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The Arab Oil Weapon—A Threat to International Peace

Published online by Cambridge University Press:  28 March 2017

Jordan J. Paust  and
Albert P. Blaustein
Jordan J. Paust
Affiliation:
Yale University
Albert P. Blaustein
Affiliation:
Rutgers UniversityCamden
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Extract

The month of October, 1973, brought with it Arab coercion in two forms: the first was the military attack against Israeli forces begun on October 6 ; the second was the use of economic coercion against countries that, in Arab eyes, either supported Israel or did not support the Arabs in their present quests (which include the return of claimed “Arab” lands, favorable settlement of the Palestinian peoples' claim for self-determination, and other political and military objectives).

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 3 , July 1974 , pp. 410 - 439
Copyright
Copyright © American Society of International Law 1974

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References

1 We offer no detailed inquiry here into whether the joint Arab attack on Israeli forces violated UN S.C. Res. 242 and Article 2(4) of the UN Charter as amplified by UN G.A. Res. 2625, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 25 UN GAOR, SUPP. 18, at 122–24, UN Doc. A/8028 (1970), reprinted at 65 AJIL 243 (1971). Readers are referred to Rostow, E. V., The Middle East Conflict in Perspective (1973)Google Scholar; and Stone, J., letter, Washington Post, Dec. 8, 1973 Google Scholar. See also UN Charter, preamble and Arts. 1 and 2; Reisman, W. M., Nullity and Revision 842–43 (1971)Google Scholar; and Rostow, E. V., Legal Aspects of the Search for Peace in the Middle East, Proc. Amer. Soc. Int. Law, 64 AJIL 64 (No. 4, 1970)Google Scholar and remarks at 78–87.

2 See N.Y. Times, Oct. 19, 1973, at 1, col. 6. On January 12, 1974, the Saudi Minister of Petroleum Affairs stated that his country was by then not supplying “a drop of oil” to the United States or to “any refinery that supplies petroleum products to the United States,” see N.Y. Times, Jan. 13, 1974, at 14, col. 4. It has been alleged that President Nixon’s October 17 request of $2.2-billion in military aid to Israel directly contributed to King Faisal’s decision to use the oil weapon. See Sheehan, E., N.Y. Times, Magazine, Mar. 24, 1974, at 13, 54, col. 1.Google Scholar Cf. Sus, I., Western Europe and the October War, 3 J. of Palestine Studies 65, 75 (1974)Google Scholar.

3 See “Arabs Halt Oil Shipments to 3 Countries,” N.Y. Times, Nov. 29, 1973, at 16, col. 6. The use of an oil boycott had first occurred in the 1967 war and was directed against the United States for about one month with little effect. See Akins, J. E., The Oil Crisis: This Time the Wolf Is Here, 51 Foreign Affairs 462, 468 (1973)Google Scholar.

4 See N.Y. Times, Nov. 23, 1973, at 1, col. 6, quoting the Saudi Arabian Oil Minister, Ahmed Zaki al-Yamani.

5 See supra note 3.

6 See supra note 4.

7 Here, much broader questions are raised, such as the permissibility of increases in oil prices by oil producers; they are related to the whole process of coercion but will not be discussed here in great detail. Professor Rostow had insightfully suggested that an issue is raised as to whether Article 2(4) of the UN Charter is “the Sherman Act in disguise” in connection with the community regulation of a coercive and monopolistic manipulation of resources. The price increases can also be analyzed in terms of breach of contract or as a form of wealth deprivation and control in a global arena. See Weston, B. H., International Law and the Deprivation of Foreign Wealth: A Framework for Future Inquiry, 2 The Future of the International Legal Order: Wealth and Resources 36, 38 n. 10, 79, passim (Falk, and Black, eds. 1970)Google Scholar.

8 See, e.g., “Kissinger Says a Continuation of the Arab Oil Embargo Would Be ‘Blackmail’,” N.Y. Times, Feb. 7, 1974, at 1, col. 4.

9 Europe remained under an “officially” disclosed cut of 15% in oil imports from the Middle East through March 10, 1974, despite notable changes in positions and significant agreements to supply arms and technology to Arab states. See N.Y. Times, Mar. 9, 1974, at 5, col. 1.

10 See N.Y. Times, Mar. 19, 1974, at 1, col. 1, and at 20, cols. 3–8.

11 For a useful example of this sort of recognition by a non-McDougalian and a related intellectual groping for distinctions, see Bowett, D., Economic Coercion and Reprisals By States, 13 Va. J. Int. L. 1, 2–5 (1972)Google Scholar.

12 See McDougal, M. and Feliciano, F., Law and Minimum World Public Order 11–39 and 97 ff. (1961)Google Scholar; and McDougal, M., Peace and War: Factual Continuum with Multiple Legal Consequences, 49 AJIL 63 (1955)Google Scholar.

13 Throughout this article we refer to the policies behind legal rules (or those documented in constitutive instruments and elsewhere) as legal policies, goal-values, or community goals.

14 On the problem of complimentarity and the need for responsive decisionmaking which is rational and policy-serving see McDougal and Feliciano, supra note 12, at 57.

15 See UN Charter, preamble and Arts. 1, 2, and 56. See also McDougal and Feliciano, supra note 12, at 177–206, passim, and references cited.

16 See, e.g., Chen, L., The Legal Regulation of Minor International Coercion 131–210 (1964)Google Scholar, unpublished dissertation, Yale Law School. See also McDougal and Feliciano, supra note 12, at 30–32, 194–202, 325–29, and references cited; Ferencz, B., Defining Aggression: Where It Stands and Where It’s Going, 66 AJIL 491 (1972)Google Scholar; Falk, R., Quincy Wright: On Legal Tests of Aggressive War, id., 560 Google Scholar; and R. Tucker, Reprisals and Self-Defense: The Customary Law, id., 586. On the related matter of justifiable “self-defense” responses to “economic aggression,” see infra notes 24–27.

