Power and Law in World Affairs
Larson, Arthur
Power and Law in World Affairs by ARTHUR LARSON This is the first of a two-part presentation by Dr. Larson. The author is director of the Rule of Law Research Center at Duke University. He served...
...To this it might be answered that things might have been even worse if we had not intervened in the Dominican Republic, because the Communists might have taken over...
...other means under Article 33 had failed to settle the dispute under the language of Article 37...
...To minimize pro-Communism and maximize pro-Americanism...
...Rather, he says: "My approach would properly be described as practical idealism...
...Has it succeeded in serving American interests...
...Not a single newly-developing country has had a successful revolution or coup d'etat favorable to Peking because of these illegal Chinese efforts...
...It is of prime importance for the United States to understand why this is so...
...For many years, Communist China has been aggressively and illegally promoting its brand of internal revolution in Asia, Africa, and Latin America...
...The beginning of wisdom here for both the United States and China is to realize that for practically all of these countries the basic political-military revolution has already taken place...
...Nor is the figure made more comforting by being cheerfully compared with the number of deaths on American highways...
...It should be clearly understood that this interment of law and this apotheosis of power represent a profound and startling change in a period of less than six years...
...This I believe to be an inaccurate and superficial appraisal...
...We have already had time to gain considerable experience of how the sharply contrasting operating policies lying behind these words work in practice...
...American involvement cuts into the middle of the story, at a time when the possession of sheer military power, far from being concentrated in the hands of the incumbent government as in my typical illustration, is sharply divided between the incumbents and the revolutionaries...
...What has been the result...
...If "power" is the currently fashionable word, I am afraid that the most unfashionable word today in international affairs is "law...
...What I propose to do is to establish this proposition: Tested by results, the recent policy of resort to physical force in international affairs has generally produced an effect the exact opposite of the one intended and has damaged American interests, while a policy of resort to law, particularly in the sense of adherence to the procedures we have agreed to in the United Nations Charter, has achieved the intended result of peace, security, and protection of the interests of the United States...
...The Dominican revolution was possible because some senior military officers had been removed from key positions in a reform program carried out by the Reid government, and because some of the junior military officers were complaining that the reforms were not broad enough and that the government was acting too slowly in implementing them...
...What is power...
...Nothing could "be more unrealistic November, 1966 13 than a mental picture of the world situation which imagines that somehow a little group of Communists with no army of their own, but with perhaps some aid and encouragement from Red China or the Soviet Union, can by sinister Communist wiles "take over" an entire country from those who control the army, air force, and police...
...I think the following points should be considered: One—The slogan was an unwise choice at the outset...
...Here, as in Latin America, our unilateral action has markedly increased anti-Americanism in almost every country in the world, except possibly three or four on the immediate periphery of Vietnam...
...it followed that as one of the "parties to a dispute" the United States came directly under the 14 The White House and the State Department do not have the excuse that this obligation was never called to their attention...
...That is, the achievement of independence and the ending of colonial rule is a completed process throughout all of Asia and Latin America, and throughout almost all of Africa...
...Figures of this type therefore frequently emerge as the first heads of state in the new countries...
...The decisive difference between the Vietnam situation and that in every other new country today is that the post-World War II Vietnam story begins, not with a new country cleanly detached from its former colonial status, independent within recognized physical boundaries, and at least at the start possessed of normal governmental control over its territory...
...Not in international relations...
...I will say one thing, however, to dispel some widespread misconceptions on this point...
...The case is plain...
...It is quite another matter for a small group of political agitators to snatch by political means effective military control out of the hands of those who control the military forces and the police...
...It may be that the most apt maxim to sum up our times is that the road to ruin is paved with false analogies...
...At my own Rule of Law Research Center, we have made an exhaustive and impartial attempt to disentangle the legal issues, and, so far as the substantive questions of international law are concerned, we can only conclude that legality or illegality turns ultimately upon the correctness or incorrectness of assumed statements of fact—statements that are in sharp dispute not only between the United States and Hanoi, but among many American observers and reporters...
...It is a much more complex question than either the official and belated State Department rationale or the over-simplified "Lawyer's Committee" brief would indicate...
...Let us now turn again to the prime example that is on everyone's mind: that of Vietnam...
...Relies on power...
...He served in the White House as Special Assistant to President Eisenhower 1957-1958.—The Editors...
...I have no intention of reading too much into mere words, but I cannot refrain from pointing out that nowadays we do not hear even lip service paid to the idea of renouncing force in favor of rule of law from the lips of any high government official from one year to the next...
...not pro-Communist and in some instances are conspicuously anti-Communist...
...We hear constantly of the "power of public opinion," the "power of advertising," the "power of the press," and even the "power of a woman's tears...
...The target of his remarks was those international lawyers (comprising, so far as I know, practically every non-government lawyer with expertise and authority in public international law) who had serious reservations about the legality of unilateral and protracted armed intervention by a great power in the internal affairs of a small independent sovereign Caribbean nation, without either invitation or prior authorization by an international organization...
