1NATIONAL SECURITY AND THE ROLE OF LAW (Tipson)
Goal Clarification: What is National Security?
-National Security – Possible Definitions (Difficult to define)
-Safety from foreign coercion or intimidation
-UN Charter Article 2(4) – prohibition against “the threat or use of force against the political independence or territorial integrity of any state”
Analytical Tasks: How Americans Think About National Security
-Identifying Values: What is at Stake? (What are we trying to protect)
-Traditional views of national security center around defending territory -Protecting homeland not a major concern until after WWII due to physical isolation -Pearl Harbor attack changed national opinion – protecting homeland now major concern -US became aggressive in defense of homeland after WWII by extending defensive perimeters through the creation of alliances (UN, NATO, Rio Treaty)
-Before WWII, large standing armies were seen as threats to liberty -With development on nuclear weapons, opinion has changed and vulnerability of our military forces has become a high priority -Today – trying to balance dislike of standing armies and fear of long range nuclear weapons
-Safety of the people has always been a major concern – Constitution itself written to protect people from the national government -Protection of people extends to US citizens abroad as well (First US “war” – Barbary Pirates that were harassing US ships in Mediterranean)
-Centers around protection of resources necessary for military capabilities -Other resources US willing to use force to protect: Oil (note actions taken by US to protect oil), worldwide economic access
-Many Americans (since nation was founded) view that protection of certain fundamental values as center of national security
-Determining Interest: What Conditions Should We Seek?
-Issue is how much military capability is enough – is it enough to have the same capabilities as potential threats or should we pursue superior capabilities
-US leaders have varied greatly on how much is enough
-Important goal is to seek political cohesion, economic vitality, and good educational policies at home because it will help country to prevail during war (increases domestic support and morale) -Economic vitality and educational strength also provide resources to implement national security, help develop weapons to compete with enemies, and allow country to mobilize quickly in time of crisis
-Some argue that balance of power is best way to achieve world order -Others argue that we need to organize and civilize international politics to achieve world order – 4 variations on how to do this: -1-Judicial approach – resolve differences between countries through third-party judges and arbitrators -2-Contractual approach -use collective agreements to limit use of force (consider Kellogg-Briand Pact)
-3-Legislative approach – League of Nations, UN
-4-Diplomatic approach – use diplomacy between national leaders to achieve stability
-Protecting human rights and promoting democracy are the important methods here
-Doing these will improve domestic strength and world order as well
-Assessing Threats: What are the Greatest Dangers?
-Assessing threats depends on the degree of danger
-Many argue that threat of military attack is biggest threat to national security
-Example – fear of spread of communism, McCarthy
-Concerns over violent, totalitarian governments and militant Islamic fundamentalist groups
-Oppression, Starvation, and Pollution
-Prolonged starvation, oppression, and environmental deterioration are all threats to national security
-Analogous to Global Welfare as a goal of national security (see above)
-Choosing Policies: What Should We Do?
-Policies to improve national security should be treated with skepticism -Differences arise when considering the rationality, proportionality, necessity, and compatibility of a policy
-Difficult to implement a comprehensive, coordinated set of security policies -See chart on page 22-23 to see a general outline of all of the issues that must be considered when setting a comprehensive security policy
Security Decisions: The Nature and Role of Law
-Law as a Process of Collective Choices
-Authoritative and Controlling
-Very theoretical discussion on why we have laws – says laws are only laws when they control behavior, laws must change as what is acceptable behavior changes
-Constitutional and Instrumental
-Law plays two different roles
-Constitutional – defines institutions, procedures, and guidelines to make decisions in society
-Institutional – shape public order in society
-Legalism vs. Antilegalism
-Legalists think international law will work to influence international behavior
-Antilegalists doubt that international law will accomplish its goals
-Realms of Stability
-International law creates stability by protecting diplomats, protecting sanctity of boundaries, formalizing and enforcing standards and treaties, so forth
-US Constitution says little about allocation of authority to deal with national security issues
-Classic example of this struggle is struggle over authority to use force abroad
-Public Order Consensus
-National law helps to stabilize the country, especially in areas of national security CHAPTER 2: Theoretical approaches to national security & world order
THEORETICAL APPROACHES TO NATIONAL SECURITY AND WORLD ORDER (Claude)
-National Security and World Order are two important and related objectives -Several theoretical ways to achieve National Security and World Order
-Balance of Power Approach
-Balance of Power Theory is usually defined as an equal division of power between rivals -Author makes point that there is also an underlying movement to organize peace between countries, because equilibrium alone is not completely enough to stop war -Although in perfect world balance of power would arguably occur through natural progression, most balance of power supporters want to help these tendencies along -It has been realized that balance of power does not provide enough national security because it is not a perfect world (too many other factors, besides the amount of weapons of your rivals, are involved when deciding how many weapons to have), and scholars disagree on what should be done with the balance of power approach (some want to refine it, other want to discard it)
-Collective Security Approach
-Usually refers to an institutional arrangement for deterring and defeating aggression by guaranteeing that an attack by any member state on another member will be met by the combined resistence of all the other states (as needed) -Idea came to prominence during WWI and has continued to be a major approach in the 20th century -Unlike Balance of Power Theory, alliances and neutrality are often viewed as incompatible with Collective Security -Collective Defense and its theoretical promise to make victim more powerful than its attacker is a more effective deterrent than equilibrium in Balance of Power -Collective Defense reduces uncertainty in international relations, but also limits freedom to maneuver (so it does not have the same natural tendency support that Balance of Power Theory enjoys)
-World Federalist Approach
-Concentrates only on the problem of world order (and not national security) -World Federalist Approach says that there should be one central government to provide world order -World Federalist theorists use the United States as a basis – if whole world can be governed like the United States, then could achieve world order -Many problems with this – assumes states can be ignored into oblivion, many potential political problems
-Functionalist Approach (started by David Mitrany) says that there should be a network of international organizations of various sizes, each tailored to deal with different world problems -Supporters say that evolving a habit of cooperation in these organizations will dissolve disputes between states, helps each state overcome its inadequacies, and promotes human welfare as alternative to military approaches
-Functionalism, unlike the other approaches, has no clear ultimate goal -Critics say no sense of urgency here – even if it does work and creates habit of cooperation, it will take too long (and may never actually occur) CHAPTER 3: Development of the International Law of Conflict Management
I. Introduction, for more than 2000 years mankind has sought to control the scourge of war. 9 basic strands of human thought on how to avoid war:
1.Norms concerning permissibility of recourse to force: initiation of coercion.
a. used to be focus on just war
b. now the focus on UN’s distinction between aggression and defense has been the central focus. 2.Laws of War, the conduct of the battles, neutrality, and anti-terrorism. 3.Norms concerning obligation to terminate hostilities, this is very difficult to reconcile with right to affirmative defense. 4.Institutions for peaceful settlement of disputes. Conflict management, particularly helpful in East West problems. 5.Personal responsibility for violation of major conflict management norms.
6.Institutional modes of conflict management: including collective security, no system has a.Classic deterrence.
7.Arms control and disarmament. Arms control is trying to prevent production and spread, while disarmament is more focused on taking weapons that are already in place. Emerged mainly after WWI. 8.Deterrence and the maintenance of strategic balance.
a.Direct focus on deterrence.
9.National measures for control of use of force and promotion of peace. a. War Powers Resolution, Neutrality Acts, etc.
1. Q Wright, wars arise because of the changing relations of numerous variables, technological, social, and intellectual. There is no single cause of war. Peace is an equilibrium among many forces. Change in any particular force, trend, movement, or policy may at one time make for war, but under other conditions a similar change may make for peace. 2. Historical Development
a. Just War Period
i. Aristotle, use war to prevent slavery, put men in leadership who will help others ii. Cicero, war only for peace, honour, safety.
iii. Aquinas three requirements
1. the authority of a sovereign (not an individual)
2. just cause is required
3. belligerents should have a right intention, so that they intend the advancement of the good, or the avoidance of evil. iv. Little – The Just War tradition, seven considerations for starting a war (jus ad bello) 1. legitimate authority
2. just cause
3. peaceful intention
4. last resort
5. general proportionality
6. reasonable hope of success
7. formal declaration
8. also manner of war (jus in bello)
a. noncombatant immunity, no civilian targeting
b. military proportionality
c. treatment of prisoner
9. The just war theory worked well with centralized religion, which is difficult to imagine today. As the power of the church waned, the real disadvantages of the approach became more evident. a. There were no objective criteria for just vs unjust
b. No focus on destructiveness of force as strategy for change c. Little recognition of the need for procedures, institution to prevent war b. War as Fact
i. Clausewitz, War is only part of political intercourse, war is nothing but a continuation of political intercourse, with a mixture of other means. Accordingly, war can never be separated from political intercourse… Therefore, once more: war is an instrument of policy; it must necessarily bear its character; it must measure with its scale: the conduct of war, in its great features, is therefore policy itself, which takes up the sword in place of the pen 1. this is things moving from bad to worse
2. this period deemphasized judgments concerning the initation of major coercion, it began to develop a framework for appraisal of minor coercion, greatly accelerated development of the laws of war, introduced international machinery for peaceful settlement of disputes, began a tradition of international cooperation on issues of war and peace, and even introduced the Concert of Europe system a concern with maintenance of the balance of power. On eve of WWI, its focus was on mechanisms and procedures for peaceful settlements of disputes. ii. League on Nations founded 1920 as an integral part of Treaty of Versailles at end of WWI, the covenant called for consideration of the procedural terms, not justness of one’s cause. 1. major weakness lay in the skeptical attitude toward it, and the failure of the US to join was symptomatic of a deeper disease. Decisions ahd to be unanimous, procedure over substance undermined moral legitimacy. a. 1925 Geneva Protocol on chemical weapons worked, 1929 convention on Treatment of Prisoners of War, Leipzig 2. Kellogg Briand Pact 1928, generally interpreted as outlawing only aggressive war and not the use of force short of war, such as reprisals. a. A major step in the evolution of the international law of conflict management. WWI caused fear of destruction, peace was sought over justice. iii. UN Charter era
1. two great strands of the league period
a. substantive requirements of the KB Pact outlawing war except in defense b. the principal of collective defense from Article 16 of the League 2.
improvements, focus on force or threat of force rather than just war, collective security a. major problem was history of Cold War tension that undermined cooperation. 3. The Charter
a. Permissibility of Recourse to Force
b. The Law of War
c. Norms Concerning Obligations to Terminate Hostilities
d. Institutions for Peaceful Settlement of Disputes
e. Charter Period and Personal Responsibility for Violation of Major Conflict Management Norms f. Arms Control and Disarmament
4. The contemporary (Cold War era) Charter Era there are three conditions of overriding significance in conflict management development in the contemporary international system. a. Deep division between east and west
b. Nuclear weapons have fundamentally altered the war peace dilemma c. The cold war didn’t have traditional wars but hit and run conflicts, proxies
CHAPTER 4: The Use of Force in International Relations: Norms Concerning the Initiation of Coercion (JNM)
Force may not be used aggressively as an instrument of national policy (as a “modality of major change or value extension”) no matter how “just” the cause may be, but it may be used defensively (either individual or collectively) in response to such an aggressive use of force by others; Decisively established by 1928 Pact of Paris (Kellog-Briand Pact) and UN Charter. In highly decentralized international system lacking reliable mechanisms for community response against aggression, it is recognized that nations retain “inherent” or “natural” right of defense against illegal use of force; Prohibition on aggressive force is based on idea that concepts of “justness” differ and that, with modern warfare, any gains from “just” war would be outweighed by destructiveness of war; Prohibiting a nation from responding in self-defense from an aggressive use of force would be self-defeating and would encourage attacks; The right of effective defense is as essential a complementary principle as the prohibition on aggressive use of force; Limits on defensive use of force – force should not exceed the
minimum necessary to stop an illegal attack promptly and to protect threatened values: 1) Necessary – necessary for the preservation of the values threatened by the illegal attack; Webster’s definition from the Caroline incident with Canada in 1837: “a necessity of self-defense, instant, overwhelming, leaving no means and no moment for deliberation.” Modern scholars consider this too restrictive a definition and more appropriate to the context of anticipatory defense; Some scholars argue that the right to self defense under Article 51 does not exist unless preceded by an armed attack and that a “threat” of aggression does not justify self defense under Article 51. This is also too restrictive a reading; Customary law limited lawful anticipatory/preemptive defense by requiring expected attack exhibit so high a degree of imminence as to preclude effective resort by the intended victim to non-violent means of response; Article 51 should not be read as prohibiting all anticipatory self-defense – still have recourse to UN if not imminent; and the international community is still the judge of whether the events claimed as imminent and justifying anticipatory defense are such – most states have not embraced Soviet first-shot principal (which says that whichever state makes the first move is the aggressor); Also, such a restrictive reading of Art.51 doesn’t take into account new weapons and effective, nonmilitary means of coercion. 2) Proportional – proportional to achievement of lawful defensive objective; Magnitude and intensity of response – the “consequentiality” of its effects; Aim is to get aggressor state to stop coercive behavior that necessitated the response; Seen as part of the principle of economy in coercion and fundamental community value against change by destructive means; Proportionality thus has to be seen in the context of the situation – depends on relevant factors of the aggressor and self-defense; Not necessarily determined by qualitative similarity or lack there of, of weapons systems used – have to look at total consequences of the coercion.
Times when force can be used other than in defense:
1) With Security Council approval/authorization – conversely, force is unlawful if contrary to a valid decision of the SC; 2) By a regional arrangement acting under Chapter VIII of the Charter which is (a) consistent w/ purposes and principles of the charter; and (b) not an enforcement
action, or if its an enforcement action, w/ SC authorization; 3) Below the threshold of Art. 2(4) – action is not “against the territorial integrity or political independence of any state or in any other manner inconsistent w/ the purposes of the UN”.
1) Does the definition of “armed attack” include intense covert attack or support of insurgent movement, or is it only talking about armies? Test of an armed attack is intensity of coercion, not whether it’s overt or covert. Right to individual or collective defense applies to “secret” or “indirect” armed attacks as well as to open invasion, under both customary international law and Art. 51 of the Charter; Charter – Art. 51 – did not intend to impair or restrict pre-existing right of self-defense under customary international law; ICJ Nicaragua opinion: state that is the victim of such an armed attack has to request the collective defense. Serious covert attack against government and political institutions, aimed at the core of national sovereignty, is the functional equivalent of an open invasion to which states have a right to defend themselves; If this were not the norm, such covert/indirect aggression would be encouraged and world order would be negatively affected. Charter makes in distinction between “indirect” and “direct” – core question is whether it threatens fundamental values such as self-determination and political integrity; Defensive response to armed attack is allowed to be covert; Such response to armed attack IS NOT “state terrorism”. UN and OAS Charters allow immediate and continuous response against armed attack before invoking procedural machinery, until the procedural machinery of either Charter concludes otherwise. 2) Is there a right to anticipatory self-defense? Threat would have to be immediate and intense for it to be lawful. Has to be preemption rather than preventive action;
“A target of an illegal use of force need not wait before defending itself until it is too late to do so. International law . . . is not a suicide pact.” Application can’t be too broad/sweeping;
State concerned makes initial decision as to whether it is facing an armed attack. Legitimacy of decision will decide its lawfulness, and is based on
motivations and grounds behind the decision. These in turn will be judged by the good faith and reasonableness standards; 3) Prohibition against use of force extends to de facto entities as well as de jure entities. If not, Charter proscription would be removed from a host of boundary disputes, disputed sovereignty claims, cease-fire lines, and divided nation incidents. 4) Right of “counter-intervention” / Assistance in Civil War settings – It is illegal to aid insurgent forces and it is lawful to aid government forces if the insurgents have received prior illegal assistance. Deemed legal to aid insurgent forces if in response to armed aggression by their government. Right of counter intervention is the right of defense counterpart in the “norms of intervention” in applying fundamental Charter principles to civil war and mixed civil-international incidents. Is the right of counter-intervention limited to the territory of the state where the civil-war is occurring? (E.g., Nicaragua illegally intervened in El Salvador – was US counter-intervention limited to helping El Salvador or could it extend to helping the Contras in Nicaragua itself? Could it be framed in terms of collective self defense rather than counter-intervention? See above.)
The Basic Charter Framework – Unlawful Aggressive Use of Force and Lawful Defense: The Complementary Structure of Articles 2(4) and 51
1) Article 2(4): 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 UN. 2) Article 51: Nothing shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN, until the SC has taken measures necessary to maintain international peace and security. Members must report measures taken to the SC and not in any affect the authority and responsibility of the SC to take any action it deems necessary. Notification requirement.
States may use lawful force not only when they are attacked, but also when another country is attacked and that third state requests their assistance or assistance is pursuant to a prior defense agreement. Collective response
necessary for weak states to be protected from strong and for collective defense agreements like NATO, Rio, and Warsaw pact. 3) Article 103 of UN Charter is a supremacy clause – provides that responsibilities under UN Charter prevail over those under other international agreements. 4) Definition of aggression was left ambiguous – resulted in Definition of Aggression Resolution (1974) “State” is used without regard to whether state in question is a member of UN First use of armed force is prima facie evidence of an act of aggression SC may conclude determination is not justified in light of circumstances Laundry list (not exhaustive) of what constitute acts of aggression – invasion, bombardment, blockade, attack on forces, use of armed forces w/in another state w/out that state’s ag’t, allowing another state to use territory for attack agst’ third party, sending out of forces, irregulars, etc, to carry out acts of armed force There is no justification (political, economic, military, otherwise) for aggression – aggression gives rise to international liability & no gains will be considered lawful Contains exception for peoples struggling for self-determination and their right to fight to that end and receive aid and support towards that end 5) Discord as to whether “principle of priority” or circumstances are a better determinate of which party is aggressor. Soviets felt the better way to define initiating coercion was by attributing aggression to the party who perpetrated an act first (principle of priority) while the British felt that it was irrelevant which party acted first, circumstances are what matter. Priority can not be lightly dismissed – implicit in the very notion of impermissible coercion. To completely reject the relevance of priority is, in substance, to reject the fundamental community policy of limiting permissible change to change by peaceful procedures only. In determining whether coercion is permissible or not, cannot ignore subjectivities – either as to the character of the participants (weighing relative power and strength; large v. small; weak v. strong; what alliances; what governmental structures) or the nature of their objectives in the coercion (what kind of public order are they trying to produce through coercion). One of the major differentiations in the Charter is between extension of values OR conservation of values through use of force – scarcity of resources realistically involves reallocation of values amongst participants – for the overriding purpose of securing public order
in its most elementary sense, basic community policy seeks to protect those patterns of value allocation that exist and manifest stability unilateral reconstruction – natural change in patterns is okay, coerced change is not. 6) Modalities of Coercion
Armed force no longer only means of applying coercion; today, all instruments of policy – military, ideological, economic, and political – can be and are used to coerce. “Indirect aggression” – support for insurgencies, covert attacks, etc. What modality used doesn’t matter; what counts is the intensity and scope of the coercion achieved by the combination of modalities used.
Toward an Applied Theory for the Regulation and Intervention MOORE CHART re: Principal Features of the Process of Coercion (There is a full chart on pages 102-104 of the Casebook that is helpful– it expands on the framework below). This chart is for use in determining whether coercion is being used for value extension, an unlawful use of force, or conservation. Need to take into consideration the participants, perspectives, arenas, base values, strategies, outcomes, and effects. To assess the perspectives of the participants:
Participants: Is the action unilateral or multilateral?
Perspectives: what are the objectives of the participants through time – pre, during, and post conflict as determined by verbal and non-verbal indicators? Arenas: Where is the fighting taking place? Which side attacked first? Base values: What is the relative size and strength of the contending belligerents including the formal and informal alliances systems of the contending sides? What is the consequentiality of the values threatened? Strategies: Is responding coercion necessary and proportional? Outcomes: Is the immediate effect of the action value extension or value conservation? If value extension, is it necessary for effective value conservation? What is the relative willingness of the contending belligerents to accept community procedures for peaceful settlement of disputes? Effects: Is the long run effect value extension or value conservation? These are the factors to be taken into account when evaluating whether use of force is undertaken to
promulgate value extension.
Use of Force Under Regional Arrangements
Can play a role in collective defense;
Can also engage in peacekeeping or other actions under ch. 8 of the Charter; Not enforcement actions (and legal under Art. 52) when done “for the purpose of restoring order and self-determination at the request of lawful authorities or in a setting of breakdown of authority”; Actions requested by “lawful authorities” are not interventions; Further requirement to be consistent w/ Charter is that actions are designed “to further internationally observed elections and self-determination . . . rather than the hegemony of a foreign state or imposition of a particular government.” Regional actions must be reported to the Security Council
See Grenada as an example of peacekeeping, protection of nationals, and humanitarian intervention. May also impose procedural and substantive requirements in addition to those of the Charter.
