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Does International Law Matter to Congress?
Published online by Cambridge University Press: 28 February 2017
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- Does International Law Matter to Congress?
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- Copyright © American Society of International Law 1998
References
1 Turner, Robert F., Address: Do We Have an Imperial Congress?, 12 J. L. & Pol. 393, 405 (1996)Google Scholar.
2 United States v. Pink, 315 U.S. 203, 229 (1942); see also Robert F. Turner, Foreign Affairs under the Constitution: Only President Can Move Embassy, LEGAL TIMES, Jan. 22, 1996, at 46.
3 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
4 The Federalist 386 (Jacob E. Cooke ed., 1961).
5 congressional Accountability Act of 1995, Pub. L. No. 104-1, 109 Stat. 3 (codified as amended in scattered sections of 2 U.S.C.).
6 See Robert F. Turner, Skirting the Law on Capitol Hill, Wash. Post, Feb. 5, 1995, at 3 (Outlook).
7 For an excellent summary of the facts and applicable law, see John Norton Moore, Law and the Grenada Mission (1984). The request for the intervention is reprinted in appendix 1 at 87. Much of the early legal debate occurred without knowledge of this invitation, which was not disclosed until after Governor-General Scoon had been rescued on the island.
8 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ 14 (June 27). This case was brought because the United States was providing various types of assistance to antigovernment guerrillas operating out of Honduras and Costa Rica against the Sandinista government of Nicaragua. The United States viewed this as a necessary defensive response to Nicaraguán efforts to overthrow neighboring governments in El Salvador, Honduras and elsewhere, but Nicaragua denied any such role and contended the U.S. intervention constituted aggression. For a discussion of this case, see Turner, Robert F., Peace and the World Court: A Comment on the Paramilitary Activities Case, 20 Vand. J. Transnat’l L. 53, 56-69 (1987)Google Scholar. For a more recent assessment of the merits of the case by the world’s leading academic authority on the World Court, see Rosenne, Shabtai, The World Court: What It Is and How It Works 152-53 (5th rev. ed. 1995)Google Scholar (arguing that an arms depot discovered following a May 1993 explosion in Managua showed that Nicaragua had misled the Court and confirmed facts argued by the United States during the case).
9 ICJ Statute, art. 36, para. 2 (providing that “states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes” concerning specified types of cases).
11 Although the ICJ rejected the claim by both the United States and El Salvador that such a request had been made, while in El Salvador accompanying the presidential delegation to observe the 1984 elections I personally heard the outgoing President of El Salvador confirm that such a request had been made. For a critical look at the Court’s handling of the case, see Turner, Robert F., Peace and the World Court: A Comment on the Paramilitary Activities Case, 20 Vand. J. Trans. L. 53 (1987)Google Scholar.
11 See Robert F. Turner, Nicaragua V. United States: A Look at the Facts (1987). Others who had access to some of the classified evidence in this case, including the House Permanent Select Committee on Intelligence, chaired by Rep. Edward Boland, and the Kissinger Commission, shared my view that Nicaragua was engaged in an unlawful use of force against its neighbors. Few Americans have followed the issue since the ICJs 1986 decision, but the evidence against the Sandinistas has continued to mount—ranging from almost humorous incidents such as the open admission from Deputy Foreign Minister Victor Hugo Tinoco in early December 1986 to a group of West European diplomats (whom he had mistakenly assumed were from Eastern Europe) that Nicaragua continued to ship arms into El Salvador; to public admissions by Nicaraguán president Violeta Chamorro in June 1990 that the Sandinistas continued to smuggle arms to guerrillas in El Salvador; and especially the May 23, 1993, explosion of a Farabundo Marti National Liberation Front (FMLN) arms warehouse in downtown Managua—which led to sharp criticism of the Sandinistas and the FMLN by the UN Secretary-General. Indeed, this last incident led the world’s preeminent scholar on the ICJ, Shabtai Rosenne, to conclude that the explosion and subsequent admissions to the Secretary-General “brought to light a situation closely resembling that which had been described by the State Department... and confirmed facts elucidated by Judge Stephen Schwebel in his questioning from the Bench” in the Paramilitary Activities case. Professor Rosenne concluded: “This is not the first time that an international tribunal has been misled by one of the parties in its appreciation of the facts. It remains to be seen how far these later revelations, following on an accidental explosion in Managua, will affect the different assessments that have been made of this case and its value as a precedent.” Shabtai Rosenne, The World Court: What It Is and How It Works 153 (5th rev. ed. 1995).