...Even if we find it impossible to weigh the damage to American interests in the immeasurable tragedy of the T^he introduction of the slogran "Black Power" has caused substantial confusion and alarm...
...Understands power...
...This view is specifically advanced in the speech by the State Department's legal adviser...
...I am not going to review here the various arguments on the practicality of United Nations involvement at that or any other stage of the Vietnam war...
...To reassure those who might have thought that this speech was a legal rationale for a return to "gun-boat diplomacy," the legal adviser expressly tells us that he is not "expounding a cold or cynical philosophy...
...Indeed, we have been repeatedly admonished by one periodical never to underestimate the power of a woman...
...In the same month of November 1961 several members of the Executive Committee of the American Association for the United Nations spent an entire day urging immediate use of the United Nations in this connection, the morning in the White House, the afternoon in the State Department...
...Here again we have a picture Burck in Chicago Sun-Times Arms and the Man of a long-continued, well-organized build-up of a revolutionary military force which proceeded methodically to use this power to seize control...
...The most reliable way of demonstrating that you are sophisticated, hard-headed, and "in" is to be sure to use the word "power" in every other sentence in an article, book, or public utterance...
...The obligation of the United States to take the matter to the Security Council did not stand or fall on the United States' judgment on what the Security Council might or might not be able to do...
...Before long, by far the dominant ultimate force in the country is not the surging emotional revolutionary drive that produced independence, but the cold fact of complete mastery of all significant military force by the generals...
...This development has not come about because of any policy of containment of China by military force on the part of the United States...
...Anyone so inconsiderate as to invoke the best-established principle of international law, the right of a sovereign state to be free from forceful interference in its internal affairs by another state, is in this speech contemptuously called a "fundamentalist" who is "free with the use of categorical imperatives," guilty of "reliance on absolutes," evaluating events as "black and white alone," and treating institutions such as law as "abstract imperatives which must be followed for the sake of obeisance to some supernatural power or for the sake of some supposed symmetry that is enjoined upon the human race by external forces...
...To put the matter bluntly, the People's Republic of China is "in the doghouse" throughout practically the entire newly developing world...
...During the phase of struggle for independence from a colonial power, typically there emerge charismatic leaders like Sukarno or Nkrumah who sweep into power on a wave of strong nationalistic and revolutionary fervor...
...This misuse is common in international matters...
...The country has its independence, and its primary preoccupation becomes, not further revolution, but stability, development, and establishment of a national identity...
...Article 37 by its terms expressly refers to a "dispute of the nature referred to in Article 33...
...When this point has been reached, if there should occur, as there has occurred in many new countries, a test of strength between the generals on the one hand and the charismatic revolutionary leader on the other, it is invariably the generals who win...
...The only possible explanation for this monumental miscalculation is the persistent resort to inapplicable analogies, particularly the analogy of Vietnam...
...It is sickening to consider how many lives may have been lost and how much suffering caused by the altogether unproved assumption that the situation in Vietnam is the typical revolutionary situation, and that therefore unless this particular revolution is put down an identical process will take place in every other Asian and perhaps African and Latin American country...
...There is little resemblance between this picture and that of the Dominican Republic, where the principal focus of power on both sides of the revolution was within the military, and where neither of the primary contending political or military factions was Communist...
...If there was any doubt of this, it was dispelled by the address before the Foreign Law Association on June 9, 1965, of the legal adviser to the State Department, the Administration's highest ranking officer in the field of international law...
...We ourselves announce that the situation is a threat to the peace...
...Another inaccurate analogy is that of Cuba...
...There is no scale delicate enough to weigh the pluses and minuses in such a reckoning...
...It will not do to say that the United Nations could not possibly have taken on any responsibility in Vietnam because it was paralyzed or bankrupt or disorganized...
...Likes power...
...The combination of these dissident military elements with the Dominican Revolutionary Party which was seeking to restore President Juan Bosch to power was what produced the revolution...
...It arouses apprehension because some of its advocates approve the use of violence to force social change and with it, Negro separatism...
...Above all, the new country develops a police force, an army, a hierarchy of military officers, an established bureaucracy, and a class of people who have no desire to see any further revolutionary activity...
...If there is any qualified independent lawyer, fundamentalist or not, who has publicly attempted to make a case of the legality of either of these actions, I have not heard of him...
...Yet in the international arena there is a curious reluctance to accept this same forthright definition and to follow where it leads...
...This fallacy is the assumption that most of the newly-developing countries of Asia, Africa, and Latin America can be converted into Communist states of the extreme Chinese revolutionary sort by a gush of revolutionary fervor assisted by a certain amount of disorder, intrigue, and Communist-assisted political manipulation...
...Let us assess first the results of the Bay of Pigs invasion and the Dominican intervention...
...I have made it clear that death and crippling of its own citizens, how stands the balance sheet on purely political gain...
...How much weight in such a scale of damage to American interest do we assign to the deaths of young Americans...
...In country after country, with Indonesia and Ghana being only the most conspicuous examples, the precise opposite of Communist China's objective has resulted...
