1 Statement by the President (Dec. 20, 1989) (Office of the Press Secretary, the White House).

I concur with Professor Farer’s analysis, Panama: Beyond the Charter Paradigm, infra p. 503. Hence, my comments are directed solely at Professor D’Amato, The Invasion of Panama Was a Lawful Response to Tyranny, infra p. 516. The refutation in this article of the justification for intervention advanced by the President and his advisers does not, as Professor D’Amato points out, mean that there may not exist other bases on which intervention could theoretically be justified; but I am aware of no others, and it seems logical \o assume that if the President and his advisers were, they would have stated them. While a nation is not required to state valid justifications for its actions, principles of good faith would seem to preclude it from purposely misstating international law. The conclusions of this article are therefore twofold: the United States has misstated international law in attempting to justify its invasion; and since there are no other apparent principles under which one could justify the U.S. intervention, the U.S. action was illegal under international law.

2 Statement by the President (Jan. 3, 1990) (Office of the Press Secretary, the White House).

3 See Excerpts from Statement by Baker on U.S. Policy, N.Y. Times, Dec. 21, 1989, at A9, col. 5 [hereinafter Baker Statement].

4 Article 18 reads:

OAS Charter, Apr. 30, 1948, 2 UST 2394, TIAS No. 2361, 119 UNTS 3. See also Art. 20 (on the inviolability of the territory of a state, which “may not be the object, even temporarily, of military occupation” or any other use of force).

5 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV) (Oct. 24, 1970).

6 Corfu Channel case (UK v. Alb.), 1949 ICJ Rep. 4, 34 (Judgment of Apr. 9).

7 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, paras. 205, 258, 263 (Judgment of June 27).

8 Article 51 states: “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 measures necessary to maintain international peace and security.”

9 Article 21 of the OAS Charter provides: “The American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof.”

10 See, e.g., Tesón, F., Humanitarian Intervention (1988)Google Scholar; Humanitarian Intervention and the United Nations (Lillich, R. ed. 1973)Google Scholar.

11 See, e.g., Ropp, Military Retrenchment and Decay in Panama, Current Hist., January 1990, at 17; Gordon, U.S. Increases Panama Forces, Hinting Action, N.Y. Times, Dec. 20, 1989, at Al, col. 2.

12 See Branigin, Noriega Appointed ‘Maximum Leader’; Panama Says State of War Exists with U.S., Wash. Post, Dec. 16, 1989, at A21.

13 See Opposition Leader in Panama Rejects a Peace Offer from Noriega, N.V. Times, Dec. 17, 1989, at A5, col. 1 [hereinafter Peace Offer].

14 See Noriega gets new powers, title in Panama, Chicago Trib., Dec. 16, 1989, at 8C.

15 See Peace Offer, supra note 13. Assuming the United States was planning its invasion during the weekend of this announcement, the Government would not have wanted to disclose its plans.

16 Baker Statement, supra note 3, col. 5.

17 See, e.g., Church, Showing Muscle, Time, Jan. 1, 1990, at 23.

18 See Rosenthal, U.S. Forces Gain Wide Control in Panama, N.Y. Times, Dec. 21, 1989, at Al, col. 1.

19 See Army says “disciplined fire” cut Panama’s civilian toll, Denver Post, Jan. 21, 1990, at 13A, col. 3; Panama may gel $1 billion in aid, Denver Post, Jan. 25, 1990, at 2A, col. 4.

20 I am in agreement with Professor D’Amato’s position that human rights spring from the people and not from governing elites (p. 522 infra); human rights cannot be left to the whim of governing elites, including those of the United States. The content of human rights guarantees must be universal, and must not depend upon the views of leaders who decide to project power (U.S., Soviet, Chinese, etc.) to enforce their own interpretations of human rights.

21 I agree with Professor D’Amato’s point that tyrannies are illegitimate, given the modern evolution of human rights law. Where our two views differ is in the consequence of that illegitimacy. Only in the most extreme cases, such as Cambodia and Uganda, can military intervention be justified. Even then, the intervention must be narrowly tailored to be of as short a duration as possible.