17 On the legal regulation of international terroristic strategy see, e.g., Paust, J., Some Terroristic Claims Arising from the Arab-Israeli Context, Symposium, International Terrorism: Mid East, 7 Akron L. Rev. (1974)Google Scholar; and Terrorism and the International Law of War, 64 Mil. L. Rev. 1 (1974), reprinted in 13 Revue de Droit Penal Militaire et de Droit de la Guerre (1974). Also, compare Franck, T. M., Lockwood, B. B., Preliminary Thoughts towards an International Convention on Terrorism, 68 AJIL 69 (1974)Google Scholar with J. Paust supra and references cited; and Paust, J., Letter, 68 AJIL 502–03 (1974)Google Scholar.

18 See generally, McDougal and Feliciano, supra note 12.

19 See L. Chen, supra note 16, at 136–38, 159, passim; and McDougal and Feliciano, supra note 12, at 14–19, 30–32, passim.

20 See supra note 15. It is significant that the preamble of the Charter begins with: “We the peoples of the United Nations . . .”

21 See, e.g., McDougal and Feliciano, supra note 12, at 178–79; Paust, J. and Blaustein, A., Jurisdiction and Due Process: The Case of Bangladesh (1974)Google Scholar; Paust, J., A Survey of Possible Legal Responses to International Terrorism: Prevention, Punishment and Cooperative Action, forthcomingGoogle Scholar; Brownlie, I., International Law and the Use of Force by States 266–68 (1963)Google Scholar; and 2 Oppenheim’s International Law 154 (Lauterpacht, H., ed., 7th ed., 1952)Google Scholar. See also UN G.A. Res. 2625, supra note 1.

22 See 2 Oppenheim, supra note 21, at 153; Goodrich, Hambro, Charter of the United Nations 104 (2d ed. 1949); Brierly, The Law of Nations 415 (6th ed. 1963). Cf. Brownlie, supra note 21, at 361–62 and 365–66; and Bowett, , Self-defense in International Law 54 and 119 (1958)Google Scholar. Contra McDougal and Feliciano, supra note 12, at 177–202 and 240–41; Kelsen, , The Law of the United Nations 915 (1951)Google Scholar; and Paust and Blaustetn, supra note 26.

23 Compare the cogent analysis in McDougal and Feliciano, supra note 12, at 233—41 with the far less comprehensive approach and forecast offered in Schwebel, S. M., “A Takeover of Kuwait?,” Washington Post, June 26, 1973 Google Scholar, nearly four months before the actual use of the oil “weapon.” See also Reisman, supra note 1, at 839 n. 6 and 849–50.

24 See McDougal and Feliciano, supra note 12, at 179 n. 142, 200, 231–32, 235 and 240–41 and Reisman, supra note 1, at 839 n. 6. For those who think that claims to use responsive coercion in “self-defense” are not relevant to the case of the oil weapon, see remarks of Secretary of Defense Schlesinger as reported in N.Y. Times, Jan. 12, 1974, at 3, col. 1.

25 See McDougal and Feliciano, supra note 12, at 57, 123, 126–27. Cf. Reisman, supra note 1, at 839 n. 6 and 849–50; Professor McDougal’s introduction in Moore, J. N., Law and the Indo-Chtna War viii-ix (1972)Google Scholar; and his remarks in Paust and Blaustein, supra note 21, at 44, n. 95.

26 See Reisman, supra note 1, at 836–51; and infra note 28.

27 See McDougal and Feliciano, supra note 12, at 179, 237, and 240. Nor must they constitute an “aggression” to be proscribed under Article 2(4). See also Reisman, supra note 1, at 838–39, 842–43 and 849–50.

28 If coercive conduct is proscribed under Article 2(4) but does not reach levels of intensity and magnitude such as to justify responsive coercion under Article 51 (or even Article 52), the permissible response would be a community response within the relevant Charter provisions. For comment on the situation where the UN machinery is ineffective, see, e.g., Paust and Blaustein, supra note 21, at 9 n. 22, 10–11 n. 25, 22–23, 25 n. 54, and 42–44: Moore, supra note 25, at viii-ix, 183, and 185, and authorities cited; Paust, J., Remarks, Conference on The Legal Regulation of the Use of Force, 2 Ga. J. Int. & Comp. L., Supp. 1, at 121–22 (1972)Google Scholar; Reisman, supra note 1, at 836–58; Bond, J. E., A Survey of the Normative Rules of Intervention, 52 Mil. L. Rev. 51, 59–63 (1971)Google Scholar; Lillich, R., Forcible Self-Help Under International Law, 22 Naval War Coll. Rev. 56 (1970)Google Scholar; Lillich, R., Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. Rev. 325, 347–51 (1967)Google Scholar; and Harlow, B., The Legal Use of Force Short of War, 1966 U.S. Naval Institute Proceedings 88 Google Scholar (Nov. 1966).

29 See, e.g., McDougal and Feliciano, supra note 12, at 178–79, 196 and 200. This was also the Egyptian position in the Committee on Friendly Relations. UN Doc. A/AC.125/SR.25, at 12 (1966).

30 Report of the International Law Commission (ILC), 4 UN GAOR, Supp. 10, at 7–10, UN Doc. A/925 (June 9, 1949).

31 UN G.A. Res. 290(IV), 4 UN GAOR, UN Doc. A/1251, at 13 (Dec. 1, 1949).

32 UN G.A. Res. 380(V), 5 UN GAOR, Supp. 20, at 13–14, UN Doc. A/1775, (Nov. 17,1950).

33 Report of the ILC, 9 UN GAOR, Supp. 9, at 11–12, UN Doc. A/2693, (July 28, 1954).

34 UN G.A. Res. 2131, 20 UN GAOR, Supp. 14, at 11–12, UN Doc. A/6014 (Dec. 21, 1965).

35 Supra note 1.

36 UN G.A. Res. 3171, 28 UN GAOR (Dec. 17, 1973) (vote: 108–1–16).

37 UN Doc. A/2211 (Oct. 3, 1952).

38 9 UN GAOR, Annexes, 51, at 6–7, UN Doc. A/C.6/L.332/Rev. 1 (Oct. 18, 1954).

