Self-Defense and the Rule of Law

Author(s): Oscar Schachter

Source: The American Journal of International Law, Vol. 83, No. 2 (Apr., 1989), pp. 259-277
Published by: Cambridge University Press
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 SELF-DEFENSE AND THE RULE OF LAW
By Oscar Schachter*

Self-defense on the international level is generally regarded, at least by

international lawyers, as a legal right defined and legitimated by interna-
tional law. Governments, by and large, appear to agree. When they have
used force, they have nearly always claimed self-defense as their legal justi-
fication. Governments disputing that claim have usually asserted that the
legal conditions of self-defense were not met in the particular case. How-
ever, despite the apparent agreement that self-defense is governed by law,
the meaning and validity of that proposition remain open to question.
There are some who challenge the basic idea that the security of a state-its
self-preservation-can and should be subjected to international law. Others
question whether under present conditions the ideal of a rule of law can be
applied on the international level to national security decisions. My aim in
this essay is to explore some aspects of the problem raised by these chal-
lenges to the applicability of international law to claims of self-defense. It is
not my intention, I should add, to consider specific interpretations of self-
defense.

AN INHERENT AND AUTONOMOUS RIGHT?

The idea of self-defense as an inherent and autonomous right has roots in

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

* Of the Board of Editors.

' H. GROTIUS, DE JURE BELLI AC PACIS, bk. II, ch. I, pt. III, at 172 (Carnegie Endowment
trans. 1925) (1646).
2 However, characterization of self-defense as a natural right did not mean to Grotius that a
state could invoke it arbitrarily or for "reasons of state." See H. Lauterpacht, The Grotian
Tradition, 23 BRIT. Y.B. INT'L L. 1, 30-38 (1946).

259

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260 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

of self-defense exists independently of positive law and cannot be altered by

it.3 The International Court ofJustice in its 1986 Judgment in the Nicaragua
case, noting that Article 51 of the UN Charter recognizes a "natural" or
"inherent" right of self-defense, said that "it is hard to see how this can be
other than of a customary nature, even if its present content has been
confirmed and influenced by the Charter."4 However, the fact that the
Court and international legal scholars consider that self-defense is governed
by positive law has not obliterated an opposing conception of self-defense as
an autonomous, nonderogable right that "exists" independently of legal
rules. That conception, I believe, continues to influence popular and official
attitudes concerning national security.
A second intellectual root of the proposition that self-defense cannnot be
governed by law is the belief in the subordination of law to power. This
point of view was expressed forcefully by Dean Acheson, an eminent lawyer
and former Secretary of State, in remarks to the American Society of Inter-
national Law.5 He admonished international lawyers for debating the legal
propriety of the U.S. "quarantine" in the Cuban missile crisis of 1962. The
action taken by the United States was, in his view, "essential to the continua-
tion of [its] pre-eminent power."6 Law, he declared, "simply does not deal
with such questions of ultimate power. . . . The survival of states is not a
matter of law."7 While these words may be interpreted in various ways, their
main purport clearly was to emphasize that self-defense could not be gov-
erned by law when a grave threat to the power of a state or to its way of life
was perceived by that state.
As might be expected, Acheson's emphatic denial of the relevance of law
to the use of force did not commend itself to international lawyers generally,
however divergent their legal opinions.8 But Acheson's position can hardly
be considered as aberrant. It is in keeping both with the widely held view
that the preservation of the state has precedence over positive law and with
the "practical" understanding that it must be left to each state to decide
what is necessary for its own self-defense. The latter position was given
formal expression in the well-known statements made by the United States

3 See H. KELSEN, THE LAW OF THE UNITED NATIONS 791-92 (1950); D. BOWETT, SELF-
DEFENCE IN INTERNATIONAL LAW 187 (1958); Ago, Addendum to Eighth Report on State
Responsibility to the International Law Commission, [1980] 2 Y.B. INT'L L. COMM'N, pt. 1 at
13, 66-67, UN Doc. A/CN.4/SER.A/1980/Add.1; Y. DINSTEIN, WAR, AGGRESSION AND
SELF-DEFENCE 169-72 (1988).
4 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986

6 Id. 7 Id.
ICJ REP. 14, 94, para. 176 (Judgment of June 27).
' Acheson, Remarks, 57 ASIL PROC. 13, 14 (1963).

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

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 1989] SELF-DEFENSE AND THE RULE OF LAW 261
and France in connection with their adherence in 1928 to the Kellogg-
Briand Treaty for the Renunciation of War. They each declared then that a
state claiming self-defense "alone is competent to decide whether circum-
stances require recourse to war in self-defense."9 The other signatories
apparently accepted the same interpretation.
International lawyers concerned with the integrity of the legal commit-
ment to renounce war in the 1928 Treaty were quick to see the danger of
according exclusive competence to the state claiming self-defense. Hersch
Lauterpacht, writing not long after the conclusion of the Kellogg-Briand
Pact, declared that a claim that self-defense was not subject to objective
evaluation could not be accepted in law. He wrote: "Such a claim is self-con-
tradictory inasmuch as it purports to be based on legal right and at the same
time, it dissociates itself from regulation and evaluation of the law."'0
This statement of Lauterpacht was quoted with approval by Judge
Stephen M. Schwebel in his dissenting opinion to the 1986 ICJJudgment in
the Nicaragua case." Schwebel placed much weight on Lauterpacht's analy-
sis to support his conclusion that claims of self-defense were, in principle,
justiciable. That analysis, as presented in Lauterpacht's classic work, The
Function of Law in the International Community, likened self-defense in inter-
national law to the corresponding right in municipal law. In both cases,
Lauterpacht said, the right was "absolute" in the sense that no law could
disregard it.'2 Moreover, a state, like an individual, would have to decide in
the first instance whether the immediate use of force in defense was neces-
sary. However, the right is "relative" inasmuch as it is presumably regulated
by law. "It is regulated to the extent that it is the business of the courts to
determine whether, how far, and for how long, there was a necessity to have
recourse to it."' 3 Lauterpacht was aware, of course, that on the interna-
tional level, states resisted submitting disputes regarding use of force to
judicial process. That state of affairs, he argued, was in contradiction to the
emerging law regulating use of force. 14 States could not have it both ways: if
they did not accept the principle of justiciability, the legal dimension of
self-defense would disappear and with it the regulation of force by law.
Lauterpacht's position received judicial support in the Judgment of the
International Military Tribunal in Nuremberg in 1946. The Tribunal was
confronted with the argument on behalf of the German Nazi leaders that
Germany had acted in self-defense and that every state must be the judge of
whether in a given case it has the right of self-defense. (Ironically, this
argument accorded with the U.S. position taken in connection with the
Kellogg-Briand Pact.) The Nuremberg Tribunal rejected that contention,
observing that "whether action taken under the claim of self-defense was in

9 U.S. note of June 23, 1928, quoted in H. MILLER, THE PEACE PACT OF PARIS 213, 214
(1928).
'1 H. LAUTERPACHT, THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY
179-80 (1933).
" Dissenting Opinion of Judge Schwebel, 1986 ICJ REP. at 259, 285, para. 46.

