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The Legality of the United States Intervention in Grenada

Published online by Cambridge University Press:  21 May 2009

L. Doswald-Beck
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Extract

The United States intervention in Grenada has been characterised by some as a rescue mission, by others an act of aggression. A study of the legality of this intervention involves broad and fundamental questions about the content and nature of international law. To what extent can the policy goals put forward by President Reagan in the above-quoted speech be consistent with the present legal system? What place do human rights considerations have in international law, and how are a state's defence needs defined? These basic questions arise in studying the US intervention in Grenada, as well as the question of the capacity of a particular individual to request military intervention in his state.

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Articles
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Netherlands International Law Review , Volume 31 , Issue 3 , December 1984 , pp. 355 - 377
Copyright
Copyright © T.M.C. Asser Press 1984

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References

1. Speech by President Reagan to Military Personnel at Cherry Point, N. Carolina, 4 November 1983: Weekly Compilation of Presidential Documents, Monday 7 November 1983, Vol. 19; No. 44, pp. 1521–1522.

2. See Extracts from the fifth report of the Foreign Affairs Committee, Session 1981–2 (HC (1981–2) 47) in Annex B of the House of Commons Second Report of the Foreign Affairs Committee on Grenada, Session 1983–4, printed on the 15 March 1984, H.M.S.O. (London), Parliamentary Paper 226, at p. xlv.

3. “Grenada: A Preliminary Report”, released by the Department of State and the Department of Defence, Washington D.C.: reprinted by the United States Information Agency, December 1983.

4. JEWEL stands for “Joint Endeavour for Welfare, Education and Liberation”.

5. See, for example, n. 2 supra, pp. vi and xlv.

6. See, in particular, analysis by Doyle, M. in the International Herald Tribune, 5–6 11 1983. Also, n. 2 at p. xlivGoogle Scholar.

7. Supra n. 3, pp. 9–21. Also, Second Report of the Foreign Affairs Committee supra n. 2 at p. ix.

8. Supra n. 3 at p. 21 speaks of a “report of one of Bishop's supporters” but the source could not be indicated. The statement is supported by the Second Report of the Foreign Affairs Committee, supra n. 2 at p. ixGoogle Scholar.

9. Supra n. 2 at p. 21.

10. International Herald Tribune, 1 November 1983.

11. For example, supran. 3 at p. 21. Also, speech by Miss Eugenia Charles before the Security Council, Wednesday 26 October 1983, UN Doc S/PV. 2489; and by Mrs. Kirkpatrick on Thursday 27 October 1983, UN Doc. S/PV 2491.

12. Text of a speech delivered by Prime Minister Adams on television, Wednesday 26 October 1983.

13. According to a report in the Economist, 10–16 March 1984, at p. 21, the initiative for this seems to have come from the American Ambassador to Barbados, Mr. Milan Bish.

14. A detailed account of events is to be found in a speech by P.M. Adams of Barbados supra n. 12. See also interview with Compton, P.M. John of St. Lucia, for The New York Times: International Herald Tribune, 21 11 1983Google Scholar.

15. Cf., a report in the Economist supra n. 13 that the Marine force was thus diverted on Thursday 20 October.

16. Ibid.

17. Ibid., p. 22. When interviewed by this author, a US diplomatic official in London dismissed these reports as speculation and said that the decision to invade was probably made on Monday.

18. ‘Panorama’: BBC transcript recorded from transmission, Monday 31 October 1983.

19. See statement of Mrs. Kirkpatrick to the Security Council, Tuesday, 25 October 1983. UN Doc S/PV 2487.

20. Ibid.

21. Security Council debate, Wednesday 26 October 1983, UN Doc S/PV 2489.

22. Weekly Compilation of Presidential Documents, Monday 21 October 1983, Vol. 19; No. 43, pp. 1500–1501.

23. Ibid., p. 1502.

24. Supra n. 11.

25. Ibid.

26. See, generally, Brownlie, I., International Law and the Use of Force by States (1963) pp. 21; 40–49; 231Google Scholar.

27. Lillich, R., “Forcible self-help to protect human rights” 53 Iowa Law Review (1967–1968), p. 325 at pp. 327–332Google Scholar.

28. Although self-help is sometimes distinguished from self-defence, the latter not being considered a part of it.

29. Fonteyne, S. P., “Forcible self-help by States to protect Human Rights: Recent views from the United Nations” in Lillich, R. (ed.) Humanitarian Intervention and the United Nations 1973Google Scholar; Bowett, D.W., “The use of force in the protection of nationals” 43 Transactions of the Grotius Society (1957) 1959, p. 111 at p. 124Google Scholar.