39 UN Doc. A/CONF.39/27 (May 23, 1969), reprinted at 63 AJIL 875 (1969).

40 Supra note 1. We say “authoritatively” because it may be assumed that a unanimous consensus of the voting state elites in the General Assembly adequately reflects the generally shared expectations of the peoples of the United Nations. Regarding primary and representative authority, see Paust, J., An International Structure for Implementation of the 1949 Geneva Conventions: Needs and Function Analysis, 1 Yale Studies in World Public Obdek (1974)Google Scholar and Paust, J., Human Rights and the Ninth Amendment: A New Form of Guarantee, forthcomingGoogle Scholar.

41 This sweeping condemnation of coercion or interference is not very useful by itself for the clarification of criterial distinctions between permissible and impermissible coercion. See, e.g., McDougal and Feliciano, supra note 12, at 197, passim; and Schwebel, S., Aggression, Intervention and Self-Defense in Modem International Law, 2 Rec. Des Cours 413, 453–54 (1972)Google Scholar. Since the use of economic sanctions is regulated under Chapter VII of the UN Charter, it is useful to consider restraints upon the use of economic coercion in that Chapter in interpreting restraints upon all types of coercion under Article 2(4) of the Charter. Moreover, the fact that economic forms of coercion are regulated under Chapter VII supplements the expectation that the term “force” in Article 2(4) includes measures of economic force. See also infra notes 43–47; and D. Bowett, supra note 11, at 2–3.

42 The United Nations can respond to a “threat to the peace” (e.g., under Article 39) which does not constitute a prohibited “threat or use of force” under Article 2(4). See, e.g., McDougal, M., Reisman, W. M., Rhodesia and the United Nations: The Lawfulness of International Concern, 62 AJIL 1, 5–19 (1968)Google Scholar. See also, McDougal and Feliciano, supra note 12, at 178–79 and 207 note 193, passim. Similarly, it is possible for the United Nations to respond to a “threat” of force prohibited under Article 2(4) which does not constitute, for example, an imminent armed attack within the broad meaning of Article 51 of the Charter which would justify a unilateral response.

43 Supra note 34.

44 Art. 2(9), supra note 33. See also UN Docs, cited supra notes 30–32. Similar prohibitory language appears in Art. 16 of the Charter of the OAS.

45 See McDougal, M., The Soviet-Cuban Quarantine and Self-Defense, 57 AJIL 597, 598 (1963)Google Scholar; and McDougal and Feliciano, supra note 12, at 241–44, passim.

46 UN G.A. Res. 3016 (XXVII) (Dec. 18, 1972) (vote: 102–0-22).

47 It also seems clear from Arts. 1(3) and 55(b), of the UN Charter that “international problems” of an economic nature can arise as matters of international concern. See also Washington Energy Conference Communique, 70 Dept. State Bull. 220 (1974); Secretary Kissinger’s speech to the Conference, id., 201; and his joint news conference with Federal Energy Administrator, William Simon, id., 109. See also Bradshaw, T. F., Keeping the Energy Peace, Vista (Aug. 1973), at 20 Google Scholar, predicting that an “inadequate flow of energy . . . can . . . provide more discord among nations than could all the ideological struggles of the past and present,” and that developing countries stand to lose most. Professor R. N. Gardner, in testifying before the Subcommittee on International Economics of the Joint Economic Committee on December 13, 1973, disclosed an interesting anecdote in the remark of Cordell Hull: “if goods can’t cross borders, armies will.”

48 Supra note 46 (emphasis added). UN G.A. Res. 2625, referred to in the resolution, concerned the International Development Strategy. Here, the expectation seems to encompass, at least, an international reflection of the general policy behind the case of Rylands v. Fletcher, L.R. 3H.L. 330 (1868).

49 See International Development Strategy, UN Doc. ST/ECA/139, at 3 (1970), reproducing UN G.A. Res. 2625(XXV). See also UN Charter, preamble and Arts. 1(3), 55, and 56; UN G.A. Res. 3172(XXVIII), Dec. 17, 1973 (vote: 123–0–0) concerning the growth of interdependence and the “urgent need for international cooperation”; UN G.A. Res. 3082(XXVIII) (Dec. 6, 1973), Charter of Economic Rights and Duties of States (adopted without objection); and Falk, R., Black, C., eds., 2 The Future of the International Legal Order: Wealth and Resources (1970)Google Scholar.

50 UN G.A. Res. 3171(XXVIII), Dec. 17, 1973 (vote: 108–1-16).

51 70 Dept. State Bull. 109 (1974). See also Kissinger, H., The Interrelationships of Society, 1 The Interdependent (Apr., 1974) at 3 Google Scholar.

Secretary-General Waldheim opened the sixth special session of the General Assembly on raw materials in April 1974 with the recognition of interdependence and the need for a “just apportionment of natural resources” and the “optimum use of the world’s natural resources with the basic objective of securing better conditions of social justice throughout the world.” UN Doc. A/PV 2207, Apr. 9, 1974. This necessarily infringes upon permanent control of resources by each individual state. A position contrary to the inclusive approaches of Secretary Kissinger or the Secretary-General was taken by the People’s Republic of China as disclosed in an opening speech at the special session. UN Doc. A/PV 2209, Apr. 10, 1974.

