Legality Undermined?

Even as President Nixon was announcing the mining of North Vietnamese ports, the U.S. Ambassador to the U.N., George Bush, moved to inform the Security Council. According to prescribed protocol, such formal notification is made to the Council president, but this month that regularly rotated position happens to belong to the U.S. representative, namely Bush. Bush ceremonially addressed his letter and then delivered it to himself, informing himself that the U.S. had a legal right to take action under the U.N. Charter's doctrine of "collective self-defense."

The mildly pointless ritual underscored old questions: Can international law have any real value in limiting armed conflict? Do the complex doctrines of law simply disguise the fact that might makes right? Could the doctrines work if they were generally observed--or enforced?

Consider blockades, for instance. Nixon pointedly did not declare a blockade, but he clearly hopes his actions will have that effect. To international lawyers, however, the term blockade has traditionally had a quite specific meaning. One principal requirement is that a legal blockade must be enforced by enough ships to police all incoming and outgoing vessels. This "effectiveness" requirement was constructed to end "paper" blockades, such as the one Napoleon declared in 1806 to pressure other nations into ending trade with the British. International maritime lawyers ultimately agreed in the 1856 Declaration of Paris that anyone who wanted to exert such pressure should pay the price of actually maintaining the necessary force. Relatively thin blockades were still attempted, however, notably during the Civil War when the North interdicted 3,000 miles of Southern coastline with 42 ships.

Mines are also conceded to be legal weapons under the Hague Convention of 1907, an early major agreement on the rules of sea warfare. Even so, if they are unanchored, they must self-deactivate within one hour after control over them has been lost; similarly all anchored mines must be equipped to deactivate if they slip their moorings. The obviously sensible purpose is to prevent armed mines from drifting into international shipping lanes. The Hague Convention also prohibits the mining of "the coasts and ports of the enemy with the sole object of intercepting commercial navigation." But since mining to block warships is held to justify the blocking of commercial shipping, President Nixon specifically claimed he wanted to prevent "North Vietnamese naval operations."

The situation presents other legal complexities. A U.S. State Department official conceded last week that the Government could cite no precedent from other wars for its action, but he pointed out that the North Vietnamese have also sown mines. The most questionable aspect of the U.S. legal position is the lack of a declaration of war. Writing in 1967 in a military legal journal, Navy Captain Geoffrey E. Carlisle stated that "without a state of war, a blockade [of Haiphong] would be of doubtful legality. A similar analysis could be made with respect to mining harbors."

No Tribunal. Does a declaration of war really matter? Are the so-called laws of war merely pieces of paper? Obviously passage of a law cannot eliminate war--any more than domestic laws can eliminate violence--but by seeking to codify how and when a war may be fought, legal authorities hope that it will occur less often and less savagely. Yet realities keep shifting.

The Kellogg-Briand Pact of 1928 banned aggressive war as an instrument of national policy. Still, international law, like criminal law, permits any nation to defend itself against aggression. But what is aggression? Is North Viet Nam attacking across an international frontier, as Nixon charged in referring to "the international outlaws of North Viet Nam," or is Viet Nam one nation torn by civil war. The sad answer is that for such disputes there are few universally recognized legal standards and no international tribunals with the power of enforcement. Thus the ultimate settlement of conflicts is simply military force (as in Viet Nam) or the threat of force (as at Suez in 1956).

Specialists in international law are agreed upon the need for updating, though they differ on exactly how much adjustment to reality is advisable. As Harvard Law Professor Roger Fisher points out, a law that in effect says "whatever is reasonable is legal" is like a law saying that "whatever is the best policy is honest." Establishing rules and then sticking to them will provide order, while endless bending to reality will encourage the opposite.

Hard as the task of finding such principles will be--and unlikely though such determinations may be for the foreseeable future--international law is not quite yet a mere intellectual indulgence. In a recent Harvard Law Review, Professor Abram Chayes presents a sophisticated analysis of the anticipated arms-limitation agreement (SALT). Far from being subject to impetuous violation, the treaty will acquire a self-enforcing quality, says Chayes. Because of governmental bureaucracies and conflicting needs within them, the status quo has the advantage of inertia. Moreover, those who rise in the bureaucracy will tend to be those who made successful arguments in the negotiation of the treaty; they will have a vested interest in making it work.

The perception of bureaucratic self-interest, if expanded, leads to the path that is ultimately vital to all international law. Governments are currently unwilling to sacrifice the possibility of a short-term gain to the greater principle of world order through law. So they do what they feel they can get away with, and reject charges of illegality. When--and if--they come to see that the long-term goal is worth a few immediate losses in court, then international law will finally have a base on which to build the strength it now so conspicuously lacks.

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