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The Use of Force in International Law - A Case-Based Approach edited by Ruys, Tom; Corten, Olivier; Hofer, Alexandra (17th May 2018)

Part 1 The Cold War Era (1945–89), 36 The US Intervention in Panama—1989

Nicholas Tsagourias

From: The Use of Force in International Law: A Case-Based Approach

Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer

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

Subject(s):
Self-defence

(p. 426) 36  The US Intervention in Panama—1989

I.  Facts and Context

On 20 December 1989, the United States intervened in Panama. The stated goals of the operation, codenamed ‘Operation Just Cause’, were to protect US citizens facing threats of violence in Panama and to secure the unimpeded operation of the Panama Canal. As a result of the intervention, General Noriega, Panama’s strongman, was removed from power and replaced by Guillermo Endara, who had apparently won the May 1989 elections.1

This incident needs to be placed in the context of previous US interventions in Panama to protect US nationals2 and the Panama Canal, an important commercial and security asset. In 1977, President Carter and Panamanian President General Torrijos signed the Panama Canal Treaties,3 whereby Panama would establish control over the Panama Canal on 1 January 2000. Until then, the United States retained primary responsibility to protect and defend the Canal and the right to station, train, and move military forces within the Republic of Panama.4

Relations between the US Administration and General Noriega were ambivalent. It is alleged that as officer of the Panamanian Defence Forces (PDF), and later as their Commander-in-Chief, he was on the payroll of the Central Intelligence Agency and assisted the United States in their counter-insurgency operations against the Sandinistas in Nicaragua and the Frente Farabundo Martí para la Liberación Nacional (FMLN) in El Salvador.5 At the same time, General Noriega was also involved in drug trafficking and money laundering for which he was indicted by a Florida Court.6 After his activities were exposed, the Reagan Administration tried to persuade him to leave office but he refused. The Reagan Administration then imposed economic sanctions on Panama and refused to pay the $10 million annual fee under the Panama Canal Treaty.7 The Bush Administration (p. 427) tightened the sanctions, engaged in covert operations to remove Noriega, and financially supported the opposition.

On 7 May 1989, elections were held in Panama and the initial results showed that the opposition candidate, Guillermo Endara, won against his rival, Carlos Duque, who was supported by General Noriega. Following the elections, opposition leaders were harassed and on 10 May 1989 Noriega annulled the elections.8 The Organization of American States (OAS) and many states condemned the events.9 The United States demanded that Noriega honour the results of the elections; thereafter relations between the US Administration and the General became very tense. The United States reinforced its troops stationed in the Canal and openly encouraged the PDF to remove Noriega from office.10 On 3 October, Noriega crushed an attempted coup by Major Giroldi.11 A few months later, the National Assembly of Panama passed a resolution on 15 December 1989 declaring that Panama was in a state of war with the United States.12 Following these events, a number of US servicemen were treated aggressively, leading to the death of one serviceman. Another serviceman was beaten in police custody and his wife was sexually harassed. On 20 December 1989, President George HW Bush ordered the invasion of Panama, which mobilized around 23,000 troops and about 300 aircraft. Guillermo Endara was sworn-in as President at a US military base just a few hours before the first troops landed in Panama.13 The troops targeted the PDF headquarters, Noriega’s residence, and other military command centres, while protecting areas inhabited by US citizens. Intense fighting ensued. General Noriega went into hiding but later sought refuge in the Vatican diplomatic mission where he was psychologically harassed by the continuous playing of rock and roll music. Following negotiations with the Vatican representative, he surrendered to the United States on 3 January 199014 and was flown to the United States, where he was indicted and found guilty of drug trafficking.15 Following the invasion, the PDF was dismantled and the economic sanctions were lifted. The US troops withdrew on 31 January 1990.