See also UN G.A. Res. 3085(XXVIII), Dec. 6, 1973 (adopted without objection), wherein the Assembly took notice of the Declaration adopted by the Fourth Conference of Heads of State or Government of Non-Aligned Countries (Algiers, Sept. 9, 1973) in which they expressed the belief that “the multilateral trade negotiations will . . . help in the establishment of a new system of world economic relations based on equality and the common interests of all countries.” It has also become increasingly apparent that U.S. interests are best served with a more inclusive approach to economic matters. See also testimony of Professor Gardner, supra note 47, pointing out that Roosevelt and Churchill’s Atlantic Charter had proclaimed the principle of “access, on equal terms, to the trade and to the raw materials of the world.”

52 See International Covenant on Economic, Social and Cultural Rights, preamble; adopted by UN G.A. Res. 2200, 11 UN GAOR, SUPP. 16, at 49, UN Doc. A/6316 (Dec. 16, 1966). See also McDougal and Feliciano, supra note 12, at 376 (re: the maximization postulate); Falk, R., This Endangered Planet 247–49, 403–06, passim (1971)Google Scholar (offering an “ideology of economic humanism”); and Friedmann, W., The Relevance of International Law to the Processes of Economic and Social Development, 2 The Future of the International Legal Order 3 (Falk, & Black, eds., 1970)Google Scholar.

53 See also preamble and Arts. 1(1), 1(3), 5, 24, 25. Withholding resources from another state in order to deprive its people of their own means of subsistence can constitute an egregious thwarting of these articulated policies and also constitute a threat to the peace as well as a violation of Article 2(4) of the Charter. See also UN G.A. Res. 3185(XXVIII) (Dec. 18, 1973) and Res. 3171(XXVIII) (Dec. 17, 1973).

54 Art. 1(3), which is one of the “Purposes of the United Nations” that must not be thwarted by the threat or use of force against other states or peoples under Article 2(4). See also preamble and Arts. 55 and 56.

55 TIAS No. 1700; 55–61 UNTS.

56 Egypt made a provisional accession in 1962 and a full accession in 1970. TIAS Nos. 5309 and 6916.

57 Preamble and Arts. 1, 11, 13, and 20.

58 UN Charter, Art. 103 and Vienna Convention on the Law of Treaties, Arts. 31(3)(c), 53, and 64, supra note 39.

The language in Article 21(b) of the GATT permitting a party to take “any action which it considers necessary for the protection of its essential security interests” should be interpreted as a recognition of that party’s capacity for making an initial characterization of the matter, i.e. a provisional characterization. See McDougal and Feliciano, supra note 12, at 218–19 and McDougal, M., Lasswell, H., Miller, J., The Interpretation of Agreements and World Public Order (1967)Google Scholar. Otherwise, the “obligations” of parties to the GATT would be meaningless for whatever the party “considers necessary” could not be questioned.

On this point, L. F. Ebb insightfully raised the question in 1964 whether the U.S. Supreme Court review of determinations of administrative agencies of “national security” factors, “in a purely domestic context . . . ,” and its rationale does not “foreshadow any similar future exercise of judicial review of national security findings in the international sphere.” Ebb, L. F., Regulation and Protection of International Business 816 (1964)Google Scholar; and I.C.C. v. N.Y., N.H. & Hartford R.R., 372 U.S. 744, 761–64 (1963). For a recent questioning of the “necessity” of past U.S. restrictions of foreign oil imports which seems to rely upon the “rationale” referred to by Professor Ebb, see James, W. F. III, The Mandatory Oil Import Program: A Review of Present Regulations and Proposals for Change in the 1970’s, 7 Tex. Int. L.J. 373, 391 and 410–11 (1972)Google Scholar, cf. id. at 400–03.

On an interrelated point, the universally recognized principle of “good faith” would seem to require that a provisional characterization by one party to a treaty cannot stand in perpetuity after it has been questioned by other parties to the agreement. GATT, Arts. 22 and 23, require “sympathetic consideration” to counterassertions and “adequate opportunity for consultation.” The Arab threats against targeted countries which sought to stand up to the oil “weapon” or merely to meet for the formulation of joint approaches to the overall energy crisis were hardly conducive to an “adequate opportunity for consultation” and the actions of those Arab states parties to the GATT have, thus, also thwarted the goals contained in Articles 22 and 23.

59 See, e.g., “Arabs Set Terms for Dutch,” N.Y. Times, Dec. 1, 1973, at 11, col. 3; “5 Arab Ministers Confront Common Market Meeting,” N.Y. Times, Dec. 15, 1973, at 1, col. 6; and The League of Arab States, “A Message to the American People,” N.Y. Times, Nov. 29, 1973, at 49, col. 2, stating that “when American action to this effect is taken, we will be glad to resume oil shipments.”

60 Since under Article 103, Charter “obligations” must prevail in case of any conflict, the GATT should be interpreted so as to avoid such conflict. Moreover, since there is no textual reference to the meaning of “unjustifiable,” it is clear that general norms of international law shall apply to the full interpretation of the term. See, e.g., Vienna Convention on the Law of Treaties, Art. 31(3)(c), supra note 39.

61 48 Stat. 1826; 142 LNTS 329, Art. 3 (Saudi Arabia). TIAS No. 4530, 11 UST 1835, Arts. 4, 6, 8 (Oman). 54 Stat. 1790; TS 960, 203 LNTS 107, Art. 4 (Iraq).

