Self-Defense and the Rule of Law
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Schachter, Oscar* (April 1989). Self-Defense and the Rule of Law. American Journal of International Law 83: 259. 83 A.J.I.L. 259


* Of the Board of Editors.

[*259] 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.

AN INHERENT AND AUTONOMOUS RIGHT?

The idea of self-defense as an inherent and autonomous right has roots in two distinct schools of thought. One is traditional naturalist doctrine, expressed, for example, in Grotius's words that "[t]he right of self-defence . . . has its origin directly, and chiefly, in the fact that nature commits to each his own protection . . . each his own protection . .:" 1 Preservation of the self was regarded as a natural right of the state, as of individuals, that could not be abrogated or limited by positive law. 2 The United Nations Charter has been said to reflect this in characterizing self-defense as an "inherent right." The French expression, equally authentic, is droit naturel; in Spanish, it is derecho inmanente; and in Russian, neotemlemoe pravo (indefeasible right).



While acknowledging that the concept "inherent right" has natural law origins, many authorities on international law reject the idea that the right [*260] of self-defense exists independently of positive law and cannot be altered by it. 3 The International Court of Justice in its 1986 Judgment in the Nicaragua case, noting that Article 51 of the UN Charter recognizes a "natural" or "inherent" right of self-defense, said that "it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter." 4 However, the fact that the Court and international legal scholars consider that self-defense is governed by positive law has not obliterated an opposing conception of self-defense as an autonomous, nonderogable right that "exists" independently of legal rules. That conception, I believe, continues to influence popular and official attitudes concerning national security.



A second intellectual root of the proposition that self-defense cannot be governed by law is the belief in the subordination of law to power. This point of view was expressed forcefully by Dean Acheson, an eminent lawyer and former Secretary of State, in remarks to the American Society of International Law. 5 He admonished international lawyers for debating the legal propriety of the U.S. "quarantine" in the Cuban missile crisis of 1962. The action taken by the United States was, in his view, "essential to the continuation of [its] pre-eminent power." 6 Law, he declared, "simply does not deal with such questions of ultimate power. . . . The survival of states is not a matter of law." 7 While these words may be interpreted in various ways, their main purport clearly was to emphasize that self-defense could not be governed by law when a grave threat to the power of a state or to its way of life was perceived by that state.



As might be expected, Acheson's emphatic denial of the relevance of law to the use of force did not commend itself to international lawyers generally, however divergent their legal opinions. 8 But Acheson's position can hardly be considered as aberrant. It is in keeping both with the widely held view that the preservation of the state has precedence over positive law and with the "practical" understanding that it must be left to each state to decide what is necessary for its own self-defense. The latter position was given formal expression in the well-known statements made by the United States [*261] and France in connection with their adherence in 1928 to the Kellogg-Briand Treaty for the Renunciation of War. They each declared then that a state claiming self-defense "alone is competent to decide whether circumstances require recourse to war in self-defense." 9 The other signatories apparently accepted the same interpretation.



International lawyers concerned with the integrity of the legal commitment to renounce war in the 1928 Treaty were quick to see the danger of according exclusive competence to the state claiming self-defense. Hersch Lauterpacht, writing not long after the conclusion of the Kellogg-Briand Pact, declared that a claim that self-defense was not subject to objective evaluation could not be accepted in law. He wrote: "Such a claim is self-contradictory inasmuch as it purports to be based on legal right and at the same time, it dissociates itself from regulation and evaluation of the law." 10



This statement of Lauterpacht was quoted with approval by Judge Stephen M. Schwevel in his dissenting opinion to the 1986 ICJ Judgment in the Nicaragua case. 11 Schwebel placed much weight on Lauterpacht's analysis to support his conclusion that claims of self-defense were, in principle, justiciable. That analysis, as presented in Lauterpacht's classic work, The Function of Law in the International Community, likened self-defense in international law to the corresponding right in municipal law. In both cases, Lauterpacht said, the right was "absolute" in the sense that no law could disregard it. 12 Moreover, a state, like an individual, would have to decide in the first instance whether the immediate use of force in defense was necessary. However, the right is "relative" inasmuch as it is presumably regulated by law. "It is regulated to the extent that it is the business of the courts to determine whether, how far, and for how long, there was a necessity to have recourse to it." 13 Lauterpacht was aware, of course, that on the international level, states resisted submitting disputes regarding use of force to judicial process. That state of affairs, he argued, was in contradiction to the emerging law regulating use of force. 14 States could not have it both ways: if they did not accept the principle of justiciability, the legal dimension of self-defense would disappear and with it the regulation of force by law.



Lauterpacht's position received judicial support in the Judgment of the International Military Tribunal in Nuremberg in 1946. The Tribunal was confronted with the argument on behalf of the German Nazi leaders that Germany had acted in self-defense and that every state must be the judge of whether in a given case it has the right of self-defense. (Ironically, this argument accorded with the U.S. position taken in connection with the Kellogg-Briand Pact.) The Nuremberg Tribunal rejected that contention, observing that "whether action taken under the claim of self-defense was in [*262] fact aggressive or defensive must ultimately be subject to investigation or adjudication if international law is ever to be enforced." 15



This forthright statement of the Nuremberg Tribunal was doubtless in keeping with the United States views in 1946. However, in the 1980s, the Nicaragua case produced doubts as to the justiciability of claims of self-defense. The U.S. position, as it developed, was not entirely clear or free from ambivalence. In 1984 U.S. counsel had argued to the Court that the United States alone was in a position to determine the necessity of the "defense" measures it had taken against Nicaragua in the particular circumstances of that case, an argument noted and approved by Judge Schwebel. 16 Nevertheless, the United States did not argue that self-defense was necessarily beyond legal evaluation and, as the Court observed, it did not claim that international law was not relevant or controlling in the case. 17 The U.S. arguments against admissibility were addressed to other grounds, including the argument that the Security Council had exclusive competence to pass on the legality of the use of force. 18



After the Court ruled against the United States on the jurisdictional issues, the official U.S. stand appeared to move toward the same position as that expressed in 1928 -- namely, that questions of the necessity of defense were ultimately reserved to the defending state alone. This shift is suggested by statements made in congressional hearings on the withdrawal by the United States of its acceptance of compulsory jurisdiction. In explaining why the United States would not and should not submit to the International Court's jurisdiction in regard to its use of force in self-defense, the Legal Adviser of the Department of State declared that the exercise of self-defense could not be subject to the decision of the Court inasmuch as the national security of the United States was involved. 19 "Such matters are the ultimate responsibility assigned by our Constitution to the President and the Congress." 20



That statement can be read as rejecting any "external" authority to judge the legitimacy of American defense measures, a position that would contradict the idea of self-defense as a right defined by law. It is arguable that the U.S. position did not entirely exclude third-party determinations because it recognized the competence of the UN Security Council (an "external" body) to pass upon claims of self-defense. But since the United States has a veto in the Council, it remains ultimately the judge of its own cause, at least [*263] as far as the formal decisions are concerned. 21 On the other hand, the fact that the United States recognizes the authority of the Council to discuss the legitimacy of self-defense measures is, in some measure, a weakening of its claim that it alone can be the final judge of the necessity of its defense measures. The Council, of course, is a political body charged with maintaining peace and security; it is not required to decide legal issues.