Minor Coercion and the Article 2(4) Threshold
1) Article 2(4) prohibits “the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the UN” 2) Does this leave room for LAWFUL uses of minor or covert coercion not so directed? 3) Question especially important with respect to REPRISALS:
a) Before the Charter, doctrine of reprisal permitted certain uses of force in response to prior illegal acts of another state b) Today, most scholars agreed that reprisals are not sanctioned by Charter i) Generally thought that Charter language “threat or use of force” as opposed to “war” (in Kellogg-Briand Pact) shows intent to prohibit forceful reprisals as well as major coercion ii) Fundamental purpose of Charter is to prevent coercion –
suggests that even minor coercion, even imposed simply as a sanction, should also be prohibited (evidence of this: 1964 Sec. Coun. Censured Britain for reprisals vs. Yemeni guerrillas) c) However, some actions popularly termed reprisals may more usefully be thought of as efforts of defense (lawful defense under Article 51) against continuing, but sporadic violence (e.g. attack against terrorist training camp) d) Also, may be some acts of minor coercion that are consistent with language of 2(4) and intent of Charter (e.g. humanitarian protection of nationals or third-state citizens) 4) Lillich article, “Forcible Self-Help Under International Law” a) If interpret Charter narrowly, force only allowed when (1) individual or collective defense or (2) implementation of a decision by competent international organization b) However, international law still deals with 4 other situations in which force is still invoked which MAYBE still have validity under a broad meaning of the Charter i) RETORSION: legal but unfriendly act taken w/ retaliatory or coercive purpose (economic sanctions, tariffs, fishing rights, etc. (1) Not affected by Charter because are LEGAL acts
ii) REPRISAL: use of force against state that has violated international law (embargo or seizure of ships, Israeli raids) (1) Traditional limitations: (1) illegal act (2) first give them chance to make reparations (3) reprisals must be proportionate to illegal act (2) Impact of Charter on doctrine of reprisal: Most agree that bans all reprisals, but the issue is still being debated: what other alternatives do countries have if perpetrators refuse to negotiate? Maybe should weigh the intent of each reprisal with respect to both SANCTIONS and DETERRENCE (3) Practically, can’t prevent countries from using reprisals. Many states use force in situations short of the requirements of self-defense to protect national interests, including the US, UK, Israel iii) USE OF FORCE TO PROTECT NATIONALS:
iv) HUMANITARIAN INTERVENTION
De Facto Boundaries and Territorial Disputes
1) McDougal & Feliciano, “The Characteristics of Participants” a)
Prescriptions of permissible and impermissible uses of coercion apply not only to bodies universally recognized as nation-states, but also to territorial communities and governmental organizations not formally recognized by their opponents i) Jewish Agency for Palestine – Arab states refused to recognize Israel as a state ii) Korea – neither side recognized other as a state (USSR thus argued to UN that violence in Korea was not unlawful coercion because it was a civil war) b) UN policy: conflicts between newly organized territories that the community expects to be relatively permanent should be treated as conflict between states c) It is not the ceremony of recognition by others that constitutes a group an effective, self-directed, territorially organized community 2) JONOMO, “Reply on the Falklands War”
a) Failure to recognize de facto boundaries would remove normative constraints on use of force from many of the most critical flash points in international life – would make Charter irrelevant in many key situations b) Charter’s limitation on use of force MUST apply in border disputes
Civil Strife and the Norms of Intervention
1) Since WWII, most international conflict in the forms of revolutionary violence, terrorism, and mixed civil-international conflict 2) Syntax of the Charter is deficient both substantively and procedurally for the problems of mixed civil-international conflict, secret warfare, and intervention a) Substantive problem:
i) Article 2(4) prohibits use of force against “territorial integrity or political independence of any state…” ii) Is assistance at the request of one competing faction in internal conflict violative of integrity or independence of a state? b) Procedural problem:
i) Charter insufficient to problems of intervention – seeming nonapplicability of reporting requirements, only limited fact-disclosure capability, and poor settlement techniques for internal authority struggles 3) International lawyers have had to look to customary law norms of
intervention, but are significant differences of opinion about these norms 4) JONOMO, “Toward an Applied Theory for the Regulation of Intervention” – Suggested standards for the regulation of intervention a) Standards concerning the initiation of hostilities
i) Prior to insurgency: military assistance to widely recognized gov. permissible ii) After insurgency: permissible to continue but impermissible to increase level (another alternative would be to cease assistance, but may alter internal balance) iii) Criteria for determining insurgency:
(1) Internal conflict must be aimed at governmental structures; (2) Recognized gov. must make use of regular military forces against insurgents, or a substantial segment of regular military forces have ceased to accept orders; and (3) The insurgents effectively prevent the recognized gov. from exercising authority over significant % of population b) Intervention to protect human rights is permissible if meets conditions: i) Immediate threat of genocide or other arbitrary widespread deprivation of human life, exhaustion of peaceful techniques, no effective action by international agency, proportional use of force, minimal effect on authority structures and self-determination, prompt disengagement, full reporting to UN c) Impermissible to assist faction engaged in authority-oriented internal conflict or to use military instrument in territory of another state for purpose of maintaining or altering authority structures i) Premised on assumption that non-intervention will lead to minimization of violence, self-determination, and human rights (NOT ALWAYS the case – conflict in Sri Lanka – low level of assistance helped to ensure proper elections) d) Assistance to widely recognized gov. is permissible in response to armed attack or to offset impermissible assistance to insurgents (if this assistance constitutes armed attack, permissible to reply proportionately against attacking State) i) Embodies the right of collective defense under Charter and related right of counter-intervention e) Regional peacekeeping is permissible if meets conditions: i) Authorization by regional arrangement pursuant to Chapter VIII of Charter, genuine invitation by widely recognized gov. or, if is none, major faction, neutrality among factions to extent compatible with peacekeeping mission, full reporting to Security Council,
outcome consistent with self-determination ii) Under Charter, regional arrangements limited to force not only by Article 2(4), but also by article 53 requirement that “no enforcement action” shall be taken w/o authorization by Security council f) The General Assembly or Security Council may authorize peacekeeping action when requested by widely recognized government g) Intervention permissible if specifically authorized by Security Council acting under Chapter VII (even if otherwise would be impermissible), conversely, if SC calls for cessation of intervention, it is impermissible (even if otherwise would be permissible i) Earlier formulation of this rule permitted same role for General Assembly, but JONOMO thinks it is too malapportioned and politicized h) Additional guidance provided by other criteria that concern the avoidance of: i) Intervention in a region or nation committed to an opposing bloc (smacks of illegitimate spheres of super-power control) ii) Participation in tactical operations (potential for increased escalation, phsychological involvement, increased casualties) iii) Weapons of mass destruction such as nuclear, biological, chemical (enormously increase risk of escalation) iv) Participation on behalf of gov. which is not supported by it people (promote self-determination)
Protection of Nationals and Humanitarian Intervention
1) Protection of nationals thought of either in context of defense or actions under Article 2(4) – if necessary and proportional, substantial support that actions are lawful a) Now recognized that protection of nationals recognized under Charter, but debate whether should view such actions as NOT violating 2(4) or as PERMITTED under Article 51 2) Humanitarian intervention for nationals of a third state is more controversial 3) Lillich article, “Forcible Self Help Under International Law” and “Humanitarian Intervention” a) Before Charter, both permissible: protection of nationals clearly permissible and humanitarian intervention justified on ground that, although an interference with sovereignty, was permissible when a state reached a threshold of shocking the conscience of mankind b) Charter made both of these doctrines impermissible, HOWEVER, should reassess this position based on post-Charter events – if the Security Council is unable to act with requisite speed to preserve life, forcible self-help might be allowed i)
Hostages in the Congo in 1964, violated UN Charter and Geneva Conventions, UN and Organization of African Unity failed to successfully act, US (w/ Belgium and UK) rescue, spared lives, but US took tremendous propaganda beating ii) Dominican Republic in 1965 – Marines have to be sent in to withdraw US nationals and other nationals c) Amend the Charter by reinterpretation – broadly interpret 2(4): argument that protection of nationals and humanitarian intervention don’t violate 2(4) b/c these activities do not use “threat or force” to “impair the territorial integrity or political independence of the state” d) Protection of human rights is one of the two fundamental purposes of the Charter e) Useless to outlaw intervention w/o a satisfactory substitute f) If can stop it by forbidding it, must set up criteria to limit: i) Professor Nanda: (1) immediacy of violation of human rights (2) extent of violation (3) limited duration of mission (4) limited use of coercive measures (5) lack of other recourse ii) Lillich adds: (1) existence of invitation and (2) the relative disinterestedness of the state invoking coercive measures iii) JONOMO adds: (1) minimal effect on authority structures, (2) prompt disengagement (3) immediate full reporting the UN and regional organizations
Claims to Anticipatory Defense
1) Some authorities would restrict right to self-defense to armed attack – pre-emptive attack is too hard to justify since can never prove that potential act would have taken place 2) Some believe anticipatory defense is permissible – if apprehensions of clear and present danger justified, then pre-emptive attack is legitimate – “international law is not a suicide pact” (Israel’s pre-emptive attack on Saddam’s nuclear program in 1967) a) Even if legitimate, must meet stringent requirements (UN condemned Israel’s action, seems that limited diplomatic effort was made, stark contrast to the unanimous approval of US during Cuban Missile Crisis) 3) Less academic attention to the situation where threat is not imminent, but is the culmination of clear line of events a) In Grenada, saw course of events as immediate threat, asked US to help defend themselves – legitimate b) Action can also justified as humanitarian intervention, but can’t make the argument that was based on the treaty for the eastern Caribbean – regional treaties
don’t supercede the Charter
Illustrative Case Studies
The Indo-China Conflict: Problems in Mixed Civil-International Settings 1) Both sides have been too one-sided
a) The State Dept. “White Papers” focused too much on the aggression of the North, and did not fully recognize the extent of indigenous support for the VC in the South b) Critics have characterized the conflict as a “civil war” and US action as purely “intervention” – discount 12 –year territorial separation, existence of cease-fire line, ambiguities in the Geneva settlement 2) JONOMO: In modern context, conflict between factions in a country at least de facto divided into entities that pay allegiance to contending public order systems, is major international problem a) label of “civil strife” must not be used to obscure the major problem of coercion across de facto boundaries, especially between two major Cold War camps b) despite ambiguity of 1954 Geneva settlement, there is substantial evidence of de facto separation – even before Accords, each government was recognized by some other states c) also divided by military cease-fire line (both sides have breached the line, but North’s breaches are coercive attacks, where South’s breaches are in defense – accepting US aid) 3) Critic of JONOMO:
a) Vietnam is illustrates situation in which it is “reasonable” for either side to see other as guilty of unprovoked aggression – potential for military escalation that follows from allowing each side to do what it deems necessary as defense is alarming in a nuclear age b) Need clear community standards/consensus to determine what is truly defensive action –conflicting claims must be decided by international organization (UN, Secretary General), should NOT allow unilateral action as used by the US in this case
The “Six Day” War: Problems in Anticipatory Defense
1) Power of pre-emptive self-defense should not be too sweeping under Article 51 2) State engaging in anticipatory defense must make good faith assessment it is necessary – did it genuinely believe was in imminent danger? 3) Can Israel claim its actions in 1967 were lawful acts of self-defense in the face of an “armed attack”? Appears that such a claim can be substantiated by
events: a) Egyptian initiatives could be seen as them being committed to attack (irrelevant how Egypt decided upon this action), ousting of UN forces, blockade of port of Eilat, deployment of massive forces in offensive positions on borders, official and semi-official Arab declarations of war b) Additionally, Israel’s perception of danger supported by general climate: nature and history of Middle East dispute, superior arsenal of Egypt, USSR’s backing of Egypt, impotence of the international community (including Security Council) 4) ALTERNATIVE ARGUMENT – was not proper use of force in self-defense a) Charter clearly intended to reduce opportunities for conflict by “jumping the gun” b) Only witness that could have branded Israel as aggressor was the US Liberty surveillance vessel monitoring attack – Israel bombed it, killing and injuring US men, White House kept finding that the attack was deliberate secret because of political implications c) Israel conducted a major propaganda campaign to indict Egypt as the aggressor
Central America: Case Study in Covert Attack and Response
1) Nicaragua – yes the Sandinistas regime espouses Marxist ideology and receives aid from USSR and Cuba, but cannot say that posed an imminent threat of armed attack on the US 2) Nicaragua has gone to World Court with charges against US of illegal intervention and paramilitary activity 3) US argues that aid to Contras legitimate under Article 51 b/c Nicaraguan gov. supplying El Salvadorian guerrillas with arms – US action is lawfully requested intervention a) “armed attack” being interpreted broadly to include “indirect aggression” or illicit “interference” by Nicaragua b) absent an armed attack by Nic., US acts will be viewed w/ some doubt i) prohibitions against use of force in OAS Charter and Rio Treaty – for US acts to be legitimate collective action, must go through OAS, invoke Rio Treaty ii) also questionable under Article 51 whether third party has the right to intervene into affairs of aggressor state iii) even if armed attack, argument that US should limit activities to those within El Salvador 4) JONOMO:
a) Overwhelming evidence of secret attack: US administrations concluded Cuba and Nicaragua engaged in long-term serious secret attack to overthrow the democratic government of El Salvador – this attack against 4 states is not
minor border skirmish b) Central American leaders concurred, reported by independent media and scholars, supported by info from defectors c) Aggressive attack – particularly in contemporary manifestations of secret guerrilla war, terrorism, and low-intensity conflict – is grave threat to world order i) Sandinista actions supported by a diverse conglomeration of radical regimes and insurgent movements (USSR, Eastern-Bloc, Cuba, Vietnam, countries in Africa and Middle East, PLO) and created sanctuary for terrorist groups d) Attacks violate articles of:
i) UN Charter (2(4)), Charter of OAS, Rio Defense Treaty, UN Definition of Aggression, and several General Assembly articles on Peace, Security, Friendly Relations, and Inadmissibility of Intervention e) THE US LEGAL RESPONSE
i) This secret war constitutes armed attack and justifies the use of force in collective defense under Article 51 ii) This right applies to secret or “indirect” armed attack as well as open invasion – unquestioned in the historical basis of the customary right to defense iii) Whether look at language of English version of 51 (armed attack) or French version (armed aggression), it is NOT LIMITED by the term “DIRECT” iv) Would be ridiculous not to allow states to defend against this, especially in area of the world where such irregular use of force is commonplace v) OAS has included assistance to by a state to a revolutionary group in another state for purposes of subversion as an armed attack vi) UN Definition of Aggression unambiguously recognizes that aggression includes indirect aggression vii) PROPORTIONALITY:
(1) US has not responded with bombing or invasion, limited to humanitarian support, not intended to overthrow Sandinista government (2) is not only balancing of force as is a relation between effective pursuit of lawful objectives in the least destructive way (3) if defensive action was limited to response solely within the state (least effective response) it would doom the Charter to irrelevance (4) no prohibition in Charter against covert action as part of defensive response 5) Excerpts from NICARAGUA v. UNITED STATES (1986)
i) the concept of “armed attack” DOES NOT include assistance to rebels in the form of the provision of weapons or logistical or other support ii) Customary law does not permit exercise of collective self-defense in absence of declaration by State which is the alleged victim that it has been attacked AND a request for assistance by that State b) DISSENT of Judge Schwebel:
i) Cites the case of “The Thirteen Power” draft of the definition of aggression that DID NOT include indirect uses of force, and was REJECTED by the UN ii) Neither the terms nor intent of Article 51 eliminate the right of self-defense under customary international law, or confine its entire scope to the express terms of 51 iii) Need to read 51 in light of the fact that it is a part of Chapter VII – inserted as a clarification with regard to collective understandings, not to define self-defense
The Entebbe Raid: Defense Against Terrorism
1) Israel’s Entebbe action (rescuing hostages from plane PLO hijacked and took to Uganda) not within the normal definition of peacetime reprisal a) Measurement of proportionality not possible
b) No formal demand to Ugandan government
c) Issue not raised by Israel at the UN
d) Action not taken to change Ugandan behavior, but to supplement Ugandan action 2) More often the principle of self-defense has been used to justify the raid, but there is much debate over its applicability 3) Action of PLO hijacking airplane and forcing in into Uganda might be construed as armed attack; however, is questionable whether Ugandan action can be labeled as “ratification” of the attack and, thus, an act of aggression itself 4) In defense of its action protecting its nationals abroad, Israel invoked its right of self-defense, but cannot automatically be said that protecting the interests of nationals is protecting the interests of the State as a whole 5) MEMO by Legal Advisor to Department of State to Secretary of State Kissinger: a) Uganda’s actions violate international law: assistance and
complicity in holding hostages, threats to hostages, etc. are violations of Article 2(4) and flagrant violation of 1970 Hague Convention (unlawful seizure of aircraft) b) Israel’s action in rescuing the hostages was consistent with international law i) Rescuing hostages clearly involved temporary breach of territorial integrity of Uganda, normally prohibited by the Charter ii) HOWEVER, is a limited right to use necessary and appropriate force for protection of one’s nationals from imminent injury or death in a situation where State where they are is unwilling or unable to protect them iii) Israeli action limited to sole objective of rescuing nationals iv) Force was reasonable – killing of terrorists of obvious reasons and of Ugandan troops b/c involved themselves in the conflict v) The fact that Israel could have secured release by complying with terrorists’ demands does not enter into the debate
CHAPTER 5: Institutional Modes of Conflict Management
Historical and Theoretical Overview:
At the end of the 19th century factors arose that allowed states to pursue organized means of managing international conflict: Proliferation and solidification of states
Emergence of advanced means of communication which enabled states to develop an awareness of problems arising from their co-existence Recognition of the need for some institutional device or method for regulating interstate relations First major development was Council of Europe coming out of the Congress of Vienna in 1815 Established precedent for multilateral diplomacy rather than bilateral Hague Peace Conferences – 1899, 1907, paved the way for universality First time small states were given the opportunity to enjoy superficial equality with the great powers Established precedent that collective diplomacy should be directed at further development and codification of international law Formulation of procedures for the peaceful settlement of disputes Promotion of the principal that pacific solution might be urged and facilitated by disinterested states in international disputes League of Nations – failure, but laid groundwork for United Nations. United Nations
Established a modified form of collective security by allowing disputants variety of methods for solving their disputes Giving the SC flexibility with respect to UN action in response to threats and breaches of the peace Allowing the development of regional security arrangements
The United Nations System
Came out of post WWII desire to create an international institution to control conflict – peace, economic and social progress, and human rights are indivisible. Requirement that unilateral force be limited to legitimate self defense; force may not be used against the territorial integrity or political independence of a state. Permits self defense and in limited circumstances, control of conflict through regional arrangements. General policy has been in favor of universality of membership. Security Council (fifteen members, five permanent) and General Assembly Security Council – Article 27
One vote per member
Decisions on procedural matters decided by affirmative vote of nine members Decisions on other matters by affirmative vote of nine members, including concurring votes of permanent members – party to dispute must abstain from voting. Statement re voting procedure in SC made by four sponsoring governments: Yalta voting formula recognizes two broad functions of SC – Substantive re taking direct measures in connection with disputes/maintaining peace Procedural re adoption or alteration of rules and organization. Veto of permanent members applies to substantial questions.
No individual member can alone prevent consideration and discussion of a situation brought to SC’s attention or prevent any member of SC from speaking– unanimity requirement doesn’t silence members. Yalta system substitutes a system of qualified majority voting in the SC for the rule of complete unanimity in League system. Make obstruction to actions less of a problem than in the League. Five major powers can not act by themselves – need concurring votes of non permanent members Five major powers have greater responsibility re actions to maintain international peace – in order to get them to fulfill these obligations need to give them more power in
determining what actions will be taken. Differentiation between procedural and substantive questions: Procedural – questions arising under Articles 28-32, placing and removal of questions on its agenda Substantive – establishment of a commission under Article 34 to investigate a dispute, request that GA give recommendations Effect of abstention:
Because the requirements re voting are absolute rather than percentage based, abstention does not affect the number of permanent votes needed Device by which some flexibility has been introduced into rigid voting procedure – abstentions are not counted as negative votes Permanent member can allow action that they don’t want responsibility for supporting while permitting decision to be made Veto has been used most commonly by the Soviets
Problem that under Article 35, SC can have a “dispute” or a “situation” before it – Charter only requires that party not vote if they are involved in a “dispute” – some votes of parties have been questionable in terms of their involvement status – ie. votes cast by British and French over the Suez affair in 1956. Powers of the SC:
Article 24 gives SC primary responsibility for maintenance of international peace and security and its decisions in this regard are binding on the UN as a whole. Controversy as to whether “primary” responsibility given to SC means that there is secondary or residual responsibility located in the GA. Dispute as to whether SC must be able to base its actions on specific powers in Chapters VI, VII, VIII, and XII or whether there are general powers available to the SC as long as actions are in accordance with the purposes and principles of the UN In the context of the Trieste question, it was decided that members of UN had conferred upon SC powers commensurate with its responsibility and the only limitation on action is Chapter I general principles. Council can assume new responsibilities as long as they relate to maintenance of international peace and security In general Article 24 is considered a grant of authority separate and distinct from specific powers granted elsewhere – not free rein, but extended powers limited by purposes and principles in Arts. I & II Among the most important powers given to the SC is that of determining that events have occurred which may involve
further decisions as to the need for provisional measures or sanctions. SC was given broad discretion in making determinations of threats to peace or acts of aggression that would invoke UN actions under Art. 40-42. These findings are non-reviewable. Removes from individual states ability to claim they are not bound by decisions taken under Articles 41 or 42 of the Charter. Measures under these articles may be recommended or mandatory Further powers of the SC:
Establish such subsidiary organs as it deems necessary for the performance of its functions (Article 29) Lay down conditions for participation in its meetings of nonmembers Certain specific powers re peaceful settlement of disputes (Chapter VI) Power to mount actual military action itself – collective security function of the Council – reality has been different than envisioned by the Charter Collective Security and the Military Staff Committee
Under Article 43, the charter scheme anticipated agreements between member states making available armed forces, assistance, and facilities with the oversight of a Military Staff Committee No agreements have ever been made under Article 43
Some scholars argue that action under Article 42 (military actions to restore international peace after a determination has been made that there was an act of aggression) has been made impossible by a failure to implement Article 43 Others say that wording of 42 is broad enough to, as long as an Article 39 determination has been made, a force can be set up by means of direct individual recruitment UN has always acted as if the absence of an Article 43 agreement meant that no action against a state was possible (with possible exception of Korea) – need to use alternative methods (peace keeping, etc). JNM does not agree with this fully —- Because of the failure to implement an Article 43 agreement, “It follows from international law and the Charter that the UN cannot undertake to implement decisions by stationing units on the territory of a member state without consent of member concerned. Similarly follows that consent of a member nation is necessary for the UN to use its military personnel or material.” The General
Each member has one vote
Decisions on important questions need two thirds majority of those present and voting These questions include recommendations with respect to maintenance of international peace and security; election of non permanent members of the SC; election of members of the Economic and Social Council; election of members of the Trusteeship Council; admission of new members; suspension of rights and privileges and expulsion of members; and budgetary questions. Decisions on other questions, including determination of other categories of questions to be added to those requiring a two thirds decision shall be made by majority of members present and voting. This voting plan based on sovereign equality.
Change from traditional idea in international organizations that substantive decisions needed unanimous support. Members who abstain are not considered as “voting” for the purposes of required majorities. This allows decision to be made without true majority (analogous to SC voting set up). There is a debate over whether the listing of issues requiring a two thirds vote is exhaustive or whether it was just representative and other questions that were not necessarily added as a category by a majority vote could be subject to a two thirds vote simply due to their important nature. Plus, if every important question not falling into one of those categories needs to be approved for a two thirds vote by the majority, if a bare majority approves of the action and doesn’t want to lose in a two thirds vote, they can vote as a block to subject that question to only a majority vote. Moot in a way because the majority of Assembly decisions have been made unanimously or as a result of a two thirds majority. Deciding whether an issue is an “important question” for GA purposes: Whether part of a draft resolution relates to an important question (as defined in the categories above) Whether the intrinsic importance of question demands a greater consensus even though issue is not part of important categories Whether the effects of the resolution are important – legal or financial effects or impact on the workings of organization Whether it deals with important subject matter – tendency to treat procedural questions as “important” Rules of Procedure say
that decisions on amendments to proposals relating to important questions need two thirds majority, even though they are not a final decision on an important question Powers of the GA
Functions and powers of GA are relevant but subordinate to the SC’s primary responsibility for the maintenance of peace. Consider general principles and make recommendations to SC
Discuss questions and make recommendations to SC
Refer questions and call to attention of SC situations demanding immediate action Obligation not to engage in discussion of questions being dealt with by SC Right be notified re situations subject to approval of SC
Responsibility to cooperate with SC objectives
Receive and consider annual reports from SC
Can establish such subsidiary organs it deems necessary for performance of its functions Articles 9-14 were not intended to provide a constitutional basis for UN military activity – military action was intended to be provided for by SC. Uniting for Peace Resolution (1950):
UN action in Korea was made possible by virtue of the USSR’s absence – prevented veto. When USSR realized that their absence did not invalidate voting but essentially just got rid of their veto power, they returned to the SC – this brought back the impasse re enforcement actions. Effect of resolution is to allow GA to make certain recommendations when SC is unable to carry out responsibilities because of vetos. Though Unified Command in Korea had already been set up while USSR was gone, when they returned, initiative passed to GA. Developed residual authority in GA to order (recommend) armed force in collective defense when an act of aggression has occurred. Found support in that the wording of Article 24 gives SC “primary responsibility”, which suggests that responsibility may not be exclusive Articles 10, 11, and 14 support residual power in GA as well. Constitutional basis for UN Forces could in certain circumstances be found in the Uniting for Peace resolution The Secretary General
Chief Administrative Officer for UN
Original grant of powers in sphere of peace and security was limited – successive SGs have extended their influence in this area USSR met this with hostility
Power under Article 99 of Charter to bring matters to attention of SC Differentiates SG from purely administrative officer that existed within the context of the League – sowed seed that there was a political role to play for the SG Ability of SG to parlay this political power is based largely on perceptions re his impartiality. In recent years, especially in the context of peacekeeping, the SG has frequently taken his own initiatives to mediate w/o mandate from SC. Peacekeeping:
Failure to bring together a military force under Article 43 led to following ideas: That the SC could still recommend, or possibly even order, the use of force That recommendation might be in form of recommendation to UN members to assist in collective defense of particular state These ideas are coupled with development of residual capacity in the GA under Uniting for Peace Resolution. These developments laid foundation for evolution of alternative institutional paramilitary contributions to keeping of the peace. Services UN forces can provide: Cease- fire
Security functions in zones placed under UN control
Assistance in restoration of law and order
Constitutional basis – subject of much debate
Tied to controversy re what power is left in SC in absence of Article 43 negotiated force and what the extent of the power given to GA is under Uniting for Peace Resolution Argument that institution of such forces is allowed because they are not explicitly forbidden Question of whether the GA can legally establish a peacekeeping force is interwoven with question of consent of host state – majority view has been that action against a state may be reserved for SC but that policing actions which are instituted with
consent of the state are within the purview of the GA. Secretary General in 1969 said that emergency international UN force can be developed on the basis of three concepts: Basis of principles reflected in Charter itself
UN can charge a country or group of countries with responsibility to provide independently for an emergency international force Emergency international force may be set up in agreement among a group of nations, later to be brought into an appropriate relationship to the UN
Standard Practices in U.N. Peacekeeping
Selection of the composition of a force is a matter for the Secretary-General. U.N. forces consist of national contingents under the command of their national officers. Respect for Local Law and Conduct Befitting International Status The rest of these are poop.
The Question of Consent
It is commonly accepted that the permission is required of a state upon whose territory a U.N. peacekeeping force is to enter. JNM: would probably disagree that it is required, but it is one way to legitimately get your foot in the door. Once there has been an express or implied finding of threat to peace, breach of peace, or act of aggression under Article 39 of the Charter, the Security Council has a responsibility to take decisions or to make recommendations to maintain or restore international peace and security.
it has proved extremely difficult to secure effective and stable financing for UN peacekeeping. Chapter VII envisages the establishment of UN forces to take action to restore peace…there is no specific mention of financing for such a force. No doubt this is because the costs were to have been part of the regular UN budget. Article 17 – GA shall consider and approve the budget of the Organization. Article 19 – A member of the UN which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the GA if the amount of its arrears equals or exceeds the amount of the contributions due form it for the preceding two full
Domestic Jurisdictional Limitations
Article 2 paragraph 7 – nothing in the Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any State…. B/C UN peacekeeping operations require the consent of the host state, domestic jurisdiction problems are not directly relevant. Such forces must respect the sovereignty of the host state and must not interfere in its internal politics.
The Role of Regional Arrangements
Development fo Regional Arrangements under the Charter – Adoption of the original Chinese proposal requiring Security Council approval of all regional arrangements to ensure conformance to the purposes of the organization. The Authority of Regional Arrangements in the Maintenance of World Order Must be made “under the Charter of the United Nations”
Alliances and Collective Defense Arrangements
Article 51 – nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN…. Must be immediately reported to the Security Council and shall not in any way affect Article 51 speaks of an inherent right to collective self-defense in an armed attack occurs. Is collective self-defense indeed limited only to “armed attack,” or can it apply as a response to indirect aggression or subversion? NATO made no reference to a “regional relationship” b/c then it would be under the control of the UN. NATO was one of “collective self-defense” under Article 51 of the Charter.
Existing Collective Defense Agreements
The Rio Treaty Framework
Article 3 – an armed attack against an American state shall be considered as an attack against all, and it creates an obligation upon each of them individually to meet the attack…. Article 6 – deals with an aggression which is not an armed attack, provided they are sufficiently serious to affect the
sovereignty and independence of the state. Article 1 – will not resort to the threat or use of force in any manner inconsistent with the provisions of the Charter of the UN or of this Treaty.
North Atlantic Treaty Organization (NATO)
Collective defense agreement.
