ARMS-D-Request@MIT-MC.ARPA (Moderator) (01/11/86)
Arms-Discussion Digest Saturday, January 11, 1986 12:06PM
Volume 6, Issue 18.1
Today's Topics:
Moving ARMS-D to another machine..
SDI and LOW in International Law
A lesson in the irrationality of Politics
Switzerland
A lesson in the irrationality of Politics
Paranoia
Deep Strike
Complexity measures
Summing up on SDI
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Date: Fri 10 Jan 86 20:19:37-EST
From: Herb Lin <LIN@XX.LCS.MIT.EDU>
Subject: Moving ARMS-D to another machine..
Some of you might have heard rumors or indications that the longtime
ARPANET mail-relay and list-archive storage computer, MIT-MC, is due to
be retired. These rumors are true; I am in the process of moving
ARMS-D from MIT-MC to MIT-XX. Archive files will begin to live on XX
when the move is complete.
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Date: Sat 11 Jan 86 02:23:03-EST
From: "Jim McGrath" <MCGRATH%OZ.AI.MIT.EDU@XX.LCS.MIT.EDU>
Subject: SDI and LOW in International Law
Reply-to: mcgrath%mit-oz@mit-mc.arpa
There has been some rather loose talk about international law recently
(i.e. is the US currently, or will it, violate treaty obligations in
reference to LOW and SDI), and I would like to set the record
straight. Often the following passage has been cited:
The Organization and its Members, in pursuit of the Purposes stated in
Article I, shall act in accordance with the following Principles...
3. All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered.
4. All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.
United Nations Charter, Article 2.
Yet people ignore the equally important passage:
Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs
against a Member of the United Nations, until the Security Council has
taken the measures necessary to maintain international peace and
security. Measures taken by members in the exercise of this right of
self-defense shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore
international peace and security.
United Nations Charter, Article 51.
The US has always supported the concept of the inherent right of
states to defend themselves. Such a right was an explicit reservation
to the Kellogg-Briand Treaty [1928 US Foreign Rel., 1, 36]. It is
traceable at least to the Caroline Case [The Caroline Case, Moore's
Digest of International Law, vol II]. Moreover, note that the
Security Council, not the General Assembly, is the only UN body
empowered to takes steps that could be considered the basis for
international law.
What, you may ask, is self defense? Webster states in the Caroline
Case that the "necessity of self defense is instant, overwhelming, and
leaving no choice of means, and no moment for deliberation." It
clearly need not be confined to beating back the weapons involved in
the initial attack, if that is not possible.
Of course, differing interpretations as to facts can lead one to
conclude, in retrospect, that the self defense measure was uncalled
for (see League of Nations Committee of Enquiry on the outbreak of war
between Japan and China in 1931 in League of Nations Doc. No.
1932.VII.12, at 71), or that the claim of self defense is in fact a
lie (see the the Nurnberg Trial of War Criminals, in US Department of
State, Trial of War Criminals 23, Dept of State Pub. No. 2420
(1945)).
But note that in these cases (especially the latter), a country is
accused of acting aggressively, puts forward a claim of self defense,
and that claim is used in judging guilt or innocence. If you accept
the "reasonable doubt" standard, then such defense must simply raise a
reasonable doubt as to aggressive intent, and thus need be very weak.
The best you could get would be to use a preponderance of evidence
test, in which case a reasonable man simply must decide one way or the
other based on some "majority of evidence" test. Note that there is
NO WAY, under international law, to require that a state refrain from
self defense measures unless it can prove they are necessary for self
defense "beyond a reasonable doubt." ( There is no such thing as a
"suspect classification" rule in international law.)
Thus clearly using SDI is legal if there is reasonable cause to
consider the nation under attack. Similarly, LOW against strategic
assets is also legal. The latter must include nuclear forces such as
ICBMs, subs, and air bases, as well as CCC. Whether it includes
economic and population assets per se is another matter. So far I
have assumed that a state of War NOT exist, but rather that US action
is reprisal like ((strictly speaking, a reprisal demands an
ultimatum). While proportion is not still strictly required for
reprisals, it would be difficult to justify an attack on these other
assets. However, I think it clearly would be legal if a state of war
existed between the two nations, based on WWII precedents.
A state of war exists at the moment specified in a declaration of war;
if no time is specified, it begins when the declaration is communicated
to the enemy. If there is no declaration, then a state of war is
regarded as existing with the commencement of the first act of force
by a state with the intention of making war, or with the first such
act of force committed without the intent to make war but which is
regarded as an act of war by the state against which it is directed
[Bishop, International Law, p 948]. Note that "it is universally
admitted that a formal declaration is not necessary to constitute a
state of war" [Moore, International Law 171 (1906)].
So even if there was no state of war up until the Soviet launch,
international law would recognize such a launch (an act of force
regarded as an attack) as initiating a state of war. Thus the
President, as head of state, would be authorized under international
law to respond fully upon warning. So attacking population and
economic centers would, in this case, be legal (in a total war they
would be considered "legitimate military objectives").
The Constitution probably supersedes international law, so you still
have the division of powers question. However, while Congress is
empowered to declare war, it need not do so for war to exist. Thus
the Korean conflict has been held to be a war for insurance purposes
[Weissman v Metropolitan Life, Western Reserve Life vs Meadows,
Stanberry vs Aetna Life, Langlas vs Iowa Life, Gagliormella v
Metropolitan Life, Carius vs New York Life, Gudewicz vs John Hancock].
Moreover, it has been held that the attack on Pearl Harbor, and the
Japanese declaration of war, initiated WWII, not the US declaration
[New York Life vs Bennion], although there are conflicting cases. So
clearly the President would be authorized to respond fully without
Congressional action. It is interesting to contemplate what would
happen if Congress forbade the President from acting. There it could
go either way, depending upon circumstances. But still, I think the
President would reserve, as C-in-C, the right to launch reprisal like
attacks.
Jim
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End of Arms-Discussion Digest
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