Underlying this apparent ambivalence in the U.S. position is the evident fact that the United States is not prepared to concede in respect of other states that they, too, can exclusively determine the necessity and legitimacy of their self-defense actions. To do so would mean that objections to such actions as the Soviet use of force in Czechoslovakia and Afghanistan would have to be based on purely political grounds. This line of argument would be much less effective in mobilizing world opinion than the argument that the basic norms of the Charter have been violated by the unlawful use of force. To say that each state is free to decide for itself when and to what extent it may use arms would remove the principal ground for international censure, and, in effect, bring to the vanishing point the legal limits on unilateral recourse to force. This is surely not the considered position of the United States, notwithstanding the rebuffs it has received in the International Court and UN organs.

THE INFLUENCE OF COMMUNITY JUDGMENT

That states generally do not welcome international scrutiny of their defensive measures is hardly surprising. This attitude is especially marked when armed force is actually used, even though seen by the user as legitimate self-defense. The drafters of the UN Charter sought to meet this problem by requiring, in Article 51, that each member immediately report to the Security Council measures taken by it in the exercise of the right of self-defense. This requirement, though explicit and unambiguous, has rarely been observed by states using force. 22 However, the failures to report have not precluded the Council from considering, and in some cases passing judgment on, such claims when the matter was raised by states that questioned the legality of the use of force. The Council has rejected claims of self-defense in several cases (notably against states whose policies were generally disapproved). 23 No resolution has been adopted explicitly upholding a [*264] claim of self-defense, though in a few cases a resolution or the Council's failure to act has been construed by commentators as tacit approval or toleration of the use of force in question. 24 The Council, more often than not, has been precluded by the veto from reaching formal decisions on the validity of such claims. Most of those cases were then considered by the General Assembly, which, unfettered by the veto, generally condemned the alleged self-defense action as a Charter violation. 25 In no such case, however, has the target state accepted the UN decision as binding upon it.



One could say that this shows that each state remains the ultimate judge of its own cause in matters of self-defense; but it also shows that states using force do not escape community judgments even though they seek to avoid them. In actuality, appraisals of the legality of state conduct, especially in regard to the use of armed force, are made in a variety of nonjudicial contexts. Since 1945, each time a state has used armed force outside its borders, its lawfulness has been subject to third-party judgment. Such judgments have been made by other governments, expressed individually or in collective political bodies. They have also been made by the community of international lawyers, by organs of opinion, by political parties and by other nongovernmental organizations. There is, in this sense, no escape from the judgments of the interested communities. They vary, to be sure, in their quality, their objectivity and their impact on the conduct of the state in question. The processes as well as the results are uneven. Yet it is clear that, in the end, no state is actually the sole judge of its own cause when it claims to have used force in self-defense.

[*265] Certainly, these various judgments are not binding or enforceable in the way judicial judgments are supposed to be. Moreover, their objectivity may be questioned because they often appear to be influenced more by political attitudes than by legal standards. But these deficiencies are not the whole story. Votes in international bodies show that the reactions to use of force are not always dictated by political affinities in disregard of facts and law. States that are friendly to, or even closely allied with, an accused state have not hesitated to cast their vote against that state when the issues were clear. Even the most powerful states have not been immune to censure by states that normally would follow their lead. The overwhelming majorities that have censured the USSR for its invasion of Afghanistan and condemned the United States for its actions in Grenada and Nicaragua are notable examples. 26 Clearly, international violence is not a matter of indifference to the world; nor is it considered to be solely a political problem. States accused of illegality take pains to show their conduct to be legitimate self-defense. They are mindful of the political costs of adverse opinion even though they may persist in the questionable use of force. It is significant that accused states do not deny they are bound by international rules; they rest their justification on factual assessments or interpretations that would bring them within the law. The International Court of Justice took note of this tendency in its 1986 Judgment in the Nicaragua case, declaring that it confirmed the general acceptance of the rules on force as binding law. 27



Of course, such "acceptance" does not fully answer the perennial question of whether the legal principles significantly influence states in their planning or use of force. Political analysts often regard the legal justifications as after-the-fact rationalizations that have little, if any, effect on the actual decisions. They maintain that, at bottom, such decisions are based on considerations of power and interest, which nearly always prevail over contrary legal restraints. This broad generalization, which is probably widely accepted, raises more questions than it answers. In particular, it leaves open the critical issue of whether the limitations on the use of force are considered generally to serve the national interests and the security of states. To counterpoise "interest" and "law" as conflicting factors in this context is misleading. Even on the premise of an essentially anarchical, Hobbesian conception of international society, the coexistence of independent states and their mutually beneficial intercourse are seen to require some restraints on the unilateral recourse to force. Hence, the position of states that self-defense as defined by international law is the only ground for the unilateral use of force is not in itself inconsistent with the realist thesis of national [*266] self-interest. It is realistic in recognizing that international violence has not been eliminated by the legal prohibitions in the United Nations Charter or by its collective security provisions and that, consequently, a right of self-defense must be legitimized. It also recognizes, through the right of collective self-defense, that the targets of aggression may require armed assistance by other states.

Recognizing these rights as exceptions to the general prohibition on force necessarily presupposes that the exercise of the right is limited by law. If this were not the case and each state remained free to decide for itself when and to what extent it may use force, the legal restraint on force would virtually disappear. It surely cannot be said that this result is perceived to be in the national interest of states generally or, for that matter, in the interest of the most powerful states. Neither the United States nor the Soviet Union can realistically consider it in the national interest to recognize the unlimited right of each to use force. They cannot therefore accept a self-judging conception of the right of self-defense without, in effect, licensing the other state to resort to force whenever it chooses to do so.