An armed attack against one of them is considered an armed attack against all. Under Article 51 of the Charter
Warsaw Pact Organization
Mirrors NATO that it provides for military assistance based on Article 51
Machinery for the Peaceful Settlement of Disputes
General restrictions placed by international law on the use of force in international relations have, since the 19th century, been paralleled by a search for inducements to states to resolve their disputes peacefully. Starting point was the identification of an obligation of international law that states must settle their disputes peacefully
International Court of Justice (ICJ)
Main organ of the UN – function is to decide disputes in accordance with international law. Jurisdiction of the Court is based on the consent of all the parties to the proceedings. Consent may be given in advance in a treaty provision.
A relatively few states have given advance acceptance of the jurisdiction of the Court, and very few have not made their acceptance subject to considerable reservations. In the first 25 years of its existence, States have failed to accept the Court as a normal method of settling their legal disputes.
Regional and Other Approaches
Chapter VI of the UN Charter envisages a variety of approaches towards the peaceful resolution of disputes. The main responsibility of ending disputes peacefully falls on the Security Council. As in the present Arab-Israel
situation, the Council can provide a broad list of political and legal propositions and appoint a Special Representative to work out with the parties how these are to be implemented. SC tries not to label one party the “wrongdoer” that has acted “illegally” This creates problems: domestic governments continue to have to explain to their population why it continues to be useful to go to the Security Council and to heed it when it is unwilling publicly to support what they perceive as a legally valid case. And once public opinion starts to move against going to the SC (as it appears to in Israel) a long term settlement becomes that much harder to achieve
GA engages in Enquiry, Fact Finding, Conciliation, and Mediation Enquiry & Fact Finding – reports on humanitarian violations, etc. Conciliation – enlist the active services of a commission of persons in bringing the parties to an agreement. Under conciliation the parties are under no legal obligation to adopt the proposals for a settlement which are suggested to them Mediation – UN has employed mediators to assist in the resolution of particularly intractable disputes. President Carter at the Camp David accords b/t Israel and Egypt. Procedural Function – able to introduce new elements into the discussion and put forward new ides. Substantive Function – may be able to create a solution to the substance of the dispute Arbitration – international arbitration has for its object the settlement of disputes b/t states by judges of their own choice and on the basis of respect for law.
Proposals for Strengthening Management Institutional Modes of Conduct
Weakness of the UN’s present security role
UN’s biggest advantage over the League of Nations is that it has “teeth” Articles 39 to 51 of the Charter establish a framework for collective security based on the use of military forces and provided the Security Council with authority for enforcement. In short, current concepts of peacekeeping possess little capacity to deter, cannot be invoked to prevent armed conflict, and therefore provide no alternative to the perceived need of Third World countries to build up independent military capabilities.
Regional Security Dimension
Partly as a result of steadily eroding confidence in effective UN action and partly b/c of a desire among Third World countries to seek solutions to their problems free of great power interference, in recent years a tendency has developed to try to resolve conflicts at a regional or sub-regional level. Regional efforts can never replace the UN and the global responsibilities that it has. A more effective role for regional organizations could contribute to international peace and security by providing a framework and mechanism for the prevention, or at least containment, and resolution of local conflicts. CHAPTER 6: The Laws of War and Neutrality
Law of War is probably the oldest facet of international law. 5 stages of history of warfare
Men using modern technology
Today – “supertechnology”;
Law of war is “prohibitory law” b/c it prohibits belligerents from taking specific actions that are considered contrary to human rights; The law of war is humanitarian law w/ the ultimate goal of making things better for the victim of war ; Restrictions on methods and means of conducting war, weapons used and manner of use have goal of making warfare more humane.
Humanitarian law of war has expanded correspondingly w/ acceptance of gov’t action protecting more and more individual human rights. ‘70s was a big time for expanding protection of all people during wartime.
Source of Law of War
Treaties, Customary International Law (CIL) (customs and practices of states that gain universal recognition), and general principles of justice applied
by jurists and military courts. Not static. Largely Customary International Law until mid-19th C., w/ some exceptions.
B. Historical Development
Declaration of Paris, 1856 – abolished privateering and specified requirements for naval blockade. The First multilateral attempt to codify during peacetimes the rules that would govern during war. Lieber code drafted for the Union armies – First official attempt to get all of the CIL rules of war on land in one document. Helped lead to – Declaration of Brussels, 1874 (never entered into force);
Dumont and creation of ICRC and individual national Red Cross societies (1959). Geneva conventions for those wounded during war – 1864, 1906, 1929, 1949; 1868 Declaration of St. Petersburg Renouncing the Use in War of Certain Explosive Projectiles; 1899 “Peace Conference” – Hague II and III Conventions, 3 other declarations on releasing explosives from balloons, using asphyxiating gases, and expanding bullets; 1907 Hague Peace Conference produced 10 conventions on law-of-war. 1925 Geneva Convention that prohibited use of Poison Gas during war; 1930 Treaty on the Limitation and Reduction of Naval Armaments (in London); 1949 Geneva Conventions for the Protection of War Victims – 1. First Convention: “Convention for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field”’ 2. Second Convention: “Convention for Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; 3. Third Convention: “Convention Relative to the Treatment of Prisoners of War; 6 categories of people who qualify, most important being:
Members of armed forces of a party to the conflict;
Members of other militias, etc, if they satisfy four conditions – i. Commanded by person responsible for subordinates;
ii. Distinct and recognizable insignia;
iii. Carry arms openly;
iv. Operate according to laws and customs of war;
Art. 5 — If there is doubt whether a person falls into one of the six
categories, they get the protections of the convention until a “competent tribunal” determines their status; 4. Fourth Convention: “Convention Relative to the Protection of Civilian Persons in Time of War; 5. Addition of Protocols I and II (additional protection for victims of international and non-international armed conflict, respectively). 1977. Protocol I – Sets out rules to protect civilians during wartime – forces can’t target civilians but have to have military objectives; parties have to distinguish btwn military and civilian targets; proscribes “indiscriminate” attacks; can’t target cultural objects or places of worship; can’t starve civilians or deprive them of foodstuffs, etc. necessary to their survival; can’t target installations containing “dangerous forces” – dams, nuclear power plants, etc. Key phrase: Can’t do anything “which would be excessive in relation to the concrete and direct military advantage anticipated.” Article 44, Combatants and POWs – all combatants will be POWs, even if they violated laws of war, unless they don’t distinguish themselves from the civilian population during or while preparing for an attack and carries arms openly; But those that don’t meet the second clause above are still accorded protections of POW status. Mercenaries don’t get POW status;
6. 1980 Conventional Weapons Convention, Protocols I – III Protocol I – Non-detectable fragments;
Protocol II – Mines, Booby Traps, and Other devices;
Protocol III – Incendiary weapons;
New area of law of war is in protection of the environment/natural resources – in 1977 Protocol I and other conventions.
No law prohibiting or restricting use of nukes, although some try to argue that they fall into the category of weapons that cause “unnecessary suffering” (see The Shiimoda Case judgment – Japanese citizens brought case seeking damages against Japanese Gov’t for signing peace treaty w/ US that waived claims against US, including for the dropping of the A-bombs. Court found that dropping nuclear weapons was “contrary to fundamental principle of the laws of war that unnecessary pain must not be given.”).
Commencement of Hostilities
Have to first have explicit warning or ultimatum before commencing hostilities; Have to warn/notify neutrals of state of war;
Despite UN Charter provisions outlawing use of aggressive force altogether, the fact that wars will still occur makes the 1907 Hague III Convention on opening of hostilities still relevant.
Scope of Application
1. “General Participation Clause” –
Part of each of the Hague Conventions when drafted.
Said that all belligerents in a conflict had to be party to the particular Convention or Declaration for it to be binding in that conflict. During both World wars, one belligerent (at least) was not a party, and so technically they didn’t apply. After WWII, it was held that rules of law on land applied irrespective of general participation clause, holding that the laws of war had become CIL anyway; Not only do Geneva Conventions not have general participation clause, but they all have common article explicitly saying the opposite. Modern doctrine rejects principle of general participation.
Types of Hostilities
To avoid problem of warring parties using a different label (incident, police action, etc) to get around laws of war being applicable, Geneva conventions apply to “all cases of declared war or of any other armed conflict.”
1. Civil Wars
Two Questions for Civil Wars –
1) When, if at all, do civil wars become subject to international law of war? 2) Are “national liberation” movements civil wars or international wars? Are rebel forces bound by treaty obligations on law of war signed up to by the
very gov’ts they are fighting? Third world nations fought to have them moved into the international war category (accomplished in Additional Protocol I), realizing this gave them more protections than did Protocol II. i. Protocol I includes armed conflicts where “people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”; ii. Captured members of national liberation movements get same protections as POWs from international wars; Rebels ? belligerents, and thus afforded protections, after they meet specific requirements – i. Occupy and hold some of the national territory;
ii. Declared their independence;
iii. cast-off allegiances;
iv. Organized armies;
v. Started hostilities against former sovereign;
vi. Observance of rules of war acting under responsible authority;
C. Methods and Means of Conducting Hostilities
Largely done through Customary Int’l Law until the 1899 and 1907 Hague Regulations; 1907 Hague Peace Conference was very active in area of regulating methods and means of conducting war at sea; 1930 Treaty on Subs;
Treaties on WMD
1925 Geneva Protocol prohibiting Gas;
1972 Biological Weapons Convention;
Each of the 4 1949 Geneva Conventions also have provisions w/ affirmative impact on methods and means of conducting hostilities;
Probably not allowed anymore;
Acts of retaliation in the form of conduct that would otherwise be unlawful in response to violations of the laws of war by a belligerent; The purpose is to enforce compliance w/ laws of war in the future; Each of the 4 Geneva Conventions includes provision prohibiting reprisals against those protected
by that Convention; Some sought complete ban on reprisals in the 1977 additional protocol; failed to achieve this goal directly, but did achieve it indirectly for all purposes;
Wounded, sick, military medical personnel, chaplains, shipwrecked, POWs. Civilians (generally), civilian internees, women, children, and the elderly; Military personnel assigned permanently and exclusively to civilian defense duties; Journalists.
“Fundamental Guarantees” – Art. 75 of Protocol I:
Applicable to any person in custody of a party who doesn’t warrant more favorable treatment spelled out in 4 Geneva Conventions and the Protocol are still entitled to these fundamental rights;
D. Belligerent Occupation
1899 Hague II and 1907 Hague IV Regulations – first multilateral international agreement setting out standards for occupying power. Dealt mostly w/ property rights, w/ minimal provisions for protection of individuals; Fourth Geneva Convention –
Applies to all cases of partial or total occupation of the territory of a party to the Convention, even if occupation is not met w/ armed resistance; Protected persons still guaranteed protections/benefits of the convention; Individual or mass forcible transfers and deportations of protected persons prohibited; Can’t compel military service;
1. Protecting Powers and Enforcement
Protecting power is a state that has agreed to protect the interests of another state (called the “power of origin”) in the territory of a third state (the “power of residence” or “detaining power”) w/ which the second state doesn’t maintain diplomatic relations. (e.g., Poland for US in Iraq?)
Consensual process – protecting power state has to agree to request by power of origin, and power of residence also has to agree.
1) Where does protecting power get personnel to administer its obligations? a. Members of their diplomatic corps or other nationals and nationals of neutral parties; 2) What are these obligations?
a. Set out in all 4 Geneva Conventions;
b. Third convention has the most – 30 provisions dealing w/ protection of POWs;
2. Law of Neutrality
“Nonbelligerency” – new status that came into being during WWII. Intermediate between belligerency and neutrality. “Biased neutrality” – contrary to basic rule of neutrality, this favors one belligerent over the other but not to the point of becoming party to the hostilities; Now become an accepted term in customary law of war and has received official but untitled recognition in provision of Protocol I (Art. 19). CHAPTER 7: War Crimes and Nuremberg Principle
Definition: A war crime is an act that remains criminal even though committed in the course of war b/c it lies outside the area of immunity prescribed by the laws of war. Privilege of immunity reserved to “lawful combatants” – members of armed forces of a part to a conflict or irregular members who conform to standards required to be entitled to privileged-combatant and POW status; Combatants can forfeit their rights as combatants for failing to distinguish themselves from the civilian population while engaged in military hostilities; Those caught who don’t qualify as combatants (e.g., spies) do not enjoy the privilege and can be punished by the domestic laws of the country that catches them.
Distinction between “privileged” and “unprivileged” combatants.
Ex Parte Quirin, 1942 – US SC says espionage, sabotage, and guerrilla warfare committed by individual combatants not respecting Hague Regulations Art. 1
and 2 were war crimes in a broad sense; Common understanding after WWII has adopted a contrary view, however; Privileged combatant – Meets criteria of Articles 1 and 2 of Hague Regulations and is entitled upon capture to POW status and immunity from prosecution for legitimate acts of war; Unprivileged combatants – Those who don’t meet the criteria (those who don’t distinguish themselves from civilian population, as required, or civilians engaged in hostile acts); Their acts are not treated under international law and not considered war crimes and injured party has right to punish them for deterrence purposes. Acts not considered war-crimes in broad sense unless they violate a specific rule of war.
State and Individual Responsibility for War Crimes
1907 Hague Convention, 1949 Geneva Conventions, and 1977 Protocol I expanded state responsibility to include liability for breaches of those conventions by members of the armed forces, w/out inquiry into whether the act was authorized or imputable to state due to negligence;
Liability looks like civil liability; Criminal punishment of states not yet provided for by substantive international law. Instead, customary practice is to impose criminal penalties on those individuals guilty of traditional war crimes and acts of “unprivileged”/unlawful belligerency.
“For the purposes of international criminal law, the individual is a subject of international law.” This includes “following orders” defense. (This goes against positivist theory that only states are bound by int’l law and individuals are bound only by domestic law of state which has jurisdiction over them.)
Historical examples of Penal Sanction – under CIL, it was thought that each party would enforce law of war by punishing its own personnel under domestic law for violations of law of war.
Generally, judicial enforcement of laws of war has happened through national tribunals of the parties w/ jurisdiction to try either party’s own nationals or captured enemies charged w/ war crimes.
International Jurisdiction, Early Examples –
Leipzig Trials and Versailles Treaty – Trials of German war criminals after WWI. Versailles Treaty mandated int’l tribunal, but compromised on trial in Germany. These were a fiasco from Allied perspective. Planning for WWII war crimes trials influenced by negative experience after WWI. 1943 Moscow Declaration –
1) Axis personnel accused of war crimes were to be tried by the people and at the spot where crime allegedly occurred; 2) When crime had no specific location, war criminals would be tried pursuant to a forthcoming declaration. International Military Tribunal set up in 1945 – established the tribunal, set out crimes covered by it, and other procedures. Jurisdiction covered:
i. Crimes against the Peace;
ii. War Crimes;
iii. Crimes against Humanity
Status of Nuremberg Principles as general international law
Because of the way the charters of both Nuremberg and Tokyo tribunals were set-up, they did not establish general international law. UNGA in 1946 started a process that tried to integrate the charter principles and judgments into general international law. UNGA Res. 95(I) (1946) affirmed principles of int’l law recognized by charter and judgment of Nuremberg Tribunal; Can be construed as implying that charter and judgment of Tribunal corresponded to int’l law when the crimes denounced were committed and as a direction that the principles be formulated in terms applicable in the future; Genocide Convention (crimes against humanity) establishes offense to be int’l crime whether or not committed in execution of crime against peace or a war crime; The test of success for this is behavior/practice during armed conflict, and the Nuremberg principles seem to apply in practice only to WWII Nazi war criminals;
1. Crimes Against the Peace
Scope of individual responsibility – applies to high-ranking military officers and high State officials who were involved in planning, preparation, initiation, or waging of aggressive war at the policy level.
2. War Crimes and Crimes against Humanity
Traditional war crimes clearly punishable in int’l law;
“Crimes against humanity” more innovative – made no distinction btwn nationals and aliens; no distinction btwn crimes committed in peace v. during war; scope limited to crimes committed w/in jurisdiction of the Tribunal.
Tribunal then limited scope to acts committed during the war.
Planning, initiation, and waging of aggressive war and war crimes were crimes under int’l law, Tribunal did not make similar statement re: crimes against humanity but did say that the London charter, including references to crimes against humanity, expressed int’l law at the time it was created.
a. Equal application of laws of war to aggressors and victims of unlawful aggression Short answer: YES. Victims of unlawful aggression still have to follow rules of war when they fight; There was a challenge to this for POWs who committed war crime prior to their capture, but this was rejected by the 4th Geneva Convention.
Grave Breaches and Universal Jurisdiction
Breaches of CIL and conventional int’l law norms are war crimes. 1949 GC designate “aggravated” breaches as universal and extraditable offenses.
Grave breaches, committed during int’l armed conflict and against protected persons or things: Willful killing, torture or inhuman treatment (including biological experiments); willfully causing great suffering or serious injury
to body or health; (All 4 Conventions) Extensive destruction ad appropriation of property not justified by military necessity and carried out unlawfully and wantonly; (First, Second, and Fourth) Compelling POW into service or willfully depriving him of the rights of fair and regular trial prescribed in the convention; (Third) Unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in hostile forces, or willfully depriving protected person of rights of fair and regular trial, and taking of hostages; (Fourth)
Protected persons = wounded, sick, shipwrecked military personnel; medical personnel, POWs, and civilians.
Protocol I expands on grave breaches by increasing prohibitions on targeting/hurting civilians as well as misusing Red Cross emblem. Also adds provisions related to policy level people, including transfer by occupying power of its own population into territory occupied in violation of 4th GC and unjustifiable delay in repatriation of POWs and civilians; apartheid and other racial discrimination
Elements of grave breaches – has to violate substantive prohibition of the GC or Protocol; is defined as grave breach in the Common Articles of GC; and still requires mens rea.
Non-grave breaches can still be serious war crimes. Parties have discretion in methods to prevent such breaches.
Principle of Universality
That breaches of laws and customs of war are punishable by any state that obtains custody of a person suspected of responsibility for such breaches, regardless of nationality or where the alleged crime occurred.
To what extent is a commander criminally responsible for war crimes
committed by his subordinates where there is no proof that he ordered their commission? What are the standards to apply for not preventing or stopping their commission? Does he have to have knowledge of the events?
Can liability ensue for ignorance that equals criminal negligence?
“The law of war imposes on any army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery.”
According to In Re Yamashita, what are “appropriate measures” is to be determined by the competent military tribunal.
Responsibility of field commanders: “There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part.” To be criminal negligence it has to be “a wanton, immoral disregard” of subordinates’ actions that equals acquiescence.
The Hostage case — Lack of knowledge of contents of reports isn’t a defense. Commanders are supposed to know contents and failure to do so is a dereliction of duty that can’t be used on his behalf.
IMT for the Far East held that it is duty of commanders and cabinet officials to know “what is being done by subordinated personnel”, particularly in regards to system for care of POWs.
Constructive knowledge – when violations are so extensive/persuasive that commanding officer should have/had to have known of their existence.
US policy is to prosecute under the Uniform Code of Military Justice (UCMJ) those personnel subject to US military law accused of violating laws of war that are also violations of the UCMJ. Depending on degree of mens rea,
commanding officer can either be charged as a principal to offense committed by subordinates or as a result of criminal negligence. Judges instruction in U.S. v. Captain Ernest L. Medina (commanding officer above Lt. Calley in My Lai) required actual knowledge plus failure to act for conviction.
The Defense of Superior Order
With respect to civil liability, general rule is that obeying a superior order is not a defense, although it can be a mitigating factor. On the other hand, some have pushed for a looser standard, taking into account the need for prompt obedience to orders in the field and the fact that soldier is forced to choose btwn being punished for violating an order or being punished for committing a crime by following the order. Their rule would be that a superior order is a defense unless it was “so blatantly criminal” that “any reasonable person would recognize it as unlawful.” U.S. v. Bevans (Marine bayoneted a civilian for showing disrespect, claiming he was ordered to do so). J. Story held that the order was illegal and void and that both person giving it and person carrying it out would be guilty of murder. McCall v. McDowell (man imprisoned for “exulting” in assassination of Lincoln). Not liable for acts done under compulsion or duress, and subordinate obeying command of superior officer can be said to be acting under coercion. No defense if order is “palpably atrocious” as well as illegal, but in the vast gray area btwn plainly illegal and plainly legal where inferior officer isn’t expected to be informed or advised and superior’s order should be a defense but responsibility lies w/ the officer who gave the order.
Military manuals – US and British used to hold obeying an order as a defense, whereas German code didn’t. US and British changed manuals in 1944 so they could go after more than just Hitler – it was now something that could be considered in defense or mitigation.
In current codes, it is not a defense unless the individual didn’t know and could not reasonably been expected to know that the act ordered was unlawful. If the order isn’t a defense, it can still be considered as a
mitigating factor. Specifically notes tension/balancing btwn need for obeying orders in wartime w/out debating merits of each one w/ fact that soldiers are only bound to obey lawful orders.
Nuremberg – superior order not a defense but could be mitigation. Actual knowledge more important element for lower-level individuals and was omitted for high-level, policy officials. Key question was whether there was a “moral choice”.
1. Mistake of Fact –
Defense of ignorance or mistake of fact possible. D would have to show that superior orders were based on facts and circumstances he couldn’t have known; 2. “Clean Hands”
You are not excused for committing a crime because someone else (maybe even one of your accused) committed a similar crime; 3. Former Jeopardy
Geneva Conventions: prohibits multiple punishment for the same act/charge; Protocol I more restrictive – can’t be punished more than once by the same party under the same law. 4. Extradition and Rendition
Extradite or prosecute provision in Common Articles of the Geneva Conventions; Extradition is subject to national legislation and any national law re: political offenses exceptions;
National Enforcement Measures
Two broad Categories:
1) Preventive measures;
i. Education and training for military and orientation in principles for civilian pops.; ii. Supervision w/in Chain of Command;
iii. Outside Supervision – impartial power or international organization; 2) Sanctions;
i. Penal Prosecutions;
ii. Compensation claims based on State responsibility
A. Training and Education programs
Norms and laws of war have to be known and understood by the military; Programs for military and civilian decision-makers aimed at convincing them that violations of laws of war not only immoral but also counterproductive to attainment of the political objectives for which the fore is being used in the first place. 1. Implementation w/in US military
DoD directive: Law of war and obligations of US government under it are observed and enforced by US military; violations of either side promptly reported, investigated and remedied; Service secretaries responsible for education; and rules of engagement issued by unified and specified commands comport w/ the law of war; Instruction depends on level – combat troops need more on actual conduct of hostilies; Higher-ups need wider view, including policy rationales;
B. Supervision: Institutional Review;
1977 Protocol I requires unilateral determination of whether a weapon being developed would violate int’l law; US was already doing this prior to the Protocol, at the research phase before funds committed for development; US commands have to conduct periodic reviews of programs;
C. Reporting, Investigation, and Disposition of War Crimes Allegations; US violations: treated as violations of UCMJ and investigation/proceedings remain under jurisdiction of their service; Enemy Violations: Usually develop slowly and trials won’t proceed during hostilities, even if suspect is a POW in US custody; Sec. of Army is in charge of developing program toward alleged enemy violations; Commanders responsible for collection and investigation of reports;
D. Prosecution of Grave Breaches;
1949 GC and Protocol I required implementing legislation by each party “to provide effective penal sanctions for persons committing or ordering the commission of grave breaches.” These are universal crimes w/ universal jurisdiction; Every party has to search for, prosecute, or extradite such
offenders if a prima facie case is made; US never enacted legislation, thinking that federal and state laws were sufficient for violations committed in US and court-martials sufficient for those committed abroad; Casebook Comment: This position is no longer tenable.
Particularly as to jurisdiction over US nationals by court-martials abroad or to former servicemen; National legislation should be enacted that defines grave breaches and vests universal jurisdiction in federal courts, but that doesn’t change military jurisdiction over service members, POWs, or enemy civilians in occupied territory. Alternatively, US could define grave breaches w/in context of/reference to existing US criminal law. This has advantage of allowing tailoring to US limitations/views on definition of grave breaches. CHAPTER 12: Nuclear Weapons: Deployment, Targeting and Deterrence
THE THEORY OF ULTIMATE WEAPONS
throughout history the hope has been that each new destructive weapon would make war obsolete because it is too destructive 78k die at Hiroshima
40k die at Nagasaki.
More poewerful bombs are hydrogen or fusion bombs. Range from weak to 60 megatons Radiationa and fall out more problematic than the explosion
Economic effects of nuc war
Nuclear winter debate
Uncertainties in predicting effects of full nuc war.
sub based- survive first strike
bombers- most flexible- can carry lots of different types-
these three make up triad. Really important to keep the triad because it keeps flexibility. Want to deter the otherside.
Avoiding accidental war
concern is making sure that if ther is an attack you can respond C3I- Command, control, communications, and intelligence.
active defenses- patriot missle type defense
mobil nukes so they survive first strike
comparison of us and soviet nuc forces (this seems real important. Great up to date reading assignment you prick)
DETERRENCE IN THE NUCLEAR AGE
in many ways nuc weapons made deterrence more difficult- tough to act decisively when you are worried that you might trigger a nuc war doctrine of flexible response- mcnamarra-
us will respond to aggression, and will use nucs if nec.
We say we will strik back against their military targets
MAD mutually assured destruction- is good deterrence
In Reagan years, we think more about survivablilty and also defense Star wars.
