The decision to exercise power-a perspective on its framework in interkational law

• Author: By Lieutenant Cmander James E. Tom
• Pages: 01

The author discusses the self-help meuupes of retorsion, reprisal, and intervention, as they relate to international law. His analysis includes the application of theee meuwes in %oh contemporary orises as the Dominican Republic, Southern Rhodesia, and Vietnam. The author conclz~des that the world community is not yet ~eady for a "force monopoly" by the United Nations and that, meanwhile, individual state8 should exercise power in accordance with established international law and the ideals expressed in the United Nations Charter. I. INTRODUCTION

International law is a discipline conceived to bring order to the relationships of a number of states asserting certain rights. Indicative of these rights is the expression of Chief Justice Marshall: "The world [is] composed of distinct sovereignties, possessing equal rights and equal independence. . . .I" It might be said that these rights and their reciprocal obligations are given credence by states applying standards and rules which are designed to define and implement the rights and obligations.

As states emerged and the international community developed, it became apparent that the absence of central authority for this community resulted in ad hoc accommodations amongst the states which depended as much upon relative physical capacities of the states involved as upon any theory of sovereign equality. But even in such a loosely knit society, where resort

* The i i e w exprer?ed are those of the author and do not neeesrarily repre-Ynt the view of The Judee Advocate General's School or B ~ V

other

Court.

1 Schooner Exchange V. WFaddon, 11 US. (7 Craneh) 118, 136 (1812).

to self-help measured of violence could not be discounted, if an interest ws.s deemed important enough, a lexicon grew up, categorizing and setting legal frameworks for testing the proprietp of a variety of coercive measure8 which did not amount to the ultimate measure of war. Although var itself was a measure arailable to states,' it was useful to recognize and employ measures of less generalized effect when limited ends were sought.'

The r e p i a i m oi the reson to war itseii emstitUtes the ultimate problem toward the wlutm of which the world has been groping. Along the way it har been possible EO secure B measnre of agreemenT on lesser problems.'

Although the United Nations Charter restricts the use or threat of force by states," it is useful to examine the practice of states prior to that treaty and relate the pnor practice to current practice. Far, while the purposes of the United Sations Organization are manifestly laudible, its effectireness in settling international disputes or assisting in such settlement has been less than ideal.' Meantime, states do have reference to pre- s "[Dlerpite earlier efforts by jniiirs and maralirts to disfingvirh h e w e n

beifus juatum and bellurn injuetum, internsrional law had giien YP the aitempt to reelare recourse to par, the most extreme form of the ube of force , , " BRIERLI, THL LAW OF NA?roun 3Y7-03 (6th ed. Wsldock 1963)

:zi:::Jd haw been declared beyond the tam. peteney attributed ta force ahon oi war, and the acting states have r e p larized their eonduet simply by declaring war. Svch was rhe c a e of the blockade instituted against Venezuela by Great Britain, Germany, and Italy in 1902, which they intended ta enioxe against third states. When the United Ststei objected that paclfrc blwkade could not affect shipa of third states. Great Britain declared ahe was at war with Venezuela. See COLOMBOS INTER-VmIm'AL LAW OF TEE SEA 426 (5th rev. 4. 19621,

'JEBSUP,

A MODERY

LAW OF NATIOYSlE7 119521.

3Charter oi the rniied Nations, 26 Jvne 1045, art. 2(3), 50 Stat. 1031 (1946). T.S. No. 03 [hereafter cited BF K.N.

Chsrterl, itaten "All Members shall settle their international disputer by peaceful means in such a mannerthat international peace and ieewity, and justice, are not endangered " Ar-ticle 214) : ".&I1 Members ihaii refrain ~n their international relations from the threat or use ai force against the ierriroriai integrity or political mde-Dendence of any state. or in an>- manner inconsidrent uith the Pur~aies of ihe United Nat

"iaraeiis Warned oi War Danger

"Damaseur. Syria, July 24 (AP)--Syna warned israel today that anyfarther raids on Syrian territon will definitely lead ~ i l wr.

''Israel fen daw ago bombed Arab operations designed to divert the Jordan River in Syna. The S p a n Foreign %histry said, in a itatement on the eve of B Cnited Nations Security Council meeting n.hich will take up Syrian proteat against the air raid, that the debate would be the United xatmnr last chance to prevent war.

(isabr k a % ~ ~ i ~ ~ % %

DECISION TO EXERCISE POWER

existing criteria for justifying forceful action, albeit they now feel more compunction to relate their action to self-defense as that concept is interpreted under article 51 of the United Nations Charter.'