To say that self-defense must be regulated by law does not assume that general rules are sufficient in themselves to ensure the security of all states. The UN Charter and other relevant agreements make it quite clear that the maintenance of peace and security requires more than agreement on principles of law. Decisions must be taken in specific cases. States must react in words and deeds to claims of self-defense when force is used. Such responses are not automatic or foreordained; they involve acts of will and, therefore, assessments of interest and power. Governments rarely, if ever, make such decisions "solely" or "purely" on legal grounds; they are not expected to behave like a court. But whatever factors determine such decisions, once made they become part of the law-shaping process, influencing expectations as to the acceptability of future actions influencing use of force. Most governments recognize this. Whether or not they are themselves involved in the particular conflict, they are aware of the implications for other conflicts and often of their own interest in avoiding the spread of hostilities. Legality matters to them, not only as rhetoric to win support, but also as a factor to be taken into account as part of the effort to contain violence and reduce the risks of escalation. 28



DEFENSIST PRINCIPLES AND THE LEX SPECIALIS

A critical question affecting both law and policy on self-defense concerns the degree of uncertainty or indeterminacy that inheres in the proclaimed [*267] legal limits. Some indeterminacy results from the key standards of necessity and proportionality, concepts that leave ample room for diverse opinions in particular cases. Other sources of uncertainty can be traced to differing interpretations of the events that would permit a forcible defensive action. Varying views have been advanced by governments and scholars relating to the kinds of illegal force that would trigger the right of an armed defensive response. While strong positions have been taken by nearly all states against "preventive" or "preemptive" war, some uncertainty remains as to threats of force that credibly appear as likely to result in imminent attack. 29 Onther issues, highlighted by the Nicaragua case, concern the illegal use of force through subversion, supply of arms, and logistic support of armed forces as sufficient ground for defensive response. 30 It is not entirely clear to what extent self-defense responding to an armed attack embraces the use of force as a deterrent to future attacks. 31 Nor is there agreement on the circumstances that would permit a state to intervene (or "counterintervene") in an internal conflict under the principle of collective self-defense. 32 Even more unsettling is the uncertainty about the first use of nuclear weapons, the targeting of civilian centers and the proportionality of retaliatory action. 33



These controversial issues indicate that the rules of self-defense fall far short of a code of conduct that would provide precise "hard law" for many cases likely to arise. Even though governments have a stake in securing clarity as to what is permitted and forbidden, there are obvious limits to achieving that objective. General formulas accepted as law are subject to continuing interpretation and, therefore, to fresh arguments as to what the law should be. Concrete situations create new perceptions and "accomplished facts." At times, the line between violations and emerging law may be difficult to draw, made more difficult by the absence of judicial authority and the great disparities in power in the international community. Lawmaking authority does not reside in majorities in international assemblies, even though large majorities cannot usually be ignored. 34 Powerful states -- that [*268] is, those with the ability to control the outcome of contested decisions -- may determine patterns of conduct for other states, as well as for themselves. But their ability to do so is limited by the checks and balances inherent in the distribution of power and, in particular, by the nuclear setoff. 35 Clearly, the two superpowers are not all-powerful hegemons able to exercise complete control over the use of force by weaker states, not even by all those close to their borders. The rough parity of power between them undoubtedly contributes to restraint. It does not eliminate, however, the struggles within states that erupt beyond their borders or the localized hostilities between neighboring states that threaten to spread. The application of legal rules in these cases and the formulation of new rules derived from practice "accepted as law" are not decided by the great powers alone. Bipolarity of power is a significant structural feature of present international society, but it is only one of the many factors that affect the positions of states on the lawfulness of force used in self-defense.



Notwithstanding its relative indeterminacy, self-defense as a legal norm can have an ascertainable relationship to the policies and actions of governments. The "defensist" principle -- namely, that self-defense is the only legitimate reason to use force against another state -- has been expressed as the strategic policy of most states. Evidence for this is not only found in governmental statements to international bodies, where they may be expected. Recent studies by political scientists and students of military strategy confirm the practical implications of defensist doctrine. 36 When states proclaim the principle of self-defense as governing the use of force, they have a stake in its credibility to other states and to their own citizens. For such states to be credible, their weapons, training and contingent planning must reflect a defensist strategy. 37 Their good faith can be tested by their willingness to consider ways to reduce threats and resolve conflicts without using force. Hence, a defensist posture is not merely one of restraint but a source of policy that goes beyond the essentially negative rules of the law. It has obvious implications for such protective activities as monitoring and inspection. It calls for limitations on weaponry and balance among adversaries. The danger that systems which purport to be defensive may be perceived as offensive and therefore "destabilizing" becomes a matter of central concern. The most obvious consequence of defensist doctrine is that states no longer consider that they may invade other states for objectives that were considered in prior periods as legitimate and appropriate. Thus, the naked use of force for economic gain, or to avenge past injustices, or civilize [*269] "inferior" people, or vindicate honor, or achieve "manifest destiny," is no longer asserted as national policy. Seen in the perspective of history, this is a profound change in the relations of states.



I do not mean to suggest that power -- or more precisely, relative power differentials among states -- no longer matters. Acceptance of the legal norm of self-defense as the sole legitimate use of force has not eliminated military strength as a major factor in the relations of states. States will react, as they have in the past, to perceived power imbalances that are seen as threatening their present position and vital interests. Disparities in power may involve implied or sometimes express threats of force to influence behavior of other states. Armaments and military alliances are considered necessary and legitimate responses to such threats. Neither the Charter nor customary law imposes limits on the size or composition of armed forces or on military pacts for defense. States are legally free to deploy their forces as they choose within their territories or in the territories of consenting states. They are also entitled to deploy armed force in areas beyond national jurisdiction (notably, the high seas), except insofar as they have entered into treaties to limit such activity. The military establishments and the protective measures of states are governed, by and large, by national defense policies and the "politics of security," rather than by the international law governing use of force and self-defense.

