Excerpts of 11 Ariz. J. Int'l & Comp. Law 45, SPRING, 1994 War, Law & Liberal Thought: The Use Of Force In The Reagan Years David P. Fidler In regards to Nicaragua vs. US.

...state practice changes rules of international law. The liberal realist position is that both the conventional and customary strands of the prohibition on the use of force have been altered by state practice. ¹⁷⁴ The liberal progressive tradition, however, tries to maintain exactly the opposite position, as evidenced by the ICJ's legal interpretations in Nicaragua v. U.S. In relation to the conventional strand of the prohibition on the use of force, article 2(4) of the U.N. Charter, the liberal realist position is that the failure of the U.N. Charter collective security system diminishes the significance of article 2(4). Ambassador Kirkpatrick argued that article 2(4):

[*79] was never intended to stand on its own, but was to be seen in the context of the entire Charter. . . . The structure of the U.N. Charter was accepted by its member states on the expectation of the member states of the effective functioning of collective peacekeeping measures; that is, states would cooperate in the maintenance of world peace. ¹⁷⁵

Since the U.N. collective security system never worked, article 2(4) could not carry the same weight as it had in the vision of the Charter's framers. When collective security failed, the inherent right of self-defense contained in article 51 took on a broader significance and increased in importance in the liberal realist perspective because national and regional security had to be provided by traditional means of self-help and military alliances.

The rule advocated in the liberal progressive tradition ignores the failure of one of its own legal mechanisms: collective security. ¹⁷⁶ As seen in Nicaragua v. U.S., liberal progressives argued for a broad interpretation of article 2(4) and a narrow reading of article 51. How such a construction can be rendered in light of the complete failure of the U.N. collective security system at the time is not addressed by the liberal progressives, revealing their distaste for legal analysis within political context. Liberal progressives seem content to appeal to article 2(4) as if it enjoyed some type of super-legal status above and beyond the Charter's structure. Liberal realism, as evidenced by the Reagan administration's actions, does not divorce article 2(4) from the rest of the Charter principles in such an arbitrary fashion. Instead, article 2(4) was not placed in the Charter as a Kantian categorical imperative but as one of the rules in a collective security system. ¹⁷⁷ The failure of that system negatively impacts upon the significance of article 2(4).

In relation to the customary strand of the prohibition against the use of force, the liberal realist position is that state practice since 1945 has changed the customary rule on the use of force. 178 The ICJ in Nicaragua v. U.S., however, found customary international law to be identical to article 2(4) "without any reference whatsoever to the ways in which governments actually behave."¹⁷⁹ The ICJ's method of interpreting customary law struck many commentators as fundamentally misguided. Franck, for example, writes:

[*80] Traditionally, a normative principle has been thought to enter into customary law only after being confirmed by practice, that is, after it is demonstrably adhered to by the actual conduct of the large preponderance of international actors capable of violating it. The customary norms cited by the Court are adhered to, at best, only by some states, in some instances, and have been ignored, alas, with impunity in at least two hundred instances of military conflict since the end of World War II. ¹⁸⁰

Even the ICJ conceded that violations of the customary rule against the use of force are not infrequent; yet it refused to allow state practice to affect the customary rule. As Franck and Kirgis point out, the ICJ based its finding on customary law on opinio juris primarily in the form of U.N. General Assembly resolutions and declarations. ¹⁸¹ D'Amato attacks the ICJ's approach:

The Court . . . completely misunderstands customary law. First, a customary rule arises out of state practice; it is not necessarily to be found in U.N. resolutions and other majoritarian documents. Second, opinio juris has nothing to do with 'acceptance' of rules in such documents. . . . [The ICJ] purports to give us a rule of customary international law without even considering the practice of states and without giving any independent, ascertainable meaning to the concept of opinio juris. ¹⁸²

The liberal realist position is that state practice still drives customary international law, meaning that the customary law on the use of force cannot be identical to article 2(4) because of state practice. The practical effect of this fact to the liberal realist is that the customary right to use force in self-defense becomes broader instead of narrower. The rigid, mechanical rule central to the liberal progressive tradition, in short, does not survive the impact of state practice.


Footnotes

n174 See Anthony D'Amato, Trashing Customary International Law, 81 Am. J. Int'l L. 101 (1987) and Alberto R. Coll, The Limits of Global Consciousness and Legal Absolutism: Protecting International Law from Some of Its Best Friends, 27 Harv. Int'l L.J. 599, 620 (1986).

n175 Kirkpatrick, supra note 165, at 60.

n176 Coll wrote that "the hope that the United Nations can control the use of force in international relations and provide even a degree of collective security in cases involving the most blatant aggression is dead and beyond revival." Coll, supra note 174, at 609. While the end of the Cold War and the United Nations operation during the Gulf War have revived hopes in collective security, such hopes have, however, received fresh abuse in the form of the catastrophe in the former Yugoslavia.

n177 Coll, for example, observes that article 2(4) must relate to the U.N. collective security system. Id.

n178 See sources cited supra note 174.

n179 Frederic L. Kirgis, Custom on a Sliding Scale, 81 Am. J. Int'l L. 146, 147 (1987).

n180 Thomas Franck, Some Observations on the ICJ's Procedural and Substantive Innovations, 81 Am. J. Int'l L. 116, 119 (1987).

n181 Id. at 118-19; Kirgis, supra note 179, at 147. Another scholar takes issue with the ICJ's handling of two key resolutions. See Fred L. Morrison, Legal Issues in the Nicaragua Opinion, 81 Am. J. Int'l L. 160 (1987).

n182 D'Amato, supra note 174, at 103-04.