The number of casualties suffered during the intervention is heavily disputed. According to the United States, there were 320 military and 280 civilian casualties16 whereas others put the figure between 300 and 600, even going up to 4,000.17 Public reaction to the operation in the United States and Panama inevitably varied. The US public seem to have overwhelmingly supported the operation whereas Panamanian citizens were initially (p. 428) sympathetic but when President Endara declared the day of the invasion as a national day of reflection, they marched the streets in protest against the invasion.18 In 2007, when the Panamanian Parliament declared the day of the invasion as a day of national mourning, President Torrijos vetoed the declaration. In July 2016, Panama established a Truth Commission to identify those killed during the events of 1989 and to award reparations.19

II.  The Positions of the Main Protagonists and the Reaction of Third States and International Organizations

In his address to the nation on 20 December 1989, President Bush explained the objectives of the Operation as follows:20

The goals of the United States have been to safeguard the lives of Americans, to defend democracy in Panama, to combat drug trafficking and to protect the integrity of the Panama Canal Treaty. Many attempts have been made to resolve this crisis through diplomacy and negotiations. All were rejected by the dictator of Panama, Gen. Manuel Noriega, an indicted drug trafficker. Last Friday, Noriega declared his military dictatorship to be in a state of war with the United States and publicly threatened the lives of Americans in Panama. The very next day forces under his command shot and killed an unarmed American serviceman, wounded another, arrested and brutally beat a third American serviceman and then brutally interrogated his wife, threatening her with sexual abuse. That was enough.

… as President, I have no higher obligation than to safeguard the lives of American citizens. And that is why I directed our armed force to protect the lives of American citizens in Panama, and to bring General Noriega to justice in the United States …

I am fully committed to implement the Panama Canal Treaties and turn over the Canal to Panama in the year 2000. The actions we have taken and the cooperation of a new democratic Government in Panama will permit us to honor these commitments …

A press release from the State Department explained that:

The United States objectives were: (1) to protect American lives; (2) to assist the lawful and democratically elected government in Panama in fulfilling its international obligations; (3) to seize and arrest General Noriega, an indicted drug trafficker; and (4) to defend the integrity of United States rights under the Panama Canal treaties.

We determined that US military action was necessary to protect and defend the Canal, to maintain the ability of the United States to execute its treaty rights and obligations and to protect the lives of American citizens.

We consulted with the duly elected Panamanian government [the government of President Guillermo Endara] which Noriega had illegally kept out of office, and they indicated that they welcomed our assistance.(p. 429)

The United States has the inherent right of self-defense, as recognized in article 51 of the UN Charter and article 21 of the OAS Charter. This right of self-defense entitles the United States to take necessary measures to defend US military personnel, US nationals and US installations. Further, the US has both the right and the duty under Article IV of the Panama Canal Treaty to use its armed forces to protect and defend the Canal and its availability to all nations. In addition, the legitimate democratically elected government of Panama was consulted and welcomed our actions …

The United States has not acted to install any government. The Panamanians chose their government on May 7 [1989]. All credible international observers certified that President Endara was elected by an overwhelming majority. We recognize the democratically elected, legitimate government of Panama. We will assist that government in fulfilling its international obligations and in restoring peace, prosperity, and freedom to Panama.21

In a letter to the President of the Security Council, the US Representative to the UN wrote:22

In accordance with Article 51 of the Charter of the United Nations, I wish, on behalf of my Government, to report that United States forces have exercised their inherent right of self-defence under international law by taking action in Panama in response to armed attacks by forces under the direction of Manuel Noriega.

The United States undertook this action after consultation with the democratically-elected leaders of Panama President Endara and Vice Presidents Arias Calderon and Ford who have been sworn in and have assumed their rightful positions. They welcome and support our actions and have stated their intention to institute a democratic Government immediately.

The United States has exhausted every available diplomatic means to resolve peacefully disputes with Mr. Noriega, who has rejected all such efforts. Action by the United States was taken after Mr. Noriega, after assuming the role of ‘Head of Government’ of Panama, declared on 15 December that a state of war existed with the United States, and following brutal attacks by forces of Mr. Noriega on lawfully present American personnel, murdering one American and injuring and threatening others.

