Power a nd Law in the World Affairs
Larson, Arthur
Power and Law in World Mfairs by ARTHUR LARSON This is the concluding installment of a two-part presentation by Dr. Larson. The author is director of the Rule of Law Research Center at...
...The Vietnam situation was a conspicuous exception to this pattern, and it has been a tragic mistake to take Vietnam as the typical revolutionary situation...
...The reason for a particular law may not be immediately obvious to us in a particular situation, but we obey it anyway...
...In this particular instance, the common sense and experience of centuries have produced the rule of nonintervention in the internal affair~ of other countries...
...Thus would an anti-expansion policy not only produce but force Chinese expanSiOn...
...What power is there in the overwhelming weight of world opinion...
...On the international scene, the reason why the legal course is better may also sometimes not be obvious on the surface...
...lutions creating and expanding the Congo operation, although, except for a brief period at the start, it was bitterly opposed to the entire operation...
...The study demonstrates what international law scholars have been saying for years, that the degree of compliance with international decisions is, if anything, better than that of compliance with domestic decisions...
...The prime example supporting the December, 1966 article's theme is Vietnam...
...We spend billions of dollars in foreign aid, carry on elaborate programs of information, educational exchange, cultural exchange and the like, and dispatch peace corps workers, technicians, teachers, and jazz bands all over the world, precisely because we assign a high value to something these uncommitted countries have it in their power to give or withhold...
...If A's only power over B is his ability to administer a whipping to B, A will have considerable power over B if B places the normal value on freedom from being whipped...
...Yet, when nations try to outguess the law, as we have been trying in the case of the Vietnam versus the Congo experience, they live to learn the hard way that there was a good reason for the legal procedure all along...
...Note that we ourselves, by our own choice, place a high value upon the support of these countries...
...My main concern has been not to theorize about why legal procedures are more effective in advancing our national interests than force under today's conditions but simply to demonstrate by the hard test of results that this is in fact so--whatever the theoretical reason may be...
...I t was solely because of this phenomenon I have just described, and the knowledge on the part of the Soviet Union that it would have forfeited, almost overnight, a vast amount of good will of the Asian and African countries if it had attempted to block the Congo action...
...It would be a fascinating exercise to try to analyze the many somewhat intangible reasons lying behind this seemingly paradoxical fact of modern international life...
...A comprehensive research project is now being· completed at the Rule December, 1966 Justus in The Minneapolis Star Still the Best Hope for Peace of Law Research Center at Duke University on the degree of compliance with international decisions of judicial and arbitral tribunals...
...The American action, although its substantive legality is debatable, was clearly a violation of the U.N...
...Our announced objective is to create a stable government in South Vietnam that can give effect to the people's right to self-determination and their right to choose their own way of life free of outside interference...
...But if B does not mind being whipped, or even enjoys it, A has no power over B. What gives "world opinion" its hard THE PROGRESSIVE and sometimes decisive impact, then, is the value voluntarily assigned by the contending powers to the support of the uncommitted countries...
...It would create a vacuum into which the Communist Chinese would be drawn by irresistible force...
...It took the United Nations Forces more than two grueling years to restore order in the Congo...
...It gave up this temple and this portion of what it considered its soil because of a piece of paper from The Hague-the decision of the International Court of Justice in the case of The Temple Preah Vihear...
...Finally, whatever some cynics may say, the basic human characteristic of respect for law is one of the most potent and stable elements on the world scene...
...The author is director of the Rule of Law Research Center at Duke University...
...I will not attempt here any such analysis, but merely suggest a checklist of a few possible reasons why law works in practice where force does not...
...THE EDITORS THE FIRST of these two articles on power and law in world affairs, published in the November issue of The Progressive, began by asserting that in only six years the central theme of American foreign policy has changed from "replacing the rule of force by the rule of law" to reliance on raw military power...
...I would suggest first the reason that international law, like domestic law, is the distillation of the experience, the good sense, and the accumulated trials and errors of civilized people in learning how to live together successfully...
...Here we must return to our original thesis on the nature of power...
...Suppose we went all out and destroyed the cities, the harbors, and the industrial life of North Vietnam...
...On the other hand, if we do not take time to analyze where we went wrong in the past, we will doom ourselves to repeating the same mistakes forever...
...It is fair to say, then, that the policy of resort to force in Southeast Asia has produced negative results, and the greater the amount of force employed in the future, the more negative the results are certain to become...
...Russia knows that it can prove, if it absolutely has to, that it is the one Communist power that can hurt the United States-something that Communist China cannot do...