NATO detterence- us and allies will maintain forces sufficient to have a neffective response to any type of attack. deny Warsaw pact the thought of a quick victory
we must maintain enough destructive power to deter them. May take 30 percent causualties. Neutron bomb- less blast more radiation
Nuclear Weapons and international law-
Just war doctrine still alive-
– can only attrakc military targers
– must use proportionality- can’t respond with nuke if they used dynamite 1.ICJ opinion
i.ICJ said there’s no prohibition of nuclear weapons, but there is no positive authorization of them either ii.Split decision said it is generally contrary to laws of war – but this has very little impact on anything 2.UN opinion
i.GA Resolution 1653 – declared use of nuclear weapons a violation of UN Charter and IL generally ii.Passed over ‘no’ votes of 4 of 5 declared
nuclear powers 3.Use of nuclear weapons
i.Article 51 – Prohibited is indiscriminate attack which treats as a single military objective a number of clearly separated and distinct objectives located near a concentration of civilians ii.Article 52 – In case of doubt about a target’s civilian nature, it shall be presumed to not be a military target iii.Article 57 – Parties shall take all reasonable precautions to avoid losses of civilian lives b.No First Use
i.Designed to provide additional protection against escalation ii.NATO against no first use pledge for Europe
iii.Opponents fear it increases chances of conventional war, thus increasing chance of nuclear war c.In and of themselves, possession of nuclear weapons is not illegal
Composition of nukes
Made out of uranium-238. Plutonium is not a naturally made metal. The other end of the spectrum with the smallest nucleus is hydrogen. You get fusion by combining the elements. Then releases large amounts of energy, 35% of which is just heat. 50% of the energy is blast. 5% is radiation. 10% is fall-out.
How to make them
One way to make them is to take 2 parts of critical mass and bring them together to cause an explosion. Gun barrel system: take one part of critical mass and fire it at the other part of critical mass. Not hard to design. This was used in Hiroshima. Another way simply an implosion device – take a particular mass of fusion material and compress it to create a critical mass. Nagasaki was an implosion bomb.
How do you obtain the material?
Get uranium 235 by extracting it from 238. They are each the critical mass. But 235 occurs in a small portion of the ore of uranium – it’s hard to get. Neutron bomb is increasing radiation from gamma rays and neutrons but decreasing the bomb effect.
How big are the bombs?
Fusion bombs can run from ten tons of TNT – very small – up to 500 kilatons. Hiroshima was 14 kilatons; Nagasaki was 20 kilatons.
Surprising: how small a nuclear fusion bomb can be.
But Hydrogen bombs are from hundreds of kilotons to megatons, up to 100 megatons.
Effect of a 1 megaton bomb detonated over a city
Typically a small hydrogen bomb, much larger than Hiroshima’s. Fireball of millions of degrees that is 1 mile in diameter (million degrees Fahrenheit). So must be higher than 3,000 feet. Everyone is vaporized. 3 miles virtually everything leveled. 300 mph winds.
4 miles 160 mph winds. Everything but concrete and metal blown away. 50% casualties. 50 square miles. 5 miles out most dead. Third degree burns, 100 mph winds.
53 mile radius: flash blindness for everyone in contact.
Nuclear winter theory
Carl Sagan: If we had an exchange, there would be severe climatic effects. If 1,000 megaton bombs, you would have an effect of –4 degrees farenheight on growing season in Northern Hemisphere. If 10,000 megatons –20 degrees farenheight. But he was wrong – he was just looking at the atmosphere and not the fact that 2/3 of the Earth is ocean and there is heat sank in the ocean. JNM: This is silly. If 10,000 megaton bombs are dropped, the least of our problems is a loss of growing season. CHAPTER 13: Arms Control in the Nuclear Age
A. Two developments after WWII changed the role of the Arms Control
i. The development of the fusion or thermonuclear bomb
– much more powerful than bombs exploded at Hiroshima and Nagaaksi – could create a “nuclear winter”
ii. The development of the long-range ballistic missile
– can travel a range of up to 8,000 miles
– there are land based and submarine based missiles
B. These weapons rendered time and geography virtually useless as initial buffers
C. President Reagan changed the focus from weapons to a Strategic Defense Initiative
i. Reasons for SDI:
1. The Soviet Air Defense
2. The Soviet ABM efforst
3. US air defense was largely abandoned
4. US ABM efforts were ineffective
D. Who has Nuc’s…CHECK THIS WITH NOTES>>>MIGHT HAVE CHANGED!
i. Full capability
ii. Either have or could quickly have Nucs
2. South Africa
E. Jonomo bashes complete critiques of Arms Control and those who think it can create world peace
i. History shows us that arms control does not protect our freedom ii. But, Open testing and development might not always be the answer
F. Definition of Arms Control includes efforts to limit:
iii. deployment of particular weapons systems, such as missiles and bombers
G. Nine Tentative Premises Should be Considered
i. National Security Policy, including arms control, should enhance stability, particularly crisis stability ii. Arms control alone has not, and probably never will achieve all three of its traditional objectives: the reduction of the risk of war, the reduction of damage if war should occur, the reduction of overall military expenditures iii. States adopt both declaratory policies and action policies but the later are MORE important iv. National security and arms control policy must be concerned with both capabilities and the intentions of its adversaries v. FORGET THIS ONE…ANTIQUATED
vi. States will enter into these agreements only when it is in their interest to do so vii. Some arms control agreements may be desirable even if not fully verifiable, but agreements dealing with strategically important systems should be verifiable viii. The process of arms control may be as important as the results achieved ix. Arms control in general and specific agreements in particular will never satisfy everyone, but more people will become dissatisfied in democratic societies, if efforts are not made to achieve results
Countries that have the bombs
Every member of SC has both fusion and hydrogen bombs.
Pakistan and India have fusion weapons; possibly working beyond that. Israel has fusion and probably also hydrogen.
North Korea, no one is sure but Moore thinks they have fusion weapons, in the low numbers. South Africa probably used to have fusion capability but it has been dropped by new government of South Africa. 3 nations that are working
hard to get nuclear programs: Iraq, Iran, Libya. Iraq and Iran are probably very close if not already there with fusion weapons. Other nations in the world that could get them/produce them if they wanted to: Brazil, Germany, Japan, Taiwan. The point: Small number of states have hydrogen bombs and still a reasonably small number of states have fusion bombs, but that number is growing. Part of the problem for these nations is that you need to test a fusion bomb to see if it works, and we could easily detect them.
At the height of the Cold War, US had 25,000 weapons, mostly hydrogen; USSR probably had well in excess of 40,000 weapons. Soviet weapons went for larger explosion, lower yield, worried less about collateral damage. Average Soviet bomb was 9 megatons; average US bomb was down in the kilaton range. 50% energy; 35% thermal; radiation Also electromagnetic pulse: knocks out unshielded electronic equipment. The “EMP” pulse effect of bombs can be significant.
STAR WARS (SDI)
Arguments for and against
1) Costs too much
2) Won’t work
3) Won’t get 100% anyway because there will then be alternate delivery modalities. 4) Effect on Soviet Union and China deleterious effect on existing arms control agreements. 5) De-stabilizing with mix of offensive and defensive weapons (JNM: but the math doesn’t hold that true.)
1) Second strike capability enhanced: this leads to greater crisis stability. 2) Shift from focus on Soviet Union to a variety of rogue states, 3rd states scenario 3) Problem of unauthorized or accidental launch. Is it reasonable in the world to have 0 defense against an unauthorized or accidental attack. Not intended by the other side. 4) Strong effect on extended deterrence.
5) Effect on Theater Weapons – one of the things we have tended to support is that during settings of Gulf War…US presumably has some obligation to Japan and Taiwan and other areas where there is a legal obligation (as in Taiwan) where if one wishes to enhance deterrence against a missile theater. a. But because the ABM treaty says we can’t have regional…it is requiring us to dumb down significantly existing technology. 6) Is it an anomaly that the US is committed to a missile defense of Saudi Arabia, Israel, and Japan but not the US? Alaska is already in range of North Korean ICBMs. 7) Under the ABM treaty, potential of other side to cheat. Very good evidence Soviet was cheating on the ABM treaty. They were building a radar that was clearly in violation of the treaty. And they were moving with lesser technology to have missile defense. They were using anti-aircraft missiles that had a duel purpose as also BMs. Not great technology, but they clearly were intended by Soviets to give them some capability to thwart off some of the missiles. That’s destabilizing when one side is cheating, even not fully. 8) Moral considerations: Suppose somebody does use a nuclear missile against you. W/o ABM defense, you are going to fire a nuclear missile. Almost certainly. Large numbers of people in the other country will be killed. With ABM defense, it will be shot down. Procedurally, how do you do it?
1) Give 6 months notice to abrogate the ABM treaty? The old Soviet Union does not exist. Or say that the renegotiated treaty, if it is to live, has to get Senate approval. 2) Have negotiations with Soviets and Chinese asking them that we can do this? 3) Have discussions telling them we are going to do it, its only going to be a thin missile defense. 4) We should also tell the Soviet Union that we have no nuclear weapons aimed at you since you are a democracy and we don’t expect we will be attacking you or vice versa. .
The SALT Process and the ABM Treaty
SALT I (1969-1972): Produced a 5-year partial constraint on ICBM and SLBM launchers. Treaty expired in 1977. SALT II (1973-1979): Produced a comprehensive treaty, which capped missile launchers and bombers, but permitted significant increases in MIRVs (multiple independently targetable warheads. Would have expired in 1985. Anti-Ballistic Missile (ABM) Treaty
Both the U.S. and USSR ABM systems were thought to have flaws that made the systems ineffective Soviets: protected Moscow, a “soft target” b/c city could be destroyed by a few missiles penetrating ABM system. U.S.: protected ICBM silos, which enhanced deterrence by giving us retaliatory strike capabilities but in general not effective b/c radars were not sophisticated enough. Generally: prohibits the deployment of ABM components (launchers, radars, and interceptor missiles) except for a small number at fixed land-based sites. Has the effect of codifying the strategic doctrine of “Mutual Assured Destruction” (MAD) by requiring that the U.S. and USSR remain defenseless in the face of a moderate to large-scale nuclear attack. For an unlimited term. Ratified in the Senate in 1972.
Negotiation was mostly by Kissinger via “back channels”
Soviets wanted general principles, we wanted details for clarity’s sake. ARTICLES:
Article III: you can only have one land-based fixed system with a max of 100 launchers and missiles. Can defend either the capital or ICBM silos at least 1300km from capital. Originally let you have two sites, but that was amended by the ABM Treaty Protocol of 1974. Article IV: permits land-based testing at specified ABM ranges. Article V: can’t develop or test any ABM system that is not fixed land-based or any ABM launcher that can be used for rapid reload or for launching multiple interceptor missiles.. Article VI: can’t upgrade surface-to-air (SAM) systems for use as a base for ABM systems. Limits early warning radar systems to the periphery of the territory and they have to face outward. Article XII (one of most significant breakthroughs): verification will be by national technical means (doesn’t define that) Article XIII: develops Standing Consultative Commission (SCC) to handle compliance with the Treaty. Agreed Statements and Common Understandings: These were binding legally but never put into the Treaty. Soviets never even released them within Russia. One important one: line between research (not covered) and development (covered) is that
between lab testing and field testing. Reagan “reinterpreted” the Treaty in 1985 to say that space-based systems were not prohibited. Sam Nunn’s study says that this has no basis in the Treaty. Question of what will happen to the treaty as technology develops. Problems:
Two major compliance issues
Phased-array radars by Soviets.
Violation of Article VI
Strategic Defense Initiative
The Continuing Search for Reductions in Offensive Nuclear Weapons
1972 Interim Offensive Agreement
Prohibited the further construction of any additional fixed, land-based launchers for ICBMs. Limited the number of ballistic missile submarines and the launchers for SLBMs One-way freedom to mix: more SLBMs if ICBMs are reduced.
Asymmetrical: USSR got 308 “large” ICBM launchers, we weren’t allowed to do any. Not a problem since we didn’t want to build “large” ICBMs anyway. Problems with clarity; imprecise.
Limits on Strategic Nuclear Delivery Vehicles (SNDVs) (includes bombers and all ballistic missiles and air-to-surface missiles) Limits on launchers for MIRVed ICBM and SLBM launchers
Continued ban on ICBM launchers
Definition of Soviet Backfire bomber as a heavy bomber (they said no) Were cruise missiles covered? (We said no)
SALT II (1979)
Signed, but never ratified by the Senate. Serious opposition at home; Soviets invading Afghanistan didn’t help. Put limits on all types of ballistic missiles, for our purposes, numbers not important. Lots of “counting rules” to aid the verification process. Set out guidelines for a SALT III (never happened)
Problems with encryption of telemetry data: that was supposed to be open to aid in verification of Treaty guidelines. Backfire bomber issue mostly resolved: Soviets just said that they wouldn’t use it for intercontinental strikes and that appeased Carter. First Four Reagan Years
Predictably, his administration was less gung-ho about arms control. Wanted more weapons to close the “window of vulnerability” INF (Intermediate-range Forces) talks were unsuccessful. Soviets walked when we put our Pershing II missiles into Germany. Soviets blew up Korean airliner, we weren’t happy.
Soviet leaders kept dying.
Second Four Reagan Years and the INF Treaty (1988)
INF Treaty requires the US and USSR to eliminate all ground-launched ballistic and cruise missiles with ranges b/t 300 and 3,400 miles. Soviets finally agreed to onsite inspections for verification purposes. Ratified by the Senate in 1988.
Chapter 14: Measures to Reduce Tensions and Prevent War
A. The 1925 Geneva Protocol (US did not ratify until 1975)
i. Protocol Prohibiting the Use in War of Asphyxiating Poisonous or Other Gases, and of Bacteriological Methods of Warfare – All major powers other than the US and Japan ratified it by WWII – Most countries that ratified it included reservations limiting its effects (1) to other parties and (2) to a prohibition against first use only
ii. US Adherence to Geneva Protocol
– US policy was no-first use of lethal chemical weapons
– Nixon expanded this to incapacitating chemicals (Senate did not accept this)
– Ford got it passed. He changed the policy to say:
* no first use of herbicides or riot control
agents (except defensively)
B. The 1972 Biological Weapons Convention
i. Signed by the US and USSR
ii. France refused to sign (claimed that there were not adequate international controls) iii. Became an issue when Commie USSR used “yellow rain” in Southeast Asia and Afghanistan iv. THE ACTUAL TREATY
– Article 1 states that you cant develop, stockpile, etc. (1) microbial or other biological agents that have no justification for peaceful purpose AND (2) weapons and delivery systems – Article II states that each nation shall destroy or divert for peaceful purposes these chemicals – Article VI states that anyone who believes that another state in is breach can put forth a formal complaint with the UN Security Council; also must cooperate with Security Council – Article VII says that each party is to provide assistance to a party which so requests if it is in danger of exposure
C. Constraints on Nuclear War
i. Treaty Banning Nuclear Weapons Tests in Atmosphere in Outer Space and Under Water
– The Parties are UK, US, and USSR
– Basically is what it says it is…a Ban on testing in the atmosphere, etc.
– The quest for a comprehensive test ban remain unfulfilled
* The reasons against having the Comp. treaty are:
1. Difficulty of Soviet Compliance
2. The need to test current warheads
3. The need to test new warheads
* Arguments for the Comp. treaty:
1. slow impede growth of nuclear weapons
2. enhance nuclear deterrence by raising doubts
about whether stockpiles were reliable
3. prevent horizontal proliferation
4. current warheads are sufficiently understood
5. current verification techniques are able to detect
ii. The Threshold and 1976 Peaceful Nuclear Explosions Treaty – With efforts for the Comp. Treaty dead the US and USSR negotiated the Threshold treaty
* Prohibits nuclear weapons testing with yields
in excess of 150 kilotons
– Also, negotiated Peaceful Nuclear Explosions Treaty
* Prohibits individual explosions over 150 kilotons
and group explosions over 1.5 megatons
D. The Non-Proliferation Regime
i. The 1968 Nuclear Non-Proliferation Treaty
– Article I says that nuclear states wont transfer to non-nuclear states
– Article II says that these states wont transfer or receive nuclear devices – Article III says that they will undertake safeguards in conjunction with Article IV – Article IV states that you can produce peaceful nuclear energy – Article V states that potential benefits will be made to non-nuclear powers from nuclear energy
– Article VI states that each party will undertake good faith measures relating to the nuclear arms race
CHAPTER 16: The Law of the Sea
The Law of the Sea
Horace B. Robertson, Jr.
Introduction. With expansion of int’l trade after WWII, importance of freedom of seas has increased. Sea-based ballistic missiles are backbone of US strategic deterrence system and best response force to most crisis situations is sea-based. Jurisdictional Claims on the Oceans. First quarter of 19th Century, freedom of the high seas becomes embedded in int’l law: generally accepted that coastal states could claim sovereignty over a narrow belt of adjacent sea (territorial sea=usually three naut. Miles). End of WWII brought era of instability in which coastal states asserted claims against common high seas. By end of UNCLOS III in 1982 (Conference on Law of the Sea), simple territorial system had given way to complex system (see
Fig. 1 on p.724). Baseline. Coastal zones are measured outward from line along coast known as the baseline. This is normally the low water line along the coast. Internal waters. These are all waters inside the baseline, including bays, mouths of rivers, waters inside fringing islands, etc. Legal regime for internal waters is identical to that of land territory. Foreign craft may enter only with permission. Territorial sea. This is a band of waters outside the baseline over which coastal state exercises full sovereignty (foreign ships have right of innocent passage). US territorial sea has been expanded to 12 naut. miles. UNCLOS III established that territorial sea should not extend more than 12. Contiguous zone. This is a band of waters outside the territorial sea in which coastal state exercises limited jurisdiction to protect vital coastal interests (such as customs, fiscal, immigration, and sanitary regulations). Outer limit by agreement is 24 nautical miles from the baseline. Continental shelf. Shelf is separate legal entity allowing exclusive jurisdiction over resources of subsoil and sea bed beneath high seas within 200-350 (depending) nautical miles from baseline. Coastal resource zones. Similar to shelf-rights but apply to non-shelf areas within 200 nautical miles of baseline. Archipelagic waters. Island states (Indonesia, Philippines) can draw archipelagic baselines connecting outermost points of outermost islands. Freedom of navigation is preserved through such waters by designated sea lanes, and innocent passage is protected. Territorial sea, contiguous zone, and exclusive economic zone extend from these baselines just like ordinary ones. High seas. On the high seas, ships and aircraft of all nations have equal right to conduct lawful pursuits. Each state exercises jurisdiction and control over vessels flying its flag. High seas does not include areas under some sort of coastal state jurisdiction (above). Air Defense Identification Zones and Other Defense Zones. These include areas across all zones, are subject to individual national claim, and have vary from simple warnings to total exclusion zones.
Navigation and Transit Rights
Primary use of oceans today is as a medium for int’l trade and communications. Oceans are important transit routes for commerce and national navies. Large areas of the seas, however, are under at least partial territorial control of a state. Thus, a balance must be struck
between the interests of coastal states and the preservation of international interests of navigation and communication. Innocent passage through the Territorial sea. Two key questions at 1958 Conference on Law of sea were definition of innocence and question of whether warships were entitled to innocent passage without prior authorization or notification. Sorenson, Law of the Sea (p. 728). (1) Denial of innocent passage no longer need be based on commission of act prejudicial to security of coastal state; focus is on the passage itself, so that cargo and destination may be grounds for refusal of innocent passage. (2) Because of internal political disagreement, no amendment passed on the innocent passage of warships. This was contrary to the intention of the delegates. Subsequent conferences UNCLOS III) have failed to adopt any measures distinguishing warships for purposes of innocent passage.
Passage Through International Straits and Archipelagic Sea Lanes Corfu Channel Case (UK v. Alb.) (1949—ICJ). Following incident in which British warships had been fired upon by Albanian shore batteries while in the Corfu channel (Albania denied innocent passage rights to warships), two British ships attempting passage struck mines in the strait. Court found that the passage was innocent even though the route was a secondary one. After the expansion of territorial seas beyond 3 miles, many international straits are claimed by two or more countries. Robertson, Passage Through International Straits (p.730) (1980). Three problems for US posed by 1958 formulation of innocent passage. (1) Definition of innocent passage is dependent on the purpose, destination, or cargo of voyage, as well as acts committed in course of passage; so, i/p is within the subjective judgment of the bording state. (2) Territorial Sea Convention requires submarines to navigate on the surface. (3) Aircraft have no right of innocent passage. These might not be a problem if 3-mile territorial sea regime still existed. Statement by Stevenson (US Rep to Committee On Peaceful Uses of Sea-Bed) (1971). US willing to agree to 12 naut. mile territorial sea (and effectively to give up high seas rights in international straits), but contingent upon limited right of free transit through these straits.
Exclusive Economic Zone
Statement of Brazilian Rep at UNCLOS III Signing (1984). Provisions of the convention do not authorize other States to conduct military exercises or maneuvers within exclusive economic zones.
High Seas Freedoms
Question is whether high seas freedoms include right to conduct military exercises on the high seas according to the 1958 High Seas Conventions. These conventions do not even apply anymore.
Blockade, Quarantine, and Defensive Declarations
Classical Doctrine of Blockade and Applications in WWI/II. There were originally two types of belligerent measures. (1) Blockade: total closing of enemy ports or an entire coastline to ships of any nationality. (2) Contraband: interdiction of cargoes that might assist the enemy’s war effort. In blockade, rules governed notification of commencement of blockade and identification of blockaded areas. Blockade was enforced by a close cordon of ships off the coast or port. Contraband could be enforced anywhere against neutral and enemy ships suspected of aiding the enemy. Technical rules developed as to what cargoes could permissibly be seized. WWI (“total war”) tested these rigid rules. Both sides (esp. British and German) broke the rules. In WWII, this continued. The justification was often couched in terms of “reprisal,” whereby the gov’t could justify illegal actions as responses to illegal actions. Post WWII Applications. Order to MacArthur in Korea (1950). Truman orders naval blockade of Korean coast. Care advised to avoid waters of Manchuria and USSR. Cuban Missile Crisis (1962). In response to deployment of offensive nuclear missiles in Cuba, US obtains from OAR a resolution (invoking Art. 6 and 8) recommending that member nations take individual and collective action to prevent missiles from threatening the peace. Presidential Proclamation (1962). President authorizes interdiction of vessels believed to be transporting offending cargo to Cuba. Essentially, he invokes contraband. Vietnam (1965-73). For most of war, South Vietnam and US concentrated on preventing maritime transportation of weapons and provisions from the North to Viet Cong and North Vietnamese forces operating in the South. Letter from US UN Delegate (G.H.W. Bush) (1972). US announces mining of North Vietnamese
coastline and gives 2-day grace period for neutral ships to leave port. Kissinger News Conference. (1972). Asked whether US forces would board Soviet ships heading for North Vietnam, Kissinger answers that US forces would simply warn the ship of the minefields and allow it to proceed if it wished. Falkland Islands War (1982). Great Britain and Argentina, over the course of several months, engage in military action over the disputed islands. Declaration of a Maritime Exclusion Zone (Apr. 8, 1982). GB announces that any Argentine navy vessels coming within 200nm of center of Falklands will be treated as hostile. Declaration of a Total Exclusion Zone (Apr. 29, 1982). GB announces that any ship supporting the “illegal occupation” of the Falklands within the previous MEZ will be subject to British military attack. Notes. (1) Post-Korea, there is some trepidation about using the term “blockade.” This is a belligerent right and in non-war situations, nations prefer not to use it. The US reaction to the CMC has elements of blockade and contraband; a new term, quarantine, was coined to avoid rigid rules of either doctrine. (2) Some argue that Art. 51 supports US quarantine in CMC, but US chose to rely on Rio Treaty. US argues that this was not an “enforcement action” and did not require Security Council authorization under Art. 53; US cites Art. 52, paragraph 1. British gov’t claims right to self-defense in Falklands. (3) Does use of mines (which are indiscriminate) upset balance between war interest of cutting off military supplies and interest of non-parties in continuing maritime shipping? There are contrasting views on the acceptability of mining internal territorial waters.
US and Soviet Electronic Intel. Both US and Soviet Union utilized reconnaissance ships and aircraft to spy along the periphery of the other’s territory. During this period, several US planes were shot down and one US warship was captured. Capture of USS Pueblo by North Korea. In 1968, the USS Pueblo (a passive electronic intel-equipped US naval auxiliary vessel) was captured by NK, which claimed that it was captured 7.6nm from NK territory; US claimed that Pueblo was never closer than 13nm and was at least 15nm away when captured. US claim was two-pronged: (1) Pueblo on high seas and thus enjoyed total freedom unless it posed threat of armed attack
(ship lightly armed), (2) even if the Pueblo had strayed into NK territorial waters, NK action should have been limited to ordering it out.
Installations on the Seabed
There is no clear law on the deployment of weapons systems on the seabed; conclusions on legality must be derived from the general nature of the regime applicable. Territorial Sea. Obviously, coastal state exercises full control over seabed and subsoil. Only limitation on coastal state is obligation not to interfere with innocent passage. EEZ and the Continental Shelf. In these areas, the coastal state may place such installations as are necessary to make use of natural resources in the seabed and subsoil, subject to the obligation not the interfere. However, no mention is made of whether weapons uses are permissible. High Seas. One of the provisions of the 1982 UNCLOS is that the high seas shall be reserved for peaceful uses, so weapons deployments on the seabed would likely violate this Convention. WMDs. There is a treaty prohibiting the placement of Nuclear weapons and other WMDs on the seabed.
Weapons Exercises and Testing
M. McDougal and W. Burke (1962). Recognizing the need to test weapons systems in unfrequented areas, nations have begun advising mariners to avoid areas of the high seas that are effectively claimed for periods of time for weapons exercises and testing. McDougal and Burke imply (VERY unconvincingly) that even nuclear testing can fall within the range of permissible uses.