'3Id. '4Id. at 181.

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

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262 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

fact aggressive or defensive must ultimately be subject to investigation or

adjudication if international law is ever to be enforced."'5
This forthright statement of the Nuremberg Tribunal was doubtless in
keeping with the United States views in 1946. However, in the 1980s, the
Nicaragua case produced doubts as to the justiciability of claims of self-de-
fense. The U.S. position, as it developed, was not entirely clear or free from
ambivalence. In 1984 U.S. counsel had argued to the Court that the United
States alone was in a position to determine the necessity of the "defense"
measures it had taken against Nicaragua in the particular circumstances of
that case, an argument noted and approved byjudge Schwebel.'6 Neverthe-
less, the United States did not argue that self-defense was necessarily beyond
legal evaluation and, as the Court observed, it did not claim that interna-
tional law was not relevant or controlling in the case.'7 The U.S. arguments
against admissibility were addressed to other grounds, including the argu-
ment that the Security Council had exclusive competence to pass on the
legality of the use of force.'8
After the Court ruled against the United States on the jurisdictional
issues, the official U.S. stand appeared to move toward the same position as
that expressed in 1928-namely, that questions of the necessity of defense
were ultimately reserved to the defending state alone. This shift is suggested
by statements made in congressional hearings on the withdrawal by the
United States of its acceptance of compulsory jurisdiction. In explaining
why the United States would not and should not submit to the International
Court's jurisdiction in regard to its use of force in self-defense, the Legal
Adviser of the Department of State declared that the exercise of self-defense
could not be subject to the decision of the Court inasmuch as the national
security of the United States was involved.'9 "Such matters are the ulti-
mate responsibility assigned by our Constitution to the President and the
Congress. "20
That statement can be read as rejecting any "external" authority to judge
the legitimacy of American defense measures, a position that would contra-
dict the idea of self-defense as a right defined by law. It is arguable that the
U.S. position did not entirely exclude third-party determinations because it
recognized the competence of the UN Security Council (an "external"
body) to pass upon claims of self-defense. But since the United States has a
veto in the Council, it remains ultimately the judge of its own cause, at least

"5judgment of the International Military Tribunal at Nuremberg, 1946, 1 TRIAL OF GER-

MAN MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 208
(1947).
16 1986 ICJ REP. at 293-96, paras. 69-76 (Schwebel, J., dissenting).
17 1986 ICJ REP. at 27, para. 34.
18 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction
and Admissibility, 1984 ICJ REP. 392, 432-36, paras. 91-98 (judgment of Nov. 26).
19 Sofaer, Statement, in U.S. Decision to Withdraw from the International Court ofJustice: Hearing
Before the Subcomm. on Human Rights and International Organization of the House Comm. on Foreign
Affairs, 99th Cong., 1st Sess. 27-28 (1985).
20 Id. at 30.

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1989] SELF-DEFENSE AND THE RULE OF LAW 263
as far as the formal decisions are concerned.2' On the other hand, the fact
that the United States recognizes the authority of the Council to discuss the
legitimacy of self-defense measures is, in some measure, a weakening of its
claim that it alone can be the final judge of the necessity of its defense
measures. The Council, of course, is a political body charged with main-
taining peace and security; it is not required to decide legal issues.
Underlying this apparent ambivalence in the U.S. position is the evident
fact that the United States is not prepared to concede in respect of other
states that they, too, can exclusively determine the necessity and legitimacy
of their self-defense actions. To do so would mean that objections to such
actions as the Soviet use of force in Czechoslovakia and Afghanistan would
have to be based on purely political grounds. This line of argument would
be much less effective in mobilizing world opinion than the argument that
the basic norms of the Charter have been violated by the unlawful use of
force. To say that each state is free to decide for itself when and to what
extent it may use arms would remove the principal ground for international
censure, and, in effect, bring to the vanishing point the legal limits on
unilateral recourse to force. This is surely not the considered position of the
United States, notwithstanding the rebuffs it has received in the Interna-
tional Court and UN organs.

THE INFLUENCE OF COMMUNITY JUDGMENT

That states generally do not welcome international scrutiny of their de-

fensive measures is hardly surprising. This attitude is especially marked
when armed force is actually used, even though seen by the user as legiti-
mate self-defense. The drafters of the UN Charter sought to meet this
problem by requiring, in Article 51, that each member immediately report
to the Security Council measures taken by it in the exercise of the right of
self-defense. This requirement, though explicit and unambiguous, has
rarely been observed by states using force.22 However, the failures to report
have not precluded the Council from considering, and in some cases passing
judgment on, such claims when the matter was raised by states that ques-
tioned the legality of the use of force. The Council has rejected claims of
self-defense in several cases (notably against states whose policies were gen-
erally disapproved).23 No resolution has been adopted explicitly upholding a

21 The Charter does provide in Article 27 that in decisions under chapter VI, a party to a
dispute shall abstain from voting. Although this applies to permanent members and therefore is
supposed to limit the use of the veto where those states are parties, the restriction does not
apply to Article 51 (as it is not in chapter VI). In fact, it has rarely been invoked to preclude the
use of the veto.
22 Combacau, The Exception of Self-Defence in U.N. Practice, in THE CURRENT LEGAL REGULA-
TION OF THE USE OF FORCE 9 (A. Cassese ed. 1986).
23 For example, self-defense claims made by Israel for attacks against Palestinian organiza-
tions based in Jordan and Lebanon were rejected by the Security Council in the following
resolutions: SC Res. 228 (Nov. 25, 1966); SC Res. 265 (Apr. 1, 1969); SC Res. 270 (Aug. 26,
1969); SC Res. 279 (May 12, 1970); SC Res. 313 (Feb. 28, 1972); SC Res. 332 (Apr. 21, 1973);
SC Res. 347 (Apr. 24, 1974). See also SC Res. 488 (June 19, 1981) (condemning Israeli air