Even so, international law is not entirely excluded. It becomes relevant to national security policy in different ways, all rooted in the idea that force should not be used or threatened except in self-defense. States that accept this defensist principle, as nearly all claim to do (though future exceptions cannot be ruled out), are faced with heavy costs -- political as well as economic -- when they seek security by unilateral action. Such costs may be reduced by mutual arrangements with possible adversaries. But the choice may involve the so-called security dilemma, namely, the likelihood that unilateral measures intended to increase a nation's security decrease the security of others, whereas joint measures, although less costly, involve a measure of insecurity because of the fear of violations by the other parties. 38 The risks contribute to the complexities of international negotiations concerning mutual security. Whatever the dynamics of such negotiations and the obstacles encountered in particular cases, we now find many arrangements, bilateral and multilateral, that involve reciprocal restraints on national military activity. They extend to kinds of weapons, deployment of forces, military exercises, testing and in some cases size of forces. 39



[*270] When these arrangements are embodied in treaties, they are readily seen as part of international law, as instances of a lex specialis governing specific activities for the states that are parties. Of course, states may also agree on restraints in instruments that are not treaties, such as political declarations or gentlemen's agreements or by tacit understandings expressed in reciprocal practices. Although these are not regarded as legal commitments, they are observed and relied upon as long as the states concerned have a common interest in maintaining the arrangement. 40 Violations may be treated in these cases substantially the same as they are treated in respect of treaties. They may be grounds for protest or for terminating the arrangement or for countermeasures. The difference between nontreaty regimes and treaties may be important for domestic constitutional processes, but the distinction may not make any significant difference in the observance of the rules and restraints. In some cases, nontreaty practice becomes "special" custom recognized as legally obligatory customary law for the states concerned. 41 Even apart from this, the distinction between the formal treaty obligations and the "rules of the game" based on tacit understandings and practice may not have very much practical significance.



The point I wish to underline is that national security policies premised on defense have produced a variety of international arrangements that enable states, particularly potential adversaries, to impose limits on their military establishments and activities in the well-founded expectation that others will do the same. The costs of self-defense are thereby reduced, though states still have to seek means of dealing with the risks of violation. Provision may be made for verification, consultative procedures, countermeasures and dispute settlement. 42 Such measures strengthen the understanding that the restraints are not simply arrangements of convenience to be broken at will. [*271] It is surely not inappropriate for governments as well as international lawyers to treat these regulatory arrangements as part of the body of international law, as rules of conduct, and not merely as transient power bargaining.



The more controversial questions of self-defense have been raised by actions and claims that would expand a state's right to use force beyond the archetypical case of an armed attack on the territory or instrumentality of that state. Such expanded conceptions of self-defense are exemplified by the following uses of force by states claiming self-defense:

(1) the use of force to rescue political hostages believed to face imminent danger of death or injury; 43

(2) the use of force against officials or installations in a foreign state believed to support terrorist acts directed against nationals of the state claiming the right of defense; 44

(3) the use of force against troops, planes, vessels or installations believed to threaten imminent attack by a state with declared hostile intent; 45

(4) the use of retaliatory force against a government or military force so as to deter renewed attacks on the state taking such action; 46

(5) the use of force against a government that has provided arms or technical support to insurgents in a third state; 47

(6) the use of force against a government that has allowed its territory to be used by military forces of a third state considered to be a threat to the state claiming self-defense; 48

(7) the use of force in the name of collective defense (or counterintervention) against a government imposed by foreign forces and faced with large-scale military resistance by many of its people. 49



[*272] As indicated by the footnote references, these seven categories summarize situations that have occurred in recent years. The list is not complete; other extended self-defense claims have been asserted by governments to justify their use of force or to threaten such use in some situations. 50 Nearly all the cases have been discussed in UN bodies and, although opinions have been divided, it is clear that most governments have been reluctant to legitimize expanded self-defense actions that go beyond the paradigmatic case. Thus, no UN resolution has approved the use of force in any of the cases that I have listed. In the few cases where resolutions were adopted that passed judgment on the legality of the action, they denied the validity of the self-defense claim. In many cases, resolutions were not adopted, but the majority of states that addressed the issue of lawfulness criticized the actions as contrary to the Charter. Few ventured to defend the legality of the self-defense claim. Of course, political sympathies influenced the votes of many of the states, but, as I observed earlier, in several notable cases, allied or friendly states joined in condemnation of the actions. In at least some of these cases, and perhaps all of them, the opposition to the self-defense claims appeared to be based in part on a difference view as to the facts. In many cases, assertions of the state claiming self-defense were simply not believed; in some cases, factual claims of both sides to the dispute were treated with the utmost skepticism.



The uncertainty surrounding the factual claims and the not insignificant political motivations are reasons that condemnation by governments in the UN bodies cannot always be accepted as persuasive on the issue of lawfulness. On the other hand, such condemnations cannot be ignored; they warrant consideration as relevant appraisals. Moreover, from a broader perspective, the general reluctance to approve uses of force under expanded conceptions of self-defense is itself significant. Such reluctance is evidence of a widespread perception that widening the scope of self-defense will erode the basic rule against unilateral recourse to force. The absence of binding judicial or other third-party determinations relating to use of force adds to the apprehension that a more permissive rule of self-defense will open the way to further disregard of the limits on force. It is true that some international lawyers believe that legitimate self-defense should be construed more liberally. They argue that the absence of effective collective remedies against illegal force makes it necessary, indeed inevitable, that states take defensive action on the basis of their own perceptions of national interest and capabilities. In addition to the imperatives of national security, they cite the responsibility of powerful states to maintain international order. They stress that the words of the Charter should be interpreted "in context" so as to yield "reasonable" meanings required by the "purpose and [*273] object" of the text. 51 Unilateral acts that stretch the meaning of self-defense are treated as "state practice," although there is no general opinio juris to support their acceptance as law. Hence, conduct that violates text and earlier interpretations can be viewed as new or emerging law based on the efficacy of accomplished facts in shaping the law. 52 Some of these arguments, if accepted, would extend the concept of self-defense so broadly as to allow almost any unilateral use of force taken in the name of law and order. There is no evidence that governments by and large would favor this result. On the contrary, the records of the United Nations, as already mentioned, show strong resistance to widening self-defense to permit force except where there has been an armed attack or threat of imminent attack. It does not seem likely that this resistance will disappear in the foreseeable future.



This does not mean, of course, that the law of self-defense will remain static. The kaleidoscopic events of our era will continue to create new pressures for resort to force. The role of international law cannot be limited to repeating the old maxims. What its role should be calls for further consideration. In the next section, I offer some thoughts and suggestions.

