THE USE OF LAW IN THE PURSUIT OF FOREIGN-POLICY OBJECTIVES

In analyzing the role of legal norms in the conduct of foreign policy, it is impor­tant to remember that many of the customs, treaties, and doctrines of interna­tional law are designed to regulate essentially private transactions between citi­zens of different nations. They are not necessarily concerned with the types of issues arising from conflicts over incompatible collective objectives. A substan­tial portion of existing treaties and legal principles create obligations and provide the ground rules for actions and transactions relating to foreign investment, fishing and conservation, extradition of criminals, maritime traffic, payment of damages of foreign citizens, citizenship, responsibility of minor police officials for actions against noncitizens, and so forth. Such affairs normally do not involve major collective interests, even though violations of established procedures or rules may create nasty incidents. The distinction between a routine and vital matter in foreign policy is not always clear, of course, but great international crises seldom arise out of breaches of law affecting the interests of private citizens.

In dealing with the problems of private citizens and business enterprises, governments tend to rely heavily on established bureaucratic procedures. Since most governments apply approximately similar norms to these transactions, the element of opposition and conflict is reduced and in many cases eliminated. Even where violations of law have occurred against private citizens and their interests, governments are no longer likely to translate these problems into diplomatic conflicts, particularly where relations between the two states are rela­tively cordial. A great expansion of private and intergovernmental routine trans­actions has occurred during this century, and even though we are not often reminded of the fact, the vast majority of these transactions and the decisions associated with them are based on principles of international law. In these areas of foreign relations, governments have at least approached the ideal of the "rule of law."

The extreme opposite situation is where governments perceive a threat to vital collective, or core, objectives and interests. What role do legal principles play in the typical crisis situation? In crises, legal obligations and the demands for effective action (in the sense of creating deterrents, making threats, or under­taking policies that essentially seek to punish the opponent) often conflict. In relationships typified by great hostility, incompatibility of objectives, and use of force by the other side, no statesman could be expected to attach absolute value to law observance if by doing so he would sacrifice all his other objectives, including the security of his country. In a crisis, even the most legally minded statesman chooses to use whatever techniques of statecraft or actions are neces­sary to achieve or defend stated objectives, even when he is fully aware that to do so involves deliberate violation of treaties or legal principles. In 1939,

369 Law and World Opinion in Explanations of Foreign Policy

for example, Winston Churchill, as first lord of the Admiralty, recommended that the Royal Navy plant mines in the territorial waters of neutral Norway in or­der to prevent the shipment of iron ore from Sweden to Nazi Germany. Church­ill knew that such action would violate Norway's neutrality and territorial waters, but defended his recommendation on the ground that "the letter of the law must not in supreme emergency obstruct those who are charged with its preservation and enforcement. . . . Humanity, rather than legality, must be our guide."¹⁴ It is not difficult to find instances where even legal scholars have defended the legal violations of governments on the grounds that there were more compelling moral imperatives—particularly the demands of "national secu­rity"—than strict adherence to legal norms and treaty obligations. Thus, when advancement of one nation's objectives seriously threatens those of another, military and strategic criteria rather than legal desiderata tend to dominate the making and execution of foreign-policy decisions.

The problem of measuring the influence of legal obligations in decision making is that such influence involves more than the observance or nonobser-vance of clearly defined rules of law. A government can take action that it believes is consistent with legal obligations or the permissive components of international law. Governments normally characterize conflicts in the legal and diplomatic terms that are most advantageous to their interests and objectives. This practice is not necessarily a capricious twisting of legal principle to fit facts; it arises out of different perceptions of reality. A government may claim in its attempt to punish or threaten a hostile neighbor that its own aggressive actions are legally justified as "self-defense." Hence, in 1956, when Israel invaded Egypt, it invoked the law of self-defense. A neutral observer may conclude that Israel used aggression, whereas Israeli policy makers may have been quite convinced that their attack on Egypt was a legitimate act of self-defense. In this situation, can it be deter­mined precisely whether or not legal principles and obligations effectively re­strained actions? The South African government has consistently characterized its apartheid policies as purely a domestic affair, while those on the outside have insisted that these policies are a threat to peace and a violation of the Declaration of Human Rights, hence subject to outside interference. During the uprising in Algeria in the 1950s, the rebels characterized their struggle as a war between two states—France and Algeria—whereas the French maintained that it was a domestic rebellion. One could invoke quite different legal principles as applying to the actions taken in this situation, depending upon which characterization was accepted. When characterizations of one set of events vary so greatly, it becomes extremely difficult to decide which actions are in accord with, or in violation of, the rules of international law. In either case, the policy makers

¹⁴ Quoted in Oliver Lissitzyn, "Western and Soviet Perspectives on International Law,"American Society of International Law, Proceedings (April 1959), p. 25.

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may have believed sincerely that their actions were legally justified, given their understanding of the facts.

