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Max Planck Encyclopedia of Public International Law [MPEPIL]


Robert J Beck

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 23 April 2019

Islands and artificial islands — Sovereignty — Humanitarian intervention — Paramilitary groups — Peace keeping — Self-defence

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

Located in the south-eastern Caribbean, the island of Grenada became a sovereign State in 1974 when it secured its independence from the United Kingdom. At 344km2 one of the smallest States in the western hemisphere, Grenada remained in relative obscurity until 1983 when the United States of America (‘US’) undertook a military action there in collaboration with the Organization of Eastern Caribbean States (OECS). The nature and the international legality of that use of force have remained matters of considerable controversy. (Use of Force, Prohibition of).

Operation ‘Urgent Fury’ was launched on 25 October 1983 in pursuit of three Reagan administration objectives as articulated in the then-classified National Security Decision Directive 110 A ‘Response to Caribbean Governments’ Request to Restore Democracy on Grenada’ (‘Directive 110 A’): to assure the safety of American citizens on Grenada; to restore democracy to the island in conjunction with other OECS/friendly government participants; and to eliminate current—and to prevent future—Cuban intervention in that State (Intervention, Prohibition of; Democracy, Right to, International Protection). Because of its special circumstances, several objectives, and multiple State participants, the US-led use of force has been variously characterized by international legal scholars as a ‘regional peacekeeping’ action (Moore International Double Standard [1984] 153–56), an ‘intervention in response to lawful invitation’ (ibid 145, 159–61), an ‘intervention to protect nationals’ (see discussion in Arend and Beck 101), a ‘humanitarian intervention’ (Tesón 188–200), and one of the ‘two major examples’ of unilateral ‘pro-democratic intervention’ (Chesterman 90, 99–102; Humanitarian Intervention).

B.  Context of the Grenada Operation

The stage for military action was set two weeks before the 1983 invasion. On 13 October 1983, a coup within Grenadian Prime Minister Maurice Bishop’s own Marxist-Leninist party removed the leader from power. On 19 October, Bishop and scores of his countrymen died in the violent aftermath of a failed attempt to restore Bishop’s premiership. That evening, the leader of Grenada’s Army, General Hudson Austin announced the formation of a Revolutionary Military Council and the implementation of a four-day ‘shoot-on-sight’ curfew. Two days later, in response to what had transpired on ‘Bloody Wednesday’, six of the seven OECS Member States agreed—with Member State Grenada not participating—to invoke Art. 8 Treaty Establishing the Organization of Eastern Caribbean States (‘OECS Treaty’) and to seek the assistance of friendly States to ‘stabilise the situation and establish a peacekeeping force’ (‘Adams’ Address’ in Gilmore 104). Finally, on the evening of 23 October 1983, the Reagan administration decided to take forcible action. Earlier that Sunday, but not yet known to the US government, Grenadian Governor-General Sir Paul Scoon had met in St George’s, Grenada with the British Deputy High Commissioner and had asked that the British official relay a request for external assistance. Scoon’s appeal would subsequently be communicated through Barbadian Prime Minister Tom Adams to the US Embassy in Bridgetown, Barbados very early on Monday, 24 October 1983, and a formal written invitation would be conveyed personally by Scoon to US and Barbadian officials on the morning of 26 October 1983 (Beck, Grenada Invasion [1993] 156–57).

The international community overwhelmingly criticized the Grenada operation. Almost immediately, for example, 79 governments condemned, repudiated or in some way expressed disapproval of the US-led action (Payne Sutton and Thorndike 168). Moreover, on 2 November 1983, the United Nations General Assembly (‘UNGA’) voted 108 to 9 to condemn the US use of force as a ‘flagrant violation of international law and of [Grenada’s] independence, sovereignty, and territorial integrity’ (para. 1 UNGA Res 38/7 [2 November 1983] ; United Nations, General Assembly). Notably, the resolution was approved by an even larger majority than that which had earlier condemned the Soviet invasion of Afghanistan (Moore, ‘International Double Standard’ [1984] 153). The invasion was also criticized by the UK government, whose Prime Minister opined on the BBC World Service: ‘if you are going to pronounce a new law that whenever there is communism imposed against the will of the people then the U.S. shall enter, then we are going to have really terrible wars in the world’ (see ‘Remarks of Prime Minister Thatcher’).

C.  Lawfulness of the Use of Force on Grenada

1.  Humanitarian Intervention

For several reasons the Grenada invasion should not be considered a proper instance of humanitarian intervention. The Reagan administration never explicitly justified its action on the basis of humanitarian intervention. Moreover, it explicitly rejected the humanitarian intervention rationale in a 10 February 1984 letter from the State Department Legal Adviser to the American Bar Association: ‘we did not assert a broad new doctrine of “humanitarian intervention”’ (Letter from DR Robinson to E Gordon). Furthermore, geopolitical objectives clearly informed the US decision to use military force: ‘Urgent Fury’ sought not only to evacuate American and other nationals from Grenada, but also to restore democracy to the Marxist-Leninist-governed island, and to expel the communist influence of Cuba. International legal scholars maintain that a humanitarian intervention’s purpose must be ‘essentially limited to protecting fundamental human rights’ (Arend and Beck 113). Finally, if one accepts the contestable proposition that Sir Paul Scoon’s invitation constituted a lawful invitation, then US actions pursuant to Grenadian governmental consent would lie beyond the scope of a traditional definition of humanitarian intervention that requires that ‘forcible action not be undertaken pursuant to an invitation by the legitimate government of the target state or done with that government’s explicit consent’ (Arend and Beck 113).