Self-help measures have generally been categorized as retorsion, reprisals, intervention, and self-defense.' These categories are a useful device far orderly discussion of this ares of international law. But it must be borne in mind that there is no intent to imply that the categories are mutually exclusive. However, as will be seen later, retorsion and reprisal may be considered mutually exclusive in that bana fide retorsions are a& within the competence of the state regardless of provwation, whereas reprisals depend for their justification upon their being in response to an illegal act of another state.'

It is important to realize that in the jurisprudence of international law, terminology is sometimes employed simply for its descriptive value without regard to a precise legal definition. So, we find the terms "boycott" and "embargo" in a variety of situations, and we cannot rely on the use of the term as indicative of legal ramifications.

"Boycott" is a term applied in municipal as well as international contexts as a label for a practiced refusal to do business. The United States bans against imports from Cuba and Red China are Instances of boycott which need not be justified as either retorsions or reprisals, since the United States is not obligated by treaty or otherwise to allow imports from those sources. Some boycotts must, however, depend upon the conditians of reprisal for justification, as will be seen later,

"Embargo" is a term applied to many situations which will be discussed within the general heading of reprisals. Sot ail of

"This might be Syria's last complaint to the international body if the nations eoneerned (Security Council member dates) fail to atand by right and justice by condemning Israeli aggression, the statement said.

"Anbs have been driven to despair by the Cnited Kations inabiiity to enforce any of Its resolutions on the Palestine question during the last eighteen years, it added. This failure eves the Arsbr the right to search for other meand to defend themselves against constant threats and repeated insults.''

the applications of the tern have reference to reprisal. The underlying circumstances must be discovered to understand the sense of the term in each instance.

!I. RETORSIOS

1. GEXERAL

   Aside from any limitations imposed by the United Nations Charter, there are, in a world of sovereigm states, a multitude of actions within the legal competence of states. >Ian>- of these actio- may be considered discoui-reous or unfam to other states, yet nonetheless amongst the prerogatives of the acting state Thus, states have exacted exorbitant tariffs on the impartation of certain products, or even prohibited importation of the products of particular states, regulated immigration on a basic discriminatory against nationals of particular states, or refused to allow ships of a particular state access to ports.

   If no treaty violations are involved in the foregoine actions. they cannot be said to be illegal:' They do, however, tend to introduce discord in international relations even thouph their purpose may be simply to enhance some internal program, the effect on the other state being at mast an incidental factor in plans of the acting state. If a state considers itself sufficiently abused by such conduct, it may retaliate by some measure equally within its prerogatives. Such responses are retorsions. Although retorsions need not be in kind, there are examples of retorsions strikingly similar to the provocation, such as the Act of 18 April 1818,"

   "BISXOP, I~ERYATIOXAI Lirv Casrs AYD IIATERIALE

   746 (2d 4.

   takes note of the effect of ~ o ~ s i b l e treatv limitations won the availabilitr

   of retorsion.

   "Ch. 70. SB 1 & 2, 3 Stas. 432, which provided chat ports of the Cnited States would be closed co ~eshela omed whall) or in part by a subject of Britain coming from any port or place in a colon? or territor) of Britain which was closed apinsr vessel8 mmed by cicizeni of the S'nlted States an"also that Bntmh-awned >e~ielsleavrng United States ports vould hare fa post bond against delivery af cargoes to ports closed to L-mred Statesvessel^. Another example 1% the l e t of 3 Oct. 1913. 19 LS.C $5 130 h 131(1964)

   ' 'OXO gmds . . unle~sin c89es prmided for by treats, shall be Imparted

   into the Unired States fiom any foreign port or place. except in v e ~ ~ e l b

   of

   the Unired States. or in such foreign WPJ& a8 truly and ahally belong to the citizens or subiecrr of that eovnfrs [of orwn of rhe goodrl. . . ." An exception is made for vesseli of eovnrrier vhieh do nor haie ~~milar banr

   which wovld affect United Stares xei~el~.

   1962)

   DECISION TO EXERCISE POWER

2. STATUS OF RETORSION IN COMTEMPORARY IA'TERhrATIONAL LAW

   As retorsion is by no means a friendly method of intematianal relations, certain provisions of the United Sations Charter must be considered in determining the availability of re-torsion in modern times. Amongst the purposes of the United Nations stated in article 1 of the Charter, we find: 2. To develop friendiy relations among nations based on respect for the...