22 Professor D’Amato chides Professor Farer and me for using “loaded words” such as “government,” “legitimate,” etc. (p. 517 infra), in analyzing the situation in Panama only a few lines before he refers to Noriega and “his co–thugs.” In the analysis presented here, it is thoroughly evident that Noriega’s tactics deprived his regime of a certain legitimacy. The issue, however, is not whether Noriega was a tyrant, but whether his actions could have served as a justification for the U.S. military intervention. It is clear that, shorn of loaded rhetoric and viewed in comparative perspective, the Noriega regime was not a significantly worse violator of human rights than many other existing (and some U.S.-supported) regimes. Therefore, justifying the Panama invasion on such a ground seems likely to open the door to U.S. intervention or intervention by another powerful state in many other cases.

23 See Dep’t St. Bull., No. 2081, December 1983, at 74.

24 Id.

Professor D’Amato compares Panama’s preinvasion circumstances to a domestic struggle in which the state is called upon to apply the rule of law objectively and prevent further violence. Of course, this analogy misses its intended point entirely. Unlike spouses who, as citizens of a state, receive benefits from, submit to and are expected to abide by universally agreed-to principles of law and morality derived through a democratically elected legislative process and enforced by an objective justice system and police force, nations such as Panama and the United States (and the USSR and Afghanistan) coexist within an international framework in which legal and moral principles are agreed to on the basis of mutual respect. Disagreements are resolved through dialogue, negotiations and the application, across time, of consensual customary norms and principles. In situations where no consensus obtains, these equal participants are under constraints to comply with principles of international law such as nonintervention.

25 See Reisman, Coercion and Self–Determination: Construing Charter Article 2(4), 78 AJIL 642, 643 (1984).

26 Id.

27 See Schachter, The Legality of Pro-Democratic Invasion, 78 AJIL 645 (1984). See also Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620 (1984).

28 Schachter, The Legality of Pro-Democratic Invasion, supra note 27, at 649.

29 Id.

Professor D’Amato’s contention that the United States violated neither the territorial integrity nor the political independence of Panama is weak. It turns on the fact that Panama has not been made a de jure colony of the United States. Under such an analysis, the Soviet invasions of Hungary, Czechoslovakia and Afghanistan, or for that matter the Nazi invasions of several European nations, did not take away their political independence or territorial integrity. Such a proposition must be rejected.

Even accepting, arguendo, that colonization of a territory is the only way to destroy territorial integrity, political independence must be a distinct concept or else the phrasing of Article 2(4) is unnecessarily repetitious. Political independence must refer to the freedom of a state to make choices. While the political choices Panamanians could make under Noriega were constrained, they remain so after the invasion owing to Panama’s increased dependence on the United States.

Professor D’Amato says that “[b]efore and after the intervention, Panama was and remains an independent nation” (p. 520 infra). This avoids the issue: we are concerned with the precedent this invasion sets as a violation of both conventional and customary international law.

30 See Berry, The Conflict Between United States Intervention and Promoting Democracy in the Third World, 60 Temple L.Q. 1015 (1987).

31 See Reisman, Criteria for the Lawful Use of Force in International Law, 10 Yale J. Int’l L. 279, 284 (1985): “The critical question is . . . whether [force] has been applied in ways whose net consequences increased congruence with community goals and minimum order.”

32 Id.: “whether it has been applied in support of or against community order and basic policies.”

33 See note 28 supra.

In agreement with Professor Reisman, Professor D’Amato argues that “human rights law demands intervention against tyranny” because it is “morally required” (p. 519 infra). Unfortunately, when all the explanations are given, the reader is still without a reasonable (and just) basis for deciding who the interveners should be. By permitting “any nation with the will and the resources” (id.), international relations are reduced to a situation in which the strong dictates to the weak what the standards for intervening will be. Of course, this permits the self-designated judges to decide when they will intervene, i.e., when it is most convenient. Thus, Panama is invaded but China is not. For a telling critique of this “incidents”–based justification, see Bowett, International Incidents: New Genre or New Delusion?, 12 Yale J. Int’l L. 386 (1987).