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264 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

claim of self-defense, though in a few cases a resolution or the Council's

failure to act has been construed by commentators as tacit approval or
toleration of the use of force in question.24 The Council, more often than
not, has been precluded by the veto from reaching formal decisions on the
validity of such claims. Most of those cases were then considered by the
General Assembly, which, unfettered by the veto, generally condemned the
alleged self-defense action as a Charter violation.25 In no such case, how-
ever, has the target state accepted the UN decision as binding upon it.
One could say that this shows that each state remains the ultimatejudge of
its own cause in matters of self-defense; but it also shows that states using
force do not escape community judgments even though they seek to avoid
them. In actuality, appraisals of the legality of state conduct, especially in
regard to the use of armed force, are made in a variety of nonjudicial
contexts. Since 1945, each time a state has used armed force outside its
borders, its lawfulness has been subject to third-party judgment. Such judg-
ments have been made by other governments, expressed individually or in
collective political bodies. They have also been made by the community of
international lawyers, by organs of opinion, by political parties and by other
nongovernmental organizations. There is, in this sense, no escape from the
judgments of the interested communities. They vary, to be sure, in their
quality, their objectivity and their impact on the conduct of the state in
question. The processes as well as the results are uneven. Yet it is clear that,
in the end, no state is actually the sole judge of its own cause when it claims-to
have used force in self-defense.

attack which destroyed the Osiraq nuclear reactor in Iraq in 1981). The General Assembly
rejected the Soviet Union's self-defense claim to justify the intervention in Afghanistan in
1980. GA Res. ES-6/2 (Jan. 14, 1980). In addition, South Africa has been condemned for its
attacks against neighboring states. SC Res. 393 (July 30, 1976); SC Res. 387 (Mar. 31, 1976).
See Combacau, supra note 22, at 16-18.
24 For example, the Security Council resolution that noted the invasion of the Falkland
Islands by Argentina in 1982 demanded the immediate withdrawal of all Argentine forces
from the Falkland Islands. No reference was made to the withdrawal of British forces. A clear
implication was that the British had legitimately exercised the right of self-defense. The resolu-
tion was adopted by 10 votes to 1 (Panama), with 4 abstentions. SC Res. 502 (Apr. 3, 1982).
The Israeli rescue action in Entebbe, Uganda was criticized in the Security Council (and also
defended). When a draft resolution censuring Israel was not put to a vote, the Council's
nonaction was seen as an indication that the rescue mission was not a violation of Article 2(4).
See Schachter, International Law in the Hostage Crisis: Implications for Future Cases, in AMERICAN
HOSTAGES IN IRAN 325, 331 (1985).
25 The General Assembly may indicate its disapproval of a doubtful self-defense claim in a
more indirect manner, as by refusing to accept the credentials of a regime imposed by illegal
resort to force, for example, Kampuchea. See GA Res. 34/22 (Nov. 14, 1979); and 37/6 (Oct.
28, 1982). Conversely, the United Nations has refrained from condemning the use of force
under a questionable claim of self-defense when the end result of the action was not considered
reprehensible. For example, the Tanzanian invasion of Uganda in 1979 and its continued
occupation were not censured by the General Assembly or by the Organization of African
Unity. See N. RONZITTI, RESCUING NATIONALS ABROAD THROUGH MILITARY COERCION
AND INTERVENTION ON GROUNDS OF HUMANITY 102-06 (1985).

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1989] SELF-DEFENSE AND THE RULE OF LAW 265
Certainly, these various judgments are not binding or enforceable in the
way judicial judgments are supposed to be. Moreover, their objectivity may
be questioned because they often appear to be influenced more by political
attitudes than by legal standards. But these deficiencies are not the whole
story. Votes in international bodies show that the reactions to use of force
are not always dictated by political affinities in disregard of facts and law.
States that are friendly to, or even closely allied with, an accused state have
not hesitated to cast their vote against that state when the issues were clear.
Even the most powerful states have not been immune to censure by states
that normally would follow their lead. The overwhelming majorities that
have censured the USSR for its invasion of Afghanistan and condemned the
United States for its actions in Grenada and Nicaragua are notable exam-
ples.26 Clearly, international violence is not a matter of indifference to the
world; nor is it considered to be solely a political problem. States accused of
illegality take pains to show their conduct to be legitimate self-defense. They
are mindful of the political costs of adverse opinion even though they may
persist in the questionable use of force. It is significant that accused states do
not deny they are bound by international rules; they rest their justification
on factual assessments or interpretations that would bring them within the
law. The International Court of Justice took note of this tendency in its
1986 Judgment in the Nicaragua case, declaring that it confirmed the gen-
eral acceptance of the rules on force as binding law.27
Of course, such "acceptance" does not fully answer the perennial ques-
tion of whether the legal principles significantly influence states in their
planning or use of force. Political analysts often regard the legal justifica-
tions as after-the-fact rationalizations that have little, if any, effect on the
actual decisions. They maintain that, at bottom, such decisions are based on
considerations of power and interest, which nearly always prevail over con-
trary legal restraints. This broad generalization, which is probably widely
accepted, raises more questions than it answers. In particular, it leaves open
the critical issue of whether the limitations on the use of force are consid-
ered generally to serve the national interests and the security of states. To
counterpoise "interest" and "law" as conflicting factors in this context is
misleading. Even on the premise of an essentially anarchical, Hobbesian
conception of international society, the coexistence of independent states
and their mutually beneficial intercourse are seen to require some restraints
on the unilateral recourse to force. Hence, the position of states that self-
defense as defined by international law is the only ground for the unilateral
use of force is not in itself inconsistent with the realist thesis of national

26 GA Res. 37/37 (Nov. 29, 1982) (condemnation of the Soviet Union for its invasion of
Afghanistan); GA Res. 38/7 (Nov. 2, 1983) (condemnation of the United States for its invasion
of Grenada); SC Res. 562 (May 10, 1985) and GA Res. 40/188 (Dec. 17, 1985) (condemnation
of the United States for its trade embargo against Nicaragua); GA Res. 41/31 (Nov. 3, 1986)
(calling for U.S. compliance with the ICJ's Judgment in Nicaragua case).
27 1986 ICJ REP. at 98, para. 186.