62 See, e.g., Vienna Convention on the Law of Treaties, supra note 39, Arts. 31(3) (c), 53, and 64.

63 Supra note 61, Art. 11(d). See also the GATT, Arts. 20(d), and 21(c).

64 See, e.g., Vienna Convention on the Law of Treaties, supra note 39, Arts. 31, 43, 53, and 64; M. McDougal, H. Lasswell, J. Miller, supra note 60 especially on supplemental means of interpretation. On the use of economic coercion as a means of imposing a treaty, see also Final Act, Vienna Convention, UN Doc. A/CONF.39/U, add. 2, at 285. Although many articles of the Convention prohibit coercion during the formation (pre-outcome) stage of agreement, the policy throughout clearly seems to prohibit coercion to force interpretations or exceptions at all stages, i.e., also during outcome and post-outcome stages. See McDougal, Lasswell, and Miller, supra and J. Stone, supra note 2, commenting on Art. 52 of the Convention.

65 See “Saudi Oil Embargo Is Termed Breach of ‘33 Treaty With U.S.,” N.Y. Times, Dec. 19, 1973, at 12, col. 4 (quoting Professor Gardner, R. N.)Google Scholar.

66 Joint news conference of Jan. 10, 1974, supra note 47, at 115. He added that “it is inappropriate to maintain the postures of confrontation that existed before” in the light of the major U.S. efforts to promote a settlement.

67 On the importance of this factor see, e.g., L. Chen, supra note 16, at 135–38.

68 See, e.g., N.Y. Times, Mar. 1, 1974, at 5, col. 1; Dec. 11, 1973, at 34, col. 3; Dec. 29, 1973, at 2, col. 1; contra N.Y. Times, Feb. 25, 1974, at 1, col. 3. See also Dec. 1, 1973, at 11, col. 3; Dec. 15, 1973, at 1, col. 6; Feb. 5, 1974, at 2, col. 1, citing a pledge by Saudi Arabia and Kuwait that there would be no let up on the embargo until an agreement was reached on “Syrian terms”; Mar. 17, 1974, at 15, col. 1; and Mar. 19, 1974, at 20, col. 2.

The Algerian Minister of Energy, Belaid Abdesselam, also claimed a right of necessity to use “our oil weapon” in order “to call the world’s attention to the injustices of the situation.” U.S. News & World Report (Dec. 31, 1973), at 21. Egyptian Ambassador Ghorbal claimed that the oil weapon was used to gain attention to 25 years of suffering and demanded that it continue until the Israelis committed themselves to “total withdrawal.” N.Y. Times, Jan. 7, 1974, at 1, col. 2. The Saudi Arabian Minister of Foreign Affairs, Omar Sakkaf, claimed, among other things, a right to use the oil weapon to “put” the “case” to the American people. N.Y. Times, Dec. 31, 1973, at 5, col. 1. See also The League of Arab States, “A Message to the American People,” supra note 59.

The coercion continued far beyond a calling of “attention” to Arab demands, and it did not cease even after serious negotiations. President Sadat later declared that the oil weapon “was not blackmail. It was only a message to show the whole world that the Arabs after the 6th of October deserve to take their place under the sun.” N.Y. Times, Feb. 25, 1974, at 1, col. 3.

69 See Text of the Declaration After the Arab Leaders’ Summit Meeting, N.Y. Times, Nov. 29, 1973, at 16, cols. 1 and 6.

This broad Arab objective did not confine itself to traditional distinctions in the law of neutrality but, in a sweeping approach, equated political and military “support.” Even in the Vietnamese conflict, the United States did not regard political support for North Vietnam as a violation of neutrality.

70 See supra notes 68 and 69 and N.Y. Times, Jan. 15, 1974, at 4, col. 1 noting that “a shift in Japanese policy in the Middle East was followed by a decision by the Arab countries to reclassify Japan as a friendly nation.” See also N.Y. Times, Dec. 13, 1973, at 4, col. 4 and Secretary Kissinger’s speech to the Washington Energy Conference in which he criticized “the manipulation of raw material supplies in order to prescribe the foreign policies of importing countres” supra note 47, at 202.

71 See N.Y. Times, Dec. 30, 1973, at 3, col. 1; Jan. 18, 1974, at 12, col. 2; Jan. 28, 1974, at 1, col. 6; Feb. 9, 1974, at 11, col. 2; Feb. 26, 1974, at 27, col. 2.

72 See supra notes 68 and 71 and N.Y. Times, Jan. 26, 1974, at 3, cols. 2 and 3.

73 N.Y. Times, Feb. 22, 1974, at 13, col. 1. To a certain extent the West might have been “warned” by some threats by certain Arab states in 1972 to use oil as a political weapon, but the actual cuts were very sudden. See J. E. Alcins, supra note 3, and Sheehan, supra note 2, at 50 and 54.

74 See N.Y. Times, Feb. 5, 1974, at 2, col. 2; Nov. 23, 1973, at 1, col. 6; Jan. 13, 1974, at 14, col. 4. Joint energy talks on February 11, 1974 in an effort to reach an inclusive response to an even greater global energy threat than the use of the oil weapon itself. See text of the President’s invitation, 70 Dept. State Bull. 123 (1974) and Secretary Kissinger’s speech and news conferences, supra note 47.

75 “N.Y. Times, Jan. 28, 1974, at 19, col. 4; and Jan. 25, 1974, at 3, col. 1. The continuation of the embargo certainly leaves Arab claims of necessity in relation to continued use of the oil “weapon” in serious doubt. See REISMAN, supra note 1, at 842–43. See also N.Y. Times, Feb. 7, 1974, at 1, col. 4.

76 See N.Y. Times, Jan. 28, 1974, at 19, col. 4 and Jan. 30, 1974, at 3, col. 1.

77 N.Y. Times, Mar. 5, 1974, at 6, col. 8, and Mar. 12, 1974, at 1, col. 5.

78 N.Y. Times, Feb. 7, 1974, at 1, col. 4 and joint news conference, supra note 47, at 117–18.

79 See UN Charter, preamble and Arts. 1, 2, 55, and 56.

80 See also UN G.A. Res. 3185(XXVIII) (Dec. 18, 1973); Reisman, supra note 1, 842–43; McDougal and Feliciano, supra note 12, at 181–83; Bowett, supra note 11, at 11. It should be recalled that the GATT also seeks a more inclusive conciliatory approach. See supra note 58.