2.  Intervention in Response to Lawful Invitation

Did the requests for external assistance by Grenada’s Governor-General—communicated orally and indirectly on 23 October 1983 and in written form personally on 26 October—constitute a lawful basis for the recourse to armed force? One may concede the debatable legal premise that invitation by lawful authority renders intervention permissible and nevertheless question whether Sir Paul Scoon constituted a bona fide lawful authority (Good Faith [Bona fide]).

The Governor-General had enjoyed certain broad executive powers under Grenada’s 1967 Constitution, which Grenada formally adopted, by way of the Grenada Constitution Order, in 1974. Until March 1979 these powers might arguably have validated an invitation to outside intervention. Then, however, the People’s Revolutionary Government (‘PRG’) of Grenada suspended the 1967 Constitution (‘People’s Law No 1 of 25 March 1979’), proclaiming instead a series of People’s Laws. The People’s Law No 2 of 25 March 1979 ‘vested all executive and legislative power’ in the PRG, while the People’s Law No 3 of 25 March 1979 reduced the Governor-General’s status to that of merely the Queen’s ‘representative’, with the authority to ‘perform such functions as the [PRG] may from time to time advise’. Having been delegated only limited minor powers of appointment and removal, the Governor-General’s office in October 1983 was constitutionally regarded as principally ceremonial and advisory. Given these circumstances, Scoon’s invitation seems not to have constituted a lawful basis for external military intervention in the domestic affairs of a sovereign State (Joyner 139).

In any event, the Reagan administration decided to take forcible action before it had even learned, third-hand, of Sir Paul’s request. Reflecting the irrelevance to the President’s use-of-force decision of the Governor-General and his request, Ronald Reagan’s lengthy memoir account of the Grenada episode makes absolutely no mention of them (Reagan, An American Life [Hutchinson London 1990] 449–58).

3.  Collective Action: Regional Peacekeeping or Collective Anticipatory Self-Defence

With Member-State Grenada not participating, the remaining six members of the OECS decided on 21 October 1983 to seek the assistance of friendly States to stabilize the situation on Grenada and establish a peacekeeping force. Did the OECS have independent authority to take military action, and hence, to issue invitations of military assistance to the non-Member-States of Barbados, Jamaica, and the US? In the absence of Scoon’s invitation, which was unknown to the OECS when it formally convened on 21 October 1983, and granting the contestable notion that formal assent by Member State Grenada was unnecessary, could the OECS’s regional arrangement have lawfully initiated either a ‘regional peace-keeping’ (Moore, ‘International Double Standard’ [1984] 153–56) or a collective anticipatory self-defence operation under the circumstances presented then (Regional Arrangements and the United Nations Charter)?

10  A reconstruction of the events of 13–25 October 1983 suggests that the decision-makers in Washington DC and Bridgetown, Barbados judged that the OECS did possess, at least plausibly so, the independent legal authority both to use force and to invite forcible assistance (Beck, Grenada Invasion [1993] 214). From the standpoint of mainstream international legal thinking, though, it is highly questionable whether the OECS did enjoy such autonomous legal capacity.

11  Regional arrangements are addressed in Chapter VIII Charter of the United Nations (‘UN Charter’ ; United Nations Charter). Such arrangements and their ‘activities’ must be ‘consistent with the Purposes and Principles of the United Nations’ (Art. 52 UN Charter). Under Art. 53 UN Charter, ‘[t]he Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state.’ Furthermore, under Art. 54 UN Charter, the ‘Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security’. (United Nations, Security Council).

12  In the light of these provisions of Chapter VIII UN Charter, and additional provisions of Chapter VII UN Charter, it is generally agreed that under three circumstances a regional arrangement may use force in a manner consistent with the UN Charter: a) it may engage in ‘collective self-defence,’ in accordance with Art. 51 Chapter VII UN Charter; b) it may undertake a Chapter VII ‘enforcement action’ after UN Security Council (‘UNSC’) authorization, in accordance with Art. 53 UN Charter; or c) arguably, it may act after the invitation of a lawful authority (Beck, Grenada Invasion [1993] 214). When the OECS voted to take action on 21 October 1983, it lacked both UNSC endorsement and lawful invitation. Moreover, the OECS failed to apprise the UNSC of the OECS’s activities in contemplation, as required by Art. 54 UN Charter. Accordingly, the only claim remaining then would have been collective ‘anticipatory self-defence’ under Art. 51 UN Charter. Such a claim would have been unsustainable, however, when, according to the OECS’s own statement, ‘law and order’ had to be restored on Grenada (Statement on the Grenada Situation From the OECS Secretariat). To be sure, a Grenada under Cuban-supported Marxist leadership might eventually have threatened the micro States of the eastern Caribbean. Nevertheless, in the days immediately following 19 October 1983, such a threat was scarcely ‘imminent’, a generally accepted prerequisite for any anticipatory self-defence action, whether individual or collective (Arend and Beck 71–79).