...Similarly, Communist China's illegal attempts to subvert the regimes of many new countries have boomeranged...
...Russia obviously could not stand aside while China demonstrated before the entire Communist world that China was the prime defender of Communist countries in distress...
...Premier Ky announces that he intends to remain in power at least for another year...
...On the other hand, it is a mistake to conclude, as many people do, that because of such dramatic floutings of international law as these, international law is something that no one pays attention to because there is no physical force behind it...
...Why, for example, did the Soviet Union not veto the six operative reso...
...Let me here introduce another principle into a more sophisticated theory of power: power is a function of value...
...Why did the loser in the NicaraguaHonduras boundary dispute a couple of years earlier give up one-third of its territory peacefully, although it had been fighting a war over the same territory, more or less, for seventy-five years...
...That is to say: the extent of power that A has over B will depend on the value assigned by B to those of B's interests which A is able to affect...
...But it will require no such fictions to bring home to us the fact that there is only one country in the world that can inflict mortal damage upon the United States, and that is the Soviet Union...
...If anything affirmative is to emerge at all, alongside the frustrations and tragedies and degradations of the Dominican Republic and Vietnam episodes, it will have to be the learning of some lessons on how to avoid such mistakes in the future...
...We do not have to do this, but we have deliberately chosen to do so...
...Someone may ask: "What difference does that make...
...But to start from the lowest common denominator, I have chosen as my test the practical observed results of policies on American interests, and by this irreducible test, applied to objective facts visible to everyone, I rest my case that on international matters today, raw military power applied unilaterally in defiance of law produces the opposite of the intended result, whether containment or anything else, while respect for law-and particularly resort to the collective procedures which we freely agreed to in the United Nations Charter-produce the intended results of security, peaceful adjustment to change in a dynamic world, and furtherance of American ideals both around the world and within our own boundaries...
...We do not, in our daily personal affairs, constantly go behind the law and keep asking ourselves whether today we shall obey this law or that...
...The appeal to respect for law in international affairs could be pitched on many levels higher than the utilitarian one I have confined myself to, and the range of interests invoked could be broadened far beyond American self-interest to the interests of all humanity-with which in the nuclear age it almost entirely coincides...
...The significant thing about such events is that these actors should have thought it necessary to try to square their actions with international law...
...It is the good will, support, and allegiance of the world community, particularly, these days, of the new countries of Asia and Africa...
...The fiction that the incumbent regime, which would not survive a week without our military presence, represents an expression of the right of the people to govern their own destiny without outside interference becomes increasingly ludicrous...
...Why, for example, did Thailand several years ago give up to Cambodia a particularly important Buddhist temple and the territory surrounding it, although it had physical control of the area and actually had guns in place defending it...
...Both the United States and China have overlooked a basic fact: Established regimes in the new countries, in control of almost all military force, are not likely to be overthrown by a new wave of Communist-inspired revolution, since the main revolutionary force has been directed into the achievement of independence...
...By contrast, let us look at the handling of a situation, essentially similar, by resort to law...
...When the Belgian Congo became an independent state on June 30, 1960, tribal wars broke out, the Congolese army mutinied, Europeans were attacked and killed, Belgian troops re-en- I said, The Progressive for Christmas is a giant value tered, and the Congolese government first appealed directly to the United States a.nd the Soviet Union for military aid...
...What is one of the principal results that we want to get from our total foreign policy...
...Now and then a great power may decide that it can pay this price for the luxury of side-stepping the law, but it had better realize that the price is there to be paid, as the United States is paying it now...
...Because of another piece of paper from The Hague...
...If one extrapolates our experience and asks what would happen if the policy of force were carried to its logical conclusion, as some influential people are demanding, one can see more clearly how force produces the opposite of the intended result...
...When anyone country violates that rule, as the United States did in the Dominican intervention, the shock it produces around the world is partly the result of the realization by every country that, if that rule of law ever disappears, no small country is safe...
...To be sure, it could be inflicted only at the price of mortal damage to itself...
...But a North Vietnam lying in economic and military ruins would have no choice, nor would the Chinese...
...Power is the ability to get results...
...For the moment, we can only extract from examples of this kind further evidence of the fact that there is a potent force in the world called respect for law, and that in reasonably clear cases of violation of fundamental standards of international conduct, it will have the effect of re leasing an avalanche of shocked and angry reaction...
...We have been asked to indulge in a lot of fictitious assumptions about threats to American security because of what happens in the rice paddies of Vietnam...
...Eastern Europe should have taught us that buffers can buff in both directions...