ENHANCING SECURITY THROUGH LAW AND INSTITUTIONS

To begin with, a clear distinction should be maintained between law as an expression of common policy and purpose and the use of law for rationalization of state action. If law is to operate as a limit on national power, it will lead to judgments of legitimacy that diverge from a particular state's perception of national interest at a given time. True, such divergence may be reduced by redefining or widening the conception of national interest to include the long-term interest in stability and order. But changing the conceptions of national interest is easier said than done. In a concrete case, national leaders and their citizenry may hold to their particular view of state interest, even though clearly incompatible with the law and the "enlightened" views of others. To conclude that law must yield to such judgments of national interest negates the idea of law as a restraint on state conduct. This is not to say that international law can replace the continuing task of defining national interests and the defense needs of a state. That there may be a conflict between such national goals and the restraints of international law must be acknowledged. Recognizing such tension is an important step toward reconciliation of the competing interests.

One path toward reducing the tension between defense needs and legal rules of restraint lies in the specific agreements referred to earlier as the lex specialis. Such agreements may be explicit or they may be tacit. They may [*274] even be gally nonbinding (as are gentlemen's agreements) and still relied upon for mutual compliance. By moving from the abstract level to the concrete, states can achieve rules of behavior that are perceived to support the common interests in security and reduced defense costs. Such agreements, it is true, may be frangible, but while they last, they add to the sense of security. De Gaulle once remarked that "treaties are like roses and young girls; they last while they last." That they do not last forever is no reason to minimize them. Indeed, like some fashions, they would be intolerable if they did not change.

Specific agreements concerning defense rarely go beyond reciprocal negative restraints when the parties are adversary. In contrast, agreements among states that share a common defense interest tend to involve more positive cooperation. But adversary states that are apprehensive about the threat of others may also benefit from arrangements that entail cooperation, such as exchanges of information and other confidence-building procedures. Some of the recent arms limitation agreements between the superpowers are steps in that direction. 53 Other agreements between former adversaries provide for cultural relations, free movement of persons, normal trade. 54 Agreements of that kind can create a sense of diffuse reciprocity and generalized commitment that strengthens compliance. 55 In the current parlance of political science, they may become "security regimes."

The adoption of such treaties and regimes for particular areas or activities would not exclude a continuing reference to the general principles of self-defense set forth in the Charter and authoritative customary law. If such principles are to be treated as law rather than after-the-fact rationalization, they must be applied to concrete cases in a disciplined and consistent way. This process entails an analysis that takes rules seriously and does not "deconstruct" them, making all meanings permissible. Legal reasoning helps to limit purely subjective interpretation. Textual exegesis, original intent, relevant context, evolving purposes, and practice "accepted as law" are elements in such reasoning. So are applicable doctrine and basic postulates of law. These elements cannot be reduced to a single governing factor. Every legal analysis, moreover, must take account of the complexity of the particular situations and their relationship to the dominant ends of the law in question. Yet the factual uniqueness of each case cannot obliterate the limits set by the general rules. If law is to be relevant, a state's right of self-defense in a particular situation must have as its necessary corollary recognition of the right of all other states in comparable cases.

This proposition not only is implicit in the idea of juridical equality; it also underlines the need for criteria that are generally recognized and accepted as authoritative. Ad hoc judgments that are purportedly based entirely on [*275] the facts and an undefined standard of "reasonableness" tend to be largely determined by crypto-criteria that reflect particular preferences and values. Such judgments are not likely to help clarify the line between permissible and impermissible conduct carried out in the name of self-defense. Furthermore, they will be perceived as lacking justification based on norms that the community of states -- not just part of it -- has accepted.

It is true that standards for determining the legitimacy of defense will necessarily be somewhat abstract. They will not be fully determinate for they will have to be interpreted and applied to individual cases. Facts, analysis and deliberation will be required to reach appropriate conclusions that take into account both standards and circumstances. A process of reasoning involving the interaction of principle and situation (i.e., casuistry in its favorable sense) is required. Moreover, that process and the continuing reflections of governments and international lawyers extend beyond the elaboration of established doctrine. They involve, as they should, the development (or construction) of more specific standards appropriate for changing circumstances. To some extent, such standards emerge through the responses of states faced with new situations. This type of ongoing law-generating process calls for continuing appraisal by international lawyers, as well as by governments.

Of equal importance to the elaboration of standards are the processes for application of the standards to particular cases. International lawyers earlier in this century emphasized the preeminent value of judicial determination and many urged the extension of the compulsory jurisdiction of the International Court. The more hopeful among them envisaged the Court as an arbiter of major disputes, not excluding acts of aggression. The Nuremberg Judgment reinforced that image. In the 1950s, American lawyers, generally conservative, called for the "rule of law" through compulsory jurisdiction of the International Court. 56 Leaders as Eisenhower and Nixon favored greater use of the Court. 57 But as most governments failed to respond, the Court was increasingly seen to be marginal, limited to technical legal disputes. With the Tehran Hostages case and, more dramatically, the Nicaragua case, the Court was seized of disputes involving force. Its decisions in the Nicaragua case produced misgivings (as well as support) and they also gave rise to a rather more profound debate than had previously occurred on the role of adjudication and on compulsory jurisdiction. 58 (Not at all profound and, one would hope, quickly forgotten were the diatribes against the Court.) Notwithstanding the criticism of the Nicaragua decision [*276] by U.S. officials and some lawyers, the role of the Court remains on the international agenda. The recent Soviet proposals for compulsory adjudication, though sketchy, have opened up new possibilities.



It is worth noting for our present discussion that the Soviet suggestions on jurisdiction of the Court were part of a set of proposals for a "comprehensive system of international peace and security." 59 This suggests that cases involving force and self-defense might be considered as falling within the USSR's proposal for compulsory jurisdiction. It remains to be seen whether the two superpowers and other major powers would accept some agreed formula allowing such cases to be covered by compulsory jurisdiction. The recent, rather sweeping assertion by some U.S. lawyers that no case involving force is appropriate for the Court might not be persuasive if agreement can be reached on some categories of such claims. It will be recalled that in the 1950s the United States itself sought to bring to the Court claims arising from the shooting down of its planes in Eastern Europe. 60 The Hostages case against Iran would not have been admissible if the United States earlier had excluded cases involving force from its treaty commitment. 61 Having these cases in mind, it hardly seems perilous for a state to agree to adjudication of cases involving acts of force such as shooting incidents or isolated attacks, under reciprocally binding acceptances of compulsory jurisdiction. Officials distrustful of international tribunals, especially in matters affecting security, sometimes argue that the Court should not be "burdened" with consequential disputes likely to be seen as political. On the other hand, we should not overlook the value of a judicial decision holding a state accountable in a matter of some consequence. The Hostages case against Iran is a pertinent example. The assumption, sometimes made, that the Court needs to be "protected" against important controversies is surely open to question. It is unlikely that a tribunal limited to minor technical disputes would fulfill the need and expectations for an authoritative judicial organ. The International Court would not be greatly respected if it became the international equivalent of a small-claims court. I see no good reason for international lawyers now to argue for the principle de maximis non curat praetor. 62



