McNair Paper Number 33 Chapter 7, January 1995 (Continuation)
The imperfections of this world will not soon be eliminated, so decisionmakers must be careful to employ their foreign policy tools responsibly. This is a moral imperative because while "there is such a thing as Raison d'Etat. . . . On occasions it spills blood."(Note 7)
The policy of acting in support of a set of principles considered conducive to world peace is a good start. These principles must include a commitment to preserving justice as well as peace. The Charter of the United Nations articulates a set of principles that reflect the collective values of its framers. It was also accepted as legally binding by the United States. The bottom line of the system established therein is that force may be appropriate when justice is at stake, and force is always permitted for self-defense under Article 51.
The "justice" of an armed conflict is to be determined by whoever is chosen by the parties to a dispute to help mediate, arbitrate, or adjudicate their disagreement (under the peaceful settlement procedures of Article 33 of the Charter). Or, the Security Council can define justice and impose a solution as a political decision under Article 39.(Note 8) The legality of an individual state's subjective political assessment of "justice" also can be determined through a decision by the International Court of Justice, which is binding on parties to a case under Article 94 (1) of the Charter.(Note 9)
To avoid conflicts pitting the great powers against one another, the United Nations cannot legally decide to take action which a Permanent Member of the Security Council votes against. This means that in some cases the "veto" of a Permanent Member can frustrate the political process of Article 39 by preventing a decision regarding which side to a dispute is just and what action should be taken to resolve the dispute. Or, a Permanent Member could prevent the Security Council from deciding on enforcement measures, expected under Article 94 (2) of the Charter,(Note 10) to uphold the legal decisions of the International Court of Justice. In effect, differing views of "justice" can frustrate the positive law.
All that can be expected in such situations is that states act in a manner consistent with the basic principles of the Charter. Barring a qualified majority consensus in the Security Council, states are free to decide the justice of the situation for themselves. They can then take action in varying degrees in collective self defense of one side or the other--or declare themselves neutral. Whether there should there be another option is discussed in chapter 8.
Applying this philosophy of acting in accordance with the principles of the Charter to decisions regarding U.S. naval diplomacy operations can best be done by committing naval forces to situations where "rights" can be cited as well as "interests." The right of self-defense guaranteed by Article 51 is quite broad but there is a qualitative difference between defending what is legally seen as a right and what is asserted as an interest. Using power to influence or coerce where only interests justify the action will weaken the peace by providing precedents that can be cited with political effect by states with hegemonic or other narrow policy motivations. U.S. actions that might justify others so motivated cannot be part of a pursuit of justice in the international community.
Although it is frequently possible to have competing rights, those situations sometimes can be understood and resolved in terms of competing priorities. They lend themselves more readily to the methods of peaceful settlement. When the issues in conflict involve interests alone, and they have come to the point where the peace is threatened, while the law might address issues such as economic need and equity, reality will tend toward political clout and "might makes right" types of resolutions which undermine international stability in the long run.
Even when action is considered expedient to force a quick just solution to a dispute, if "rights" are not involved, "justice" becomes highly subjective, and the action may do more harm than good in terms of the precedents set. Power used where persuasion and diplomacy could accomplish the same ends is power abused. And, as Professor Rubin explains:
Ignoring the weapons that traditions of law place at the disposal of United States negotiators to further United States interests in "political" disputes does not simplify the world, it complicates it, and United States economic interests in stability and peace suffer as well as United States political and military interests.(Note 11)
Beyond more awareness of the legal situation, which in no way prevents behavior in accordance with firmly held values and priorities, the facts of the situation must be plainly addressed. When the United States, in responding to its values and priorities, finds that it must abandon impartiality, the intention to defend the right to do so should be openly stated. This removal of ambiguity regarding intentions will increase the deterrent effect of U.S. power. It will also alert U.S. military forces to the danger of that deterrence failing and suddenly openly involving them in armed conflict, perhaps at the initiative of the other side.
Talk of peace and neutrality and orders stressing the importance of a legal status already abandoned or compromised can deceive responsible military leaders about the imminence of the threat they face instead of focusing them on the increased need for a vigilant defensive posture. DOLPHIN's small boat, PANAY, Pearl Harbor's battleship row, LIBERTY, PUEBLO, the ill-fated EC-121, the sailors and Marines lost in Beirut, and many others are foreboding reminders of the costs.
When such risks are understood, chances improve for minimizing losses. Vietnamese motor torpedo boats sunk in the Gulf of Tonkin and Libyan gunboats and fighters at the bottom of the Gulf of Sidra bear witness to that. Commanders in those incidents did not surrender the advantage of surprise to the enemy. Awareness of the threat was recognized in a timely manner, thus preventing unnecessary American losses.
If a purpose of law in war is to help attain a better peace than existed before its outbreak, then law that regulates war should be framed to control the scope of the conflict. Law that precipitates unnecessary escalation moves the war further from the peace and makes its restoration more difficult. Such law would then defeat its own purpose, and it would not be good law.
Good law must consider practice and regulate that practice as feasible. Infeasible controls lead inevitably to violations that, in turn, lead to broadening of the conflict and a lack of respect for law.
The law of neutrality is intended to protect states from the effect of wars they can afford to avoid or cannot afford to join; impartiality does not always provide the best path to that end. This fact is given tacit recognition by the neutrality regimes of the Suez and Panama Canals. The canals are open to the ships of belligerents equally, and the use of the waterways by belligerent ships is not considered a violation of the neutrality of Egypt or Panama as other uses of their territory would.(Note 12) Likewise, neutral states are required not to close international straits within their territorial seas in time of war. Waters within the territory of the neutral state remain as accessible to belligerents as the high seas for the purpose of transit.
These examples can be seen as granting a primacy for the concept of freedom of the seas over neutral duties. Or, they can be seen as an acknowledgement of something more pragmatic. A neutral trying to deny a belligerent access to international waters even though it passes through its territorial sea might soon find the belligerent conducting an operation to ensure its ability to use those waters, if such action were at all within its power. This would broaden the combat and bring the neutral into the fighting.
So the law of neutrality provides limits validated by history and guidance for behavior based on pragmatic policy concerns of all states. But the law of neutrality may not accommodate clearly--as yet--the reality of the world the United States must deal with without great risks.
Recognizing this situation, it follows that if a power finds itself in situations that prevent full impartiality, but still desires to avoid participation in the war, good law would not only permit but would protect that option where it was also seen as in the interest of all states.
The question remains, can the law that has survived so long in the face of such violent conflicts be amended by the consent of the states it serves and who enforce it? And, would such a modification remove problems or merely change the problem set?