30. See, for example, speeches by the delegates of Grenada, Guyana, Cuba and Democratic Yemen on Tuesday 25 October 1983, UN Doc S/PV 2489; Zimbabwe, Afghanistan, Mongolia on Thursday 27 October, UN Doc S/PV 2491. Delegates, however, did not generally look into the kind of danger that must be faced to allow action in self-defence, but instead found that the US hostages were in no danger. Cf., speeches by delegates from Tanzania and Jordan, and by the Permanent Observer of the League of Arab States who rejected the defence of nationals abroad as a base for intervention.

31. See R.Y. Jennings, 32 AJIL (1938), p. 82 at p. 89. The Webster formula was reaffirmed as the correct definition of self-defence by the Nuremberg Tribunal (Judgment H.M.S.O. Cmd. 6964 (1946), 28–9, 22 Proceedings 435).

32. DrBourne, Geoffrey; International Herald Tribune, 3 11 1983Google Scholar.

33. MrMontgomery, David; Supra n. 10 at p. 23Google Scholar.

34. Speech by the Grenadian delegate before the Security Council on Tuesday 25 October 1983, UN Doc S/PV 2487. This was verbally confirmed to this author by a US diplomatic official in London.

35. Sunday Times, 30 October 1983.

36. Supra n. 22 at p. 1487.

37. Supra n. 21.

38. Debate of the Security Council held on Thursday 27 October, UN Doc S/PV 2491.

39. For example, Green, L.C., “Rescue at Entebbe – Legal Aspects” Israel Y.B. on Human Rights (1976), 312Google Scholar; Lillich, R.supra n. 27 at pp. 338–351Google Scholar. See also comment in Sohn, L. and Buergenthal, T.International Protection of Human Rights 1973, p. 179, on the tendency of certain authorities and governments to gloss over the distinction between the defence of nationals abroad and humanitarian interventionGoogle Scholar.

40. For example, Frank, and Rodley, , “After Bangladesh: The Law of Humanitarian Intervention by Military Force” 67 AJIL (1973), p. 275Google Scholar. Brownlie, I., supra n. 26 at pp. 338–42Google Scholar.

41. Barcelona Traction, Light and Power Co. Ltd. Belgium v. Spain, ICJ Rep. (1970) p. 3 at paras. 33–34. The extent to which this dictum can apply to dispute settlement is debatable, however, given the carefully circumscribed dispute settlement clauses typically found in human rights treaties.

42. Article 2(4) of the UN Charter, and arguably before, depending on the scope of the Kellogg-Briand Pact 1928. See, for example, Brownlie, I., International Law and the use of force by States 1963Google Scholar, who argues that the Pact limited the use of force to actions in self-defence narrowly defined.

43. The role of self-help in the jus in bello is not included here.

44. This can only be based on international customary law developed subsequent to the drafting of the UN Charter. This author would thus agree with the conclusions of Ronzitti, , “Resort to force in wars of national liberation” in Cassesse, (ed.), Current Problems of International Law (1975) p. 319Google Scholar.

45. Subject to n. 44.

46. See Sohn, and Buergenthal, , International Protection of Human Rights (1973) at pp. 510–514Google Scholar.

47. See, in particular, the Island of Palmas case, The Netherlands e. U.S. (1978). Permanent Court of Arbitration 2 R.I.A.A., p. 829 at p. 839: “Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States… Territorial sovereignty cannot limit itself to its negative side, i.e., to exclude the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum protection of which international law is the guardian.”

48. Treaties on these subjects, viz., Genocide Convention 1948; Slavery Convention 1926 (as amended by the Protocol 1953); Supplementary Convention on the abolition of Slavery, the slave trade and Institutions and Practices similar to slavery 1956, expressly provide for limited implementation provisions, and particular British proposals to make slavery akin to piracy were rejected. See also the Report of the US Senate Committee on Foreign Relations 1971 which considered the Genocide Convention, and states that there exist no means in present international law to punish a government in power comitting genocide other than bringing charges before the ICJ or the UN: Sohn and Buergenthal, n. 46, p. 984.

49. Neither the Security Council nor the General Assembly pronounced on the legality of India's intervention and Security Council Resolution 307 (1971) and General Assembly Resolution 2793 (xxvi) 1971 both limit themselves to calling for a cease-fire, withdrawal of troops, action for the refugees and general exhortations for the well-being of the civilian population. For a general report of UN action in the India-Pakistan conflict, see UN Yearbook 1971, pp. 143–159.