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266 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

self-interest. It is realistic in recognizing that international violence has not

been eliminated by the legal prohibitions in the United Nations Charter or
by its collective security provisions and that, consequently, a right of self-
defense must be legitimized. It also recognizes, through the right of collec-
tive self-defense, that the targets of aggression may require armed assistance
by other states.
Recognizing these rights as exceptions to the general prohibition on force
necessarily presupposes that the exercise of the right is limited by law. If this
were not the case and each state remained free to decide for itself when and
to what extent it may use force, the legal restraint on force would virtually
disappear. It surely cannot be said that this result is perceived to be in the
national interest of states generally or, for that matter, in the interest of the
most powerful states. Neither the United States nor the Soviet Union can
realistically consider it in the national interest to recognize the unlimited
right of each to use force. They cannot therefore accept a self-judging
conception of the right of self-defense without, in effect, licensing the other
state to resort to force whenever it chooses to do so.
To say that self-defense must be regulated by law does not assume that
general rules are sufficient in themselves to ensure the security of all states.
The UN Charter and other relevant agreements make it quite clear that the
maintenance of peace and security requires more than agreement on princi-
ples of law. Decisions must be taken in specific cases. States must react in
words and deeds to claims of self-defense when force is used. Such responses
are not automatic or foreordained; they involve acts of will and, therefore,
assessments of interest and power. Governments rarely, if ever, make such
decisions "solely" or "purely" on legal grounds; they are not expected to
behave like a court. But whatever factors determine such decisions, once
made they become part of the law-shaping process, influencing expectations
as to the acceptability of future actions influencing use of force. Most gov-
ernments recognize this. Whether or not they are themselves involved in the
particular conflict, they are aware of the implications for other conflicts and
often of their own interest in avoiding the spread of hostilities. Legality
matters to them, not only as rhetoric to win support, but also as a factor to be
taken into account as part of the effort to contain violence and reduce the
risks of escalation.28

DEFENSIST PRINCIPLES AND THE LEX SPECIALIS

A critical question affecting both law and policy on self-defense concerns
the degree of uncertainty or indeterminacy that inheres in the proclaimed

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

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1989] SELF-DEFENSE AND THE RULE OF LAW 267
legal limits. Some indeterminacy results from the key standards of necessity
and proportionality, concepts that leave ample room for diverse opinions in
particular cases. Other sources of uncertainty can be traced to differing
interpretations of the events that would permit a forcible defensive action.
Varying views have been advanced by governments and scholars relating to
the kinds of illegal force that would trigger the right of an armed defensive
response. While strong positions have been taken by nearly all states against
"preventive" or "preemptive" war, some uncertainty remains as to threats
of force that credibly appear as likely to result in imminent attack.29 Other
issues, highlighted by the Nicaragua case, concern the illegal use of force
through subversion, supply of arms, and logistic support of armed forces as
sufficient ground for defensive response.30 It is not entirely clear to what
extent self-defense responding to an armed attack embraces the use of force
as a deterrent to future attacks.31 Nor is there agreement on the circum-
stances that would permit a state to intervene (or "counterintervene") in an
internal conflict under the principle of collective self-defense.32 Even more
unsettling is the uncertainty about the first use of nuclear weapons, the
targeting of civilian centers and the proportionality of retaliatory action.33
These controversial issues indicate that the rules of self-defense fall far
short of a code of conduct that would provide precise "hard law" for many
cases likely to arise. Even though governments have a stake in securing
clarity as to what is permitted and forbidden, there are obvious limits to
achieving that objective. General formulas accepted as law are subject to
continuing interpretation and, therefore, to fresh arguments as to what the
law should be. Concrete situations create new perceptions and "accom-
plished facts." At times, the line between violations and emerging law may
be difficult to draw, made more difficult by the absence ofjudicial authority
and the great disparities in power in the international community. Lawmak-
ing authority does not reside in majorities in international assemblies, even
though large majorities cannot usually be ignored.34 Powerful states-that

29 See Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1634-35
(1984); McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 AJIL 597 (1963); Sadurska,
Threats of Force, 82 AJIL 239 (1988).
30 1986 ICJ REP. at 123-25, paras. 244-45. For critical comment, see Hargrove, The Nica-
ragua Judgment and the Future of the Law of Force and Self-Defense, 81 AJIL 135 (1987).
31 See Schachter, supra note 29, at 1638; Y. DINSTEIN, supra note 3, at 208-12.
32 Schachter, supra note 29, at 1641-44. See also Resolution of Institut de Droit International
on the Principle of Non-Intervention in Civil Wars, 56 INSTITUT DE DROIT INTERNATIONAL,
ANNUAIRE 544, 549 (1975); Moore, Toward an Applied Theory for the Regulation of Intervention,
and Bowett, The Interrelation of Theories of Intervention and Self-Defense, in LAW AND CIVIL WAR
IN THE MODERN WORLD 3 and 38, respectively (J. Moore ed. 1974); Perkins, The Right of
Counterintervention, 17 GA. J. INT'L & COMP. L. 171 (1986).
33 See F. Boyle, The Relevance of International Law to the "Paradox" of Nuclear Deterrence, 80
Nw. U.L. REV. 1407 (1986); Reisman, Nuclear Weapons in International Law, 4 N.Y.L. SCH. J.
INT'L & COMP. L. 339 (1983); Weston, Nuclear Weapons Versus International Law, 28 MCGILL
L.J. 542 (1983). On targeting, see R. JERVIS, THE ILLOGIC OF AMERICAN NUCLEAR STRATEGY
71-72 (1984).
34 See Schachter, International Law in Theory and Practice, 178 RECUEIL DES COURS 111-23
(1982 V).

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268 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

is, those with the ability to control the outcome of contested decisions-may
determine patterns of conduct for other states, as well as for themselves. But
their ability to do so is limited by the checks and balances inherent in the
distribution of power and, in particular, by the nuclear setoff.35 Clearly, the
two superpowers are not all-powerful hegemons able to exercise complete
control over the use of force by weaker states, not even by all those close to
their borders. The rough parity of power between them undoubtedly con-
tributes to restraint. It does not eliminate, however, the struggles within
states that erupt beyond their borders or the localized hostilities between
neighboring states that threaten to spread. The application of legal rules in
these cases and the formulation of new rules derived from practice "ac-
cepted as law" are not decided by the great powers alone. Bipolarity of
power is a significant structural feature of present international society, but
it is only one of the many factors that affect the positions of states on the
lawfulness of force used in self-defense.
Notwithstanding its relative indeterminacy, self-defense as a legal norm
can have an ascertainable relationship to the policies and actions of govern-
ments. The "defensist" principle-namely, that self-defense is the only
legitimate reason to use force against another state-has been expressed as
the strategic policy of most states. Evidence for this is not only found in
governmental statements to international bodies, where they may be ex-
pected. Recent studies by political scientists and students of military strategy
confirm the practical implications of defensist doctrine.36 When states pro-
claim the principle of self-defense as governing the use of force, they have a
stake in its credibility to other states and to their own citizens. For such
states to be credible, their weapons, training and contingent planning must
reflect a defensist strategy.37 Their good faith can be tested by their willing-
ness to consider ways to reduce threats and resolve conflicts without using
force. Hence, a defensist posture is not merely one of restraint but a source
of policy that goes beyond the essentially negative rules of the law. It has
obvious implications for such protective activities as monitoring and inspec-
tion. It calls for limitations on weaponry and balance among adversaries.
The danger that systems which purport to be defensive may be perceived as'
offensive and therefore "destabilizing" becomes a matter of central con-
cern. The most obvious consequence of defensist doctrine is that states no
longer consider that they may invade other states for objectives that were
considered in prior periods as legitimate and appropriate. Thus, the naked
use of force for economic gain, or to avenge past injustices, or civilize