Protection of Ocean Rights
Flag-State Jurisdiction. (1) Every vessel must be registered in a single state, the flag-state. (2) States granting registration exercise prescriptive and enforcement jurisdiction over them. (3) Full or partial immunity of ship from jurisdiction of any state except the flag state. In the high seas, immunity is essentially total; as the ship gets closer to shore, the level of jurisdiction that may be applied by the coastal state increases. Hot Pursuit. Jurisdiction may be exercised over a vessel on the high seas by a foreign state if the vessel has been pursued from waters in
which jurisdiction was properly applied.
Salvage and Warships
Project Jennifer. Position of US and other major powers is that the flag-state maintains exclusive jurisdiction over sunken warships. In July-Aug. of 1974, CIA attempted to salvage a Soviet sub that had sunken in the Pacific near Hawaii (Project Jennifer). One-third of the sub was raised and examined by US intelligence. Question is whether USSR would have been justified in use of force to stop US efforts, since salvage law is designed primarily to protect original possessor rights and right to salvage fee.
Int’l Law Regarding Suppression of Piracy. There are broad international provisions allowing suppression of piracy. However, piracy is limited in scope; so actions of insurrection or political protest do not meet the definition. One question is whether the definition needs to be expanded (now applies only to private ends and requires two ships).
CHAPTER 17: The Constitutional Framework for the Division of Nat’l Security Powers Between Congress, the President and the Court THE THEORY OF SEPARATION OF NATIONAL SECURITY POWERS
“The Constitution, considered only for its affirmative grants of power capable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy” – Edward Corwin. -basically, the Constitution expressly grants a lot of powers to both the legislature and executive in the realm of foreign policy.
Locke, Montesquieu, Blackstone
Locke: Since the legislature is often too slow or clogged or intransigent to respond to immediate foreign policy situations, Executive should have power to conduct foreign policy at his discretion until laws can be made that provide for modes of conduct in response to the situation at hand. Prerogative: the power to act according to discretion, for the public good,
without the prescription of the law, and sometimes even against it. Would grant this to the Executive. Montesquieu: army should be subject to the power of the executive. Blackstone: It is important to have a single King because that enhances unity, unanimity, strength, and dispatch. This helps in dealing with foreign nations. The Federalist Papers
Federalist No. 70: singular executive important for protecting the nation against foreign attacks. Need speed and strength in decisionmaking to show a unified front to our opponents. These ends cannot be accomplished by a legislature. Plurality in the executive also tends to obscure responsibility and hide faults. Pacificus-Helvidius Exchanges
-arose from a proclamation of Washington in 1793 that we would remain neutral in regards to the Britain-France conflict. Pacificus (Hamilton): since Executive is entrusted with the task of conducting relations with foreign powers and is the best judge of their legitimacy and posture, he is in the best position to assume the power of making (or ending) treaties and declaring war (or peace). Helvidius (Madison): Executive is charged with the power to conduct wars. Making treaties and declaring war are in essence about the power to make laws since they do not presuppose any existing laws. We can’t say that the executive has the power to make law, thus he cannot have the power to make treaties or declare war. In fact, by declaring war he is in essence repealing the laws of peace and instituting a new code to be followed during wartime. That would be unacceptable. Separation of Powers and the Supreme Court
Kilbourn v. Thompson (1880): basically, we have three separate branches of government. Evans v. Gore (1920): same shit.
Myers v. United States (1926): question of who has the power to remove presidential appointments. Court says that it is the Executive: “The fact that the executive power is given in general terms strengthened by specific terms where emphasis is appropriate, and limited by direct expressions where limitation is needed and that no express limit is placed on the power of removal by the executive, is a convincing indication that none was intended” Youngstown Sheet and Tube Co. v. Sawyer (Steel Seizure Case) (1952): was
President acting within his Constitutional power when he ordered the Sec. of Commerce to take possession of and operate most of the nation’s saw mills? Black (for Court): No. There is nothing to be found in the Constitution to back this up and it cannot be implied as an extension of his powers as Commander in Chief. His actions amounted to lawmaking, which is forbidden. Jackson (concurring): Presidential power is given its greatest deference when combined with legislative approval but is at its lowest ebb when it acts without the expressed will of Congress in an area in which his powers have not been enumerated. President is given wide latitude as the Commander in Chief but this can’t be extended to include government seizure of private property to halt a legitimate struggle between labor and industry. NOTE: not considered to be a foreign affairs case. Supposed that if it had related to some sort of external struggle, then the President would have been granted much more leeway in his power. The President’s Special Responsibilities in Foreign Affairs It was understood by the Framers that the President would be granted the power of foreign relations. Creation of Department of State as an example:
Secretary of State was to carry out the will of the President with respect to foreign affairs to the extent that the President granted him these powers. When contrasted with the Treasury Department for example, which is only organized to carry out the will of the legislature in terms of its mandate to coin money, etc., it seems apparent that the President was fully given the foreign relations power to do with as he saw fit. Jefferson and Madison agreed that the Congress had no power to interfere with the President’s assignment of men to diplomatic posts. JNM Readings
The 1973 War Powers Resolution
I. The War Powers Resolution
A. Intro (Purpose)
1. Attempt by Congress to assert a larger role in committing U.S. forces. 2. Passed, over Nixon’s veto, on belief that Congress had been unconstitutionally excluded from decisions regarding the Vietnam War.
B. The Resolution
1. Commitment. Section 2(c)? the President can only constitutionally commit U.S. forces to hostilities or a hostile situation after either (a) declaration of war, or (b) statutory authorization, or (c) a national emergency created by an attack. 2. Consultation. Section 3? President must consult with Congress before committing U.S. forces and regularly while troops committed. 3. Reporting. Section 4? After introduction of forces into a hostile situation or into a foreign nation, without a declaration of war, the President has 48 hours to submit a report to the Speaker and the President pro tempore stating (a) the circumstances necessitating introduction and (b) the constitutional or legal authority under which introduction occurred. *4. Congressional Action.
a) Section 5(b)?60 days after filing the above report, the President must terminate use of U.S. forces unless Congress (a) declares war or issues authorizing statute, or (b) extends the 60 day period, or (c) cannot meet due to an attack on the U.S. Also, the period may be extended by 30 days if President certifies in writing that continuing military necessity requires use of force to effect a withdrawal. b) Section 5(c)? Any time forces are engaged outside U.S. without a declaration of war or statutory authorization, the President will remove forces if Congress so directs by a concurrent resolution. This legislative veto section may be unconstitutional after Chadha.
5. Separability Clause. Section 9? a separability clause, go figure…
C. The Point
1. Increase congressional oversight and decrease the ability of the President to commit forces. 2. Still would no have prevented Vietnam due to the 1964 Gulf of Tonkin Resolution. II. The War Powers Resolution: A Debate between JNM and Frederick Tipson
1. War Powers Resolution (WPR) of dubious constitutionality. 2. Starts with premise that war authority inherently part of executive power. Quotes Hamilton? the Constitutional limits on executive foreign affairs power
(Senate advice and Cong. Declaration of war) are minor exceptions to executive war power. 3. Part of ongoing debate over relative power of President and Congress in foreign affairs. a) President was winning before Vietnam. (Truman and Korea went too far to President.)
b) WPR goes too far in opposite direction.
4. WPR is merely Congress’ view of the war powers.
5. Three problems with WPR.
a) Based on myth that Vietnam was President’s war, unauthorized by Congress. b) Partially unconstitutional.
1) Meyers v. Nebraska (1926)? no one branch can alter the separation of powers. (Of course this is JNM assuming that no other branch had already altered the constitutional balance. If, for instance you believe in the ‘imperial presidency.’) 2) Congress is the only authority that can declare war. But President can us forces short of war and this power is much more broad than the declaratory power. Slaughterhouse Cases (1873) and In re Neagle (1889). *3. I.N.S. v. Chadha (1983)? struck the legislative veto in another congressional act. Implies that Section 5(c) of WPR unconstitutional. And if this provision is unconstitutional, so would Section 5(b) which allows Congress to terminate use of force by 60-day inaction.
6. Practical problem? Reduces DETERRENCE
a) Creates possibility of confrontation between President and Congress during a crisis. A confrontation the court won’t resolve because a political question. b) Enemies will be able to wait-out the mandatory 60 day withdrawal period. 7. The last time that Congress limited the President’s ability to commit troops, North Vietnam overran the South. 8. Favors committee to settle separation of powers in foreign affairs (probably so he can be on it)
1. War powers inherently in Congress. Quotes Madison? Congress has power to declare war, President only has power to repel sudden attacks. 2. WPR no more an alteration to separation of power than previous presidential
assertions of military necessity or congressional acquiescence. 3. Chadha did not settle constitutionality of WPR’s legislative veto. There may be a difference between a statutory legislative veto and a congressional legislative veto (in an area like foreign affairs where President and Congress share authority). 4. The 60-day period is more a deadline to Congress than a limit on the President. a) Expect Congress to always act within that period if troops are committed. b) Simply illustrates that President only has emergency authority.
5. Is WPR enforceable?
a) Believes Court would decide issue.
b) Even if Court avoided the question, Congress could enforce WPR through its power over funding. III. War Powers: Congress and the President at a Constitutional Impasse (testimony of Robert Turner before the Senate) Premise? sections of the WPR that are constitutionally suspect: A. Section 2 infringes independent constitutional power of the President. 1. Constitution grants power to President to use forces in circumstances short of war. 2. Congress only involved when President believes ‘war’ (seemingly defined as offensive) is necessary.
B. Section 3. Institutional Respect.
1. President and Congress should consult.
2. But Congress cannot order a coequal branch to consult.
3. President already has political incentives to consult Congress, an order is basically rude.
C. Section 4. Secrets and Exigencies.
1. Framers did not trust Congress with national secrets.
2. Consultation can lead to dangerous leaks (Congress not briefed on details D-Day). 3. Impracticable to try to hold President to predictions concerning time and duration at the beginning of an operation. Circumstances change. 4. Again, President is a coequal representative of the people. Cannot command. Respect.
D. Section 5(b). “Flagrantly Unconstitutional”
1. Limits President in situations that are not even close to ‘war,’ the only
time that Congress is constitutionally allowed to get involved. 2. Congress acting as Commander in Chief.
3. Power of Congress to declare war is an exception to inherent executive war powers. Congress only comes in when the President decides that offensive war is necessary. 4. Affects DETERRENCE?signal to allies and enemies the limits of U.S. response. 5. Textual? WPR limits President’s ability to engage in hostilities, but the Constitution only speaks of ‘war.’
Executive Branch Communications with Congress Regarding National Security
A. Struggle over Executive Privilege.
1. Requires President to give Congress information on the ‘state of the union.’ 2. Does not clearly compel President to give Congress info and documents. 3. Main question is what the President must give to Congress in the area of foreign affairs/national security, where the President has independent responsibilities. 4. The struggle began with Washington.
II. Younger, Congressional Investigations and Executive Secrecy: A Study in the Separation of Powers
A. 1792 Conflict
1. The House asks Washington for information on General St. Clair’s failed expedition. (Characterized as a ‘request,’ not an order). 2. Washington and Cabinet (Jefferson, Hamilton, Knox and Randolph) decide that House should be given documents, but believed that any information injurious to the public should be withheld at executive discretion.
B. 1796, The Jay Treaty
1. House asks for all instructions and documents regarding Jay Treaty with Britain. 2. Again characterized as a request. Said that President did not have to provides information if he had a good reason. III. George Washington, Message to the House
A. Washington gave his ‘good reason.’
B. Foreign negotiations require caution and secrecy, even after completed.
C. Giving away negotiating postures may hurt future negotiations. D. Concern for secrecy is why President and the small Senate were given the treaty power. E. Separation of Powers? the House has no role in validating a treaty, thus no need to provide with documents on treaties in order to allow it to perform its actual function. F. Washington justified his denial more on the proper role of the House than on necessity of national security secrets. IV. James Madison, Response to Washington on Executive Privilege A. Executive is the judge of own department. If executive believes that information cannot be securely provided to the House, can refuse. B. But executive should not refuse on the basis of separation of powers. The House is to judge what is proper to its objects. Thus if info can be safely transmitted, executive should do so. V. Corwin, The President: Office and Powers, 1787-1957
A. Madison had been the chief advocate of a narrow understanding of the President’s role in foreign affairs.
1. A mere instrument of the legislature.
2. Helvdius debate with Hamilton (Pacificus)
B. Thus, Madison’s concession to executive privilege in 1796 gave the precedent tremendous force, such that now President’s feel they have an unqualified power to deny information (even to the Senate). C. As of 1957, it was “established that the President…is final judge of what information he shall entrust to the Senate as to our relations with other governments.” VI. W. Willoughby, The Constitutional Law of the United States? President has full discretion to deny giving information. (List of Presidents exercising that authority: Washington, Jackson, Lincoln…) *****VII. Court Recognition of Presidential Privilege
A. United States v. Curtiss-Wright Export Corp. (1936)
1. Note? everything this case says about executive privilege, is DICTA. 2. Federal power over external affairs is different than that over internal. Power over external affairs is peculiarly entrusted to the President. 3. Congress must give freedom and discretion to P in foreign affairs in order to ensure successful foreign relations and avoid embarrassment. 4. P in best
position to know conditions and gather info on foreign affairs. 5. P gains info from executive officials worldwide and must keep it secret. 6. C has always recognized deference in foreign affairs: merely ‘requests info”
B. U.S. v. Nixon (1974)
1. Unanimous decision and first authoritative case on executive privilege. 2. Importance of keeping the communications between P and executive officers secret.
a) Get candid advice.
b) Requires judicial deference.
3. Need for deference particularly where there is necessity of maintaining military, diplomatic and national security secrets. 4. P has no absolute privilege, but the privilege is greater where foreign affairs involved.
C. Nixon v. Administrator of General Services (1977)
1. P privilege is qualified.
2. Less qualified in foreign affairs.
3. Basically quotes half of U.S. v. Nixon.
The Legislative Veto
A. The Legislative Veto
1. Permitted Congress to delegate broad authority to the President to make decisions; but required a period of delay before implementation during which Congress could reverse the President’s decision. 2. Some versions allowed Congress to reverse the President with a concurrent resolution (both houses) while others only required a simple resolution (one house). 3. The President was not allowed to use the executive veto on the congressional veto.
B. National Security
1. Legislative veto particularly controversial.
2. Allowed les than full Congress to override the President in an area of traditional executive discretion.
1. In 1983, Court struck a legislative veto provision in an immigration statute. I.N.S. v. Chadha. 2. Generally assumed this invalidated all others, including the one in Section 5(c) of the WPR. II. I.N.S. v. Chadha (1983) or ‘Separation of Powers 101’
A. Justice White’s Dissent
1. Legislative veto a useful political invention.
2. Efficient and convenient.
B. Majority Opinion
1. Best line? “Convenience and efficiency are not the primary objectives-or the hallmarks- of democratic government…” 2. Outline the clauses of the Constitution that sets out the separated functions of government. 3. The Presentment Clauses: Art. I § 7, cls. 2, 3
a) cl. 2? every bill that passes House and Senate must be presented to President. b) cl. 3? every order, resolution or vote that requires both houses shall be presented to the President and subject to executive veto. c) Framers feared Congress’ broad powers. P represents ‘national voice.’ d) Mutual self-defense.
4. Bicameralism: Art. 7 § 1 and 7
a) Laws must be enacted by both Houses.
b) Ensure deliberation.
c) James Wilson? “In a single house there is no check, but the inadequate one, of the virtue & good sense of those who compose it.” 5. An act of the legislative power must be presented to the President, but not every act of either house is such an exercise of legislative power. 6. Legislative power? contains matter that is legislative in character and effect. (Well that clears things up) 7. Congressional veto is legislative and unconstitutional.
III. The War Powers: Congress and the President at a Constitutional Impasse (Turner testimony)
A. Section 5(c) Legislative Veto
1. Violates Constitution, Art. I § 7.
2. Basically amending the Constitution by simple majorities in both houses.
3. Chadha settles issue.
B. Attack Congressman Fascell
1. Fascell? section 5(c) not a legislative veto. Such vetoes only occur in a provision granting power to the President, which Congress reserves the right to revoke. 2. Turner? if Court has denied ability of Congress to revoke power granted by statute, clearly Congress cannot override power granted by the Constitution.
The Role of the Courts
A. Courts suffer numerous restraints in national security arena. B. Reason for lack of legal clarity regarding the boundaries of the respective political branches. II. Justiciability (Restraint #1)
A. Case or Controversy Problems (Restraint #1A)
1. Art. III § 2 limits federal court jurisdiction to cases and controversies, thus cannot render hypothetical or advisory opinions. 2. JNM? judicial avoidance technique that obfuscates powers in external affairs. 3. Ex. Goldwater v. Carter (1979)
a) Congress complaining because Carter ended mutual security treaty with Taiwan as part of establishing diplomatic relations with PRC. Claiming that Carter ignored their role. b) Case dismissed, but Court disagreed on why it should be dismissed. c) Powell concurrence? dismissed because the conflict between the President and Congress not yet a controversy. 1) Not a controversy until each branch takes action asserting its claim. 2) Differences between the political branches should mostly be resolved by the political process. 3) Here, Congress has yet to act officially.
B. The Political Question Doctrine (Restraint #1B)? some presidential decisions, especially in military and foreign affairs that are unreviewable.
1. Marbury v. Madison (1803)
a) Marshall establishes the political-ministerial distinction. b) P has political powers over which he exercises discretion and is only accountable
in his political capacity (i.e. to the voters).
1) Over subjects that are political.
2) Concern the nation, not individual rights.
c) Executive officers under the President are subject to the same immunity for political actions (gives examples of the State Department). Only politically accountable when they carry out the will of the President when exercising executive political discretion.
2. Johnson v. Eisentrager (1950)
a) German POWs in China convicted for continuing war after surrender. b) Court denied habeas challenge.
c) Dicta (Jackson)
1) Judiciary cannot examine the legality, wisdom of propriety of Commander-in-Chief in sending forces abroad. 2) Conduct of diplomatic and foreign affairs, for which the President is exclusively responsible. (quoting Curtiss-Wright)
3. Baker v. Carr (1962)
a) Case famous for Tennessee gerrymandering law and the principle of ‘one man, one vote.’ b) But Brennan’s opinion also outlined the political question doctrine and applied it to national security. c) Need a case-by-case inquiry in order to determine whether a political question. d) Foreign Affairs: Court may act “in the absence of a recognizedly authoritative executive declaration.”
1) Nation must have a single voice.
**2) But not every case or controversy that touches foreign relations is immune to judicial review. 3) Court analyze the question posed according:
A. History of its management by political branches.
B. Susceptibility of judicial handling.
C. Consequences of Judicial action.
4) Ex. Of when treaties terminate. Federal action on the subject ends the question. If no govt. action, then Court may construe treaty to determine when it ends. 5) Ex. Judiciary follows President’s recognition of foreign
nations. e) Dates and duration of hostilities? mostly left to political departments. 1. Courts lack definable standards by which to judge the end of the war powers. 2. Still need a case-by case analysis. A particular case may be clear enough to allow judicial intervention.
***f) Sets out criteria of a political question.
1. Does the text of the Constitution commit the issue to one of the political branches? (If yes, then PQ) 2. Are there judicial standards for resolving the dispute? (If no, PQ) 3. Does decision require an initial policy determination? (If yes, PQ) 4. Would a Court determination illustrate a lack of respect for one of the other branches? (If yes, PQ) 5. Is there an unusual need to stick to a previously made political decision? (If yes, PQ) 6. Is there the potential for embarrassment if multiple branches make different decisions on the subject? (If yes, PQ) g) Brennan implies that each criteria is sufficient to establish a political question.
4. Gilligan v. Morgan (1973)
a) Suit by Kent State students to have federal judiciary oversee the training and orders of the Ohio National Guard. b) Art. I § 8, cl. 16 clearly gives Congress discretion over the militia. c) Apply Baker standard to deny the students’ request. Basically fails on all counts. d) Judiciary not competent in defense matters. Leave to elected officials. 5. Goldwater v. Carter (1979) THE POINT? the Supreme Court is divided over the meaning and application of the political question doctrine.
a) Powell? interprets Baker to require a three-part inquiry. 1) Does the issue involve resolution of questions committed by the text of the Constitution to one of the branches? 2) Would resolution of the question more the Court outside of the traditional realm of judicial expertise? a) Covers the lack of judicially manageable standards from Baker. b) Also covers the initial policy determination prong of Baker. 3) Do prudential considerations counsel against judicial intervention?
a) Respect among branches.
c) Interpreting the Constitution does not embarrass the other branches. d) The Court has previously decided disputes between the branches. (Buckley v. Valeo, U.S. v. Nixon) b) Rehnquist? political because it involves the authority of the President to conduct foreign relations. Also, Constitution says nothing about the relative power of the branches to terminate a treaty. Senate only advises and consents in making treaties. Question should be left to the political branches. c) Brennan? look to Baker v. Carr.
******6. JNM, Law and the Indo-China War (JNM’s take on political question doctrine) a) The political question doctrine is responsible for much of the judicial abstention in national security matters. b) Herbert Wechsler (Court should decide everything not entrusted to another branch by the Constitution) – Alexander Bickel (Court may refuse to reach the merits for systemic reasons) ******c) JNM combines these concerns into a two-part inquiry, eerily similar to Baker v. Carr and Powell in Carter. 1) Has the decision been constitutionally entrusted to the discretion of another branch? 2) Are there systemic or prudential reasons the court should not decide? A. Can another branch offer a more flexible solution?
B. Are there judicial standards?
C. Does the court have sufficient access to info?
D. Would judicial decision interfere with uniformity in foreign relations? E. Does the system already have institutional checks that could better handle the conflict? d) Suggests that in answering both questions, judges are likely to be swayed by the merits. e) Requires case-by-case analysis.
7. Henkin, Is there a ‘Political Question’ Doctrine?
a) Basically follow-up on JNM’s point on the merits.
b) Logically and semantically, a political question doctrine implies that some constitutional requirements are left to political branches for self-monitoring. Also suggests that issues that are prima facie for the courts, will not be decided by courts, but will be left specially to the political branches. c) The Court’s cases on the political question doctrine do not follow this definition. The Court is actually deciding the dispute rather than dismissing. In passing on the question of the power of the
political branches, the Court affirms that they have the power that has been challenged.
8. Note: Judicial Deference to Congress in Separation of Powers Disputes
a) Court usually presumes that Congress acts constitutionally. b) Some argue that this presumption should disappear in disputes between the President and Congress. c) Scalia dissent in Morrison v. Olson (1988)
III. Standing (Restraint #2)
A. Justice Douglas? “generalizations about standing to sue are largely worthless” (Translation: no one really knows what it means and it constantly changes) B. However, national security disputes rarely arise from specific and identifiable harm to the rights of individual citizens. Thus the doctrine often precludes judicial resolution. C. Taxpayer Standing? When can a taxpayer sue based on governmental expenditures of tax revenue?
1. Frothingham v. Mellon (1923)
a) Parade of horribles: would lead to taxpayers challenging every law for which public money is appropriate. b) Taxpayers do not have a general right to sue the government. c) Only have standing to challenge the constitutionality of an act when some direct injury can be attributed to the act. This allows the Court to interpret the constitutionality of an act in light of a real controversy. d) A party must show more than the invalidity of the law, must show that they have or will sustain direct injury from the law’s enforcement and not merely indefinite suffering shared in common with people generally.
2. Flast v. Cohen (1968)? modify Frothingham
a) Challenge by taxpayers to federal financing of supplies for religious schools. b) The question of standing involves the plaintiff, not the issues of the case. c) The gist of standing is that the party seeking relief allege a personal stake in the outcome of the controversy.
1) Assure adverseness of the case.
2) Adverseness sharpens the legal issues for the court to decide. 3) Prevent
the court from hearing hypothetical or friendly cases. d) Flast Test: Is there a logical nexus between the status asserted and the claim sought to be adjudicated? e) When applied to taxpayers, the nexus test has two inquiries. 1) Was the legislation being challenged passed under the taxing or spending power? 2) Does the enactment exceed the specific constitutional limitations imposed on the taxing and spending powers? 3) If both of these are established, then a taxpayer has standing to challenge an act of Congress; has a personal stake. D. Difficult for ‘Taxpayers’ or ‘Citizens’ to Challenge National Security Measures as Unconstitutional
1. U.S. v. Richardson (1974)
a) Reaffirm test of Flast.
b) Principle of Frothingham? a taxpayer cannot use the federal courts as a forum for airing generalized grievances about the conduct of government. Reason that taxpayers must have a grievance related to spending/taxing powers. c) In practice, this means that certain issues may not be litigated at all. But the Constitution instituted a representative govt., not Athenian democracy. d) Lack of standing in federal court, doesn’t preclude expressing grievances at the polls. 2. Schlesinger v. Reservists to Stop the War (1974)? Standing as ‘Citizens’ a) Reservists complaining about members of Congress holding positions in the Reserve. b) Claim standing s citizens of the United States, interested in upholding the Ineligibility and Incompatibility Clauses (prohibiting Congressmen from holding other public offices) c) This claimed interest is abstract. Mere speculation that allowing Congressmen in the reserve will diminish their effectiveness in Congress. d) Additionally, any injury resulting from such decrease in effectiveness, would be general to the population at large. e) Reaffirm all of the earlier cases: need an injury in fact; a concrete injury. f) These concrete injuries and personal stakes in the controversy ensure that the parties fully present the issues of a case and crystallize the legal issue for the judges. Judges are dependent on what the parties provide. CHAPTER 18: The National Security Process
I. Shrinking autonomy of national entities is better captured by referring to
their “mutual dependence.” II. Modern President is endowed in US with total power over national security policy, but dependent on Congress for funding and authorization of his programs.