Nevertheless, we must be wary of assuming that recourse to a court will resolve all disputes reducible to legal issues. In a technical (or Pickwickian) sense, this may be true. Every dispute can be construed as a question of whether conduct objected to is permissible or not under international law; hence, logically all disputes are susceptible to judicial determination. But this reasoning obviously misses the reality of disputes that, in substance, are not about differences in the meaning of the law. A court will not truly resolve such disputes even if given jurisdiction. We must reconcile ourselves to the fact that, at best, judicial regulation of armed conflicts will remain [*277] peripheral, most likely limited to cases arising out of specific incidents of limited scope and duration.

Clearly, we must look beyond the Court in order to reinforce the accountability of states for improper resort to force. The heart of that effort lies in fact-finding, review and appraisal by international agencies in a variety of contexts. With regard to self-defense, accountability requires respect for the obligation under Article 51 to report armed action claimed to be defensive. To give effect to that obligation, governments must report the facts openly and truthfully. This would impose limits on secrecy, though in some cases military necessity might be an acceptable ground for limited reporting. Accountability can also be given effect in many situations by monitoring and verification arrangements, particularly by international agencies. The renewed interest in treaties that provide for verification and monitoring is promising. There is surely ample room for more extensive use of observers, truce supervisors and peacekeeping forces to assist in determining the facts in disputes about the use of force and self-defense. Institutional procedures, such as those of the UN Security Council, the regional organizations and the international secretariats, require strengthening to ensure that factual reporting and monitoring are effective. The deliberative processes of international organs require adaptation for the appraisal of facts and the claims of the disputing parties. Obviously, these various steps are not the exclusive province of the international lawyers, though the skills of lawyers in regard to procedures of fact-finding and dispute settlement would be helpful.

It is tempting to lawyers to call for the rule of law in international affairs. The temptation is not resisted in this essay, though much of it is concerned with the obstacles to realizing the ideal. The relationship of national security and international law is inevitably complicated and fluid. I have not tried to simplify it, but I have accepted a basic premise -- namely, that the right of self-defense, "inherent" though it may be, cannot be autonomous. To consider it as above or outside the law renders it more probable that force will be used unilaterally and abusively. No state or people can face that prospect with equanimity in the present world. The answer, in part, is that self-defense must be regarded as limited and not only legitimated by law. To give this conception reality requires more than juridical doctrine. It demands, as I have suggested, a structure of accountability built upon obligations, procedures and institutions. The political will that is necessary depends on understanding both the danger of unbridled force and the necessity of legal and institutional control. Recent events, as I have noted, offer some promise of that development. It is through such concrete measures that international law may in time strengthen the national security of all states.

FOOTNOTES:


n1 H. GROTIUS, DE JURE BELLI AC PACIS, bk. II, ch. I, pt. III, at 172 (Carnegie Endowment trans. 1925) (1646).

n2 However, characterization of self-defense as a natural right did not mean to Grotius that a state could invoke it arbitrarily or for "reasons of state." See H. Lauterpacht, The Grotian Tradition, 23 BRIT. Y.B. INT'L L. 1, 30-38 (1946).

n3 See H. KELSEN, THE LAW OF THE UNITED NATIONS 791-92 (1950); D. BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 187 (1958); Ago, Addendum to Eighth Report on State Responsibility to the International Law Commission, [1980] 2 Y.B. INT'L L. COMM'N, pt. 1 at 13, 66-67, UN DOC. A/CN.4/SER.A/1980/Add.1; Y. DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 169-72 (1988).

n4 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 94, para. 176 (Judgment of June 27).

n5 Acheson, Remarks, 57 ASIL PROC. 13, 14 (1963).

n6 Id.

n7 Id.

n8 When Acheson presented his views in 1963, he received no support from the audience. On the contrary, those who spoke, while differing in their legal positions, considered the issue of the lawfulness of the U.S. action in the Cuban missile crisis to be important. See particularly comments of Chayes, McDougal and Quincy Wright, id. at 8-18. For other views critical of Acheson's approach, see L. HENKIN, HOW NATIONS BEHAVE 265-67 (1968); and Moore, The Legal Tradition and the Management of National Security, in TOWARD WORLD ORDER AND HUMAN DIGNITY 321 (W. M. Reisman & B. Weston eds. 1976).

n9 U.S. note of June 23, 1928, quoted in H. MILLER, THE PEACE PACT OF PARIS 213, 214 (1928).

n10 H. LAUTERPACHT, THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY 179-80 (1933).

n11 Dissenting Opinion of Judge Schwebel, 1986 ICJ REP. at 259, 285, para. 46.

n12 H. LAUTERPACHT, supra note 10, at 180.

n13 Id.

n14 Id. at 181.

n15 Judgment of the International Military Tribunal at Nuremberg, 1946, 1 TRIAL OF GERMAN MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 208 (1947).

n16 1986 ICJ REP. at 293-96, paras. 69-76 (Schwebel, J., dissenting).

n17 1986 ICJ REP. at 27, para. 34.

n18 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ REP. 392, 432-36, paras. 91-98 (Judgment of Nov. 26).

n19 Sofaer, Statement, in U.S. Decision to Withdraw from the International Court of Justice: Hearing Before the Subcomm. on Human Rights and International Organization of the House Comm. on Foreign Affairs, 99th Cong., 1st Sess. 27-28 (1985).

n20 Id. at 30.

n21 The Charter does provide in Article 27 that in decisions under chapter VI, a party to a dispute shall abstain from voting. Although this applies to permanent members and therefore is supposed to limit the use of the veto where those states are parties, the restriction does not apply to Article 51 (as it is not in chapter VI). In fact, it has rarely been invoked to preclude the use of the veto.

n22 Combacau, The Exception of Self-Defence in U.N. Practice, in THE CURRENT LEGAL REGULATION OF THE USE OF FORCE 9 (A. Cassese ed. 1986).