3 On the complexity and limits of the nuclear balance, see R. BETTS, NUCLEAR BLACKMAIL
AND NUCLEAR BALANCE 180-233 (1987).
36 M. CEADEL, THINKING ABOUT WAR AND PEACE 72-88 (1987); THE CONVENTIONAL
DEFENSE OF EUROPE (A. Pierre ed. 1986); STOCKHOLM INTERNATIONAL PEACE RESEARCH
INSTITUTION, POLICIES FOR COMMON SECURITY (1985).
37 See, e.g., Carlucci, Is Moscow Really Tilting to Defense?, N.Y. Times, May 6, 1988, at A39, col.
1; Odom, Soviet Military Doctrine, 67 FOREIGN AFF. 114 (1988). General Secretary Gorbachev's
address to the UN General Assembly in December 1988 urged force reductions on the basis of
"reasonably sufficient" defense capability. UN Doc. A/43/PV.72 (1988).

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1989] SELF-DEFENSE AND THE RULE OF LAW 269
"inferior" people, or vindicate honor, or achieve "manifest destiny," is no
longer asserted as national policy. Seen in the perspective of history, this is a
profound change in the relations of states.
I do not mean to suggest that power-or more precisely, relative power
differentials among states-no longer matters. Acceptance of the legal
norm of self-defense as the sole legitimate use of force has not eliminated
military strength as a major factor in the relations of states. States will react,
as they have in the past, to perceived power imbalances that are seen as
threatening their present position and vital interests. Disparities in power
may involve implied or sometimes express threats of force to influence
behavior of other states. Armaments and military alliances are considered
necessary and legitimate responses to such threats. Neither the Charter nor
customary law imposes limits on the size or composition of armed forces or
on military pacts for defense. States are legally free to deploy their forces as
they choose within their territories or in the territories of consenting states.
They are also entitled to deploy armed force in areas beyond national
jurisdiction (notably, the high seas), except insofar as they have entered into
treaties to limit such activity. The military establishments and the protective
measures of states are governed, by and large, by national defense policies
and the "politics of security," rather than by the international law govern-
ing use of force and self-defense.
Even so, international law is not entirely excluded. It becomes relevant to
national security policy in different ways, all rooted in the idea that force
should not be used or threatened except in self-defense. States that accept
this defensist principle, as nearly all claim to do (though future exceptions
cannot be ruled out), are faced with heavy costs-political as well as eco-
nomic-when they seek security by unilateral action. Such costs may be
reduced by mutual arrangements with possible adversaries. But the choice
may involve the so-called security dilemma, namely, the likelihood that
unilateral measures intended to increase a nation's security decrease the
security of others, whereas joint measures, although less costly, involve a
measure of insecurity because of the fear of violations by the other parties.38
The risks contribute to the complexities of international negotiations con-
cerning mutual security. Whatever the dynamics of such negotiations and
the obstacles encountered in particular cases, we now find many arrange-
ments, bilateral and multilateral, that involve reciprocal restraints on na-
tional military activity. They extend to kinds of weapons, deployment of
forces, military exercises, testing and in some cases size of forces.39

38Jervis, Security Regimes, in INTERNATIONAL REGIMES 173 (S. Krasner ed. 1983) [herein-
after Krasner]; Herz, Idealist Internationalism and the Security Dilemma, 2 WORLD POL. 157
(1950).
39 Existing treaties include those establishing nuclear-free zones, prohibiting proliferation,
and limiting size and number of weapons. See, e.g., Treaty on the Non-Proliferation of Nuclear
Weapons,July 1, 1968, 21 UST 483, TIAS No. 6839, 729 UNTS 161; Treaty on the Limita-
tion of Anti-Ballistic Missile Systems, May 26, 1972, U.S.-USSR, 23 UST 3435, TIAS No.
7503; Treaty on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (the
INF Treaty), Dec. 8, 1987, U.S.-USSR, S. TREATY Doc. No. 11, 100th Cong., 2d Sess.

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270 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

When these arrangements are embodied in treaties, they are readily seen
as part of international law, as instances of a lex specialis governing specific
activities for the states that are parties. Of course, states may also agree on
restraints in instruments that are not treaties, such as political declarations
or gentlemen's agreements or by tacit understandings expressed in recipro-
cal practices. Although these are not regarded as legal commitments, they
are observed and relied upon as long as the states concerned have a common
interest in maintaining the arrangement.40 Violations may be treated in
these cases substantially the same as they are treated in respect of treaties.
They may be grounds for protest or for terminating the arrangement or for
countermeasures. The difference between nontreaty regimes and treaties
may be important for domestic constitutional processes, but the distinction
may not make any significant difference in the observance of the rules and
restraints. In some cases, nontreaty practice becomes "special" custom rec-
ognized as legally obligatory customary law for the states concerned.4' Even
apart from this, the distinction between the formal treaty obligations and
the "rules of the game" based on tacit understandings and practice may not
have very much practical significance.
The point I wish to underline is that national security policies premised on
defense have produced a variety of international arrangements that enable
states, particularly potential adversaries, to impose limits on their military
establishments and activities in the well-founded expectation that others will
do the same. The costs of self-defense are thereby reduced, though states
still have to seek means of dealing with the risks of violation. Provision may
be made for verification, consultative procedures, countermeasures and
dispute settlement.42 Such measures strengthen the understanding that the
restraints are not simply arrangements of convenience to be broken at will.