The Security Council debated the action on two occasions. During its meeting of 20 December,23 Nicaragua condemned the action as a violation of international law and noted that the United States often used the protection of nationals as a pretext for invading other states.24 The Soviet Union condemned the action as a violation of the elementary norms of international law and stated that the US argument that it acted in self-defence to protect its nationals remained unsubstantiated. The Soviet Union went on to say that although it does not have diplomatic relations with Panama, it cannot remain indifferent when principles such as the non-use of force or non-intervention are involved.25 China stated that the action violated the UN purposes and the norms governing international relations.26 France recalled the right of the Panama people ‘to express themselves in a sovereign manner’ but took no position on the legality of the action.27 The United Kingdom welcomed the establishment of a democratic government in Panama and stated that force (p. 430) was used as a last resort.28 Canada said that the United States was justified to act since it had the support of the democratically elected President.29 The United States on its part said that it exercised its right to self-defence in order to protect lives and in order to protect the integrity of the Canal treaties. It also reminded the Council of recent events in Europe characterized by the turn to democracy and recalled that Noriega had turned Panama into a heaven for drug trafficking.30

During the next meeting, on 21 December,31 the Yugoslav representative condemned the action as a violation of Panama’s sovereignty.32 Nepal claimed that the US operation violated international law.33 Furthermore, Ethiopia,34 Algeria,35 and Malaysia36 condemned the operation as a violation of the UN Charter principles. Finland acknowledged the right to self-defence but said that the action was disproportionate and added that the restoration of democracy should be encouraged.37 Cuba condemned the US action as a flagrant violation of international principles and norms, such as the UN Charter. It also accused the United States of intervening in other countries by invoking democracy or in order to protect the lives of Americans and their property.38

A draft resolution submitted by Algeria, Colombia, Ethiopia, Malaysia, Nepal, Senegal, and Yugoslavia deplored the intervention as a violation of international law and of Panama’s independence, sovereignty, and territorial integrity; it was vetoed by the United States, United Kingdom, and France.39 During the Security Council debate, whilst representatives of the sponsoring states invoked the international law principles of respect of sovereignty, non-use of force, and peaceful settlement of disputes, the US Representative reminded the Security Council of the principle of democracy that was reinforced by the events taking place in Europe but noted that the United States does not claim a right to intervene for democracy or to be the ‘gendarme of democracy’. He emphasized that the United States acted in Panama for legitimate reasons of self-defence to protect lives of US citizens and in order to protect the integrity of the Canal Treaties. He stated that the action was in conformity with Article 51 of the UN Charter and the Canal Treaties.40 He also reminded the Security Council of the fact that the United States had tried to work alongside the OAS to solve the crisis but was disillusioned when the latter failed to act to ‘remove [Noriega] from the company of civilised people’ following the annulment of the May 1989 elections. He finally said that the action was proportional and was welcomed by the elected government. The representative of Colombia condemned the lack of democracy in Panama but also the US action as a flagrant violation of international law and of the principles of sovereignty and territorial integrity.41 The representative of the USSR supported the draft resolution because, in his opinion, the action constituted a flagrant violation of international law.42 France explained its veto by saying that the text was unbalanced although it found the recourse to the use of force regrettable.43 The United Kingdom explained it vetoed the draft resolution because it did not welcome the establishment of a lawful and democratically elected government, it did not mention Noriega’s violence and that the United States turned to military force as a last resort.44

(p. 431) Many Latin American states, but also other states, wrote to the President of the Security Council condemning the action as a violation of international law.45 The OAS adopted a resolution deploring the invasion, calling for the withdrawal of the troops and supporting the right to self-determination without external interference.46 The European Parliament also condemned the invasion.47

Following the Security Council veto, the US action was debated in the General Assembly. The General Assembly adopted by a 75 to 20 majority a resolution sponsored by Cuba and Nicaragua, which deplored the US invasion in similar terms as the vetoed Security Council resolution as ‘a flagrant violation of international law and the independence, sovereignty and territorial integrity of states’.48 Among the states that voted against the resolution were Australia, Canada, Israel, El Salvador, France, Britain, Japan, Panama, and Turkey. Forty states abstained and twenty-five states were absent.49 It should be noted that the General Assembly allowed a representative of the newly installed Panamanian Government to address the body.

