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Published online by Cambridge University Press: 27 February 2017
Throughout history, decisions to go to war have been made by a handful of individuals in powerful positions. American constitutionalists from James Madison’s day through our own have tried to establish a better system of deciding for war, by shifting the locus of responsibility from one person to a broadly representative group. The Persian Gulf crisis has shown all too vividly what dangers lie in the persistence of processes that put awesome amounts of force at the disposition of single individuals, and how much is at stake in developing and nurturing structures of deliberation and accountability.
1 In addition are the military rules of engagement that seek to mitigate the risk of inadvertent triggering of hostilities. See, e.g., U.S. Must Get Saudi Permission in Most Cases to Fire on Iraqi Jets, N.Y. Times, Sept. 10, 1990, at A11, col. 1.
2 See the Agora essays by Franck & Patel, UN Police Action in Lieu of War: “The Old Order Changeth,” supra p. 63, and Glennon, The Constitution and Chapter VII of the United Nations Charter, supra p. 74.
3 See, e.g., Conference on Security and Co-operation in Europe: Document of the Copenhagen Meeting of the Conference on the Human Dimension (June 29, 1990), 29 ILM 1305, 1308 (1990) [hereinafter Copenhagen Document].
4 Id., paras. 5.2, 5.6.
5 President Gorbachev made this point in his speech to the UN General Assembly in December 1988. 43 UN GAOR (72d plen. mtg.) at 2, UN Doc. A/43/PV.72 (1988).
As the leading Soviet scholar of international law has said:
Beyond doubt a State in which democracy and legality predominate and respect for human rights is ensured can be expected to respect international law in the international arena more than a State in which arbitrariness predominates. Therefore, the existence of the greatest possible number of rule-of-law States which can set the tone of international life is an important prerequisite for the primacy of international law in politics.
Tunkin, On the Primacy of International Law in Politics, in Perestroika and International Law 5, 9 (W. E. Butler ed. 1990).
6 See infra text at notes 43–51.
7 Among the possibilities are disintegration into separate states corresponding to the existing union republics; a splitting off of some, but not all, of the republics; recombination of groups of republics into new federal or confederal structures; or fragmentation into smaller units.
8 See generally Fane, The Demilitarization of the Soviet Union, Wash. Q., Spring 1990, at 5.
9 In a speech to the Supreme Soviet, Foreign Minister Eduard Shevardnadze acknowledged that the Afghanistan invasion violated both domestic and international law. See Moscow Says Afghan Role Was Illegal and Immoral: Admits Breaking Anns Pact, N.Y. Times, Oct. 24, 1989, at Al, col. 6; see also Vereshchetin & Mullerson, International Law in an Interdependent World, 28 Colum. J. Transnat’l L. 291, 297 (1990); Punzhin, Vvod sovetskikh voisk v Afganistan: mezhdunarodno-pravovye problemy (The Introduction of Soviet Troops into Afghanistan: International Legal Problems), Sovetskoe Gosudarstvo i Pravo [Sov. Gos. & Pravo], No. 5, 1990, at 123.
10 Vereshchetin, Danilenko & Mullerson, Konstitutsionnaya reforma v SSSR i mezhdunarodnoe pravo (Constitutional Reform in the USSR and International Law), Sov. Gos. & Pravo, No. 5, 1990, at 13, 19.
11 See Resolution of the Congress of People’s Deputies of the USSR: On the Political Assessment of the Decision on the Introduction of Soviet Troops into Afghanistan in December 1979, 42 Current Dig. Sov. Press, No. 10, 1990, at 18, translated from Izvestiia, Dec. 27, 1989, at 1, col. 3.
12 Id.
13 Copenhagen Document, supra note 3, para. 5.3; see also id., para. 2.
14 The German term Rechtsstaat could be mentioned in view of the intellectual antecedents of today’s Russian/Soviet concept in 19th-century German legal thought. See generally Beissinger, The Party and the Rule of Law, 28 Colum. J. Transnat’l L. 41, 47–50 (1990).