CHANGED SCOPE OF SECURITY
I. Two events are responsible for today’s transformed national security process. a. Nuclear weapons prevent governments from ensuring their citizenry of a meaningful physical defense. b. Spillover of economic and financial issues into national security, so national security doesn’t just mean “physical security” anymore.
PROCESS IN PERSPECTIVE
I. National security process is the end product of a long history. II. National Security system is like a pyramid, where there are lots of moving parts but only one person at the apex. III. Huge national security bureaucracy that processes thousand of cables daily, and system requires delegation of much decision-making authority.
EXECUTIVE BRANCH ORGANIZATION AND PROCESS
The Evolution of the NSC system
I. National Security Act of 1947 created the NSC, the CIA. In 1949, created DoD represented by a Secretary. II. The NSC is an advisory, not a collective decision-making body. III. National Security agenda today needs to be much more broadly conceived than it was in 1947 and 1949, and operates on more complex of a level.
ROLES AND STRUCTURES
I. Formal meetings of the council focus on national security questions such as arms control, wars, conflicts, etc. II. National Security Advisor convenes the meetings with the assistance of a large staff. III. LBJ formed a mini-NSC of sorts to assist him with the logistics of Vietnam. Nixon reinstated subordinate NSC committees, which Carter abolished all of but two. Reagan emphasized a top-level interagency policy review committee. IV. Most important function of NSC staff is the “quality control” function—they
control paper flow on national security items to and from the President, and therefore cabinet agencies often feel like their reports to the President are somewhat “tainted.” V. White House took back a lot of international decision-making power from the State Department in the 1960s, resulting in tension between the two bodies. VI. Harder for White House to gain control over the Defense Dept. than state, as the Pentagon has powerful partners in Congress, the private sector, and the Veterans—State Dept. is seen as more elitist and aloof. VII. US Arms Control and Disarmament Agency reports to the President and the Secretary of State to research arms control, dissemination of public information, and prepares the US for negotiations on arms control issues. VIII. After Pearl Harbor, National Security Act of 1947 was passed which created the DoD in 1949, with separate branches of the armed services under its control. Other amendments have followed.
OTHER ELEMENTS OF THE NATIONAL SECURITY PROCESS
NON-TRADITIONAL ISSUE AREAS
I. International trade and finance, environment, and population issues have all become “national security” concerns. II. The drive for a “New International Economic Order” by less-developed nations found leverage in coalition diplomacy, but still the main issues of military force receive priority. These other items are often left in “bureaucratic limbo” where they are administered by the State Department or other agencies.
OTHER EXECUTIVE BRANCH PLAYERS
I. Foreign trade is an increasingly important, and the USTR was formed in 1963. Treasury Dept. handles international money questions, Dept. of Ag. handles exports of crops, etc.
THE BUDGETARY PROCESS: THE SPECIAL CASE OF DEFENSE PROCUREMENT BUDGETINGF I. After fiscal year begins, agencies concerned commerce their program planning for the next year. II. OMB reviews budget, and it goes to the hill.
III. Expenditures for military programs outweigh other components of national security array. IV. Weapons procurement process:
a. Joint chiefs of staff provide basic assessment of the threat. b. DoD
determines how this would break down into the objectives of the individual branches of the armed services, and costs. c. Pentagon reviews budget requests, and major issues are decided by the President. d. The two armed services committees eventually recommend to authorize or not the funding, and the Appropriations committees recommend funding.
PROCESS ASPECTS OF THE CONGRESSIONAL ROLE
I. Principal committees dealing with foreign affairs are the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs. (Lots of subcommittees) II. The Two Armed Services Committees are responsible for holding hearings and recommending with regard to military and defense legislation. (Lots of subcommittees). (See page 910 for more detailed information regarding more detail as to the congressional committees’ roles).
I. “Crisis mentality” governs policy planning which needs to become more long-range strategic planning. II. Congressional testimony as to budget planners is wasteful. III. NSC is too concerned about military approaches, which is necessary but not sufficient in the complex world of 20th century. IV. More information about the long-term costs of weapons systems should be available rather than just “start up” costs appropriations stage. V. JNM: Because of the complexity of national security process, no single agency can manage it entirely. Should remain the onus of the White House to coordinate.
CHAPTER 19: intelligence and Counterintelligence
Introductory Overview – The intersection of intelligence activities and the law can best be seen in: (i) the regulation of intelligence activities; (ii) the relationship among the Executive, Legislative, and Judicial Branches in controlling intelligence activities and obtaining access to intelligence information; and (iii) the problems with secrecy in the judicial process.
Purposes and Function of the Intelligence Project – The definition of intelligence generally encompasses covert action (as defined below) and the collection of information about foreign powers and the persons related to them. The definition of counterintelligence generally encompasses the activities used to discover and counter the intelligence activities. These definitions become important in defining the legal scope of “intelligence” during congressional oversight and judicial review.
Intelligence Collection –
Intelligence collection can be accomplished through a variety of means including Hum-int (human intelligence), Sig-int (signals intelligence), Mass-int (measurement and signature intelligence), and Im-int (imagery intelligence). Some have advocated that intelligence should be collected entirely or primarily through overt sources (JNM is against this) but this would deprive the US substantial amounts of information on the following subjects which are crucial to national security: • Secret weapons developments, deployments, and military plans of potential adversaries. •Political and strategic intentions of countries with which the US is engaged in political or economic competition. •Undisclosed intentions and plans of individuals and groups in countries whose activities may affect local, regional, or world stability. •International organizations whose activities are conducted in a clandestine fashion (read: terrorists). The information listed above contributes to the accomplishment of national security objectives and thereby to the ultimate goals of world peace and order. Miscalculations as to the intentions or capabilities of adversaries create risks that nations will take erroneous steps leading to conflict. (JNM says intelligence often leads to deterrence in this respect). When it comes to arms control, the issue of verification, for which has no satisfactory overt mechanisms are available, benefits greatly from covert intelligence, and this leads to progress in bilateral or multilateral arms negotiations. Counterintelligence –
The main function of counter intelligence is checking the validity of intelligence information against the possibility of “disinformation.” Although the majority of counterintelligence centers on the surveillance of
foreign nationals, often US citizens are involved and this creates the potential for delicate domestics legal and policy conflicts. Covert Action –
The CIA is the only agency currently authorized to engage in such activities in peacetime unless the President specifically designates another agency. This has been the area of greatest controversy with regards to the law and intelligence. Those who view covert action acceptable argue that it is an intermediate step between open diplomacy and, when that proves ineffectual, outright war; this covert action reduces potential involvement in international conflicts (JNM agrees with this). Current law recognizes a threshold approach to the use of covert force whereby the President must find any proposed CIA covert action to be “important to the national security of the United States.” (Hughes-Ryan Amendment to the Foreign Assistance Act of 1961). Opponents of the current structure argue that covert action causes the CIA to become so closely bound the groups or factions they work with in foreign countries that the objectivity of intelligence collection suffers.
The Current Structure and Organization of the Intelligence Community – See class handouts from 4/21.
Regulation of Intelligence Activities – The US is unique in that its intelligence activities do not live in a “legal shadow world.” Much of our intelligence information is regularly declassified and there is an extensive body of publicly disclosed legal rules and restrictions intended to govern the conduct of intelligence activities. These two phenomena are results of the characteristic openness of American society and the following political circumstances: •A series of press revelations in the NYT beginning in 1974 alleging the existence of massive, illegal domestic intelligence ops during the Nixon Administration; which resulted in… •President Ford’s promulgation of an executive order imposing intelligence restrictions and the creation of the Rockefeller Commission; which prompted Congress to create… •House and Senate select committees on intelligence. The Senate committee (Church Committee) headed by Sen. Frank Church undertook some of
the most massive investigations. Despite the Church Committee it no comprehensive statutory code imposing limitations of intelligence gathering was ever passed; which was due in part to… •The increase in Soviet activity in Afghanistan, Cuba, and Poland as well as the fall of the Shah in Iran The main consequences of this reform movement in the 1970s are: •A vast expansion of congressional authority over intelligence activities. (cf. The creation of standing oversight committees in both Houses). •The strengthening of oversight mechanisms within the Executive Branch. •The enactment of statutory framework for the conduct of domestic intelligence related electronic surveillance. •The institution of detailed rules for the conduct of intelligence activities, embodied in executive orders and the implementation of EO’s in agency regulations.
CHAPTER 20: Access to Information
I. EXECUTIVE PRIVILEGE
Refers to the ability of the President to keep secret conversations with or memoranda to or from advisors The Constitution does not mention such authority but presidents have claimed it throughout American history for national security reasons
Below are cases about the Power of Other Branches over the Executive
A. Judicial Power
1. The Burr Trial (1807)
Aaron Burr was on trial for treason against US and for planning military expedition against Spanish territory There were letters between President Jefferson and General Wilkinson about Burr’s role in the conspiracy
Issue 1: Could the Court subpoena the President and force him to produce the letters?
Court (Justice Marshall) said yes
The Constitution gives to the accused the right to the compulsory process of the court, there is no exception
Conclusion: Marshall issued a subpoena to President Jefferson for the letters and Jefferson supplied it but said that he was doing so voluntarily and not in compliance with the court order
Issue 2: Could certain parts of the letters given by Jefferson be kept private in order to protect public concerns?
Court (Marshall): yes
President, although subject to general rules may have sufficient motives for declining to produce a certain paper because if may have the character of an official paper If there were a showing by the other side that the letter was critical to defense, then the Court could order a limited showing and constrain its public release
B. State Secrets
1. United States v. Reynolds (1953) p.945
Facts: A plane crashed while testing secret electronic equipment for the Air Force killing Airmen and civilians on board Wives of dead civilians asked for release of Air Force official crash investigation report but Government claimed it could not because of privileged material The Secretary of the Air Force filed a formal “Claim of Privilege” objecting to production of the documents because the aircraft was engaged in a highly secret mission and the material could not be furnished without “seriously hampering” national security and the development of secret military equipment
Supreme Court: Steps Needed to Claim Evidentiary Privileges
1. Must be a Formal Claim of Privilege lodged by the head of the department which has control over the matter, after personal consideration by that officer 2. The court itself must determine whether the circumstances are appropriate for the claim of privilege and do so without forcing a disclosure of the very thing that is trying to be protected a. Even the most compelling need cannot overcome the claim of privilege if the court is
ultimately satisfied that military secrets are at stake
Conclusion: There is nothing to suggest that the electronic equipment had anything to do with the crash so the respondents can adduce facts without resort to material touching on military secrets
2. UNITED STATES v. NIXON (1974) p.948
Watergate scandal was breaking open and special prosecutor Cox appointed by Attorney General subpoenaed Nixon to turn over tapes of presidential conversations in the Oval Office Nixon said he would turn over edited tapes and would comply with no further subpoenas Nixon moved to quash subpoenas but US District Court denied motion and Supreme Court granted review
1. Court rejected Nixon’s claim that the Constitution gave president executive privilege and that the president himself got to decide the scope a. Wrong because Marbury says it is the court who decides
2. Court recognized executive privilege because of the need for candor in communications with advisors justified it a. The privilege is derived from the supremacy of each branch within its own assigned areas of constitutional duties 3. But executive power is not absolute but must yield when there are important countervailing interests a. Such as the function of the courts ? the privilege cannot keep evidence from a criminal trial without affecting due process of the law b. The president should not be treated like an ordinary individual but at the same time the very integrity of the legal branch depends on disclosure of fact at trial 4. When material is produced, statements that meet the test of admissibility and relevance must be isolated and then all other material must be excised to protect President
Conclusion: US v. Nixon recognized executive privilege as inherent presidential power BUT refused to make it absolute by saying it must yield to needs of the judicial process of the courts when the invoking of privilege is only on the generalized interest in confidentiality and not specifically related to military or diplomacy secrets It is the duty of the
courts, not the president to determine to what extent the executive privilege applies
C. Congressional Power
1. Senate Select Committee v. Nixon (U.S. Dis. Cir. 1974)
The Select Committee was created by a resolution of the Senate to investigate the “illegal, improper, or unethical activities” occurring in connection with the presidential campaign and election of 1972 and to determine the necessity of new congressional legislation to safeguard the electoral process by which the President is chosen
Issue: Can the Select Committee force disclosure of the presidential tapes to help its findings?
The needs for fact-finding of a legislative committee are less important than the needs of a grand jury ? Congress frequently legislates on the basis of conflicting information provided in its hearings while the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain facts occurred We affirm order dismissing Committee’s request
Conclusion: The presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of government ? A high standard meaning that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President’s deliberations
D. Public Access
There is always the problem of find an appropriate balance between the competing demands for public disclosure and official secrecy
FOIA = Freedom of Information Act (1982)
Was enacted in 1966 to further the policy of governmental disclosure The FOIA
requires government agencies to disclose official records by either publishing documents, making them available for inspection or releasing documents as requested by any person including a foreign person or corporation
A. Old, Broader National Security Information Exemption
FOIA does not apply to matters that are
(A) Specifically required by an Executive Order to be kept secret in the interest of national defense or foreign policy
Environmental Protection Agency v. Mink (1973)
Case that challenged the FOIA exemptions
Court interpreted its powers under FOIA narrowly, in deference to the executive branch ? Court refused to conduct an in camera review of the documents even to separate out portions that would not needed to be classified
B. Amendment to Limit National Security Exemption
1974 Amendment changed holding in Mink and authorized courts to examine in camera any requested records to determine if the documents were exempt from disclosure
Conclusion: The Court imposed stricter standards on the President to specifically classify information to be kept secret for reasons of national security to limit the national security exemption
C. Current National Security Exemption
FOIA does not apply to matters that are:
5 U.S.C. §552(b)(1)
(A) Specifically authorized by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order
Judicial Review of Substantive Criteria
1. Ray v. Turner (D.C. Cir. 1978)
The Necessary Elements for De Novo Review in National Security Context 1. Government has burden of establishing an exemption with detailed public justification for need to withhold 2. The court must make a de novo determination
3. First it must “accord substantial weight to an agency’s affidavit concerning the details of the classified statute of the disputed record 4. Court has discretion about how to conduct the examination of documents (in camera inspection)
1. Are judges qualified to make a de novo review or should they show more deference to those claiming need for confidentiality?
P.P. 966-968 = Classification Categories for Executive Discretion Information shall be considered for classification if it concerns: Laundry list of things that you would expect to relate to national security: Military plans
Foreign nation activities
Scientific or Economic matters related to national security
Other categories related to national security and requiring protection
Limitations on Classification
Cannot classify information in order to conceal violations of law, inefficiency or administrative error or to prevent the release of info that does not require protection in the interest of national security
Exemptions for Documents Withheld Under Other Statutes
A pretty broad disclosure exemption for CIA and NSA but after amendment of Exemption 3, those agencies had to conduct a review of their files and affirmatively assert a disclosure exemption and the reasons therefore
GRAYMAIL: The “Disclose or Dismiss” Dilemma
In prosecuting a defendant for disclosing national security information or for any other offense, the government may risk the disclosure in open court of classified information Defendants may, to influence prosecutorial discretion, threaten to disclose such information during the course of their defense in hopes of deterring the action
**This is the so-called “Graymail” problem that puts the duty of the government to protect legitimate national security secrets in conflict with the duty to prosecute law breakers**
A. Classified Information Procedures Act
This provides comprehensive pretrial, trial, and appellate procedural framework for the disclosure of classified information ? including having the defendant notify the court and the government if he plans to disclose information Contains provision allowing for protective orders on pretrial discovery of classified information CIPA brings up tough question of balance between security interests and defendant’s 6th Amendment rights CHAPTER 21: Freedom of Expression
National Security, the First Amendment, and the Doctrine of Prior Restraint
a. The NYT v. US – This is the case having to do with the infamous “Pentagon Papers.” In 1971 the NYT received copies of a Defense Department study conducted by the Rand Corporation having to do with American decision-making in Vietnam. The papers were all marked “Top Secret Sensitive.” The NYT published three installments of the study before the US government filed suit against the NYT. Below is an overview of the case.
1. NYT v. US – (This case is a mess, look at the concurrences and dissents; the bold portion is about the only important point). The United States sought to enjoin newspapers from publishing contents of classified historical study on Viet Nam policy. In one case, the District Court for the Southern District of New York, 328 F.Supp. 324, rendered judgment from which the Government appealed, and the Court of Appeals for the Second Circuit, 444 F.2d 544, remanded and continued stay. In the other case, the District
Court for the District of Columbia rendered judgment from which the Government appealed, and the Court of Appeals for the District of Columbia Circuit affirmed, 446 F.2d 1327. In both cases certiorari was granted. The Supreme Court held that the Government had not met its burden of showing justification for imposition of restraint on publication of the contents of the study. 2. Judgment of the Court of Appeals for the District of Columbia Circuit affirmed; order of the Court of Appeals for the Second Circuit reversed and case remanded with directions. 3. Mr. Justice Black filed concurring opinion in which Mr. Justice Douglas joined; Mr. Justice Douglas filed concurring opinion in which Mr. Justice Black joined; Mr. Justice Brennan filed concurring opinion; Mr. Justice Stewart filed concurring opinion in which Mr. Justice White joined; Mr. Justice White filed concurring opinion in which Mr. Justice Stewart joined; Mr. Justice Marshall filed concurring opinion; Mr. Chief Justice Burger dissented and filed opinion; Mr. Justice Harlan dissented and filed opinion in which The Chief Justice and Mr. Justice Blackmun joined; and Mr. Justice Blackmun dissented and filed opinion.
b. The Doctrine of Prior Restraint — The doctrine asserts a special hostility to government attempts to suppress speech in advance of publication. Ultimately, speech that validly could be made the basis of criminal prosecution and punishment once punishment occurs might nevertheless be immune from regulation by prior restraint. The doctrine focuses on the timing of suppression rather than on the underlying issue of the substantive scope of First Amendment freedoms. As such, the main reason the court didn’t side with the government is that they sought an injunction rather than damages; that is to say, they attempted to gag the press before publication instead of punishing them after publication.
c. The Pros and Cons of Prior Restraint – The core of the doctrine of prior restraint is the notion that injunctions against speech should be specially disfavored. This is generally accepted by the courts but not all commentators agree.
1. Jeffries, Rethinking Prior Restraint – Jeffries basic point is that the
threat of subsequent criminal prosecution may be less of a current threat than an injunction but at the end of the day it is a very heavy handed method for attempting to regulate speech. The specter of criminal prosecution isn’t focused, whereas an injunction issued by a court can be applied to specific speech, by particular people, at a particular time. In some ways its “chilling effect” on speech may actually be less than post-publication prosecution since one can specifically target some forms of speech and not threaten others.
d. US v. The Progressive – The issues raised in the Pentagon Papers case surfaced once again when the government sought to enjoin publication of a magazine article explaining how to build a hydrogen bomb. The government had a TRO issued and then the issue went to a hearing in which the court issued the following opinion.
1. US v. The Progressive, Inc. – The court issued a temporary restraining order enjoining defendants from publishing restricted data contained in an article on the hydrogen bomb. After a hearing, the court entered a preliminary injunction pursuant to Fed. R. Civ. P. 52(a), finding that plaintiff, the federal government, had proven all necessary prerequisites for issuance of a preliminary injunction because of the existence of the likelihood of direct, immediate, and irreparable injury to the nation. Since the facts and circumstances presented fell within the extremely narrow recognized area of national security in which a prior restraint on publication was appropriate, the issuance of a preliminary injunction did not violate defendants’ U.S. Const. amend. I rights. Furthermore, the pertinent provisions of the Atomic Energy Act, 42 U.S.C.S. §§ 2274(b) and 2280, were not unconstitutionally vague or overbroad.
ii. Post Mortem on The Progressive – Most observers of the case thought that the government had lost more than it had won in this instance. The outcome verified the validity of the information contained in the article and proved that such information was not well guarded by the government. Indeed, the ultimate trap for the government when it attempts to suppress publication is that the information contained within it is immediately given the
government’s imprimatur of importance.
iii. The Progressive and Prior Restraint – What is important to note in this case is that the trial court issued an injunction and the SC refused to set it aside, which stands in almost direct contrast with the situation in the Pentagon Papers case.
iv. Judicial Competence in National Security – One issue which came out of the Progressive case is whether it is possible for a judge to decide what effect exceedingly complex scientific questions would have on a nebulously defined “national security” interest? Would experts have been better or would they not have the appropriate legal knowledge to deal with 1st Amendment Issues? Jeffries ponders the idea of combining experts and judges in a panel to deal with such issues, but comes to no decision on the effectiveness of such an approach.
Restraint on Expression by Government Employees
a. Snepp v. US
1. Snepp v. US – Petitioner, former CIA agent, signed at time of employment, an agreement not to publish or disclose any information without preclearance from respondent Central Intelligence Agency (agency). Upon petitioner’s retirement from the agency, petitioner again signed another non-disclosure agreement. Thereafter, petitioner published a book, detailing non-classified CIA activities in South Vietnam, without submitting it to the agency for prepublication review. Respondent sued under the agreement to force petitioner to pay damages. Petitioner objected, claiming that the agreement was invalid, and that at most, he was required to pay only nominal damages. The court held that the agreement petitioner signed was valid and enforceable to ensure the protection and defense of the United States. The court also held that a constructive trust over all future profits gained by petitioner was permissible.
i. Criticism of the Snepp Decision – The main criticism of Snepp came from
the fact that the government conceded that Snepp’s book contained no classified material. As such, the only basis for the government’s position was an employment contract. Critics claim that, as such, the Court should have forbid government agencies from enforcing a waiver of 1st Amendment rights as a condition of employment or at least to demand that such waivers be expressly required by Congress rather than by decision of the agency affected. ii. Support for the Snepp Decision – First, supporters argue that the constitutional right to know or listen is entirely derivative from the right to speak and does not exist independently of a speaker’s decision to waive that right. Second, even if an independent right to know or listen does exist, it is one which the authorized representatives of the people are entitled to waive. As such, in the face of a contrary determination of the public interest by responsible authorities one cannot invoke a public right to know.
Excluding Press Representatives from Military Operations
a. Background on Grenada – Grenada was invaded in the early morning hours of October 25th, 1983. Journalists were not allowed to accompany the troops and those that made their own way to the island were not allowed to report. On October 26th President Reagan announced the invasion to the American public. The news blackout was justified by Secretary of Defense Weinberger as necessary to maintain secrecy in the initial phase of the attack and because the troops couldn’t guarantee the safety of the press corps.
b. The Press Reaction – the press reaction was adverse and severe. Enough said.
c. The Sidle Report – Was the product of a commission created by the Chairman of the Joint Chiefs and headed by Major General Winant Sidle. The commission was asked to consider how to conduct military operations in a manner that safeguards the lives of the military but allows the media to perform its function. The report offered no specific solutions and was considered by many to be an exercise in political assuagement. CHAPTER 22: National Security and the Fourth and Fifth Amendments
I. Tension b/w security and individual liberties
A. individual rights are less protected in the face of national security threats
1. rationale – w/o security there are no liberties
2. example – Korematsu (Japanese internment case)
B. Court may decide that claimed interest in national security is improper (e.g. Youngstown Sheet and Tubing) II. Fourth Amendment
A. substantive provisions
1. protection against unreasonable search and seizure
2. need to obtain warrant for search
B. 4A and intelligence
1. surveillance of for. agents w/ no interaction w/ US citizens and off US soil: no warrant needed
a. warrants are rarely at issue b/c most intelligence activity aimed at for. citizens is not meant to lead to crim. prosecution
b. warrants have not been found to be required for later crim. prosecution of for. agents – due to Pres. for. affairs power
2. surveillance of communications involving US citizens, or occurring on US soil
a. warrants are needed for all dom. surveillance (e.g. United States v. United States District Court)
b. Foreign Intelligence Surveillance Act (1978)
1. covers only electronic surveillance, not physical searches
a. Attorney General submits application to FISA Court
1. surveillance must be for a for. intelligence issue
2. information must not be obtainable by other means
c. emergency – in an emergency AG may authorize surveillance, but must seek FISA court approval w/in 24 hrs.
Foreign Intelligence Surveillance Act
Executive Branch Regulations – In the absence of substantive statutory provisions (other than FISA), the President’s executive order on
intelligence and the implementing regulations of the agencies are the most important means for regulating intelligence activities. There have been three such orders to date issued by Presidents Ford, Carter, and Reagan. (Gotta love articles written in the Cold War; FYI – Bush I, Clinton, and Bush II have all issued intelligence-related EO’s as well.) The most important effect to come out of these is the adoption of a regulatory technique which follows this procedure: the EO sets broad principles ? each intelligence agency head drafts regulations ? the regs are then approved by the Attorney General ? the agencies then implement the regs.
Oversight of Intelligence Activities – The Church Committee’s recommendation of permanent oversight committees and strengthening the CIA offices of General Counsel and Inspector General were both implemented. The following looks at the results of that implementation.
Congressional Oversight – The big debate when it comes to legislative oversight of what is primarily an executive branch function has focused on two areas: (i) control over covert actions; and (ii) the right of Congress to have access to sensitive intelligence information.