Based on the Security Council and General Assembly debates it is rather difficult to gauge any secure conclusions about states’ views regarding the legality or illegality of the action. The main reason is that participating states did not always engage with the legal arguments presented by the United States but instead invoked in general terms international law principles. They further did not provide legal reasons to explain their vote when they were called upon to do so by the President of the General Assembly. In most cases the votes were influenced by states’ political affiliations or by their historical experiences. In other words, states voted for or against the pertinent resolutions for a variety of reasons.50 This is evident in the debates surrounding the General Assembly resolution. In the first place it should be recalled that General Assembly resolutions are not binding and that the General Assembly is a political organ. As to whether one can identify opinio juris in the General Assembly resolution, the ICJ’s views on the matter are helpful. As stated in the Nuclear Weapons Advisory Opinion: ‘it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character’.51 Thus, voting patterns are important. (p. 432) Concerning the resolution under discussion, it was supported by less than half of the 159 states present at the session and there were many negative votes and abstentions. As the ICJ said in the same Advisory Opinion, in order to deny the existence of opinio juris, the fact that resolutions ‘have been adopted with substantial numbers of negative votes and abstentions’ is important.52 Another critical factor is whether the content of the resolution or the resolution itself is couched in normative terms and whether states have expressed their legal points of view when voting for or against the resolution.53 As stated above, the resolution and participating states reaffirmed the UN Charter principles of non-intervention and respect of sovereignty but they did not deal with the specific legal issues arising from the incident and, more specifically, with the question of whether there is a right to intervene to protect nationals abroad. Since international law permits the use of force by way of self-defence, reaffirming the principle of non-intervention and state sovereignty does not refute the existence of a right to use of force in self-defence. Only the representative of Mexico claimed that the prevailing view among OAS members is to reject the interpretation that Article 51 of the UN Charter permits the protection of nationals abroad.54 The few states that engaged with the legal arguments articulated by the United States did not deny the existence of a legal basis to intervene to protect nationals but found that the facts on the ground did not fulfil the legal criteria for the exercise of such a right, in particular that of proportionality. One of the most thoughtful interventions was by the Representative of Ghana who rejected in legal terms the US justification of pro-democratic intervention and, with regard to self-defence, he invoked the pertinent criteria and said that: ‘The rules governing the exercise of the right of self-defence require that measures taken in self-defence must be proportionate to the attack.’55 This can be contrasted, for example, with Cuba’s intemperate intervention according to which: ‘If we are really going to talk about Article 51 of the Charter we must say unequivocally that the United States has violated its provisions, since it was the negative vote of the aggressor that prevented the Security Council from taking the measures it deemed necessary to maintain or restore international peace and security.’56 It is also interesting to note that when states were invited to explain their vote, many states mentioned the unbalanced character of the resolution regardless of whether they voted for or against the resolution.57 Finally, the fact that two of the sponsoring states were Cuba and Nicaragua, whose relations with the United States were confrontational, and that the invasion took place in the context of the Cold War further taints the resolution’s normative value. Consequently, to deduct any general opinio juris from these debates would be rather haphazard.

(p. 433) III.  Questions of Legality

Notwithstanding differences in the language used, one can glean a consistent pattern of justifications. The primary justification was that the United States was exercising its right to self-defence to protect US citizens. In second place, the United States asserted that the Canal Treaties gave it the right to intervene in order to protect and defend the Panama Canal. Third, the United States claimed that the intervention took place in ‘consultation’ with the democratically elected leadership of Panama who welcomed the intervention, thus invoking the doctrine of consensual intervention or intervention by invitation. Finally, US officials also suggested that the United States intervened in order to restore democracy, however the US Representative to the Security Council clearly rejected such reasoning.58 In this section, I will assess the legality of Operation Just Cause by examining the three main legal arguments put forward by the United States.