81 UN G.A. Res. 3171 (XXVIII) (Dec. 17, 1973) (vote: 108–1-16).

82 For recent evidence of the new Arab confidence and sense of power, see, e.g., “Arab Price and Power,” Newsweek, Feb. 18, 1974, at 40. The article also explores certain psychological predispositions identified as “Arab traits.” See also N.Y. Times, Feb. 28, 1974, at 1, col. 7.

83 J. Stone, supra note 2.

84 See, e.g., UN Charter, Arts. 25 and 48–50; UN G.A. Res. 3055(XXVIII) (Oct. 28, 1973), 3115(XXVIII) (Dec. 12, 1973), and 3116 (XXVIII) (Dec. 12, 1973). See also Carey, J., Un Protection of Civil and Political Rights 23–26, passim (1971)Google Scholar; Reisman, supra note 1, at 842–43; Bowett, supra note 11; and McDougal and Reisman, supra note 42.

A comprehensive policy and contextual analysis allows for a differentiation between the Arab use of the oil weapon against a state like Japan or the Netherlands, with global effects, from the selective use of trade measures against the emigration policies of the Soviet Union by the United States, as proposed in the Jackson amendment. The latter would promote a human rights objective and the fulfillment of Charter obligations under Article 56, would be a highly selective response, and would be far less coercive than in the case of the vital dependence of Japan and the Netherlands on Middle East oil. See also Reisman, supra note 1, at 836–39, 842–43, and 849–51.

It is not irrelevant to note that the Soviet Union advocated a continuation of the oil weapon against the United States despite several U.S. efforts to obtain a viable peace in the Middle East and almost in open defiance of norms on friendly relations, cooperative action, and the peaceful settlement of disputes. See N.Y. Times, Mar. 13, 1974, at 24, col. 4.

On the imperfect Arab attempts to place the Jackson amendment and an earlier “blockade” of Cuba in the same category as the Arab oil “weapon,” see statement by Belaid Abdesselam, supra note 68. In the Cuban case the U.S. refusal to trade with Cuba was related to an OAS sanction against Cuban subversive activities in the hemisphere that were allegedly violative of the norms of Article 2(4) of the UN Charter. Moreover, the Cuban “blockade” has never cut off foreign trade. See N.Y. Times, Jan. 9, 1974, at 6, col. 4.

85 Professors Paust and Gardner addressed this and other issues at a board meeting of the International League for the Rights of Man (N.Y., Feb. 7, 1974). There, Professor Gardner cogently argued that the Arab claim to use the oil weapon for the promotion of human rights of the Palestinians is “nearly hollow” in view of their past lack of “support” of Palestinian refugees with oil profits. See also remarks of the U.S. Representative before ECOSOC, “Oil Nations Scored on Aid to Poor,” N.Y. Times, Jan. 18, 1974, at 12, col. 2.

86 Supra note 37.

87 See Blaustein, A. and Paust, J., On POW’s and War Crimes, 120 Cong. Rec. E370 (Jan. 31, 1974)Google Scholar. For text of two Israeli complaints submitted to the ICRC and the UN Secretary-General in December, see 119 Cong. Rec. E8033-E8036 (Dec. 13, 1973). Complaints were also forwarded to the ICRC by Egypt and Syria of Israeli violations of the Geneva Conventions. N.Y. Times, Mar. 13, 1974, at 3, col. 6.

88 N.Y. Times, Feb. 25, 1974, at 1, col. 3.

89 See, e.g., PAUST and Blaustein, supra note 21; and Paust, J., My Lai and Vietnam: Norms, Myths and Leader Responsibility, 57 Mil. L. Rev. 99, 118–23 (1972)Google Scholar. Subsequently Egypt did make efforts ot comply with an ICRC initiative to establish a special commission to investigate charges and countercharges of violations of the Geneva Conventions. N.Y. Times, Mar. 13, 1974, at 3, col. 6.

90 Finally, on February 27, 1974, Syria provided Secretary Kissinger and the ICRC with a list of 65 prisoners of war and opened the way toward a multilateral Geneva conference on the settlement of Middle East conflict.

91 By “criterial distinctions” we mean distinctions based upon criteria which are formulated in order to facilitate rational, policy-serving decision. See McDougal and Feliciano, supra note 12, at 15, 56–59, 152 n. 88, 158, passim; Lasswell, H., McDougal, M., Criteria For A Theory About Law, 44 S. Cal. L. Rev. 362, 376, 384, passim (1971)Google Scholar; Lasswell, H., A Pre-View of Policy Sciences 85–95 (1971)Google Scholar.

92 See N.Y. Times, Nov. 29, 1973, at 16, col. 1.

93 N.Y. Times, Dec. 24, 1973, at 1, col. 8. See also U.S. Dept. State, Foreign Policy Outlines, “Oil and Energy,” No. 33–99 (Nov. 1973); Dapray Muir, J., Legal and Ecological Aspects of the International Energy Situation, 8 Int. lawyer 1, 2–4 (1974)Google Scholar; and J. E. Akins, supra note 3.

94 See chart, “Dependence on Imported Oil,” N.Y. Times, Feb. 10, 1974, Sec. 3, at 2, col. 1. Italy’s Foreign Minister, Aldo Moro, has bluntly called for a pro-Arab policy and bilateral trade with oil exporters, adding: “The Arab peninsula and Iran are a complex that is essential to Italy and Europe.” N.Y. Times, Mar. 1, 1974, at 5, col. 1.

95 The President of Algeria, at a 38-nation Islamic Conference in February, defended the use of oil as a “political” weapon. See N.Y. Times, Feb. 24, 1974, at 1, col. 3. The text of the Arab statement in Vienna on the ending of the embargo declared that “its main objective” was to “draw the attention of the world to the Arab cause in order to create the suitable political climate . . .” See supra note 10, at 20, col. 5.