13  Because the OECS collective action was not taken plausibly in self-defence, not authorized by the UNSC, and not undertaken pursuant to the request of a lawful authority, the OECS lacked the legal capacity to use force. One may, conceivably, interpret the language of the OECS Treaty and its various provisions, particularly Arts 6 and 8 OECS Treaty, as providing a normative basis for the OECS collective action. Nonetheless, a regional arrangement simply cannot by treaty acquire the lawful capacity to use force in a manner otherwise proscribed by the UN Charter. Nor under such circumstances can a regional arrangement lawfully invite other States to participate in its use of force (Arend and Beck 60–65).

4.  Intervention to Promote Democracy

14  One of the Reagan administration’s three originally-classified objectives in launching ‘Urgent Fury’ was ‘to restore democracy to the island’ (Directive 110 A). Moreover, in justifying the Grenada action before the UNSC on 27 October 1983, US Ambassador Jeane Kirkpatrick suggested that UN Charter prohibitions on force were ‘contextual, not absolute,’ thereby permitting ‘force against force’ in support of such UN Charter values as ‘freedom, democracy, and peace’ (Ambassador Kirkpatrick’s Statement). Might the US-led use of force, though unauthorized by the UNSC, nevertheless be considered a lawful intervention to promote democracy?

15  A considerable literature on ‘the emerging right to democratic governance’ has developed in the post-cold war period (Reisman 866–76; D’Amato 516–24; Fox and Roth ; see also Cold War [1947–91]). In that context, the Grenada action has been characterized, with the 1989 US Panama intervention, as one of the ‘two major examples’ of putatively lawful unilateral ‘pro-democratic intervention’ (Chesterman 90, 99–102). The example seems ‘strained’, however (ibid 101).

16  The Reagan administration explicitly rejected expanded views of ‘self-defence’ and ‘new interpretations’ of Art. 2 (4) UN Charter in the State Department Legal Adviser’s letter on Grenada to the ABA (Letter from DR Robinson to E Gordon). Moreover, ‘the preponderance of opinio juris’ in the Grenada case ‘is to be found in the negative reaction of other states’, and thus supports the rule that unilateral pro-democratic intervention is not permissible (Chesterman 102). Furthermore, a ‘wealth of evidence’ from State practice—including the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations and UNGA Resolution 45/150 of 18 December 1990—bolsters the conclusion that an intervention to promote democracy, when undertaken without UNSC endorsement, is unlawful under the UN Charter (Chesterman 107). Also noteworthy here is the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America) of the International Court of Justice (ICJ) in which the ICJ refused ‘to contemplate the creation of a new rule opening up a right of intervention by one state against another on the ground that the latter has opted for some particular ideology or political system’ ([1986] ICJ Rep 14 at 133).

5.  Intervention to Protect Nationals

17  In a 10 February 1984 letter of the State Department Legal Adviser, the Reagan administration contended that the ‘protection of nationals’ was ‘a well-established, narrowly drawn ground for the use of force which [had] not been considered to conflict with the U.N. Charter’ (Letter from DR Robinson to E Gordon). Since ‘all specific U.S. proposals for the peaceful evacuation of U.S. personnel had been rejected by those elements which we considered to pose the greatest threat to their safety’, the protection of nationals had ‘clearly’ justified ‘the landing of U.S. military forces’, if perhaps not all the actions taken by the US in Grenada (ibid). ‘The United States’, the letter emphasized, had ‘not asserted that protection of nationals standing alone would constitute a sufficient basis for all the actions taken by the collective force’ (ibid 125–29).

18  Of all the legal arguments advanced by Reagan administration officials, whether by Legal Adviser Robinson or otherwise, the appeal to protection of nationals was by far the most compelling. A comprehensive review of post-1945 State practice seems to reinforce the view that intervention to protect nationals is not authoritatively prohibited by the UN Charter (Arend and Beck 93–111). Moreover, violence and bloodshed had destabilized Grenada on 19 October 1983, US intelligence thereafter regarding the island’s political circumstances was sorely lacking, and at least some Reagan administration officials were genuinely concerned that the nearly thousand American citizens on Grenada might be harmed or taken hostage (Beck, Grenada Invasion [1993] 199–203).

D.  Conclusion

19  It would seem reasonable to conclude that a US mission solely to evacuate nationals would have been legally permissible. Nevertheless, it was President Reagan’s desire to evacuate US citizens while also restoring democracy to Grenada and eliminating Cuban influence that ultimately drove his administration to plan and to execute ‘Urgent Fury’, a military operation that proved highly popular with US and Grenadian citizens and many of Grenada’s eastern Caribbean neighbours, but that was nevertheless of dubious international legality.

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