...The vacuum would be filled, not by a power which is on the other side of the world, but by the power which is contiguous, ready, and able...
...As examples of the use of raw power backfiring, I cited the results of the Bay of Pigs invasion and the Dominican intervention-both intended to minimize pro-Communism and maximize pro-Americanism, and both producing instead the greatest surge of anti-Americanism in Latin America of modern times...
...It would do the exact opposite...
...He served in the White House as Special Assistant to President Eisenhower in 1957-1958...
...but restore order they did, and no amount of rationalization can dissolve away the fact that the line of action dictated by the United Nations Charter succeeded, where the line of action dictated by the impulse to resort to unilateral force, as in Vietnam, is failing...
...What are the results so far...
...This is something for the cynic to ponder...
...A country which is primarily nationalistic, with a history of many centuries of animosity toward China as a result of Chinese occupation, has no intention of assuming the role of doormat for a neighboring great power to trample across at will...
...If it ever comes to this, then we shall have seen the insane denouement of this entire tragedy of errors: the bringing of the Soviet Union into a position of active hostility with the United States...
...Outside interference increases with every day that passes...
...We are constantly being told these days that it is profitless to rehash the mistakes of the past in such episodes as that of Vietnam, and for the most part, from day to day, I try to go along with this and confine my suggestions on policy to the question, "What do we do right now...
...This is by no means only my own personal appraisal of the situation...
...You can find similar estimates of the potential of the Congo for initiating World War III in a number of official statements by the highest officers of our government...
...Power and Law in World Mfairs by ARTHUR LARSON This is the concluding installment of a two-part presentation by Dr...
...Similarly, while history is marred by repeated and sometimes grandiose violations of international law, these are almost invariably accompanied by elaborate attempts of the violator to defend their legality...
...The situations are essentially similar, although there are obvious differences, because the broad character of both difficulties was a blend of two components: internal insurgency and outside involvement by various neighbors and powers giving the entire matter the character of a threat to international peace...
...This resort to force has damaged American interests in a number of ways, beginning with the immeasurable tragedy of 5,000 American deaths, and the world-wide wave of mistrust and hatred of America...
...Here again the test must be results...
...There would inevitably have been a confrontation of Africans sympathetic to Lumumba, supported by Russian troops and equipment, against Africans opposed to Lumumba, supported by American and Western European troops and equipment...
...When Khrushchev put down the Hungarian uprising, this was accompanied by legal fo,mulations based on the principle of invitation by an incumbent government...
...Yet comply they did...
...Would this serve the policy of containment of Communist China...
...By contrast, the great majority of Southeast Asia scholars have for years been telling us that, at the very worst, a Vietnamese regime with Communist leanings would be more in the nature of a buffer against the spread of Communism, a hostile bog to be crossed, rather than a springboard for its resilient overlapping of Southeast Asia...
...While we are talking about containment, we had better remind ourselves that the containment of use of nuclear missiles is, from the real security viewpoint of the United States, a thousand times more important than the containment of expansion of Communist influence in some part of Southeast Asia...
...If the losers in these cases had decided to defy the Court's decision, realistically it is unlikely that any armed force would have been applied by anyone to make them comply...
...The overwhelming weight of world opinion, therefore, marshals itself on the side of law in such an episode...
...I refer to the handling of the Congo crisis through the United Nations...
...I t would also force Russian expansion...
...The possibility of any real self-determination recedes further and further into the distance...
...I have no hesitation in asserting that, if we had followed the same pattern in the Congo that we have followed in Vietnam, we would have had an even worse situation in Africa today than we have in Southeast Asia...
...Charter requirement that unsolved threats to the peace "shall" be referred to the Security Council...
...Oscar Wilde said that hypocrisy is the tribute that vice pays to virtue...
...I set out to establish this proposition: Tested by results, the policy of resort to physical force has generally produced an effect the opposite of the one intended, while a policy of resort to law, especially as represented by adherence to United Nations Charter principles, has achieved the intended result of protecting American security and interests...
...and that if free elections ultimately produce a neutralist or Communist government "I and my friends will fight it...
...but it would be rash indeed to assume, because such an eventuality would be the ultimate in international madness, that it will never occur...
...When Stalin invaded Finland and when Hitler invaded Poland, they went to great pains to try to show that their action was legal because of the necessities of self-defense...
...Although the Soviet Union respondedwith alacrity and immediately began sending military supplies, including planes, President Eisenhower responded by saying: "Do it through the United Nations...
Vol. 30 • December 1966 • No. 12