96 See N.Y. Times, Nov. 23, 1973, at 1, col. 6.

97 See N.Y. Times, Jan. 28, 1974, at 1, col. 6.

98 On the importance of this factor see, e.g., L. Chen, supra note 16, at 135–38 and 159 and Washington Energy Conference Communique, supra note 47.

99 See, e.g-, N.Y. Times, Dec. 31, 1973, at 2, col. 1.

100 w e utilize the eight value categories adopted by Professors McDougal and Lasswell for a more comprehensive and rational appraisal of aggregate value consequences (i.e., wealth, well-being, power, skill, enlightenment, respect, affection, rectitude). The reader should note that these may not have been intended results, but they are, nevertheless, direct effects. For references to value analysis see, e.g., Lasswell and McDougal, supra note 91, at 388; McDougal, M., Lasswell, H., Reisman, W. M., Theories about International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int. L. 188 (1968)Google Scholar; and Moore, J. N., Prolegomenon to the Jurisprudence of Myres McDougal and Harold Lasswell, 54 Va. L. Rev. 662 (1968)Google Scholar.

101 See, e.g., Washington Energy Conference Communique and News Releases, supra note 47; N.Y. Times, Dec. 31, 1973, at 2, col. 1; Mar. 3, 1974, at 10, col. 1 and Mar. 4, 1974, at 1, col. 4; Ottaway, D., “Black Africa Feels Arab Oil Cuts a Threat to Solidarity,” The Guardian, Dec. 13, 1973 (London)Google Scholar; “Kicking the Poor,” The Economist, Dec. 8, 1973 (London). Economic disruption became evident with the 25 percent cut in oil production and colossal price increases.

102 See N.Y. Times, Feb. 7, 1974, at 1, col. 4. The Shah of Iran’s pledge of $1 billion to the World Bank and the International Monetary Fund in this regard is commendable but insufficient, and some day the Third World may come to view such resource profits as “windfall” profits from the earth’s resources (a chance national distribution) despite certain trends toward “permanent control” over natural resources. See N.Y. Times, Feb. 25, 1974, at 14, col. 3. See also Borgese, E. M., “Who Owns the Earth’s Resources-,” Vista (Aug. 1973) at 12, 46 and infra note 110Google Scholar. Instead of new patterns of ownership, however, it seems more likely in the near future that international cooperation between producers and major consumers of oil will result in international commodity agreements. See Longworth, R. C., The Ecopolitics of Oil, Sat. Rev., World (Jan 26, 1974) at 25, 27Google Scholar. A supplemental suggestion has been made by Dr. Abbas Zaki, head of an Abu Dhabi foreign aid fund, that 20 percent of the oil profits should be paid for in certificates issued by the World Bank and the Fund so that some profits can be directed toward global development. See E. Sheehan, supra note 2, at 68. Whatever the Arabs devise to offset the effects of higher oil prices for the Third World, it is probable that there will be some Arab controls on the use of available funds. Other means of meeting the problem of resource allocation might include agreements and institutions for the greater stabilization of trade and equal access to resources and markets or a breakdown of cooperative patterns and a North-South war. See the dichotomy between annihilation and economic humanism offered in Falk, supra note 52, at 415–37. During a lecture at Yale Law School in March, 1974, Professor Falk outlined additional possibilities including a great politico-military power dominance system which would control the primary war, power, and media systems and/or a geo-economic dominance system which would encourage a “businessman’s peace” and an alignment of the superpowers and certain natural resource “have” states for the stabilization of markets and the relative value position of the wealth and power elites. Both of these possibilities would favor detente and world trade over any attempt to share earth resources and technology with an outside Fourth World or any attempt to promote human rights within particular states.

103 N.Y. Times, Jan. 26, 1974, at 1, col. 1, quoting Dr. N. E. Borlaug, Rockefeller Foundation, that as many as 20 million may die because of crop shortages which will result in part from climate changes, but primarily from fertilizer cut backs. See also N.Y. Times, Mar. 11, 1974, at 10, col. 3, citing a report by the World Bank and Mar. 10, 1974, at 13, col. 1, on an F.A.O. report disclosing a doubling and tripling in fertilizer costs. See also N.Y. Times, Dec. 31, 1973, at 2, col 1, and Feb. 28, 1974, at 20, col. 1, noting the known interdependency of “virtually all parts of the agriculture industry” on electricity or oil.

104 See N.Y. Times, Feb. 9, 1974, at 10, col. 3 and Feb. 24, 1974, at 4, col. 4.

105 On the principles of “proportionality” and “necessity” in the use of weapons, see Panel on Human Rights and Armed Conflict, Proc. Ameb. Soc. of Int. Law, 67 AJIL (No. 4), 141–68 (1973); J. Paust, My Lai and Vietnam: Norms, Myths and Leader Responsibility, supra note 89, and Command Responsibility and Military ‘Necessity, 26 Naval War Coll. Rev. 103 (Feb. 1973); Rosenblad, E., Starvation as a Method of Warfare—Conditions for Regulation by Convention, 7 Int. Lawyer 252 (1973)Google Scholar; and Mudge, , Starvation as a Means of Warfare, 4 Int. Lawyer 228 (1970)Google Scholar. On more recent efforts to proscribe starvation and the ruination of food supplies and patterns of distribution for noncombatants, see ICRC Basic Texts, Protocol I, Arts. 40–51 (Geneva 1972); and UN G.A. Res. 3102 (XXVIII) (Dec. 12, 1973) (vote: 107–0–6). UN S.C. Res. 253 (1968) excepted from the sanctions against the illegal regime of Southern Rhodesia those medical and other supplies needed for humanitarian purposes. In marked contrast to humanitarian efforts to limit the usages and impacts of violence have been the Soviet assertions that the Arabs have a “legitimate, inalienable right to use all effective means for liberation” of territories (emphasis added). This approach to “law” and social order, though shared by certain totalitarian ideologists and self-appointed terrorist elites, is completely indifferent to the principles of necessity and proportionality, to the authority of shared perspective and praxis, and to the human values inherent in human rights law. The Soviet-Syrian communique is reported in N.Y. Times, Mar. 15, 1974, at 8, col. 4. See also J. Paust, Terrorism and the International Law of War, and Some Terroristic Claims Arising From the Arab-Israeli Context, supra note 17; Paust, J., Law in a Guerrilla Conflict: Myths, Norms and Human Rights, 3 Israel Y.B. on Human Rights (1974)Google Scholar; Y. Dinstein, Terrorism and Wars of Liberation Applied to the Arab-Israeli Conflict, id., 78.