n23 For example, self-defense claims made by Israel for attacks against Palestinian organizations based in Jordan and Lebanon were rejected by the Security Council in the following resolutions: SC Res. 228 (Nov. 25, 1966); SC Res. 265 (Apr. 1, 1969); SC Res. 270 (Aug. 26, 1969); SC Res. 279 (May 12, 1970); SC Res. 313 (Feb. 28, 1972); SC Res. 332 (Apr. 21, 1973); SC Res. 347 (Apr. 24, 1974). See also SC Res. 488 (June 19, 1981) (condemning Israeli air attack which destroyed the Osiraq nuclear reactor in Iraq in 1981). The General Assembly rejected the Soviet Union's self-defense claim to justify the intervention in Afghanistan in 1980. GA Res. ES-6/2 (Jan. 14, 1980). In addition, South Africa has been condemned for its attacks against neighboring states. SC Res. 393 (July 30, 1976); SC Res. 387 (Mar. 31, 1976). See Combacau, supra note 22, at 16-18.

n24 For example, the Security Council resolution that noted the invasion of the Falkland Islands by Argentina in 1982 demanded the immediate withdrawal of all Argentine forces from the Falkland Islands. No reference was made to the withdrawal of British forces. A clear implication was that the British had legitimately exercised the right of self-defense. The resolution was adopted by 10 votes to 1 (Panama), with 4 abstentions. SC Res. 502 (Apr. 3, 1982). The Israeli rescue action in Entebbe, Uganda was criticized in the Security Council (and also defended). When a draft resolution censuring Israel was not put to a vote, the Council's nonaction was seen as an indication that the rescue mission was not a violation of Article 2(4). See Schachter, International Law in the Hostage Crisis: Implications for Future Cases, in AMERICAN HOSTAGES IN IRAN 325, 331 (1985).

n25 The General Assembly may indicate its disapproval of a doubtful self-defense claim in a more indirect manner, as by refusing to accept the credentials of a regime imposed by illegal resort to force, for example, Kampuchea. See GA Res. 34/22 (Nov. 14, 1979); and 37/6 (Oct. 28, 1982). Conversely, the United Nations has refrained from condemning the use of force under a questionable claim of self-defense when the end result of the action was not considered reprehensible. For example, the Tanzanian invasion of Uganda in 1979 and its continued occupation were not censured by the General Assembly or by the Organization of African Unity. See N. RONZITTI, RESCUING NATIONALS ABROAD THROUGH MILITARY COERCION AND INTERVENTION ON GROUNDS OF HUMANITY 102-06 (1985).

n26 GA Res. 37/37 (Nov. 29, 1982) (condemnation of the Soviet Union for its invasion of Afghanistan); GA Res. 38/7 (Nov. 2, 1983) (condemnation of the United States for its invasion of Grenada); SC Res. 562 (May 10, 1985) and GA Res. 40/188 (Dec. 17, 1985) (condemnation of the United States for its trade embargo against Nicaragua); GA Res. 41/31 (Nov. 3, 1986) (calling for U.S. compliance with the ICJ's Judgment in Nicaragua case).

n27 1986 ICJ REP. at 98, para. 186.

n28 My emphasis on the rational self-interest of states in restraining use of force is not meant to exclude other factors that influence compliance with declared rules and principles. For example, the perception by a state of the legitimacy vel non of a particular rule or interpretation is generally a significant element in regard to its compliance. Legitimacy is itself a complex conception that may be used to embrace various factors that influence states to obey rules in the absence of coercion. This is well brought out in Thomas Franck's erudite and lively article, Legitimacy in the International System, 82 AJIL 705 (1988). See also Schachter, Towards a Theory of International Obligation, 8 VA. J. INT'L L. 300 (1968); T. HONORE, MAKING LAW BIND 13-16 (1987); L. HENKIN, HOW NATIONS BEHAVE 25-26, 320-21 (2d ed. 1979).

n29 See Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1634-35 (1984); McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 AJIL 597 (1963); Sadurska, Threats of Force, 82 AJIL 239 (1988).

n30 1986 ICJ REP. at 123-25, paras. 244-45. For critical comment, see Hargrove, The Nicaragua Judgment and the Future of the Law of Force and Self-Defense, 81 AJIL 135 (1987).

n31 See Schachter, supra note 29, at 1628; Y. DINSTEIN, supra note 3, at 208-12.

n32 Schachter, supra note 29, at 1641-44. See also Resolution of Institut de Droit International on the Principle of Non-Intervention in Civil Wars, 56 INSTITUT DE DROIT INTERNATIONAL, ANNUAIRE 544, 549 (1975); Moore, Toward an Applied Theory for the Regulation of Intervention, and Bowett, The Interrelation of Theories of Intervention and Self-Defense, in LAW AND CIVIL WAR IN THE MODERN WORLD 3 and 38, respectively (J. Moore ed. 1974); Perkins, The Right of Counterintervention, 17 GA. J. INT'L & COMP. L. 171 (1986).

n33 See F. Boyle, The Relevance of International Law to the "Paradox" of Nuclear Deterrence, 80 NW. U.L. REV. 1407 (1986); Reisman, Nuclear Weapons in International Law, 4 N.Y.L. SCH. J. INT'L & COMP. L. 339 (1983); Weston, Nuclear Weapons Versus International Law, 28 McGILL L.J. 542 (1983). On targeting, see R. JERVIS, THE ILLOGIC OF AMERICAN NUCLEAR STRATEGY 71-72 (1984).

n34 See Schachter, International Law in Theory and Practice, 178 RECUEIL DES COURS 111-23 (1982 V).

n35 On the complexity and limits of the nuclear balance, see R. BETTS, NUCLEAR BLACKMAIL AND NUCLEAR BALANCE 180-233 (1987).

n36 M. CEADEL, THINKING ABOUT WAR AND PEACE 72-88 (1987); THE CONVENTIONAL DEFENSE OF EUROPE (A. Pierre ed. 1986); STOCKHOLM INTERNATIONAL PEACE RESEARCH INSTITUTION, POLICIES FOR COMMON SECURITY (1985).

n37 See, e.g., Carlucci, Is Moscow Really Tilting to Defense?, N.Y. Times, May 6, 1988, at A39, col. 1; Odom, Soviet Military Doctrine, 67 FOREIGN AFF. 114 (1988). General Secretary Gorbachev's address to the UN General Assembly in December 1988 urged force reductions on the basis of "reasonably sufficient" defense capability. UN Doc. A/43/PV.72 (1988).

