimity in our social sciences at large, and in the doctrine of international law in particular. One could feel this unanimity particularly in the domain of the most sensitive political and legal problems.

International commercial arbitration is being enthusiastically promoted throughout the international legal community. Congresses and conferences abound; over three hundred delegates attended the 1988 Tokyo conference of the International Council for Commercial Arbitration. New arbitration journals proliferate. New international arbitration centers compete for business, particularly around the Pacific Rim in such locations as Hong Kong (opened in 1985), Los Angeles (1985), Melbourne (1985) and Vancouver (1986).

The President, says the Constitution of the United States, “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” What working relationship between the President and the Senate was this provision intended to establish in the complex and delicate business of determining the foreign policy of the nation and conducting its foreign relations in accordance with that policy?

The principle that treaty obligations must be fulfilled in good faith is one aspect of the fundamental rule that requires all subjects of international law to exercise in good faith their rights and duties under that law.

In the sociopolitical sphere, this fundamental principle may be seen as manifesting the need perceived by states for an international legal system that can ensure international order and prevent arbitrary behavior and chaos. In the legal sphere, the principle is confirmation of the character of international law as law. Subjects of international law are legally bound under the principle to implement what the law prescribes.

On two occasions in the recent past, the International Court of Justice has misstated its own prior holdings by selective quotation. In each instance, the partial quotation was invoked as authority for the opposite of what the previous Court had said. Neither matter was de minimis: in each instance, the issue for which authority was being sought was central either to the case at bar or to an important aspect of the Court’s role. The consequences for the future of international adjudication and the stability of authoritative expectation, which is such an important strut of international law, are serious and merit examination.

One of the features of the Marshall Court’s business that emphasizes the contrast between that Court and its modern counterpart is the attention given to piracy cases. Piracy, defined as the unauthorized deprivation of property on the high seas, has disappeared from the present Court’s docket, and virtually disappeared as a crime; but from 1815 to 1823, piracy cases were among the most numerous and controversial of those decided by the Court.

How quickly one forgets. On Sunday, July 3, 1988, an Iran Air A300 Airbus, with 290 persons on board, was shot out of the sky by two surface-to-air missiles launched from the U.S.S. Vincennes, a guided-missile cruiser on duty with the United States Persian Gulf/Middle East Force. The first reports from Washington were that the Vincennes had acted in self-defense against hostile Iranian aircraft. Some 12 hours later, the Pentagon admitted that the Vincennes had made a mistake, that the aircraft it saw approaching was a wide-bodięd airliner on a regularly scheduled flight, not an F-14 Tomcat with hostile intent and capability.

The U.S. refusal to permit Yasir Arafat, Chairman of the Palestine Liberation Organization, to attend the 43d annual meeting of the General Assembly in New York was almost universally condemned as a violation of international law. Because Arafat publicly complied, on December 14, 1988, with the conditions the United States had long prescribed as prerequisite for direct contacts with the PLO, many have tended retroactively to validate the refusal to grant the visa, as a pragmatic and legitimate technique of diplomatic suasion. Consequently, it is all the more urgent that the record of international legal violation be confirmed, lest the refusal be cited, in the idiosyncratic fashion of international law, as precedent for future violations. Such a development would hasten the deterioration of the regime of restraints on the discretion of host states and reduce the effectiveness of resident international organizations.

One of the most frequently overstated concepts in American constitutional theory is the “separation” of powers. The Framers of the Constitution began with the proposition that concentration of power was to be avoided. They understood, on the other hand, that if governmental powers and responsibilities were actually set apart, each branch would exercise its powers in isolation from the other coordinate branches, to the detriment of cooperation and accommodation among them. Governance would be at best inefficient and at worst impossible.

In the making and conduct of foreign policy, Congress and the President have been rivalrous partners for 200 years. It is not hyperbole to call the current round of that relationship a crisis—the most serious constitutional crisis since President Franklin D. Roosevelt tried to pack the Supreme Court in 1937. Roosevelt’s court-packing initiative was highly visible and the reaction to it was violent and widespread. It came to an abrupt and dramatic end, some said as the result of divine intervention, when Senator Joseph T. Robinson, the Senate Majority Leader, dropped dead on the floor of the Senate while defending the President’s bill. Everyone knew that Robinson hated the proposal, and was speaking for it only as a matter of political duty. The bill was discreetly buried shortly thereafter, the Court having meanwhile adjusted some of its doctrine to the prevailing winds. One Justice resigned.

On July 3, 1988, the U.S.S. Vincennes, already involved in an exchange of fire with a group of Iranian naval craft (Boghammar boats) in the international waters of the Persian Gulf, shot down an unidentified aircraft that had just departed from the joint military-civilian airfield at Bandar-e Abbas After repeated, unsuccessful efforts by the Vincennes to establish contact with the unidentified aircraft, the captain, believing that his vessel might be attacked within minutes by an Iranian military aircraft sent to assist the gunboats engaged in the surface exchange, ordered the still unidentified aircraft to be fired upon. The aircraft was shot down, and was only afterwards identified as a civil airliner, Iran Air Flight 655. The incident resulted in the deaths of 290 individuals from six nations.

Nations typically act first and worry about legalities afterwards. International lawyers thus find themselves relegated, for the most part, to the passive role of sorting out rationalizations of past events. Once in a while, however, when a democratic government is contemplating an action that is legally questionable, international lawyers may have a chance to play a more active role. The government at that time might decide to introduce the issue of the legality of its contemplated action into the public forum, either in the hope that open debate may help pave the way for public acceptance of whatever action the government ultimately chooses to take or, more charitably, in a genuine search for the public will on the matter. The primary forums are the daily media aimed at an informed readership—in the United States, one thinks of the editorial pages of the New York Times and the Washington Post. In contrast, a quarterly journal such as the American Journal of International Law in nearly all cases is not published on a timely enough basis to influence specific planned policy initiatives.