(1988), reprinted in 27 ILM 84 (1988); Treaty for the Prohibition of Nuclear Weapons in Latin
America, Feb. 14, 1967, 22 UST 762, TIAS No. 7137, 634 UNTS 281 (the United States is
not a party). Future arrangements being considered in intergovernmental negotiations include
exchanges of detailed military information, advance notification of military movements, re-
ports on military expenditures, and measures for inspection and verification. Detailed pro-
posals on these lines were made in 1985 by European governments and the United States to the
Conference on Confidence Building established pursuant to the Helsinki Final Act of 1975.
Conference on Security and Co-operation in Europe: Final Act, Aug. 1, 1975, 73 DEP'T ST.
BULL. 323 (1975), reprinted in 14 ILM 1292 (1975).
40 See Schachter, The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296
(1977).
41 See Case concerning Right of Passage over Indian Territory (Port. v. India), Merits, 1960
ICJ REP. 6 (udgment of Apr. 12).
42 A recent example is the INF Treaty between the United States and the USSR, supra note
39. The necessity of verification and consultation is especially emphasized in arms control and
limitation agreements currently under negotiation. Agreements that seek to end long-standing
hostilities and interventionary activities are likely to call for more extensive commitments and
measures for mutual cooperation beyond the military area. The comprehensive draft Conta-
dora agreement for Central America remains a notable exemplar of a pact that would seek to
prevent military intervention through a wide range of cooperative measures in economic and
political areas, as well as in limits on arms and foreign bases. Contadora Act on Peace and
Co-operation in Central America, June 7, 1986, reprinted in 25 ILM 1302 (1986).

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 1989] SELF-DEFENSE AND THE RULE OF LAW 271
It is surely not inappropriate for governments as well as international law-
yers to treat these regulatory arrangements as part of the body of interna-
tional law, as rules of conduct, and not merely as transient power bar-
gaining.
The more controversial questions of self-defense have been raised by
actions and claims that would expand a state's right to use force beyond the
archetypical case of an armed attack on the territory or instrumentality of
that state. Such expanded conceptions of self-defense are exemplified by the
following uses of force by states claiming self-defense:

(1) the use of force to rescue Volitical hostages believed to face immi-
nent danger of death or injury;

(2) the use of force against officials or installations in a foreign state

believed to support terrorist acts directed against nationals of the state
claiming the right of defense;44

(3) the use of force against troops, planes, vessels or installations

believed to threaten imminent attack by a state with declared hostile
intent;45

(4) the use of retaliatory force against a government or military force

so as to deter renewed attacks on the state taking such action;46

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

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

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

43 Rescue actions were undertaken by Israel in Entebbe, Uganda in 1976 and by the United
States in Iran in 1980. An earlier rescue mission was carried out in Stanleyville in the then
Congo by Belgium. For discussion of legal issues, see Schachter, supra note 29, at 1629-32.
44 E.g., the U.S. bombing of Libya. See DEP'T ST. BULL., No. 2111, June 1986; GA Res.
41/38 (Nov. 20, 1986); Statement of U.S. representative to UN Security Council, excerpted in
Contemporary Practice of the United States, 80 AJIL 632, 633-36 (1986).
45 E.g., the Israeli action against Egypt in 1967. See Dinstein, The Legal Issues of Para-War and
Peace in the Middle East, 44 ST. JOHN'S L. REV. 466, 469-70 (1970).
46 E.g., the Israeli military invasion of Lebanon in 1982. See SC Res. 509 (une 6, 1982); and
GA Res. ES-7/9 (Sept. 14, 1982). See also Feinstein, The Legality of the Use ofArmed Force by Israel
in Lebanon, 20 ISR. L. REV. 362 (1985); Mallison, Aggression or Self-Defense in Lebanon?, 77 ASIL
PROC. 174 (1983).
47 E.g., the U.S. support of the resistance (contras) in Nicaragua. See Nicaragua case, 1986 ICJ
REP. 14; see also Moore, The Secret War in Central America and the Future of World Order, 80 AJIL
43 (1986); Rowles, "Secret Wars," Self-Defense and the Charter, id. at 568.
48 E.g., the U.S. blockade of Cuba in 1962. See McDougal, supra note 29; Wright, The Cuban
Quarantine, 57 AJIL 546 (1963).
49 A recent example is the military aid to the resistance in Afghanistan given by Pakistan and
the United States. See J. COLLINS, THE SOVIET INVASION (1986). On the legal claim of the
USSR, see Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government,
56 BRIT. Y.B. INT'L L. 189 (1985).

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272 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

As indicated by the footnote references, these seven categories summa-

rize situations that have occurred in recent years. The list is not complete;
other extended self-defense claims have been asserted by governments to
justify their use of force or to threaten such use in some situations.50 Nearly
all the cases have been discussed in UN bodies and, although opinions have
been divided, it is clear that most governments have been reluctant to
legitimize expanded self-defense actions that go beyond the paradigmatic
case. Thus, no UN resolution has approved the use of force in any of the
cases that I have listed. In the few cases where resolutions were adopted that
passed judgment on the legality of the action, they denied the validity of the
self-defense claim. In many cases, resolutions were not adopted, but the
majority of states that addressed the issue of lawfulness criticized the actions
as contrary to the Charter. Few ventured to defend the legality of the
self-defense claim. Of course, political sympathies influenced the votes of
many of the states, but, as I observed earlier, in several notable cases, allied
or friendly states joined in condemnation of the actions. In at least some of
these cases, and perhaps all of them, the opposition to the self-defense claims
appeared to be based in part on a difference of view as to the facts. In many
cases, assertions of the state claiming self-defense were simply not believed;
in some cases, factual claims of both sides to the dispute were treated with the
utmost skepticism.
The uncertainty surrounding the factual claims and the not insignificant
political motivations are reasons that condemnation by governments in the
UN bodies cannot always be accepted as persuasive on the issue of lawful-
ness. On the other hand, such condemnations cannot be ignored; they
warrant consideration as relevant appraisals. Moreover, from a broader
perspective, the general reluctance to approve uses of force under ex-
panded conceptions of self-defense is itself significant. Such reluctance is
evidence of a widespread perception that widening the scope of self-defense
will erode the basic rule against unilateral recourse to force. The absence of
binding judicial or other third-party determinations relating to use of force
adds to the apprehension that a more permissive rule of self-defense will
open the way to further disregard of the limits on force. It is true that some
international lawyers believe that legitimate self-defense should be con-
strued more liberally. They argue that the absence of effective collective
remedies against illegal force makes it necessary, indeed inevitable, that
states take defensive action on the basis of their own perceptions of national
interest and capabilities. In addition to the imperatives of national security,
they cite the responsibility of powerful states to maintain international
order. They stress that the words of the Charter should be interpreted "in
context" so as to yield "reasonable" meanings required by the "purpose and

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

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1989] SELF-DEFENSE AND THE RULE OF LAW 273
object" of the text.5' Unilateral acts that stretch the meaning of self-defense
are treated as "state practice," although there is no general opinio juris to
support their acceptance as law. Hence, conduct that violates text and ear-
lier interpretations can be viewed as new or emerging law based on the
efficacy of accomplished facts in shaping the law.52 Some of these argu-
ments, if accepted, would extend the conocept of self-defense so broadly as to
allow almost any unilateral use of force taken in the name of law and order.
There is no evidence that governments by and large would favor this result.
On the contrary, the records of the United Nations, as already mentioned,
show strong resistance to widening self-defense to permit force except
where there has been an armed attack or threat of imminent attack. It does
not seem likely that this resistance will disappear in the foreseeable future.
This does not mean, of course, that the law of self-defense will remain
static. The kaleidoscopic events of our era will continue to create new
pressures for resort to force. The role of international law cannot be limited
to repeating the old maxims. What its role should be calls for further consid-
eration. In the next section, I offer some thoughts and suggestions.

