How international law bolsters the US hand

For a particularly clear window on a turbulent future, consider recent acts -- and efforts to justify them -- by the United States, the Soviet Union, and key nations of the socalled third world, particularly its Muslim sector.

From the perspective of an international lawyer, the attempts to justify policies are more significant in a sense than the policies themselves. The intended audience ignores these justifications at its peril. For they give an insight into the thinking of governmental elites on the basis of which their future policies can be predicted. Even official silences -- where a justification would seem called for -- indicate a degree of respect or contempt for the people at which they are aimed.

The US's response to the seizure of its embassy and personnel in Iran was slow in coming but worth the wait. The macho spasm of the Mayaguez incident was avoided and the tools of international law were used. Of course, the International Court of Justice at The Hague cannot by itself free the hostages, any more than the US Supreme Court by itself could integrate the Boston school system, but neither would anything else. And the tactic of converting a collision between Iran and the US into a situation in which Iran is embarrassed before the entire world offers by far the best chance of a peaceful resolution of the crisis, with a renewal of productive relations between Iran and the US the eventual outcome.

Moreover, the impact on the entire third world of this display of American rationality following years of bluster cannot be exaggerated. The US justification for refusing to bargain over the fate of the Shah and our insistence on the machinery of the United Nations to induce a change in policy on the part of the powers that be in Iran have kept the issues of international law at the front of the world's attention and immeasurably strengthened a hand that holds very few high cards indeed against Iran.

The Soviet invasion of Afghanistan was purportedly justified by Ambassador Oleg Troyanovsky before the UN Security Council in terms that would, with a mere switch of names and minor adjustment to account for some unconvincing special pleading, fully justify American conquest of Cuba; indeed, the reality of Soviet influence and even troops in Cuba contrast with the vagueness of Soviet assertions intended to imply an American presence in Afghanistan, making the American case much stronger than the Soviet one. But a "hegemonistic" (the term used to be "spheres of influence") view of the world, which we unthinkingly adopted towards the Dominican Republic and Chile and which the Soviet Union adopted in Hungary and Czechoslovakia, favors the Soviet Union. Indeed, it is not within the capacity of the US, considering the worldwide nature of its economic interests, to establish a military presence whenever it is militarily threatened.

US unilateral trade restrictions on the Soviet Union as a response to the invasion of Afghanistan need international support not only as a matter of simple economic effectiveness but because, on a far deeper and more important level, the US lacks "standing" to protect Afghanistan (or, for that matter, Pakistan or Saudi Arabia). Third-world statesmen who do not understand the law still feel uncomfortable with the US in the role of universal policeman attempting to enforce a law which the US tries to determine by itself.

The UN political bodies, the Security Council and the General Assembly, have the requisite "standing" by virtue of the United Nations Charter, a treaty to which the Soviet Union and nearly all the third-world states are parties. If the UN cannot agree on a mechanism that might induce the Soviet Union to reconsider its actions, smaller groupings of states surely can, and a reestablished American military presence in the Persian Gulf with the cooperation of the states which feel the threat should do much to restore that part of the balance that is important to the US.

But a restored balance may be impossible for lack of stability in the countries of the area, lack of resources on the part of all the countries involved including the US, or even simple lack of perception by some governments. The latter would rather face Soviet coups than forgo the political conditions necessary for American aid, such as a degree of moderation in their plans for nuclear weapons development and a human rights policy internally that enables the US to dissociate its aid to the state from the fate of an unpopular government.

Ultimately, however, the need for the United States to justify its involvement in the Middle East in terms acceptable to the people who live there must outweigh the desirability of even a secure oil delivery line. Aside from external military interruptions, which have always been feasible, minimal security is impossible even with a military presence in the area if a significant guerrilla or labor-supported national movement is nourished by a sense of American intrusion and others appear as the champions of nationalism.

Thus, it is overwhelmingly in the American interest that the most perceptive international lawyers make the most persuasive case before the states and organizations concerned, and that American national policy take such legal concepts as "standing" into account. In these circumstances, it should be a matter of immediate concern that there is no qualified international lawyer on any of the congressional committee staffs that might be involved, and that the current senior (and only political-level) legal adviser to the Department of State has neither training nor experience nor, until his current appointment three or four months ago, any manifest interest in the subject.