15 For an exposition of many of the themes that have been pursued under the rubric of pravovoe gosudarstvo, see id. at 43–50. See also V. N. Kudryavtsev, Towards a Socialist Rule-of-Law State, in Perestroika 1989, at 109 (A. Aganbegyan ed. 1988).
16 See, e.g., A. Iakovlev, Constitutional Socialist Democracy: Dream or Reality?, 28 Colum. J. Transnat’l L. 117(1990).
17 See, e.g., Quigley, Law Reform and the Soviet Courts, 28 Colum. J. Transnat’l L. 59 (1990). In relation to the point made in the text, Quigley notes that the 1987 Soviet Law on Appeals (concerning suits to require official action to conform to law) originally did not permit citizens to bring suits involving “the defense capability of the country” or “State security,” but that these limitations were eliminated in 1989. Id. at 61, 63.
18 See, e.g., U.S. Const. Art. 1, §8, cl. 11 (war powers).
19 A form of potential control that I have not discussed is the newly created Committee of Constitutional Supervision, which has the function of reviewing laws, regulations, treaties and other legal acts for conformity to the Soviet Constitution. This committee may eventually become involved in areas relevant to war powers.
Other forms of potential control include those deriving from the exercise of freedoms of expression and association. The right to demonstrate in public, for example, played a critical role in the mobilization of U.S. public opinion against the Vietnam War. Soviet laws governing demonstrations and other modes of expression have been liberalized, but more could be done in such areas as regulating the use of troops to keep order at demonstrations, not only to minimize the possibility of a Soviet-style Tiananmen Square massacre, but also to prevent lesser forms of harassment of antimilitary demonstrators. For a summary and critique of recent developments in this field, see Helsinki Watch, Towards the Rule of Law: Soviet Legal Reform and Human Rights under Perestroika 75–80,84–87 (1989); see also Iakovlev, supra note 16, at 124–25.
20 See generally Fane, supra note 8, at 9–11. The Supreme Soviet is the standing body of the Soviet legislature. Its members are drawn from the larger Congress of People’s Deputies.
21 Thornburgh, The Soviet Union and the Rule of Law, Foreign Aff., Spring 1990, at 13, 20. Fane, supra note 8, at 10, points out some of its constructive activities but cautions that the parliamentary role in the budgetary area has hardly moved beyond rubber-stamping.
22 Fane, supra note 8, at 9–10.
29 See supra text at notes 11–12.
24 Law on Establishing the Post of President of the USSR and Making Changes to the USSR Constitution (Fundamental Law), 42 Current Dig. Sov. Press, No. 14, 1990, at 20, 22, translated from Pravda, Mar. 16, 1990, at 1, 3.
25 Id. at 21 (the law adds to the Soviet Constitution a new chapter 15.1 on the President of the USSR and it specifies certain of his powers in the new Article 127.3).
26 Id. at 23 (amending Article 131(4)).
27 Vereshchetin, Danilenko & Mullerson, supra note 10, at 18–19; see also Vereshchetin & Mullerson, supra note 9, at 299.
28 Vereshchetin, Danilenko & Mullerson, supra note 10, at 19–20.
29 See N.Y. Times, Oct. 16, 1990, at A18, col. 1.
30 See Senators Demand Role in Approving Any Move on Iraq, N.Y. Times, Oct. 18 1990, at A1, col. 1.
31 Apparently, some Soviet spokespersons have themselves made the comparison to the War Powers Resolution. See, e.g., War Powers Curb on Kremlin Seen, N.Y. Times, Oct. 28, 1989, at A6, col. 6; Check Against Afghan-Style Involvement Proposed, Reuters, Oct. 22, 1988 (LEXIS).
32 For a summary of the American role in the creation of the Japanese and German postwar constitutions, see Rapaczynski, Bibliographical Essay, in Constitutionalism, Democracy, and Rights: The Influence of the U.S. Constitution 405, 424–39 (L. Henkin & A. Rosenthal eds. 1990).