ENHANCING SECURITY THROUGH LAW AND INSTITUTIONS

To begin with, a clear distinction should be maintained between law as an

expression of common policy and purpose and the use of law for rationaliza-
tion of state action. If law is to operate as a limit on national power, it will
lead to judgments of legitimacy that diverge from a particular state's per-
ception of national interest at a given time. True, such divergence may be
reduced by redefining or widening the conception of national interest to
include the long-term interest in stability and order. But changing the con-
ceptions of national interest is easier said than done. In a concrete case,
national leaders and their citizenry may hold to their particular view of state
interest, even though clearly incompatible with the law and the "enlight-
ened" views of others. To conclude that law must yield to such judgments of
national interest negates the idea of law as a restraint on state conduct. This
is not to say that international law can replace the continuing task of defin-
ing national interests and the defense needs of a state. That there may be a
conflict between such national goals and the restraints of international law
must be acknowledged. Recognizing such tension is an important step to-
ward reconciliation of the competing interests.
One path toward reducing the tension between defense needs and legal
rules of restraint lies in the specific agreements referred to earlier as the lex
specialis. Such agreements may be explicit or they may be tacit. They may

51 See M. S. MCDOUGAL & F. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER
207-61 (1961); Moore, supra note 8.
52 See, e.g., Reisman, Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary
International Law and Practice, 13 YALEJ. INT'L L. 171, 182-85 (1988). For a different analysis
of violations and practice, see Schachter, In Defense of International Rules on the Use of Force, 53 U.
CHI. L.R. 113, 128-31 (1986).

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274 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

even be legally nonbinding (as are gentlemen's agreements) and still relied
upon for mutual compliance. By moving from the abstract level to the
concrete, states can achieve rules of behavior that are perceived to support
the common interests in security and reduced defense costs. Such agree-
ments, it is true, may be frangible, but while they last, they add to the sense
of security. De Gaulle once remarked that "treaties are like roses and young
girls; they last while they last." That they do not last forever is no reason to
minimize them. Indeed, like some fashions, they would be intolerable if they
did not change.
Specific agreements concerning defense rarely go beyond reciprocal neg-
ative restraints when the parties are adversary. In contrast, agreements
among states that share a common defense interest tend to involve more
positive cooperation. But adversary states that are apprehensive about the
threat of others may also benefit from arrangements that entail cooperation,
such as exchanges of information and other confidence-building proce-
dures. Some of the recent arms limitation agreements between the super-
powers are steps in that direction.53 Other agreements between former
adversaries provide for cultural relations, free movement of persons, nor-
mal trade.54 Agreements of that kind can create a sense of diffuse reciproc-
ity and generalized commitment that strengthens compliance.55 In the cur-
rent parlance of political science, they may become "security regimes."
The adoption of such treaties and regimes for particular areas or activities
would not exclude a continuing reference to the general principles of self-
defense set forth in the Charter and authoritative customary law. If such
principles are to be treated as law rather than after-the-fact rationalization,
they must be applied to concrete cases in a disciplined and consistent way.
This process entails an analysis that takes rules seriously and does not "de-
construct" them, making all meanings permissible. Legal reasoning helps to
limit purely subjective interpretation. Textual exegesis, original intent, rele-
vant context, evolving purposes, and practice "accepted as law" are ele-
ments in such reasoning. So are applicable doctrine and basic postulates of
law. These elements cannot be reduced to a single governing factor. Every
legal analysis, moreover, must take account of the complexity of the particu-
lar situations and their relationship to the dominant ends of the law in
question. Yet the factual uniqueness of each case cannot obliterate the limits
set by the general rules. If law is to be relevant, a state's right of self-defense
in a particular situation must have as its necessary corollary recognition of
the right of all other states in comparable cases.
This proposition not only is implicit in the idea ofjuridical equality; it also
underlines the need for criteria that are generally recognized and accepted
as authoritative. Ad hoc judgments that are purportedly based entirely on

" See notes 39 and 42 supra.

54 E.g., Treaty of Peace, Mar. 26, 1979, Egypt-Israel, Art. III, 18 ILM 362, 364 (1979). The
Helsinki Final Act of 1975, supra note 39, provided for a broad range of cooperative relations
-economic, cultural, exchange of information, etc.-among former adversaries.
" See Keohane, The Demandfor International Regimes, in Krasner, supra note 38, at 141, 158.

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1989] SELF-DEFENSE AND THE RULE OF LAW 275
the facts and an undefined standard of "reasonableness" tend to be largely
determined by crypto-criteria that reflect particular preferences and values.
Such judgments are not likely to help clarify the line between permissible
and impermissible conduct carried out in the name of self-defense. Further-
more, they will be perceived as lackingjustification based on norms that the
community of states-not just part of it-has accepted.
It is true that standards for determining the legitimacy of defense will
necessarily be somewhat abstract. They will not be fully determinate for
they will have to be interpreted and applied to individual cases. Facts, analy-
sis and deliberation will be required to reach appropriate conclusions that
take into account both standards and circumstances. A process of reasoning
involving the interaction of principle and situation (i.e., casuistry in its favor-
able sense) is required. Moreover, that process and the continuing reflec-
tions of governments and international lawyers extend beyond the elabora-
tion of established doctrine. They involve, as they should, the development
(or construction) of more specific standards appropriate for changing cir-
cumstances. To some extent, such standards emerge through the responses
of states faced with new situations. This type of ongoing law-generating
process calls for continuing appraisal by international lawyers, as well as by
governments.
Of equal importance to the elaboration of standards are the processes for
application of the standards to particular cases. International lawyers earlier
in this century emphasized the preeminent value of judicial determination
and many urged the extension of the compulsory jurisdiction of the Interna-
tional Court. The more hopeful among them envisaged the Court as an
arbiter of major disputes, not excluding acts of aggression. The Nuremberg
Judgment reinforced that image. In the 1 950s, American lawyers, generally
conservative, called for the "rule of law" through compulsory jurisdiction
of the International Court.56 Leaders such as Eisenhower and Nixon fa-
vored greater use of the Court.57 But as most governments failed to re-
spond, the Court was increasingly seen to be marginal, limited to technical
legal disputes. With the Tehran Hostages case and, more dramatically, the
Nicaragua case, the Court was seized of disputes involving force. Its deci-
sions in the Nicaragua case produced misgivings (as well as support) and they
also gave rise to a rather more profound debate than had previously oc-
curred on the role of adjudication and on compulsory jurisdiction.58 (Not at
all profound and, one would hope, quickly forgotten were the diatribes
against the Court.) Notwithstanding the criticism of the Nicaragua decision