1.  Intervention to protect nationals

According to a broadly held view, rescue operations or interventions to protect threatened nationals are an exercise of a state’s right to self-defence.59 There are two lines of reasoning underpinning this argument. The first equates an attack on nationals with an attack against their state60 in view of the wording of Article 51 of the UN Charter that requires an armed attack. For example, in his letter to the Security Council regarding the US rescue operation in Iran, the US representative wrote that the United States was exercising its ‘inherent right of self-defence, with the aim of extricating American nationals who have been and remain the victims of the Iranian armed attack on our Embassy’.61 The link between nationals and their state becomes even more apparent when the attacked nationals are state employees, for example servicemen. Some judicial support for this view can be found in the Teheran Hostages case where the ICJ described the occupation of the American Embassy and the taking of hostages as an armed attack.62 As to whether such (p. 434) attacks constitute an armed attack, in the Nicaragua case the ICJ defined an armed attack by the scale and gravity of the use of force63 and for this reason attacks on nationals need to cross a certain threshold of gravity in order to fall within the meaning of armed attack for self-defence purposes. The second line of reasoning relies on the customary rule of self-defence, which was introduced in the Charter era by the word ‘inherent’ found in Article 51 of the UN Charter.64 Based on this line of reasoning, pre-Charter state practice as well as post-Charter state practice has reaffirmed such a right. One could mention in this regard the Israeli rescue operation at Entebbe65 and the US operation to free the US hostages from Iran.66 The ‘Non-Combatant Evacuation Operations’ doctrines adopted by certain states should also be mentioned. Some states have justified rescue operations as self-defence actions. According to UK doctrine, for example, the United Kingdom may launch a rescue operation with the consent of the host government but in the absence of such consent the operation is justified on grounds of self-defence.67 In light of the above, one can say that the forcible protection of nationals abroad is an aspect of a state’s customary right of self-defence.

Certain commentators place such operations outside the use of force paradigm by contending that they do not violate Article 2(4) of the UN Charter, which prohibits the use of force in international relations. According to this view, rescue operations do not violate the territorial integrity of the target state, nor do they compromise its political independence by subjugating the state and, furthermore, they are not contrary to the UN purposes.68 Indeed, the Legal Adviser to the State Department argued that the intervention was lawful because it was not against the territorial integrity of Panama.69

Still, a third approach treats rescue operations as an autonomous form of permissible intervention70 by relying on custom as formulated by state practice in the pre-Charter period. However, whereas it is true that the justifications offered by states in the pre-Charter period vary and do not exclusively invoke self-defence, in the post-Charter period states consistently invoke their right to self-defence in order to justify rescue operations.

In light of the above, the US invocation of the right to self-defence to protect its nationals has legal merit. In order, however, for the action to be lawful, it needs to satisfy a number of additional conditions: the threat to US nationals had to be imminent; Panama needed to be unable or unwilling to protect US nationals; and the operation had to be proportional and serve no ulterior purpose.71

(p. 435) With regard to the case at hand, it is true that Noriega and his supporters often exhibited animosity towards US servicemen. The latter were indeed the subject of threats, harassment, and attacks prior to the events leading to the US intervention. Nevertheless, the threat that US servicemen faced was not serious or grave. Consequently, the attacks against them did not rise to the level of an armed attack within the meaning of self-defence. Moreover, the use of force was not necessary because US servicemen could have been protected through other means that did not involve the use of force.72 Further, the action was not proportional. The involvement of 23,000 troops, the toppling of the government, and the death and destruction caused were out of proportion with the threat faced by US servicemen and the injury they suffered. It should be recalled that during the UN Security Council debates, certain states mentioned the operation’s disproportionality even if they did not dispute the existence of such a right. Likewise, legal commentators emphasize the disproportionate nature of the operation even if they do not doubt the legal basis of the US argument.73

2.  Intervention on the basis of the Panama Canal Treaties

The United States also claimed that the intervention was necessary in order to protect the integrity of the Canal Treaties because the actions of General Noriega and of his ‘Dignity Battalions’ against US servicemen impeded the operation of the Canal. It was furthermore claimed that in the Declaration of War, General Noriega demanded an end to the US presence in the Canal.74 Whether these actions constituted a violation of the Canal Treaties by impeding free transit is very much disputed but the question here is whether the Treaties actually granted the United States any right to intervene when a violation is committed.