Governments thus may use the flexibility of the law to their advantage. Moreover, legal norms in crisis situations seem to be used not so much to determine actions as to build justifications for certain actions. Indeed, case stud­ies of recent conflicts between states reveal that governments use law essentially to further their objectives. In this sense, legal norms enter into decision making less as criteria to determine what, substantively, governments should or should not do, than as sets of principles that can be put together into a case to justify actions that have already been taken. Legal norms thus become diplomatic capabili­ties; governments fabricate legal justifications for their decisions and actions in order to mobilize domestic and external support. The American experience in the 1962 Cuban missile crisis reveals, for example, that the legal argument justifying a U.S. "quarantine" against importation of Soviet missiles into Cuba was made after the quarantine was already established. There is little evidence showing that the decision, as it was being made, was seriously debated on legal grounds.¹⁵ Similarly, during various crises over Berlin, the confrontation between Malaysia and Indonesia in the mid-1960s, and the Turkish invasion of Cyprus in 1974, law was used primarily to (1) establish the legitimacy of diplomatic positions, and (2) to mobilize diplomatic and public support for each party's own position, while attempting to demonstrate that the opposition's policies or actions were illegitimate.¹⁶

Thus, we end with three hypotheses about the relevance of legal norms in explaining policy decisions and actions:

1. In (a) issue areas involving primarily private interests, commercial, technological, and cultural actions and transactions, and (b) between states that normally main­tain friendly relations, legal norms are at least as important in policy making as are systemic conditions, capabilities, public opinion, organizational values (which probably include a strong commitment to the "legal" way of doing things), or the personal preferences, values, or political needs of individual decision makers. In "routine" matters between two governments, decisions almost always conform to both substantive and procedural norms.

2. In (a) issue areas involving the conflict of collective interests and core values,

¹⁵ Lawrence Scheinman and David Wilkinson, eds., International Law and Political Cnsu: An Analytical Casebook (Boston: Little, Brown, 1968). p. 201. However, one of the participants in the Cuban episode shows that legal considerations were more prominent in decision making than is commonly acknowledged in most memoirs. See Abraham Chayes, The Cuban Missile Crisis (New York: Oxford University Press, 1974).

¹⁶ Henkin. in his own case studies, is less pessimistic about the influence of law in crisis decision-making situations. He sees that even where decisions contravene legal norms, policy makers often "soften" their actions, refrain from doing certain things they might otherwise do. because of their awareness of legal prohibitions. Louis Henkin, How Nations Behave: Law and Foreign Policy 2nd ed. (New York: Columbia University Press, 1979), Chaps. 13-16.

371 Law and World Opinion in Explanations of Foreign Policy

and (b) between states that ordinarily maintain friendly relations, governments will attempt to organize their actions to make them consistent with legal obliga­tions. However, perceptions of threat (definition of the situation), the demands of public opinion, and the personal needs of decision makers may require that legal norms be violated, or at least interpreted arbitrarily.¹⁷

3. In (a) issue areas involving the conflict of important collective interests and core values, and (b) between states that ordinarily do not maintain friendly relations, governments will always choose "effective action" against legal obliga­tions, when the two are incompatible. Perceptions of threat (definitions of the situation), relative capabilities, demands of public opinion, and the political needs of decision makers will be much more important in explaining objectives and actions than will treaty obligations.

Two general conclusions about the place of law in international politics can be offered. First, as a vast proportion of transactions between states are not concerned with crises and conflicts, we can infer that the obligations and procedures established through custom, treaties, and general principles of law predominate in policy making. The fact that most governments respect each other's sovereignty, that they do not seize each other's vessels on the high seas, that they do not arbitrarily incarcerate travelers and tourists, that they do not imprison diplomats, and that they recognize each other's legal equality indicates the. pervasiveness of the world's legal system in foreign policy. On the other hand, in crisis situations, law assumes different functions: It is used primarily for mobilizing support at home and abroad rather than for establishing limits on what can or should be done.

¹⁷ The case of shipping routes through the Arctic Ocean illustrates this hypothesis well. In 1969, an American oil tanker successfully navigated the Northwest Passage, opening up a potential oil route between the petroleum fields of northern Alaska and the east coast of the United States. While from a commercial point of view this trip might have proven of great value to the United States, it raised serious problems in Canada. What would happen if, in navigating these ice-filled waters, one of the tankers spilled its oil cargo? The result would be devastation of miles of Canada's Arctic coast. The pollution problem at this latitude is particularly acute, since all living materials maintain a precarious balance; any destruction takes decades to repair through natural processes (unlike the situation in lower latitudes, where natural growth and processes can overcome destruction of the environment in a relatively short time). The Canadian government believed it had to establish some controls over navigation in the north to prevent a potential pollution disaster, even though that control would have to go beyond the traditional 3- to 12-mile territorial limit to be effective. Can a government claim control over high seas in order to protect itself from a perceived threat? Ottawa decided that it should unilaterally declare control for 100 miles beyond the northern coast, and passed legislation establishing restrictions on shipping in the area. From an ecological point of view, the decision was certainly necessary, since it was apparent that the governments of the world would not draft a multilateral treaty governing such problems in time to prevent a possible disaster. The Canadian government, despite strong protests from Washington and London, certainly challenged the well-established principle of freedom of the seas through its action. Moreover, by acting unilaterally, it established a potentially dangerous precedent. Now any government, for what­ever reason, could claim similar jurisdiction, arguing, "If Canada can do it, why can't we?" In this case, self-protection was chosen over legal traditions and the views of the government's closest friends.

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