56 See Rhyne, The Athens Conference on World Peace Through Law, 58 AJIL 138 (1964); Franck
& Lehrman, Messianism and Chauvinism in America's Commitment to Peace Through Law, in THE
INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS 3, 6, 15-17 (L. Damrosch ed. 1987)
[hereinafter Damrosch].
57 Franck & Lehrman, supra note 56, at 5, 6.
58 See Damrosch, supra note 56, especially articles by Bilder, Weiss, Damrosch, Gordon and
Highet. See also Appraisals of the ICJ's Decision: Nicaragua v. United States (Merits), 81 AJIL 77
(1987); Scott & Carr, The ICJ and Compulsory Jurisdiction, id. at 57.

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276 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 83

by U.S. officials and some lawyers, the role of the Court remains on the
international agenda. The recent Soviet proposals for compulsory adjudi-
cation, though sketchy, have opened up new possibilities.
It is worth noting for our present discussion that the Soviet suggestions on
jurisdiction of the Court were part of a set of proposals for a "comprehen-
sive system of international peace and security."59 This suggests that cases
involving force and self-defense might be considered as falling within the
USSR's proposal for compulsory jurisdiction. It remains to be seen whether
the two superpowers and other major powers would accept some agreed
formula allowing such cases to be covered by compulsory jurisdiction. The
recent, rather sweeping assertion by some U.S. lawyers that no case involv-
ing force is appropriate for the Court might not be persuasive if agreement
can be reached on some categories of such claims. It will be recalled that in
the 1 950s the United States itself sought to bring to the Court claims arising
from the shooting down of its planes in Eastern Europe.60 The Hostages case
against Iran would not have been admissible if the United States earlier had
excluded cases involving force from its treaty commitment.6' Having these
cases in mind, it hardly seems perilous for a state to agree to adjudication of
cases involving acts of force such as shooting incidents or isolated attacks,
under reciprocally binding acceptances of compulsory jurisdiction. Officials
distrustful of international tribunals, especially in matters affecting security,
sometimes argue that the Court should not be "burdened" with conse-
quential disputes likely to be seen as political. On the other hand, we should
not overlook the value of a judicial decision holding a state accountable in a
matter of some consequence. The Hostages case against Iran is a pertinent
example. The assumption, sometimes made, that the Court needs to be
"protected" against important controversies is surely open to question. It is
unlikely that a tribunal limited to minor technical disputes would fulfill the
need and expectations for an authoritativejudicial organ. The International
Court would not be greatly respected if it became the international equiva-
lent of a small-claims court. I see no good reason for international lawyers
now to argue for the principle de maximis non curat praetor.62
Nevertheless, we must be wary of assuming that recourse to a court will
resolve all disputes reducible to legal issues. In a technical (or Pickwickian)
sense, this may be true. Every dispute can be construed as a question of
whether conduct objected to is permissible or not under international law;
hence, logically all disputes are susceptible to judicial determination. But
this reasoning obviously misses the reality of disputes that, in substance, are
not about differences in the meaning of the law. A court will not truly
resolve such disputes even if given jurisdiction. We must reconcile ourselves
to the fact that, at best, judicial regulation of armed conflicts will remain

59 UN Doc. A/43/629 (1988).

60 See Schachter, Disputes Involving the Use of Force, in Damrosch, supra note 56, at 223.
61 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ REP. 3
(Judgment of May 24). See also Schachter, supra note 24.
62 See H. LAUTERPACHT, supra note 10, at 183 et seq.

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1989] SELF-DEFENSE AND THE RULE OF LAW 277
peripheral, most likely limited to cases arising out of specific incidents of
limited scope and duration.
Clearly, we must look beyond the Court in order to reinforce the account-
ability of states for improper resort to force. The heart of that effort lies in
fact-finding, review and appraisal by international agencies in a variety of
contexts. With regard to self-defense, accountability requires respect for the
obligation under Article 51 to report armed action claimed to be defensive.
To give effect to that obligation, governments must report the facts openly
and truthfully. This would impose limits on secrecy, though in some cases
military necessity might be an acceptable ground for limited reporting.
Accountability can also be given effect in many situations by monitoring and
verification arrangements, particularly by international agencies. The re-
newed interest in treaties that provide for verification and monitoring is
promising. There is surely ample room for more extensive use of observers,
truce supervisors and peacekeeping forces to assist in determining the facts
in disputes about the use of force and self-defense. Institutional procedures,
such as those of the UN Security Council, the regional organizations and the
international secretariats, require strengthening to ensure that factual re-
porting and monitoring are effective. The deliberative processes of interna-
tional organs require adaptation for the appraisal of facts and the claims of
the disputing parties. Obviously, these various steps are not the exclusive
province of the international lawyers, though the skills of lawyers in regard
to procedures of fact-finding and dispute settlement would be helpful.
It is tempting to lawyers to call for the rule of law in international affairs.
The temptation is not resisted in this essay, though much of it is concerned
with the obstacles to realizing the ideal. The relationship of national security
and international law is inevitably complicated and fluid. I have not tried to
simplify it, but I have accepted a basic premise-namely, that the right of
self-defense, "inherent" though it may be, cannot be autonomous. To con-
sider it as above or outside the law renders it more probable that force will
be used unilaterally and abusively. No state or people can face that prospect
with equanimity in the present world. The answer, in part, is that self-de-
fense must be regarded as limited and not only legitimated by law. To give
this conception reality requires more than juridical doctrine. It demands, as
I have suggested, a structure of accountability built upon obligations, pro-
cedures and institutions. The political will that is necessary depends on
understanding both the danger of unbridled force and the necessity of legal
and institutional control. Recent events, as I have noted, offer some promise
of that development. It is through such concrete measures that international
law may in time strengthen the national security of all states.

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