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The Right to Intervene
Lloyd N. Cutler practices law in Washington, D.C. In 1979-1980, he served as Counsel to the President. He is currently a member of the National Group of the United States in the Permanent Court of Arbitration in The Hague. Carol F. Lee of the District of Columbia Bar assisted in preparing this article.See more by this author
We face many foreign policy decisions—how to respond to the fighting in Afghanistan, Lebanon, Nicaragua, Salvador, Angola, Kampuchea, the Philippines and soon, perhaps, South Africa—that involve the legality of intervening in a civil war. The international law journals are full of scholarly discussions on this subject. They are hard for non-scholars to follow. They disagree sharply, as scholars are wont to do, in their argumentation and conclusions. For readers who are not scholars of international law, this article tries to explain how the rules have evolved, where they now stand, and how they might be clarified to relieve the rising tension between the principle of nonintervention and the human rights of self-determination and open democratic elections.
Does it matter whether our military interventions in civil wars, or those of the Soviet bloc, violate international law? Only the U.N. Security Council has the legal power to enforce international law, and it in fact has no such power against the Soviet Union or the United States if either chooses to exercise its right of veto. The columnist George Will has suggested that Americans ought to care less about whether we have the legal right to intervene than whether intervention in a particular civil war is the right thing to do.
But it does matter whether our actions comply with international law. It matters precisely because we are a practicing democracy with both philosophical and geopolitical reasons to encourage the democratic aspirations of all peoples. Democracy cannot flourish in a lawless climate; it depends on widely accepted principles of law for its survival. That is obvious with respect to national law. It is equally important with respect to international law, especially our treaty commitments under the charters of the United Nations and the Organization of American States. No democratic nation—least of all a democratic superpower—can afford to act in a manner that admittedly flouts international law. To sustain free-world support of our leadership, our actions must be confined to steps we can justify as consistent with a principled interpretation of the law as we see it.