The Select Committees – The Senate Select Committee on Intelligence was created in 1976. The House Permanent Select Committee on Intelligence was created in 1977. The two committees have exclusive jurisdiction over legislation involving the CIA and DCI, but, more importantly, over all appropriations for the entire intelligence community. This power has proved extremely important for controlling intelligence activities especially when coupled with the requirement of reports on Presidential findings concerning covert action.
Disclosure of Information – If the President and Congress disagree about whether intelligence information should be released to the Select Committees, legal battles can ensue and further legislation is usually passed. The following are a case, and the legislation which followed the decision, concerning the power of the Select Committees to override the Executive Branch’s refusal to turn over information regarding FBI phone
US v. AT&T – The subcommittee subpoenaed the records of a telephone company pursuant to its investigation of illegal wiretapping. The justice department claimed that the subpoena compromised national security. The report from the district court indicated that the parties failed to reach a settlement. The court found that the political question doctrine, which would have dictated judicial abstention, was not appropriate because neither of the conflicting political branches had a clear and unequivocal title to the documents, and it was possible to establish an effective judicial settlement. The court further held that the Speech or Debate Clause of the United States Constitution was not a bar to judicial interference because Congress’ investigatory power was not absolute. The court found that negotiations between the two branches furthered the constitutional scheme relating to allocation of powers. The court ordered that the latest offer of the judicial department with respect to inspection of the records should be employed with the district court as an overseer to determine if the needs of the subcommittee were being met.
Intelligence Oversight Act of 1980 – Requires that the DCI and the heads of other intelligence gathering agencies and departments to keep the Select Committees “fully and currently informed of all intelligence activities” in which the US is engaged. If the Committees are not informed before operations start, the President is required to inform them “in a timely fashion” after such operations begin. Full text is on pp. 927-928.
Hughes-Ryan Amendment – Amended the Foreign Assistance Act of 1961 and stipulated that no funds appropriated were to be expended by or on the behalf of the CIA for covert operations unless the President finds that each such operation is important to the national security of the United States. Was itself amended by the Intelligence Oversight Act, supra.
Executive Branch Oversight – The main components of Executive Branch oversight of intelligence activities are the Attorney General (who oversees the FBI’s intelligence work) and the National Security Council and the
Presidential advisory and oversight boards, the PFIAB and the PIOB.
Attorney General – In addition to oversight of the FBI, the AG, pursuant to EO’s handed down by Carter and Reagan, has the power to approve or reject all implementing procedures which the agency heads come up with. This was narrowed somewhat in Reagan’s EO in which the National Security Council could take over the approval process if and when the agency heads and the AG could not come to agreement on the implementing procedures. Also, the AG and the DOJ have become “sounding boards” for the agency heads when they are concerned about the legal ramifications of their operations and criminal liability of their agents.
National Security Council – Pursuant to EO 12,333 the NSC is required to consider and submit to the President a policy recommendation on each special activity regarding special operations. Additionally they serve as a backstop to stalled negotiations between the AG and agency heads, as mentioned above.
Presidential Boards – Two EO’s created two different presidential boards which were to have oversight functions. They are the President’s Foreign Intelligence Advisory Board (PFIAB) and the President’s Intelligence Oversight Board (PIOB).
Executive Order No. 12,357 – Created PFIAB. According to the EO PFIAB was to “assess the quality, quantity, and adequacy of intelligence collection of analysis and estimates, of counterintelligence, and other intelligence activities.” The board was to report directly to the President and to have full access to permitted by law to the information it needed.
Executive Order No. 12,334 – Created PIOB. According to the EO PIOB was to inform the President of intelligence activities it believed were in violation of the Constitution or the laws of the United States. Additionally PIOB was to review the practices and procedures and guidelines of each intelligence agency and its IG’s and GC’s.
Intelligence Activities and the Judicial System – The relation between intelligence activities and the judicial system can be best summarized by the following seminal cases. •Totten v. US – A civil war case in which a contract between President Lincoln and an individual for the conduct of espionage behind Confederate lines was held to have no basis for litigation since “public policy forbids the maintenance of any suit in a court of justice which would inevitably lead to the disclosure of matters which the law itself regards as confidential.” •US v. Reynolds – Citing Totten, this case held that the government has a privilege (the State Secrets Privilege) against disclosing information affecting national security. When properly invoked and supported, the privilege overrides any degree of necessity which the party seeking the information may be able to show. •Halkin v. Helms – Former Vietnam War protesters sued the NSA for allegedly intercepting their international wire, cable and telephone conversations. The Reynolds doctine of State Secrets Privilege was invoked and the case, despite alleging serious claims of wrongdoing, was dismissed. •Note: The reason there are so few cases in this area is that the great deference the courts have given to the State Secrets Privilege has meant there is a general lack of facts and case law directly defining the legal limits on intelligence activities.
Special Authorities and the Maintenance of National Security Discipline – In order to carry out their unusual functions and maintain necessary secrecy, intelligence agencies must on occasion be able to depart from the usual rules. In addition, the maintenance of secrecy implies the exercise of a higher degree of employee discipline than prevails in many other parts of the government.
Special Authorities – The following are examples of special statutory authorities of the DCI and the CIA.
National Security Act § 102(c) – Allows for the termination of any employee of the CIA by the DCI whenever the DCI “shall deem such termination necessary or advisable in the interests of the United States.” Such termination, however, will not affect the possibility of subsequent government employment outside of the CIA, subject to review by the Director
of the OPM.
Central Intelligence Agency Act of 1949 – A wide ranging act which allows, among other things, the Agency to ignore federal and state firearms laws for the carrying of weapons, transfer money to and from various government departments for the purposes of reimbursement, and admit and grant citizenship to illegal aliens without regard to current INS guidelines or federal laws.
National Security Discipline – The principal area of legal controversy in national security discipline involves post-employment activities in which the CIA has demanded former employees to submit for prepublication review all proposed public statements relating to intelligence matters. This demand has been criticized as imposing an unconstitutional prior restraint on speech, but the validity of the demand was upheld by the SC in Snepp v. US. See Chapter 21.
R. J. Rummel, “Power Kills; Absolute Power Kills Absolutely (Oct. 1991)
“The more power a government has, the more it can act arbitrarily according to the whims and desires of the elite, the more it will make war on others and murder its foreign and domestic subjects. The more constrained the power of governments, the more it is diffused, checked and balanced, the less it will aggress on others and commit democide.” Rummel explores foundations for Democratic Peace Theory. He concludes (1) that democracies have never directly fought each other; and (2) that it is more likely that two less democratic states will fight each other. As of 1991 there were roughly 65 democracies representing 39% of the world’s population. These states create what Rummel refers to as the “oasis of peace.” The study turns to absolute power and megamurders (killing over 1,000,000 each) who combined have killed 142,583,000 people. This number is nearly four times the number of people killed in battle in this century’s international and civil wars. The numbers include genocide, politicide, and mass murder. The leading criminals in this category have been the USSR, the PRC, Nazi Germany, Khmer Rouge Cambodia, Communist Vietnam and Communist Yugoslavia. From 1975-1978, the Khmer Roughe
exterminated close to 28% of the country’s men, women, and children. Kilomurderers have killed in the tens to hundreds of thousands. One example of a kilomurderer is Communist Afghanistan. “Putting the human cost of war and democide together, Power has killed some 187,797,100 people in this century. If one were to sit at a table and have this many people come in one door, walk at three miles per hour across the room with three feet between them, and exit an opposite door, it would take over four years for them all to pass, twenty-four hours a day, 365 days a year. If all these dead were lined up they would reach from Honolulu, Hawaii, across the vast Pacific and then the huge continental United States to Washington, D.C. on the East coast, and then back again.” By comparison, 1,000,000 foreigners may have been killed “in cold blood by democracies.” However, when these deaths occurred, the author argues that it was done in secret behind a series of lies designed to hide the acts from the public. It appears that killings such as these are more likely in times of war given the increased power of certain agencies and the decreased access of the media. Although not put this way in the piece, it would appear that this argument runs similar to those pertaining to customary international law. There you look to see if a nation follows a certain practice, and if so, whether it does so out of a sense of legal obligation. Evidence of these practices may be seen in a government’s perceived need to explain its actions, basing them in international law. Here, we see agencies committing mass killings, but recognizing that they must hide this information from other agencies, or better yet, the general public. Thus, there would appear to be a check in democracies that does not tend to exist in non-democracies. Rummel looks at issues such as cultural-ethnic differences, outgroup conflict, misperception, frustration-aggression, relative deprivation, ideological imperatives, dehumanization, and many additional factors as potential sources for these crimes. According to Rummel, society and the relationships between members within it are determined by a series of social contracts. These contracts define expectations as well as natural constraints on the allowed use of Power in that society. However, this balance constantly changes due to a host of factors. It may occur with the assassination of a charismatic leader, changes in foreign support for specific groups…etc. However, whenever an act occurs which does allow the
Power to expand to its “potential,” then mass murder is likely to follow. It is at this point that the factors outlined above begin to speed up the process. “[Power] simply waits for an excuse, an event of some sort, an assassination, a massacre in a neighboring country, an attempted coup, a famine, or a natural disaster, that will justify beginning the murder en masse.” This violence, in and of itself, leads to a new balance of power between the society and its government, a balance capable of ending violence or perpetuating it, depending on the context. Democide is a process: Power exists and interests are polarized. From this point, a culture of violence develops, and war and democide are the results. Rummel faults the calculation of people killed in war, because the numbers include those who were victims of democide, those who lost their lives at a time when Power was able to reach its potential. “Many war-time governments massacred civilians and foreigners, committed atrocities or genocide against them, executed them, and subjected them to reprisals. Aside from battle or military engagements, the Nazis murdered around 20,000,000 civilians and prisoners of war, the Japanese 5,890,000, the Chinese Nationalists 5,907,000, the Chinese communists 250,000, the Nazi satellite Croatians 655,000, the Tito Partisans 600,000, and Stalin 13,053,000.” Rummel criticizes studies which focus on governments as a source of protection for their populations. To do so is to overlook the existence of democide and the use of government as a tool of evil. He goes as far as to compare the numbers killed through democide to the number of probable dead in a nuclear war. The answer to Power is found in the fostering of “democratic freedom.”
A. Theories of Confidence-Building Measures
i. The Principle of Restraint
– central to the theory of confidence building is that nations will
restrain themselves for the restraint of others
ii. Certainty and Uncertainty
– Treaties are valuable when they encourage rational behavior by making clear rules that prevent war
– the exchange of info about nuclear weapons might eliminate groundless
fears and encourage cooperation
iii. Crisis Management
– attempts to control confrontation and keep conflict within bounds
– a weakness is that it might assume greater rationality in limited
wars, escalation control than actually might exist
iv. Declaratory Restraints: Unilateral and Reciprocal
– Often declarations can help confidence building by setting forth
– may energize efforts
v. Assurances and Reassurances
– These contacts may reflect the belief that familiarity makes conflict less likely
B. Superpower Approaches
i. Measures to Reduce the Rick of War
– The Accidents Measures Agreement and the Agreement on the Prevention of Nuclear War
* These measures call for prior notification of a missile launch and
to prevent certain possible nuclear accidents
* contained provisions for cooperative measures and data exchange
* Prohibited deliberate concealment measures
* Superpowers to join in mutual restraint
– Exercise Notifications
* Reagan proposed bilateral notification
* It mitigates some but not all of the coercive aspects of military
movements and may also reduce the risk of attack
C. Current and Recurring Items
i. Information Sharing
– numerous measures for direct communication between heads of state
– much of this is to try to prevent accidental nuclear attacks
* advancements in technology are also very important
ii. Earliest Warning
– the effectiveness of deterrent forces is dependent not only upon the overall military balance, but also upon the types of forces and their deployment – Due to the 30 minutes it takes the Nuc missiles to travel “hair trigger” early warning signs were developed – without the assistance of arms control agreements, much of the emphasis is on survivability
iii. Demilitarized Areas and Stand-off Zones
– they create buffer zones that have long been seen as politically important
– one proposal has been submarine stand-off zones
– also, Anti-submarine warfare zones
– this is not as necessary due to ability of ICBM’s
iv. The Conference on Confidence and Security Buidling
– Nato allies agreed to:
* exchange info about the location of forces
* To provide annual previews of military exercises
* To invite observers to such military activities
* to enhance the capacity for rapid communication
* to provide for means to verify each other’s compliance
J.N. Moore, Law and the Indochina War
I. Fundamental policies for judicial abstention are based on the separation of powers and the limitations of the judicial process, which encompass the “political question” doctrine. Thus, under this doctrine, judicial abstention when: A. Decision for a particular question has been constitutionally delegated to another branch of the government besides the judiciary. (Professor Wechsler’s argument) B. Prudence dictates that the courts not examine the constitutional claim. (Professor Bickel’s claim). NoMo thinks this is the better way for courts to operate since it’s hard to
reconcile Supreme Court decisions with Wechsler’s test, and the difficulty reconciling the first approach with the Supremacy Clause). You ask the following, which are suggested by an analysis of the “political question” cases, most recently Baker v. Carr: 1. Will judicial consideration interfere with another branch that is better situated to resolve it politically? 2. Are there judicially discoverable and manageable standards for resolving the issue? 3. Does the court have sufficient access to information?
4. Would judicial consideration interfere with the need for uniformity and consistency? 5. Are there institutional checks which are more capable of responding sensitively to the challenge? C. “The dynamic interrelation between the merits of the issue presented and the strengths of the reasons for abstention suggest that answers in one context ought not be writ large as absolutes.:
Henkin, Is there a ‘Political Question’ Doctrine?
I. Some issues that seemingly should be left to the courts will not be decided by them, but will be left for political decision. Henkin argues that the court in these cases it is not refusing to exercise its power, but is affirming that the political branches have the power to act on the issue. II. Courts usually approach constitutional challenges to legislative enactments with a rebuttable presumption that Congress had acted within its legitimate powers. However, some argue that this rule is inapplicable when the issue involves a dispute about the constitutional authority of the two political branches. The court should thus remain neutral until question is addressed on the merits. a. Morrison v. Olson (Scalia’s dissent)
i. Where the issue pertains to separation of powers, and the political branches are in disagreement, neither can be presumed to be correct. The playing field must be level.
I. Since National Security disputes often do not involve specific and identifiable harm to the rights of citizens, lack of standing often
precludes judicial resolution. a. Frothingham v. Mellon
i. It cannot be conceded by the court that a state can institute judicial proceedings to protect citizens of the US from the operation of the US federal government. ii. Court has power per se to review acts of Congress on the grounds they are unconstitutional—the question only may be considered when there’s a justiciable issue resulting from some direct injury that was suffered. It can’t be a general indirect harm. b. Flast v. Cohen
i. Modified approach above.
ii. Judicial power of courts is limited to “cases and controversies.” 1. Limits courts to examination of questions presented in adversarial context. 2. Defines the role assigned to the judiciary in a tripartite allocation of power. iii. There is no justicable controversy when parties seek adjudication of a political question, when parties seek an advisory opinion, etc. iv. “Standing” is very nebulous and amorphous. The gist of it is if the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness” which caters to the court’s strengths and capacities as an institution. v. Standing requires litigant establish a nexus between his status and the type of legislative enactment attacked. Then, a nexus between that status and the precise type of constitutional infringement alleged. (See pg. 883) c. U.S. v. Richardson (Suit was brought to challenge constitutionality of CIA act on grounds that by allowing the Director to account for CIA funds violated Article I, § 9, clause 7 of constitution which requires a “regular statement and account” of the expenditure of public funds. i. The acceptance of new categories of judicially cognizable injury has not eliminated the basic principle that to invoke judicial power the claimant must have a “personal stake in the outcome.” d. Schlesinger v. Reservists to Stop the War (Current and former military reservists brought suit to prohibit members of Congress from being reservists. i. Court reaffirms principle of standing that standing may not be predicated on a general interest of citizenry—no concrete injury exists.
JNM, SOLVING THE WAR PUZZLE, September 11th ; Its Aftermath: Terrorism, Afghanistan, ; The Iraq War
Does incentive theory have relevance for terrorism?
Does it better explain the response in Afghanistan ; Iraq?
Is if a useful tool in predicting/ controlling terrorism?
Incentive Theory ; Terrorism
Developed for major interstate war
Incentive Theory can be used for terrorism, because the deadliest terrorism is state sponsored/supported Iran/Iraq/Sudan/Libya/Afghanistan/Syria
All totalitarian or authoritarian regimes
Factors effecting Terrorism
Private terrorist groups are anti-democratic
Terrorist decision makers can externalize costs on civilians and members Terrorism is expected to promote objectives, especially in areas w/o deterrence Prior to 9/11 terrorism was dealt with by law enforcement
Taliban and Al-Qaeda Factors
Both are anti-democratic
Little deterrence for AQ from attacks prior to 9/11
1998 Embassy bombings
USS Cole – NO Response
Looking at the cause of terrorism doesn’t yield useful information for control or understanding of terrorism US gave $100MM in food aid to Afghanistan pre-9/11
US most engaged nation in Israeli/Palestinian conflict
US one of the most religiously tolerant countries in the world US fought to defend Muslims:
US saved 1MM Muslims from starvation in Somalia
US attacked by terrorists as the leader of democracy, modernity, and human freedom. US didn’t respond against the people of Iraq and Afghanistan, US responded against the leaders.
Incentive Theory against Terrorism
Incentive theory requires assessing and affecting incentives of the decision makers The ability of terrorist decision makers to externalize costs on civilians and members will go down: Democratization (lower poverty and increase health – fewer recruits) Rule of Law (making it more difficult to externalize on others) Incentive theory will focus war fighting on hard core terrorists and those who support them. Ultimately, reducing incentives for terrorist leaders will reduce terrorism Still some crazies who will kill no matter what (small effect) Reduce terror movements; support (large effect on terrorism) No other methods (Balance of Power, etc.) are good at preventing terror Incentive Theory Against Terror
Long Term: Democracy, Rule of Law, Human Dignity
Short Term: Deterrence
War in Afghanistan
Afghanistan fits the theory well
Taliban ; Al-Qaeda are anti-democratic and totalitarian
US response classic for defensive action against prior armed attack NATO even triggered collective defense provision
Attack not against the people of Afghanistan, attack on the LEADERS Question: Why didn’t the Taliban turn over AQ leaders when it was obvious the US would topple the Taliban if the leaders were not turned over? Lots of theories…few compelling
Most compelling: Principle bodyguards for Mullah Omar were all AQ Likely death for Taliban elite if they handed over AQ leaders…if they could have even handed them over. War in Iraq
Iraq fits the theory well
Killed Kurds w/ Chem weapons
WMD not accounted for as req’d by UN Security Council
Gave $$ to Palestinian suicide bombers = support of terrorism Possible pre-9/11 AQ connection
Wars against neighbors Iran and Kuwait…attacks against Israel and Saudi
Defied many UN Security Council resolutions
9/11 and Anthrax attacks changed everything
No Iraq War w/o attacks
Fear translates into more proactive engagement
Legality of Iraq War is Ambiguous (but motivated by defensive and humanitarian elements) Illegal: Classic case
No exceptions that are allowed by UN Charter
Iraq did not attack US
No signs of imminent attack
No ongoing genocide above day-to-day brutality
No UN resolution authorizing war
Nothing in Resolution 1441 authorizing war
Violations of Security Council Resolutions means the Security Council has authority and responsibility (UN 51) Policy reasons for not going to war
No reason deterrence won’t work
Inspections most cost effective method (especially in hindsight of WMD search efforts) Legal
Failure to comply w/ Res 687 violated ceasefire and Res 678 authorization for force still controls Authority to use “all necessary force”
Only a conditional ceasefire and not a peace agreement, therefore force still applicable Historical support for this course of action from 1993 and 1998 bombings of Iraq for failure to comply with Security Council Resolutions Res 1441 authorizes force
1441: “serious consequences” for non-compliance and “final opportunity” to comply Iraq did not comply, therefore serious consequences are authorized US proposes: Anticipatory defense
JNM thoughts on legality
Possibility #1: Humanitarian intervention
Is there enough of an emergency?
Kurds were gassed in 1987-8
Shi’ia were attacked after Gulf War (1991)
Plenty of reports of atrocities that occur everyday
Iraq continued hostile actions against US/UK
Aircraft enforcing no-fly zone attacked 1000’s of times.
Even after Res 1441
Pinpoint attacks by US/UK against radars/missiles/command and control ineffective Iraqi efforts are not de minimus
1000’s of attacks over a long period of time
pattern of sustained attacks
Some connection between hostile action prohibited in Res 686 and the “all necessary force use” allowed in Red 678 Pinpoint attacks by US/UK can be ramped up on proportionality basis (due to ineffectiveness) Incentives for Iraq War
Look at the +/- incentives for all of the major players
George: Strong incentives
Incentives to go to war
9/11 and war on terror
No checks against war from the system
Congress votes for war
No democratic peace
No trade w/ Iraq
Perception of easy victory in Iraq
Economic costs (worldwide and national)
Diplomatic costs (relations w/ France and Germany)
As force buildup occurs in Persian Guld the incentives to go to war go up. Blair: mixed incentives
Terrorism concerns, WMD accountability, hostility against UK airplanes, human rights Work w/ Bush and gain influence on the process (go to UN)
Want a part in Iraq
Perception of easy victory
Disincentives: Political costs
Not popular war in Britain
Not popular war in EU
Saddam: How did war happen?
At the “fully account or else” point, the rational action would be compliance Did allow inspections
Gave voluminous documents
Why didn’t he fully comply?
Bad information flow on US/UK resolve
Misunderstood actions necessary to avoid war
Hard to find WMD data, so he was complying to his fullest
Thought split in Security Council would prevent action
Thought US didn’t have enough forces in theatre
France/Russia/China/Germany: Avoid war
Incentive against war
All sought to avoid war: relationship with Iraq, feared precedent of US/UK action When war could be avoided via inspections, they fully supported When US/UK asked for unequivocal support, they refused
JNM: Ironically, if Security Council gave authority for force based on unambiguous actions, it may have changed Saddam’s perceptions and induced him to comply Incentive Theory works
Should use incentive theory
Look at all actors (democratic and others)
Slight surprise that Saddam didn’t fold to avoid war
Due to isolated Saddam?
Incentives for Bush/Blair?
Incentive theory predicted Resolution 1441 ; Saddam letting in inspectors Incentive theory is the best theory out there
Must look at individual/national/international incentives
Low Intensity Conflict and the International Legal System, JNM
Use of force has moved away from “sovereignty” discussions and into intervention theory, humanitarian intervention, and collective defense. Limits of external intervention w/i borders of a country:
Extent to which force can be used to respond to sustained, serious, low intensity aggression – state sponsored terrorism, major external assistance to insurgents, and secret war. Extent to which force may be used to respond to major human rights violations Extent to which force may be used to respond to narcotics trafficking. Requires government request for assistance.
Currently, the international legal system has become irrelevant when dealing with low intensity conflict, because it fails to condemn low-intensity conflict while constraining defensive force in response to aggression. To fix the legal system, you must have response against aggression and support defensive action.
Low Intensity Conflict in Context: Competing Models of Aggression and Deterrence Generational Peace Initiatives
1900-WWI: Third-party dispute resolution
WWI-Present: Effective international organizations for managing peace 1960s-1991: Nuclear arms control at central strategic front
Arms control and 3rd party dispute resolution do not stop causes of major wars, more attention should be paid to building effective international organizations to manage peace International lawyers have sought to reduce the use of force, both aggressive and defensive, in order to have more opportunities for diplomacy and settlement. Explains the ICJ judgment against the US in the Nicaragua case Ignores the secret war by Sandanistas against El Salvador
Perjury by Nicaraguan representative about involvement
Condemns US limited assistance to Contras
Evidence shows recent wars (WWI, WWII, Korea, Indo-China, Falklands, Iran-Iraq, Afghanistan, Central America, and Gulf War) are result of synergy between: Typically totalitarian, or at least, non-democratic country using aggressive force for value extension System-wide failure of deterrence
When an aggressor is absent (US-Can, Swiss-Fra) war is not likely (even w/o deter) When deterrence is present (NATO – Warsaw Pact) then war not likely (even w/ aggressors). Most of the aggressive regimes in this century have been totalitarian (non-demo) states Best policies to avoid war: promote democratic principles and strengthen deterrence Must maintain sufficient force levels (Korean War part result of demobilization) Must send clear signals (WWI, WWII, Indo-China, Gulf, etc.)
Strengthen international legal system to sanction aggression and support defense
It is largely the differential between the treatment of aggression and the treatment of defense that measures the degree of effectiveness of the legal system in contributing to the deterrence of aggression – not the degree to which use of force is outlawed. Legal systems that do not differentiate between aggression and defense may spur more conflict than they prevent (fear of illegality may force democracies to stand still while totalitarian regimes use aggression) Low-intensity conflict fits the model (aggressor/lack of deter) – with one major difference – it tends to fly under the radar because of the nature of the attacks (local, from within, limited scope, etc.)
The Role of Law in Aggression and Deterrence: A Case of Auto-Immune Disease as Applied to the Spectrum of Low-Intensity Aggression Many international lawyers ignore the aggressive attack which precipitates US response (Contras, Libya) and instead say the action is an illegal “reprisal”. Many minimalists draw a distinction between responding to “past attacks” and defense of “armed attacks.”