34 On Dec. 29, 1989, the UN General Assembly criticized the U.S. intervention by an overwhelming majority and in strong terms as “a flagrant violation of international law and of the independence, sovereignty and territorial integrity of States.” See GA Res. 44/240 (Dec. 29, 1989). See also Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56 Brit. Y.B. Int’l L. 189, 207 (1985). As for the OAS, see, e.g., Criticism of U.S. Action Is Supported in 20–1 Vote, N.Y. Times, Dec. 23, 1989, at A9, col. 5 (reporting vote of the OAS).

35 Professor D’Amato seeks to equate the invasion in Panama with the indigenous democratic movements in Eastern Europe (p. 524 infra). The distinction is significant; for democracy to be lasting, it must be expressive of the hopes and ambitions of the population and not merely the interests of a powerful neighbor.

The “lesson” that the United States has taught to tyrannical rulers through the example of Panama is not so much about democracy and human rights, as about the importance of currying the favor of the United States. Unfortunately, U.S. practice in the rest of the world indicates that this favor is indeed for sale to tyrants.

36 Panama Canal Treaty and Treaty concerning the Permanent Neutrality and Operation of the Panama Canal, Sept. 7, 1977, Panama-United States, TIAS Nos. 10,030 and 10,029, respectively [hereinafter Canal Treaty and Neutrality Treaty].

37 Canal Treaty, supra note 36, Art. 1(2).

58 Id., Art. IV(3).

39 Neutrality Treaty, supra note 36, Art. I.

40 Id., TIAS No. 10,029 at 3 (part of President Carter’s proclamation).

41 Id. at 4.

42 13 Weekly Comp. Pres. Doc. 1547 (Oct. 14, 1977).

43 United States v. Noriega, No. 88–0079 CR (S.D. Fla. filed Feb. 4, 1988).

44 United States v. Noriega, No. 88–28 C R – T (M.D. Fla. filed Feb. 4, 1988).

45 See United States v. Toscanino, 500 F.2d 267 (2d Cir.), reh’g denied, 504 F.2d 1380 (2d Cir. 1974), on remand, 398 F. Supp. 916 (E.D.N.Y. 1975); United States ex rel. Lujan v. Gengler, 510 F.2d 62,65 (2d Cir.), cert, denied, 421 U.S. 1001 (1975); see also Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, Continued, supra p. 444 (dealing with this question and the cases).

46 See N.Y. Times, Dec. 21, 1989, at A14, col. 1.

47 Professor D’Amato concedes the desirability of multilateral rather than unilateral intervention, but ignores both its rationale and the actual circumstances surrounding the intervention in Panama. The preference for multilateral intervention stems from several factors. One is that multilateral efforts may provide a check on intervention by a single state to pursue its own ends (political, military, economic, etc.), rather than merely correcting the international out-rage that may have justified the intervention. A second rationale is to assure that the incident that justifies the intervention is indeed viewed by the international community as of sufficient magnitude to warrant intervention. The failure of other nations to participate in the intervention, cited by Professor D’Amato (p. 520 infra), may therefore indicate that the community thought intervention illegitimate. However, factually, I am unaware that the United States offered such an opportunity to the Latin American states.

48 Professor D’Amato’s interpretation of state practice is curious. He contends that state practice after 1968 has changed the meaning of Article 18 of the OAS Charter. The only support he cites is the U.S. intervention in Grenada (p. 523 infra), which was actually condemned by most of the international community. The logic of D’Amato’s argument would allow George Bush in 1992 to contend that burglarizing Democratic National Headquarters has become acceptable practice since Richard Nixon authorized such action in 1972.

49 I wholeheartedly concur with Richard Falk on this subject. See Falk, The Decline of Normative Restraint in International Relations, 10 Yale J. Int’l L. 263 (1985).