12 G.A. Res. 240, U.N. GAOR, Supp. 44, at 52, U.N. Doc. A/44/L/63 and Add.l (1989) (adopted by a vote of seventy to twenty, with forty abstentions). An essentially identical Security Council resolution received ten “yeas,” four “nays,” and one abstention, but failed to pass because of the negative votes of permanent members. See U.N. Doc. S/PV.2902, at 18-20 (1989). By a vote of twenty to one, with five abstentions, the Organization of American States adopted a resolution “to deeply regret the intervention in Panama” and “[t]o call for the withdrawal of the foreign troops used for the military intervention....” OAS CP/Res. 534 (800/89), Dec. 22, 1989. While I felt at the time that the U.S. military intervention was irreconcilable with international law, I would note that five years later the Security Council unanimously passed Resolution 940 authorizing the use of military force to restore a democratically elected government in Haiti. Despite references to the situation in Haiti constituting a “threat to the peace,” there was not even a suggestion that Haiti was planning or engaging in a threat or use of force against any other state, and the clear motive behind the intervention was to restore democratic government. Similar principles can be found in the Inter-American system under the Organization of American States, and thus one might arguably find retroactive legal justification for Operation Just Cause in the Security Council’s 1994 actions against the government of Haiti. See Turner, Robert F., Haiti and the Growth of a Democracy Entitlement, in The United Nations at Fifty: Sovereignty, Peacekeeping, And Human Rights (Snider, Don M. & Schwartzstein, Stuart J.D. eds., 1995)Google Scholar.
13 H. Con. Res. 262, 136 CONG. Rec. H323 (daily ed. Feb. 7, 1990).
14 135 CONG. Rec. at H330. The final vote was 389 to 26, with sixteen members absent or voting “present.”
15 The two members were Ted Weiss and Gus Savage.
16 Indeed, reference was made to this in the final “whereas” clause in the resolution itself. 136 CONG. Rec. H323.
17 Quoted in Turner, Robert F., Truman, Korea, and the Constitution, 19 Harv. J. L. & Pub. Pol. 533, 547-48Google Scholar.
18 Id. at 551.
19 Id. at 550: “MR. Fulbright: Would not the Senator agree that if the Congress undertook to restrict the President in the exercise of that power which is placed within his discretion for the purpose of enforcing law and protecting our interests, it would be wrong to do so? MR. Lucas: I agree with the Senator.”
20 Id. at 554, n.93.
21 Id. at 554-55.
22 Id. at 555 (emphasis added).
23 Id. at 551.
24 See Robert F. Tumer, Consequences of Congressional Irresponsibility, Freedom Review, May-June 1991 at 18; see also Robert F. Turner, Councils of Caution Undercut Peace in Gulf, Christian Science Monitor, Dec. 3, 1990, at 19.
25 Although President Bush’s request to Congress was for a joint resolution approving his use of force to implement Security Council Resolution 678 (which authorized the use of force after January 15, 1991, to implement previous relevant Security Council resolutions and to take such steps as might be necessary “to restore international peace and security in the area,” Senate Joint Resolution 2/H.J. Res. 77, approved by the Congress on January 12, 1991, while passed “pursuant to United Nations Security Council Resolution 678,” only recognized the President’s authority to use force “to achieve implementation of Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, and 677”—not Resolution 678. (See H.R.J. Res. 77, 102 Cong., 1st Sess., Pub. L. No. 102-1, 105 Stat. 3 (1991), adopted on Jan. 14, 1991 (emphasis added).) The only one of these Security Council resolutions to establish a military objective was 660, which demanded “that Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August 1990.” A convenient source for these and other relevant documents on the Persian Gulf conflict, and a superb analysis of the legal issues, is John Norton Moore, Crisis in the Gulf (1992).
26 Certain expenses of the United Nations, 1962 ICJ 151 (Advisory Opinion of July 20).
27 For a summary of this debate, compare John R. Bolton, U.S. Isn’t Legally Obligated to Pay U.N., Wall St. Journal, Nov. 19, 1997 at A27, with Robert F. Turner, Utters to the Editor: U.S. and U.N.: The Ties that Bind, Wall St. Journal, Dec. 1, 1997, at A23.
28 Perhaps the most recent of these occurred on March 18, 1998, when by a vote of 193 to 225 to 13 the House defeated H. Con. Res. 227, which would have directed the President “to remove United States Armed Forces from the Republic of Bosnia and Herzegovina by June 30, 1998.” 144 CONG. Rec. H 1260-79 (daily ed., Mar. 18, 1998). For nearly fifteen years, it has been clear that the use of a concurrent resolution for such a purpose is unconstitutional under the Chadha decision; so, once again, why should anyone expect Congress to take the obligations of international law seriously if they so flagrantly ignore the U.S. Constitution?
29 See, e.g., Duration of Authorization for United States Participation in Multinational Force in Somalia, Pub. L. No. 103-139, 107 Stat. 1475 (1993), adopted Nov. 11, 1993.