50. This conflict was not debated in the United Nations at all. The only reference in UN records is a note to the effect that in March 1979, the Ugandan representative requested a meeting of the Security Council in connexion with the Tanzanian invasion, but that he withdrew his request on the appeal of the Group of African States not to have the meeting: General Assembly 34th Session, Supplement No. I, UN General Assembly Official Records 1979, Chapter 16, p. 55.

51. With regard to the Tanzanian invasion into Uganda, see, in particular, President Nyerare's allegations of 2, 9 and 17 November 1978 of Ugandan aggression necessitating military action. Keesing's Contemporary Archives, 22 June 1979 at pp. 29669 and 29670. With regard to India's justifications for its actions in East Pakistan, see the speeches of the Indian delegate before the Security Council on 4 December 1971, UN Doc S/PV 1606, and on 5 December 1971, UN Doc S/PV 1607.

52. This author believes that the inclusion of ‘rights’ in General Assembly resolutions, however unanimous or frequently repeated, does not make such a ‘right’ international customary law unless one can show a real opinio juris to that effect. Thus only few of the ‘rights’ in the Universal Declaration of Human Rights 1948 have subsequently hardened into law. Similarly, contrary to much popular academic opinion, treaty obligations cannot bind third parties, and thus it is not enough to point to obligations in human rights treaties unratified by the state against whom one is trying to prove a right. One can appreciate, however, the policy aim of stating what certain “rights” are law in the hope that governments will be accordingly persuaded.

53. Published in US Report supra n. 3 at p. 5.

54. See Security Council Debates of 26 and 27 October 1983 supran. 8. Also, interview with P.M. Compton of St. Lucia supra n. 14.

55. Although one could argue that the UN Charter still allows the right of anticipatory self-defence, it would have to conform to the limitations of the Webster formula which would not, in the author's opinion, cover the kind of special interpretation of the OECS Treaty just considered.

56. Letter written to P.M. Adams of Barbados. This author would like to acknowledge her indebtedness to the High Commission for Barbados which sent a copy of this letter.

57. For discussion on this subject, see, in particular, the two opposing views expressed by Bowett, D.W.Self-Defence in International Law (1958), Chapter 9Google Scholar, Cf., Brownlie, I.International Law and the Use of Force by States (1963)Google Scholar. This author would in fact agree with D.W. Bowett's views in that it is unlikely that a mere phrase, undebated in itself, inserted in an article included as an afterthought to cover collective self-defence arrangements until UN enforcements action is underway, was really intended by the states parties to alter fundamental rights of self-defence. This author is also not convinced that examples of pre-1945 statements unequivocally show that self-defence was limited at that time to actual armed attack, neither has subsequent practice confirmed a limited interpretation.

58. Excepting the Cuban Missile Crisis.

59. Grenada's fears for their own security in terms of threats from the USA is reported in the Report of the Foreign Affairs Committee Session 1981–1982 supra n. 2Google Scholar. See also infra n. 71.

60. Inter-American Treaty of Reciprocal Assistance signed at Rio de Janeiro, 2 September 1947.

61. Oppenheim, L.International Law, (ed. Lauterpacht, H.) Vol. I, 8th edn., p. 305Google Scholar.

62. See supra n. 18.

63. Sunday Times, 30 October 1983, and supra n. 12.

64. Supra n. 18.

65. Ibid. Also Second Report of the Foreign Affairs Committee, which states that the Governor-General met the British High Commissioner on Sunday 23 October but did not indicate a need for assistance; supra n. 21, p. xvi.

66. Per US diplomatic representative in London, this letter was made available to Congress in late January 1984.

67. According to the Second Report of the Foreign Affairs Committee, this letter, although dated 24 October, was not received until after the US/Caribbean intervention had taken place, supra n. 2, p. xvi.

68. Supra n. 56.

69. Security Council debates, 26 October, per delegate of Antigua and Barbuda; 27 October, per delegates of St. Vincent and the Grenadines, Barbados, St. Lucia and the USA supra n. 11.

70. This principle is subject to the factual possibility of such a government being eventually recognised.

71. See generally Cheng, B., General Principles of law as applied by International Courts and Tribunals (1953) pp. 186–190Google Scholar.

72. Supra n. 3 at p. 21.

73. Ibid., and the Economist supra n. 13 and p. 23.

74. “… when the military took over, they quickly came to me and acknowledged my authority as representative of the Queen – in the same way as the People's Revolutionary… when they overthrew the elected government. At first, I thought they were on the right wicket (?) … I was impressed, but within a very short time, I thought things deteriorated rapidly…” Supra n. 18. See also existence of NJM Central Committee notes of 21 October: International Herald Tribune, 7 November 1983.