33 See generally id. at 424–39 and sources cited therein.
34 For a summary of some of these efforts in Japan, see Osamu Nishi, The Constitution of Japan—Its Past Forty Years, With Emphasis on Discussion for Its Protection and Revision, under Japan, in 8 Constitutions of the Countries of the World 25 (A. Blaustein & G. Flanz eds. 1990) [hereinafter Constitutions].
35 For references to literature on MacArthur’s role, see Rapaczynski, supra note 32, at 429–33.
36 8 Constitutions, supra note 34, at 15–16.
37 6 id., Federal Republic of Germany, at 50, 71–72 (1985) (paragraphs following the basic prohibitions omitted).
38 Id. at 50.
39 Naganuma case, discussed in Osamu Nishi, supra note 34, at 30–31.
40 The High Court has treated the issue as a political question. Id.
41 See infra text at note 43.
42 See, e.g., Riedel, Rechtliche Probleme einer Beteiligung der Bundeswehr an UNO-Friedenstruppen, in Liber Discipulorum: Festgabe Für Professor Dr. Dieter Blumenwitz 207 (G. Gornig ed. 1989); Riedel, Deutsche als UNO-Soldaten?, 42 Die öffentliche Verwaltung 890 (1989); Japan’s Chief and Rivals Agree on Plan for Civilian Gulf Force, N.Y. Times, Nov. 9, 1990, at A13, col. 3.
45 See Germany Pledges $1.87 Billion to Aid Gulf Effort, N.Y. Times, Sept. 16, 1990, at A16, col. 3; Bonn, Heeding Critics in U.S., Will Provide Planes and Ships for Gulf Effort, N.Y. Times, Sept. 15, 1990, at A5, col. 1; Confrontation in the Gulf; Kohl Vows to Widen Role in Gulf Effort, N.Y. Times, Sept. 14,1990, at A11, col. 1.
44 Germany Pledges $1.87 Billion to Aid Gulf Effort, supra note 43.
46 Kohl Vows to Widen Role in Gulf Effort, supra note 43.
46 See Confrontation in the Gulf; Japan Defends Aid in Mideast Effort, N. Y. Times, Sept. 14,1990, at A1, col. 1.
47 See Confrontation in the Gulf; After Silence, Japan’s Army Pushes for Armed Gulf Role, N.Y. Times, Sept. 24, 1990, at Al, col. 4.
48 See Mideast Tensions; Japan’s Leadership Backs Plan to Send Soldiers to the Gulf, N.Y. Times, Oct. 17, 1990, at A1, col. 1.
49 See Mideast Tensions; Japan’s GulfCommitment Seems Endangered, N.Y. Times, Nov. 6, 1990, at A14, col. 1; Japanese in Disarray Over Sending Troops to Gulf, N.Y. Times, Oct. 26, 1990, at A10, col. 3.
50 See Japan’s Chief and Rivals Agree on Plan for Civilian Gulf Force, supra note 42; Why the Japanese Find It So Difficult to Unsheath Swords, N.Y. Times, Nov. 4, 1990, at E2, col. 1.
51 See Japanese Fear of Militarism Fuels Opposition to Sending Troops to the Gulf, N.Y. Times, Nov. 2, 1990, at A9, col. 2.
52 Both Germany and Japan are parties to the General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact), Aug. 27, 1928, 46 Stat. 2343, TS No. 796, 94 LNTS 57; see also Treaty of Peace with Japan, Sept. 8, 1951, 3 UST 3169, TIAS No. 2490, 136 UNTS 45; and Declaration by Japan with Respect to the Treaty of Peace, Sept. 8,1951,3 UST 3306, TIAS No. 2490, 136 UNTS 146, 160. Germany has just renewed its antiwar commitment and undertaken that the prohibition will be retained in the constitution of the united Germany. See Treaty on the Final Settlement with Respect to Germany, Sept. 12, 1990, Art. 2, 29 ILM 1186, 1189 (1990).
53 Cf. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, 135, para. 269 (Judgment of June 27) (absent international undertaking, states may maintain any level of armaments that they choose).
54 See Glennon, United States Mutual Security Treaties: The Commitment Myth, 24 Colum. J. Transnat’l L. 509, 525–26(1986).
55 Id.