n38 Jervis, Security Regimes, in INTERNATIONAL REGIMES 173 (S. Krasner ed. 1983) [hereinafter Krasner]; Herz, Idealist Internationalism and the Security Dilemma, 2 WORLD POL. 157 (1950).

n39 Existing treaties include those establishing nuclear-free zones, prohibiting proliferation, and limiting size and number of weapons. See, e.g., Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 UST 483, TIAS No. 6839, 729 UNTS 161; Treaty on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S.-USSR, 23 UST 3435, TIAS No. 7503; Treaty on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (the INF Treaty), Dec. 8, 1987, U.S.-USSR, S. TREATY DOC. NO. 11, 100th Cong., 2d Sess. (1988), reprinted in 27 ILM 84 (1988); Treaty for the Prohibition of Nuclear Weapons in Latin America, Feb. 14, 1967, 22 UST 762, TIAS No. 7137, 634 UNTS 281 (the United States is not a party). Future arrangements being considered in intergovernmental negotiations include exchanges of detailed military information, advance notification of military movements, reports on military expenditures, and measures for inspection and verification. Detailed proposals on these lines were made in 1985 by European governments and the United States to the Conference on Confidence Building established pursuant to the Helsinki Final Act of 1975. Conference on Security and Co-operation in Europe: Final Act, Aug. 1, 1975, 73 DEP'T ST. BULL. 323 (1975), reprinted in 14 ILM 1292 (1975).

n40 See Schachter, The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977).

n41 See Case concerning Right of Passage over Indian Territory (Port. v. India), Merits, 1960 ICJ REP. 6 (Judgment of Apr. 12).

n42 A recent example is the INF Treaty between the United States and the USSR, supra note 39. The necessity of verification and consultation is especially emphasized in arms control and limitation agreements currently under negotiation. Agreements that seek to end long-standing hostilities and interventionary activities are likely to call for more extensive commitments and measures for mutual cooperation beyond the military area. The comprehensive draft Contadora agreement for Central America remains a notable exemplar of a pact that would seek to prevent military intervention through a wide range of cooperative measures in economic and political areas, as well as in limits on arms and foreign bases. Contadora Act on Peace and Co-operation in Central America, June 7, 1986, reprinted in 25 ILM 1302 (1986).

n43 Rescue actions were undertaken by Israel in Entebbe, Uganda in 1976 and by the United States in Iran in 1980. An earlier rescue mission was carried out in Stanleyville in the then Congo by Belgium. For discussion of legal issues, see Schachter, supra note 29, at 1629-32.

n44 E.g., the U.S. bombing of Libya. See DEP'T ST. BULL., No. 2111, June 1986; GA Res. 41/38 (Nov. 20, 1986); Statement of U.S. representative to UN Security Council, excerpted in Contemporary Practice of the United States, 80 AJIL 632, 633-36 (1986).

n45 E.g., the Israeli action against Egypt in 1967. See Dinstein, The Legal Issues of Para-War and Peace in the Middle East, 44 ST. JOHN'S L. REV. 466, 469-70 (1970).

n46 E.g., the Israeli military invasion of Lebanon in 1982. See SC Res. 509 (June 6, 1982); and GA Res. ES-7/9 (Sept. 14, 1982). See also Feinstein, The Legality of the Use of Armed Force by Israel in Lebanon, 20 ISR. L. REV. 362 (1985); Mallison, Aggression or Self-Defense in Lebanon?, 77 ASIL PROC. 174 (1983).

n47 E.g., the U.S. support of the resistance (contras) in Nicaragua. See Nicaragua case, 1986 ICJ REP. 14; see also Moore, The Secret War in Central America and the Future of World Order, 80 AJIL 43 (1986); Rowles, "Secret Wars," Self-Defense and the Charter, id. at 568.

n48 E.g., the U.S. blockade of Cuba in 1962. See McDougal, supra note 29; Wright, The Cuban Quarantine, 57 AJIL 546 (1963).

n49 A recent example is the military aid to the resistance in Afghanistan given by Pakistan and the United States. See J. COLLINS, THE SOVIET INVASION (1986). On the legal claim of the USSR, see Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56 BRIT. Y.B. INT'L L. 189 (1985).

n50 For example, self-defense has been cited as justification for military action to recover "lost" territories that were allegedly taken by illegal force. India's seizure of Goa and Argentina's attempt to occupy the Malvinas-Falkland Islands are in point. For references, see Schachter, supra note 29, at 1627.

n51 See M. S. McDOUGAL & F. FELICANO, LAW AND MINIMUM WORLD PUBLIC ORDER 207-61 (1961); Moore, supra note 8.

n52 See, e.g., Reisman, Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice, 13 YALE J. INT'L L. 171, 182-85 (1988). For a different analysis of violations and practice, see Schachter, In Defense of International Rules on the Use of Force, 53 U. CHI. L.R. 113, 128-31 (1986).

n53 See notes 39 and 42 supra.

n54 E.g., Treaty of Peace, Mar. 26, 1979, Egypt-Israel, Art. III, 18 ILM 362, 364 (1979). The Helsinki Final Act of 1975, supra note 39, provided for a broad range of cooperative relations -- economic, cultural, exchange of information, etc. -- among former adversaries.

n55 See Keohane, The Demand for International Regimes, in Krasner, supra note 38, at 141, 158.

n56 See Rhyne, The Athens Conference on World Peace Through Law, 58 AJIL 138 (1964); Franck & Lehrman, Messianism and Chauvinism in America's Commitment to Peace Through Law, in THE INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS 3, 6, 15-17 (L. Damrosch ed. 1987) [hereinafter Damrosch].

n57 Franck & Lehrman, supra note 56, at 5, 6.

n58 See Damrosch, supra note 56, especially articles by Bilder, Weiss, Damrosch, Gordon and Highet. See also Appraisals of the ICJ's Decision: Nicaragua v. United States (Merits), 81 AJIL 77 (1987); Scott & Carr, The ICJ and Compulsory Jurisdiction, id. at 57.

n59 UN DOC. A/43/629 (1988).

n60 See Schachter, Disputes Involving the Use of Force, in Damrosch, supra note 56, at 223.

n61 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ REP. 3 (Judgment of May 24). See also Schachter, supra note 24.

n62 See H. LAUTERPACHT, supra note 10, at 183 et seq.