Recommendations for Strengthening the International Legal System to Deal More Effectively with Low-Intensity Aggression “Engage” totalitarian regimes with the rule of law and democratic principles. JNM believes that USSR changing to “democracy” was bigger result of Helsinki human rights engagement process than from the history of arms control. This process is not an overnight process and should be long term goal US, along with other democracies, should reinvigorate international condemnation of aggressive attack (overt or covert). At the same time they should reinvigorate the right of defense against aggression. Adds deterrence without aggression
Must apply the principles against aggression and for defense against low-intensity conflict. Hostage taking, terrorism, aggressive indirect warfare, etc. Actions before responding to low intensity aggression:
Before defensive response – go to UN w/ evidence (publicity ; public awareness) Indicate response is against an ongoing and sustained pattern of aggression (not just the most recent embodiment) Continue to base actions on Art. 51 and defensive nature
Carefully planned actions consistent w/ Laws of War
THE RULE OF LAW IN NAT’L SECURITY AFFAIRS: In repealing the war powers resloution, Robert F. Turner
(Supplement p. 757-787)
(Reading is almost verbatim of what Bob Turner said in class on April 7)
A Government of Laws, Not of Men
There is debate over whether the Congress or President should have Constitutional power in war times. Is the War Powers Resolution constitutional?
It appears that the controversy is more political than legal.
Analytical Approaches to the Separation of Foreign Affairs Powers The duty to
faithfully execute the laws
Article II, Sec. 3 of Constitution seems to indicate that Congress makes laws, executive carries them out. Not a helpful analysis, without understanding if “law” is constitution or congressional enactments, and need to understand difference in Congressional powers in domestic and foreign affairs. Foreign Policy as a shared power
Article II, Sec. 1 makes the President “Commander in Chief.” Congress can veto a launch of war. Article I, Sec. 8 also gives Congress “war powers” The President and Congress do not have “shared” power in foreign relations, instead they each have specific powers that influence U.S. relations with the external world. Totaling “Enumerated” powers and the “Jump Ball” theory Looking at total powers given to Congress and President, it appears that the Constitution favors Congressional power in foreign affairs because they have more implied powers. There is a great deal of power vested in Congress, and much unspecified territory, which might lead to idea that this was an invitation to fight for these powers. Misrepresentation of Article II, Sec. 1. Assumes that founding fathers did not think too much about separation of powers and national security. Clearly wrong, since we know they argues over all details. Understanding the grant of Executive Power
The intent of the Framers was to give the President war powers, with limited exceptions and checks. If so, the President must execute his power under the Constitution and ignore other laws passed that try to reduce this power. Thus a President cannot legally follow the War Powers Resolution.
The intent of the Founding Fathers
The theories of Locke, Montesquieu and Blackstone
All three writers viewed control of foreign affairs to be the exclusive province of the executive. Almost all founding fathers got their foreign affairs, separation of powers beliefs from these scholars. A legislature was not competent and could not act quickly enough in foreign affairs. The founding fathers intended to give exclusive control over foreign affairs to the President, with certain important, but limited exceptions. Essentially, the founding fathers all got their theories from these writers and assumed
that when they granted executive power to the President, they would know what it meant, thus they had to enumerate all Congressional powers to clarify exceptions only. The first Congress, and early Supreme Court cases (Myers v. United States) all supported these ideas, and it was not until non-lawyer Congressmen started interpreting the Constitution without looking at original intent, did this idea fade. (Post-Vietnam) Early Constitutional Interpretations
Although the writings of almost all the founders point to exclusive executive power over foreign affairs, those arguing for legislative preeminence point to the writings of Thomas Jefferson. Jefferson’s correspondence to Washington shows it is clear that he intended to give the executive war powers, and the Congress got limited exceptions. Opponents often quote a letter by Jefferson to Madison in 1789, which discusses how one check on the “Dog of war” was put into place by transferring the power to “let him loose” form the executive to the legislative body. The Articles of Confederation had no executive and gave all power to the legislature. (This was a disaster), so in the Constitution, Jefferson, who relied on Locke’s interpretations, thought that foreign affairs powers were inherently within the executive, so any power given to the Legislative branch was a transfer. They merely transferred the power to declare war (aggressive war), not the power to deal with all details of war. Opponents also point to a 1801 speech to Congress, which Jefferson seemed deferential to Congress about his use of force to stop the Barbary Pirates. All scholars at the time acknowledged that Jefferson had more power than he claimed to, and it appeared that Jefferson was simply being courteous. He had the power to take defensive action after an attack. Alexander Hamilton
In his Pacificus letter, 1793, he writes almost identically to Jefferson’s letter to Washington 3 years earlier. The general grant of executive power to the President implies a ton of power, only some of which is later enumerated. Some point to Hamilton’s Federalist 69, which speaks of President’s power to act without Congress only once war has begun. This refers to the accepted belief that the President does not need Congressional
approval to act defensively. Opposes Jefferson’s speech to Congress. Hamilton was clear however in his belief that the executive should have power in war, because one person could more easily be efficient than a legislature. He believed that the only limit place on the Executive was that of initiating war (now known as aggressive wars), without Congressional approval. The King of England had that power. James Madison
Notes from Constitutional Convention show the debate over changing words from “make war” to “declare war.” The intent was to allow the President to repel sudden attacks, but not to commence war. Wanted to separate the power of the purse and the power of the sword. Since Legislative already has the former, Executive must get the latter. Argued that Congress’ exceptions to President’s power should be construed strictly. In Helvidius Madison opposed the view of Executive power over foreign affairs, to try to get in good with France in their war with Britain. This was his first position change, and only due to politics.
Early legislative deference
Early legislature, including many founding fathers deferred to President on foreign affairs.
The need for secrecy
Founding Fathers saw secrecy as essential in foreign affairs. Legislature could not keep secrets well. Other nations would not tell us secrets in negotiations if they knew the entire Legislative Branch would know them.
Washington and cabinet had a unanimous view that there must be some executive privilege to protect the interests of the nation. Most of the House members agreed with this at the time. Most agreed that Legislative could ask for documents, but the President could determine if there was a national security interest in withholding them. United States v. Curtiss-Wright Export Corp. – Supreme Court acknowledges some executive privilege, because the President is better able to judge what must be kept secret in wartime.
The Power of Congress to Declare War versus the Commander in Chief Founding fathers were most concerned with the type of war already outlawed by UN charter. Mainly territory expansion, or fighting for economic grievances. In excercising his powers, President must use discretion, and is bound only by his own conscience and country. (Justice Story, paraphrasing Justice Marshall in Marbury) Congressional debates and Supreme Court cases were clear that while Congress could choose to not fund the creation of an Army and Navy, once they did the President alone could control those forces.
The Issue of Formal Declaration of War
Debate over whether it was legal to send troops to Indochina (Vietnam) without formal declaration of war by Congress. Must look at questions of International Law and Constitutional Law International Law
Declarations of war not needed post UN for defensive uses of force. Article 2(4) of the UN Charter outlaws offensive or aggressive uses of force. No country has issued a formal declaration of war in almost 40 years. US was simply assisting an ally, not attempting to engage a full scale war with North Vietnam. Constitutional Law
It has been long established that a joint resolution can authorize the President to use force War Powers act gives President power when (1) there is a declaration of war, (2) under specific statutory authorization, (3) a national emergency created by attack on US, its territories or armed forces. Congress discussed whether they needed to approve troop movements in Indochina, and based on a legal memo by John Norton Moore, decided they did not legally need to.
War with Iraq: A Case Study
There is little evidence that the founding fathers foresaw collective security treaties. Not sure how they would have viewed the President aiding another nation with our troops, with no Congressional declaration of war. A narrow construction of “declare war” would lead to idea that H.W. Bush could send troops to Saudi Arabia to defend Kuwait. Senate, in passing UN Charter did not intend to force Legislative approval for troop deployment for
Security Council. Article 43 of the UN charter, which would have given US troops to the UN security council for peacekeeping has never been used. The UN does not have a peacekeeping army, but instead allows individual nations to take action. It was clear that these actions needed no separate Legislative approval if within the UN, so they shouldn’t now.
The Power of the Purse
Though the War Powers Resolution seems unconstitutional with its focus on declaration of war, it would be fine if focus shifted to Legislative power of purse under Article I, section 9. Congress still cannot use a power it has (power of purse) to accomplish an end that it is constitutionally prohibited from doing, like controlling all war powers. There is a major difference in Legislative and Executive powers in foreign and domestic affairs. Founding fathers were clear. Congress has power to raise armies, and veto any aggressive war, President gets the rest. U.N. RESOLUTION 1441: 8 NOVEMBER 2002
Recognizes the threat that Iraq’s (IZ) non compliance with previous resolutions regarding Weapons of Mass Destruction (WMD) and long range missiles poses to international peace and security. Deplores that IZ obstructed access to sites designated by UN Special Commission (UNSCOM) and International Atomic Energy Agency (IAEA), and ultimately ceasing all cooperation with UNSCOM and IAEA. Deplores that IZ obstructed access to sites for UN Monitoring, Verification, and Inspection Commission (UNMOVIC), a successor to UNSCOM. Declares ceasefire was based on IZ cooperation with inspection teams. Decides that IZ is in material breach of its obligations under the relevant resolutions. And in order to comply with disarmament obligations, IZ has 30 days from date of resolution to disclose full and accurate records regarding WMD. Lays out potential plan for UNMOVIC/IAEA inspectors – including composition of teams. Requires IZ to declare all WMD and allow UNMOVIC unlimited access to any and all sites. Failure to comply may result in serious consequences.
The Reinterpretation Debate and Constitutional Law — ROSTOW A response to the Koplow Article.
Disputes Koplow’s argument that the Reagan Administration asserted unknown constitutional authority to reinterpret the US’ international treaty obligations – namely the ABM treaty. Disputes Koplow’s finding that the assertion of executive power with respect to interpreting treaties is unsubstantiated and improper. Rostow claims that this executive power is found in Article II of the Constitution. Supports this finding with RST (3d) Foreign Relations Law of the US – “Authority to determine the interpretation of an international agreement is an executive function reserved to the President. “ If Congress disagrees, Constitutional remedies exist.
Congress may pass a statue to contradict the President’s interpretation. ROSTOW believes that KOPLOW is trying to assert a senatorial veto over the president’s executive power ROSTOW believes this is the greatest danger.
Cites Federalist papers for support. Madison warns against an all powerful Congress. The President has full autonomy wrt interpreting treaties.
National Security Law Supplement pgs. 155-166
MYTHS AND REALITIES IN THE VIETNAM DEBATE, Robert F. Turner
Six most common myths used to strengthen the anti-war movement
Ho Chi Minh as “George Washington” or “Tito”
MYTH: Ho Chi Minh was Vietnam’s George Washington, or if he was a communist at all, it was of the “Titoist” strain resulting from the U.S. refusal to assist him against the French. FACT: Ho Chi Minh was not driven into communism because of the U.S. refusal to keep the French from returning to Indochina. Ho Chi Minh signed a modus vivendi welcoming back the French on March 6, 1946. The U.S. did not support the return of French Colonialism
The “Pentagon Papers” provide evidence documenting that the U.S. refused to allow the French to use American aid. Only after the Communist’s victory in
China and the large scale Chinese assistance to Ho Chi Minh’s Viet Minh, did the US conclude that it was in the nation’s interest to aid the French. FACT: Ho Chi Minh was not a “Titoist”
He was a co-founder of the French Communist Party and an official representative of the Communist International in Southeast Asia Ho Chi Minh betrayed many of his non-communist nationalist leaders by selling them to the French police to raise funds and eliminate future opposition. He ignored Tito’s offer to establish diplomatic relations with Yugoslavia. He also attacked Tito as being a spy for American Imperialism. Ho Chi Minh required the support of Stalin, which would not have been given had he recognized Tito. The 1956 Elections
MYTH: The United States government encouraged Ngo Dinh Diem to refuse to hold reunification elections agreed to under the 1954 Geneva Conference and set for 1956. This is supported by a quote from President Eisenhower stating that an election would have had over 80% of the Vietnamese voting for Ho Chi Minh. FACT: The United States and Ngo Ding Diem never signed anything at the 1954 Geneva Conference. The evidence is clear that they supported only a unified election backed by international support from the United Nations. Evidence in the Pentagon Papers
The “American Plan” provided for South Vietnamese support and a vote backed by the United Nations This was rejected by the Soviet Delegation
The country was split at the 17th Parallel to be governed by the ICC over the protest of South Vietnam and the United States. The United States continued to maintain that they would only support free elections backed by the United Nations. This was an admirable position (according to Turner). The quote by Eisenhower was actually in reference to a completely different time period [1954 elections] and had no relevance to the 1956 vote. The “Indigenous” National Libertarian Front
MYTH: The Department of State was lying about the extent of North Vietnamese Involvement. The real struggle was a civil war between the Dinh Diem puppet government and the freedom fighters organized under the National Libertarian
Front. FACT: There is evidence that the North Vietnamese started to “unleash an armed revolt” to reunify the country a year before the NLF was even organized. This was admitted by North Vietnamese generals in an Economist Article entitled “We Lied to You” published February 26, 1983, based upon a French Television interview. In the final years of the war, over 90% of the fighting was done by the North Vietnamese Army regulars. Cutting Aid to Promote Human Rights:
MYTH: The United States was on the wrong side of the war, supporting the “tyrants” and “dictators” who were oppressing their people and depriving them of their fundamental human rights. FACT: While the Diem or Theiu regimes were never that of a model democracy, their violations were nothing in comparison to that of the alternative regime of Ho Chi Minh in the North. There is plenty of evidence to show that there were human rights violations on the part of the South, but the claims were often exaggerated and overblown. The “tiger cages” used for the political opponents of the Saigon regime, which had been used to show the oppressive nature of the South, were equal in comparison to some isolation facilities in the United States. There is speculation that the “hundreds of thousands” of political prisoners was actually only a few hundred or so. The evidence of violations of the alternative system in the North was ignored. The repression in the South was not “one-tenth as bad as the Stalinist regime that succeeded it after public pressure in this country persuaded Congress to cut off aid to the Theiu regime. Vietnam Really Wasn’t Important:
MYTH: The Vietnamese were different than the United States and the Europeans and did not value life to the same degree as “we did.” MYTH: Vietnam was too small of a country and located too far away from the United States to strategically care what happened to it. FACT: There is no evidence that the Vietnamese did not value human life to the same degree “we did,” and at the point the article was written, Vietnam was the third largest Communist State with the third largest army. Stop the Killing:
MYTH: The horror of the war, as seen on television, far outweighed any benefits from continuing the support to the South Vietnamese. FACT: The
war, although incredibly horrible, was intensified by the fact that it was the first war to be shown on television. FACT: It is impossible to know the total human cost of the communist victory in Indochina. More people were killed in Cambodia during the first three years of peace and liberation, than those that were killed on all sides during the thirteen years of the War.
Lessons for the Future:
The enemy led an effective political warfare campaign. They knew that if just “tied down the Americans and increased their casualties, the progressive forces of the world and in the United States would force Congress to cut off their aid.” The effect of Vietnam should not be for America to turn inward and not become involved in resisting aggression in other lands. If we continue to let these myths persist it will severely neutralize the deterrent ability of the United States. The same tactics of lies and deceit are being used against America now (at the time of the article) to deprive some of the citizens of Central America of their freedom.
Reading Notes (Supp. p. 18-37)—Nick Margida
Afterword notes by Andrew Gelfand
JNM: Morality and the Rule of Law in the Foreign Policy of the Democracies
a. *Thesis: centerpiece of the new world order (post-Soviet revolution) must be a vigorous effort to support the rule of law and the political morality of the “liberal democracy” on a worldwide basis i. Direct correlation b/w rule of law/liberal democracy and: human rights, avoidance of democide, economic progress, ; avoidance of synergy that produced major 20th c. international wars 2) Role of Morality ; Law in Foreign Policy
a. ‘traditional’ thinking (Realism): morality/ideas=just incidental to foreign policy (doesn’t predict state behavior—balance of power does) i. BUT, history tells us differently (ideas? influence on behavior: political movements, i.e. fascism, naziism, communism, democracy))—instead we have
focused on arms control/nuclear weapons 3) Why is Rule of Law Engagement an Important Component of Foreign Policy? a. Now that we know liberal democracy and its core principles of the rule of law are critical components for the realization of human rights, peace and economic development? makes sense to make this centerpiece of new world order i. Realization of human rights is dependent on government structure ii. Evidence/data linking totalitarian regimes with democide of their own populations (see Rummel, class notes), i.e. Nazi Germany, Stalin pogroms, Pol Pot-Cambodia ? massive democide is exclusively a feature of totalitarian governments iii. ? avoid mega-death by checks ; balances/separation of powers (‘power corrupts and absolute power corrupts absolutely’) b. Relations b/w liberal democracy and Peace: JNM conclusion: major causative model of principal international wars in 20th c. consists of synergy b/w a non-democratic regime and overall system-wide failure to deter such aggression i. E.g. WWI, WWII, Korean War, Gulf conflict are paradigmatic (see class notes/outlines) ii. ? need rule of law/liberal democracy to end totalitarianism and promote deterrence 4) Meaning of Rule of Law /Liberal Democracy Engagement
a. Strategy: similar to that of “Human Rights Engagement” (Helsinki process): mechanisms to prevent unchecked political power, assure accountability to people and protect individual citizen against the State b. 2 Major Meanings
i. 5 Principle Tenets:
1. ‘government of the people, and for the people
2. separation of powers/checks ; balances
3. representative democracy ; procedural/substantive limits on government action against the individual (protection of human freedom ; dignity) 4. limited government/federalism
5. review by an independent judiciary as central mechanism for constitutional enforcement ii. Promotion of rule of law in International Relations
1. Condemnation/response to democide
2. Strengthen international community assistance to defense, regardless of whether it is open invasion or low-intensity aggression [can’t condemn all uses of force—must allow for defense or you undermine the principle of deterrence, see UN Charter] 5) Objections to “Rule of Law/Liberal Democracy”
Engagement a. Rule of law signifies narrow legalities
i. Response: this is not so (it stands for general/fundamental principles of good government) b. U.S. shouldn’t impose its system on others
i. Response: strong correlation b/w totalitarianism ; democide/aggression c. Criticism of flaws/imperfections of U.S. system
i. Response: no system is perfect—to dwell on these is to miss the point: comparative success of democracies d. “Confusion”, i.e. U.S. maintaining relations with less than perfect regimes i. Response: difficult policy choices must be made (real-world)—can’t advance/force common ideology in all instances (i.e. China after Tienanmen Square? ramifications with respect to China’s UN Security Council vote: Gulf conflict) e. Realism: no place for ideas/morality in foreign policy
i. Response: see Thesis above
6) Modes of Implementation of Rule of Law Engagement
a. How do we put these concepts into practice?
b. ***most important step has already been taken: CSCE—passed the Copenhagen Document [‘one of the most important documents in human history’]= rule of law/governmental structures counterpart to Helsinki ‘human rights basket’—human rights engagement i. Doc: agreed to by NATO states, Soviet Union, E. European States, and the neutral/non-aligned nations of Europe ii. Copenhagen Document has internationalized a detailed code of obligations concerning governmental structures and the rule of law (i.e. political parties will not be merged with the State)? puts these issues/requirements on the international stage c. Suggestion for further modalities in rule of law engagement: i. U.S. interagency task force for implementation of this rule of law (should be a MAJOR component of U.S. foreign policy) ii. Coordination of rule of law engagement modalities with U.S. Allies iii. Encouragement of exchange/educational programs—focused on constitutionalism, human rights and rule of law iv. Promotion of regional counterparts to CSCE (Conference on Security and Cooperation in Europe) in Asia, Africa, Middle East, Latin America v. Exploration of appropriate linkages for promoting rule of law objectives 7) Conclusion
a. Nuclear arms control is OUT as the cornerstone of war prevention b. General human rights engagement (i.e. Helsinki) has worked well so far? this experience and data about behavior of governments suggests that the next step should be: Rule of Law c. *Ideas, morality and law DO matter (they are of fundamental importance as we seek to shape our foreign policy for a new world order? must make sure this reality is internalized w/in foreign policy process of democracies) Notes on pp. 37-70 (supplement):
Moore: Afterward on the Rule of Law
Rule of law (core definition) = “governmental decisions must be rooted in the consent of the governed, acting only through structures and procedures designed to prevent individual oppression of governmental tyranny, which protect fundamental rights and freedoms, and which are subject to appraisal by an independent judiciary rendering judgments based on law.” Major Tenets of the Rule of Law (in detail) :
1. government must be of the people, by the people and for the people: a. nation’s constitution must embody the fundamental compact with the people and fundamental ideals of a democratic society. Legislatures must be popularly elected under a system that will ensure frequent accountability. There must be assurances that one political party won’t take over the state or the electoral process. The constitution must be able to be changed through amendment. 2. separation of powers and checks and balances: prevent governmental tyranny by keeping branches of government separate; need each branch to keep the other from getting too much power (e.g. presidential veto, Senate confirming treaties, etc.). a. note: this doesn’t mean you can’t have a strong legislature or executive branch. 3. representative democracy and procedural and substantive limits on governmental action against the individual (protection of human freedom and dignity): a. need constitutional guarantees of basic human freedoms – a bill of rights. Also need checks against factionalism and hasty lawmaking in the legislature (e.g. bicameralism, procedural limits on legislature). 4. limited government and federalism
a. limit the central government to the powers of defense, foreign policy,
interstate commerce, and other national issues, while local government that will be more responsive and controllable by local people should get control of municipal services. 5. review by an independent judiciary as a central mechanism for constitutional enforcement. a. This is the most important principle in maintaining the integrity of the major constitutional underpinnings of the rule of law and may be the only way to ensure the supremacy of the Constitution. Rule of law in a representative democracy includes limited govt and constitutional limits on governmental action against the individual. The rule of law therefore encompasses many substantive and procedural components, many of which are listed here: 1. preserving a climate of free discussion and opinion
2. fairness in the criminal process (e.g. 4th, 5th, 6th and 8th Amendments; habeas corpus; innocence until proven guilty) 3. protection of religious freedom (both no establishment by state and free exercise by people) 4. protection of civil rights (equality before the law and protection of minority and disadvantaged majority populations) 5. accountability of governmental officials and protection of governmental processes (need network of laws to hold officials accountable and ensure rational decisions) 6. protection of the rights of workers (need healthy work environment and bargaining rights) 7. civilian control of the military
8. protect the environment
9. protect economic freedom and entitlements (strong property rights protected by the government and markets free of government interference have created better economies and freer people). A government can still regulate and tax in an economy, but can’t actively control it. Rule of law within an independent judicial process depends on: Supremacy of constitutional guarantees within the judicial process Fair notice of criminal laws
Court’s decisions must be made on laws and not on political factors or personal gain Like cases must be treated alike
Reasons should be given for court’s decisions
Judges should defer to a higher authority within a system (either constitution, legislative enactment, or a higher court). Rule of law need
in international realm as well. Need to follow rules of treaty and international law. Most important is the UN Charter obligation not to use force aggressively in international relations. Moore argues we need more accountability with regards to following this UN Charter obligation.
Notes on DA Koplow: assignment 12
This article focuses generally on who has the power to interpret arms control treaties authoritatively Focus on the reinterpretation of the ABM Treaty of 72 and the Intermediate Nuke Forces Treaty of 1987 which may jeopardize START negotiations 1) what are the respective roles of Congress and the Exec in creating international legal obligations 2) how is the interpretation of these obligations divided among the three branches 3) when may the Exec reinterpret the obligation
very important for a give and take between Senate and the Exec: for the Geneva protocol on chemical agents, the Nixon Admin wanted a limited scope to only ban lethal, not non-lethal, chemical agents. The Senate would only agree if the use of non-lethal agents was restricted to very specific instances. The Exec agreed and Senate ratified. In the SALT talks, the Exec represented that they had agreed with the USSR on a definition of “heavy” missile (that’s a big-ass nuclear missile), which was to be banned. In fact, the Soviets had never agreed to it and the Senate was shocked when the Soviets tested a missile they thought was banned. ABM Treaty ended a destabilizing technology, but Reagan decided to interpret the treaty narrowly applying it only to the technology existent in 1972. why? He was in the midst of pushing SDI which was primarily a missile defense in outer space using lasers. Congress and the Soviets were up in arms. Sofaer – a legal advisor at state said that only when a treaty is relied upon, intended by the exec and understood by the senate during ratification can the interpretation be authoritative. In the case of the ABM Treaty these were absent he argued. Senate reacted and said that the president is const. bound by the authoritative interpretation at the time of ratification. Biden Amendment Biden got the Amendment passed for the INF treaty which meant that the authoritative interpretation of a treaty is the understanding between
Senate and Pres at the time of ratification. Argument:
Int’l Law requires that parties be bound by treaties where the interpretation when it was ratified is the authoritative interp. Good faith
Measuring the intent of the parties: this is done from when the treaty was ratified. There are “reservations” in the treaty that allow for amendment Constitutional Argument:
Const. trumps treaties. The more recent treaty or a stat trumps earlier treaties and stats if there is a conflict. Exec is granted almost all authority to make international policy Exec negotiates and implements and can renounce treaties
Senate has some leeway in affecting interpretation
Once the treaty is ratified and accepted by the pres, that’s it, it’s the authoritative interpretation. The senate’s understanding of the treaty cannot be disregarded and the Pres is bound by this. Overall – the Const provides for separation of powers. In doing so, it makes Senate approval necessary for the ratification of treaties. To allow the exec to infringe on the binding interpretation is unconst and dangerous.
* Needless to say that Bob Turner would disagree with this. The Exec is given general authority to conduct foreign policy not the Senate. So, the Exec’s interpretation should be superior, the Senate’s interpretation is just as likely to change and they are not equipped to do this kind of work – I think he would say.