106 See W. F. James, III, supra note 58, at 388–91, and references cited. Thus, no direct detriment to the United States was engendered by the Arab cuts in oil production and exports. Cf. R. C. Longworth, supra note 102, at 25, 26, disclosing some fuel problems for the U.S. Sixth Fleet due to Italian cuts in available oil. Secretary of Defense Schlesinger also stated that “the immediate effect of the oil embargo was the cutting off of our overseas forces from local sources of fuel,” but that “bulk fuels in support of the Mediterranean forces was quickly available.” See Report of the Secretary of Defense to the Congress on the FY 1975 Defense Budget and FY 1975–1979 Defense Program 233 (Mar. 4, 1974). He also noted that the Defense Department consumes only 3.5 percent of “the national petroleum usage.” Thus, presumably, the oil embargo affected primarily the civilian population and the “weapon” was indiscriminate in impact.

107 See J. Paust, remarks, 67 AJIL, supra note 105, at 163; and McDougal and Feliciano, supra note 12, at 479–80.

108 UN G.A. Res. 217A, 3 GAOR, UN Doc. A/810, at 71 (1948). See also UN Charter, preamble and Arts. 1(3), 55(b), and 56; UN, The United Nations and Human Rights 39–41 (1968); UN G.A. Res. 3121(XXVIII) (Dec. 13, 1973); and 3085(XXVIII) (Dec. 6, 1973).

109 See International Covenant on Economic, Social, and Cultural Rights, preamble and Arts. 11 and 12; cf. id., Art. 25. See also N.Y. Times, Feb. 17, 1974, at 13, col. 1; and R. Falk, supra note 52, at 177.

It has also been stated by Dr. J. Knowles, president of the Rockefeller Foundation, that among the 2½ billion people in less developed countries, 60 percent are malnourished and 20 percent (500 million people) are believed to be starving to death. See N.Y. Times, Mar. 15, 1974, at 34, col. 4. Certainly an important conditioning factor here is the population menace. See, e.g., Falk, supra; and Nanda, V., The Role of International Law and Institutions Toward Developing A Global Plan of Action on Population, 3 Den. J. Int. L. & Pol. 1 (1973)Google Scholar, and references cited.

110 Exceptions might include increased economic strengths and dominance of certain Arab and other oil producers of the Third World such as Nigeria and Indonesia. See “Kicking the Poor,” The Economist, Dec. 8, 1973 (London). The 1973 “Arab” contribution ($2.25 million) to the UN relief program for Palestinian refugees was only 9 percent of the U.S. pledge ($25 million), and the Arab contribution has been even smaller in proportion to the total contributed by the United States since 19501 With Saudi Arabia alone spending more than $1 billion on the 1973 Egyptian and Syrian war effort, one wonders why more Arab oil profits could not have gone to feed the Arab poor. Was the financing of peace and the greater well-being of other Arabs so significantly less desirable? And why did the Soviet Union, Eastern Europe, and the People’s Republic of China (itself, the world’s largest grain importer) contribute nothing to the UN relief efforts for the Palestinian people? See Money to bum; time to kill, The Interdependent (Apr. 1974) at 1, col. 3; and Cooper, C. L., N.Y. Times, Apr. 4, 1974, at 41 Google Scholar, col. 1, pointing out that the United States and Western Europe have contributed nearly 66 percent of the aid to the starving people of the Sahelian area of Africa but the Arab oil exporters have, so far, contributed less than 1 percent. It hardly needs to be emphasized that an extremist policy of state control over national resources will exacerbate this situation; and, although it would allow a few of the “have” natural resource states to escape a Third World existence, it could entrench another group (some 30 states and one quarter of the earth’s population at a minimum) into a permanent Fourth World status with the rather uncomforting and irrelevant “control” of nearly nothing.

111 See R. C. Longworth, supra note 22, at 25, 27, disclosing the warning of British strategist Neville Brown and certain findings of a Princeton study for the U.S. Navy; N.Y. Times, Jan. 12, 1974; and S. M. Schwebel, supra note 23. See also N.Y. Times, Mar. 4, 1974, at 1, col. 4, on the European political crises.

112 See N.Y. Times, Feb. 18, 1974, at 3, col. 4; C. L. Sulzberger, id., Jan. 13, 1974, at E17, col. 8; and Washington Energy Conference Communique, supra note 47.

113 See, e.g., Scheuner, U., The German Tribune, Jan. 10, 1974, at 4, col. 1Google Scholar. Professor Gardner also noted that “not a single voice has been raised in the United Nations to cite” the 1970 Declaration On Friendly Relations and Co-Operation in response to the oil “weapon.” N.Y. Times, Dec. 19, 1973, at 12, col. 4.

114 See N.Y. Times, Jan. 27, 1974, at E3, col. 3; and C. L. Sulzberger, id., Jan. 9, 1974, at 35, col. 5.