...In domestic and personal matters we make no such mistake...
...They limit violence to use in self-defense...
...But even more serious is the fact that both the Bay of Pigs invasion and the Dominican intervention were followed by a shock wave of anti-American indignation throughout all of Latin America which may have undone the patient work of decades in building a good neighbor relationship...
...Johnson a President who really understands power...
...However, I have no hesitation whatever in saying that the American action, as a matter of procedural law, has been in violation of the United Nations Charter...
...The concluding installment of this presentation will appear in the December issue...
...That our Vietnam action is a clear example of reliance on containment by force is beyond dispute...
...To maximize pro-Communism and to minimize pro-Americanism1...
...Prior to the Dominican intervention, there was probably less pro-Communism and less anti-Americanism in the Dominican Republic than in any other Latin American country...
...Both are examples of resort to raw military power...
...Communist China may have by now discovered the fallaciousness of this assumption, but so far there is nothing to indicate that the United States has...
...It is fair then to characterize our Vietnam action as a resort to force and an abandonment of law in the name of "containment...
...On November 17, 1961, in a news conference, Secretary Rusk said: "The determined and ruthless campaign of propaganda, infiltration, and subversion by the Communist regime in North Vietnam to destroy the Republic of Vietnam and subjugate its peoples is a threat to the peace...
...At the time we are talking about, the fall of 1961, and for more than two years thereafter, the United Nations was on a rising curve of effectiveness and power, as demonstrated by its ultimate restoration of order in the Congo in January, 1963, by military force...
...Both are also stark examples of flouting of law...
...We observe every day the results produced by advertising, by public opinion, by the press, and indeed—at more widely spaced intervals—by women's tears...
...On the contrary, those countries, like Ghana and Indonesia, which seemed to have well-established regimes strongly favorable to Communism, have replaced them with regimes that are certainly Justus in The Minneapolis Star Sowing the Seeds of Democracy...
...One thing is crystalline clear...
...Article 37 of the Charter states in unqualified terms that when other means of dealing with a threat to the peace have failed, the matter "shall" be referred to the Security Council...
...Reports from all over the world now tell us that the current picture of the United States, far from being the former picture of a reliable and sincere, if somewhat inexperienced, guardian of peace and law, is that of a confused and unpredictable giant with immense power but no sense of restraint or of direction...
...That the action is illegal is a more debatable question...
...The Vietnam situation is also almost unique in the fact that here the Communists had succeeded in achieving a large measure of identification between the nationalist and the Communist movement...
...Shall we follow the well-known American columnist who tried to reassure us by saying some months ago that there have been "only 2,000 deaths" (since increased to 5,000) and that while this, of course, represented 2,000 personal tragedies, this was much less than in some other wars...
...Rather, the Vietnam story after World War II begins with an ongoing revolution in full flood, with revolutionary forces already armed, trained, disciplined, and organized, and with a clearly defined ultimate objective of achieving control of the entire area...
...True, the Communists were able to create a good deal of disorder, assisted by the fact that there had been an indiscriminate distribution of arms...
...The most careless colloquial use of the word "power" is that which equates it with raw physical strength...
...With the violent connotations that now attach to the words it has become dangerous and injurious...
...We have severely weakened our position of world leadership...
...At this point it becomes necessary to examine the inherent central fallacy of both Communist Chinese and American foreign policy today...
...But it is one thing to create disorder...
...At the outset I recalled the frequent statement of commentators that "President Johnson understands power...
...Indeed, in November, 1961, the situation in the Congo was a more difficult one than the situation in Vietnam, so far as could have been determined at the time...
...But now a new process sets in...
...People who say this are guilty of carelessness in chronology, to say the least...
...As a result of our intervention pro-Communism became rampant in the Dominican Republic, and crowds assembled by the thousands to shout anti-American slogans...
...What was the objective of these actions...
...Shortly after, there was published both an article and a booklet entitled Do It Through the U.N., making the same point...
...If we look only at the verbal manifestations of foreign policy, quite apart from substance, we will recall that from about 1957 on, the most persistent theme in speeches on foreign policy by President Eisenhower and his aides was the necessity of replacing the rule of force in international affairs with the rule of law...
...In any event, the least the United States could have done would have been to demonstrate that it still believed in the procedure of dealing collectively with threats to the peace, and could have at the minimum attempted to obtain some kind of United Nations aegis for the Vietnam operation, as was done successfully in the case of Korea...
...Article 33 applies "to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security...
...The reason we use the word "power" so effortlessly in these connections is that we have unconsciously defined it in the terms just suggested: the ability to produce results...
...Again and again we read in the columns of Washington commentators: "At last we have in Mr...
...Confusion arises because others use the same slogan to urge acquisition of political power in areas where Negroes are a majority...
...It is incredible that anyone could suppose that a small band of Communists could somehow make either these military officers or the established political leaders take orders from them...
...Power is the ability to produce a desired result...
...Tn the lexicon of international affairs these days the most fashionable word is "power...
...What was the result...
Vol. 30 • November 1966 • No. 11