75. Constitution of Grenada, 7 February 1974, Sections 19 and 57.

76. Ibid. See, for example, sections 57–68.

77. Series A/B 53.

78. Ibid., p. 71.

79. Ibid., p. 91.

80. See, for example, Hopkins case U.S.-Mexico G.C.C. 1926 21 AJIL (1927) p. 160 at pp. 164–165Google Scholar: “The binding force of such a c t s… will depend upon its real control and paramountcy at the time of the act over a major portion of the territory and a majority of the people of Mexico. As long as the Huerta regime was in fact the master in the administration of the affairs of the Government of Mexico its illegal origin did not defeat the binding force of its executive acts… Once it had lost this control, even though it had not been actually overthrown it would not be more than one among two or more factions wrestling for power… its acts of a personal nature could not ordinarily bind the nation from the moment it was apparently no longer the real master of the nation.”

In the Grenada situation, it was the NJM Central Committee that had de facto control, and the Governor-General could not be said to be “the real master of the nation”.

81. See, for example, report of a radio interview with P.M. Thatcher of the United Kingdom who, when commenting on Grenada, said that the West could not just march into other countries when things happened to them that they did not like, and this opinion was confirmed by Sir Geoffrey Howe in a television interview, who stated that the US action could not be justified: The Times, Monday 31 October 1983.

82. UN Doc S/16077/Rev. 1.

83. At Security Council meeting on the 27 10 1983 supra n. 11Google Scholar.

84. General Assembly Resolution 38/7, adopted 2 November 1983.

85. See debate of the General Assembly of 2 November 1983, UN Doc A/38/P.V.43.

86. For example, the widely-reported mock-invasion by US Marines of “Amber and Auberdines” near Puerto Rico in 1981.

At the New Delhi Conference, President Forbes Burnham of Guyana said that the invasion had been planned for a long time and that Maurice Bishop had spoken to him in 1981 and 1982 about fears of a US military intervention”: International Herald Tribune, 26 November 1983. According to the Economist supra n. 13, the CIA had long contemplated the overthrow of Maurice Bishop, but drew back after plans were leaked to Congress.

In June 1983, Maurice Bishop went to Washington to try and repair relations with the US Government but was given a cool reception and was not seen by President Reagan. See Report by Doyle, M. for The New York Times: International Herald Tribune, 5–6 12 1983Google Scholar. The fact is also reflected in the speech by President Reagan of 27 October, supra n. 22 p. 1500.

87. Supra n. 22.

88. Financial Times, 31 October 1983.

89. International Herald Tribune, 1 December 1983.

90. International Herald Tribune, 22 November 1983. See also the Fifth Report of the Foreign Affairs Committee, supra n. 2, p. xlviGoogle Scholar.

91. See, in particular, handwritten notes made by the Central Committee on the 21 October 1983 expressing disappointment at the “sharply worded” message from President Castro in which he announced his distress over the death of Mr. Bishop. These notes were part of the documents released by the US authorities subsequent to the invasion: International Herald Tribune, 7 November 1983. Also, speech by Castro on 14 November in Revolution Square, Havana, in which he stated that the men who murdered Bishop “sank the revolution”, and that relations were “cold and tense” between Cuba and the new Grenadian Government. International Herald Tribune, 16 November 1983.

92. Supra n. 22 at p. 1502.

93. “Toward an applied theory for the regulation of Intervention” in (ed. Moore, J.N.,) Law and Civil War in the Modern World (1974)Google Scholar.

94. 1961.

95. Supra n. 93 at pp. 18–19.

96. For example:

“In fact, present theory is already beginning to focus on a variety of domestic variables which may have significant potential both for management and for curtailing undesirable interventions. One such set of variables concerns the procedures by which decisions to intervene are made and how relevant information about the effects of intervention are brought to the focus of national decision-makers. For example, an effort to provide better information to intervening elites as to the realistic costs and benefits of intervention may deter many interventions which would otherwise be mistakenly perceived as advantageous.” Ibid., pp. 36–37. Subsequent to the completion of this paper, the American Journal of International Law has published a paper written by Professor J.N. Moore in which he states his opinion that the US intervention in Grenada was not contrary to international law. He examined the problem largely from a policy perspective and reiterated the view that humanitarian intervention is lawful, and in this connexion, referred to his article at n. 93 supra. 78 AJIL (1984) p. 145 at 154. See, for a contrary view, articles written by Professors C. Joyner, D. Vagts and F. Boyle in the same issue of the American Journal which generally support the conclusions in this paper.