According to Articles I(2) and IV(1) of the Panama Canal Treaty, the United States had the right to ‘protect and defend the Canal’, and to act unilaterally ‘to meet the danger resulting from an armed attack or other actions which threaten the security’ of the Canal.75 These Articles need to be read in conjunction with the modifications and conditions inserted by the Senate into the instruments of ratification. According to a modification inserted by the Senate:

Pursuant to its adherence to the principle of non-intervention, any action taken by the United States of America in the exercise of its rights to assure that the Panama Canal shall remain open, neutral, secure, and accessible, … shall be only for the purpose of assuring that the Canal shall remain open, neutral, secure, and accessible, and shall not have as its purpose or be interpreted as a right of intervention in the internal affairs of the Republic of Panama or interference with its political independence or sovereign integrity.

(p. 436) According to another condition inserted by the Senate when ratifying the Treaty of Neutrality:

the United States of America and the Republic of Panama shall each independently have the right to take such steps as each deems necessary, in accordance with its constitutional processes, including the use of military force in the Republic of Panama, to reopen the Canal or restore the operations of the Canal, as the case may be.76

Although the wording of this condition does not preclude action with respect to internal threats, it needs to be read against the provisions of the Treaties as a whole. When, for example, the Canal Treaty uses the words ‘protect and defend’ it apparently refers to external threats. Moreover, the Treaties prohibit interference in the internal affairs of Panama, hence any right arising from the treaty needs to be interpreted and exercised under this light and, more specifically, it needs to be exercised in order to keep the Canal open, neutral, secure, and accessible. Furthermore, the Canal Treaty obligates both parties to ‘cooperate to assure the uninterrupted and efficient operation of the Panama Canal’.77 It can thus be concluded that the Canal Treaties did not give the United States any right to intervene militarily against the Panamanian Government but only to defend and protect the Canal against external threats.78 It is also rather improbable that a Panamanian Government would have consented to military action against itself.79 Additionally, even if we were to consider that the Treaties permitted action against the Panamanian Government, the disproportionate character of the US operation would render it unlawful.80

3.  Intervention by invitation

During the debates within the UN Security Council and in its public pronouncements, the United States stressed the fact that the democratically elected President Guillermo Endara welcomed and supported the action. Such statements seem to invoke the doctrine of consensual intervention or intervention by invitation.81 According to international law, interventions at the request of the government of a state are not unlawful and state practice confirms this rule.82 The most recent examples are the allied action against ISIS in Iraq upon the invitation of the Iraqi Government.83 This notwithstanding, consensual interventions are not void of ambiguities. In the first place, consent should be valid, free, specific, and precede the action. Consent is valid when it is issued by a person or(p. 437) institution that represents the state and that can engage the state’s responsibility under international law.84 In the case at hand, the question is whether President Endara represented the state in this manner. Although he was sworn-in as President some hours before the intervention, at that time he did not possess the authority to represent Panama. The de facto leader of Panama remained General Noriega. As a matter of fact, in situations of uncertainty, international law relies on effectiveness85 and, at the time, President Endara did not exercise effective control over the territory or the people of Panama and more importantly he did not exercise governmental powers. As the Legal Adviser to the State Department acknowledged: ‘had Endara controlled Panamanian territory and been able to exercise governmental powers prior to December 19, 1989, the US action would have been lawful based solely upon Endara’s approval’.86

It should also be noted that Endara’s presidency was not recognized by other states, something that could perhaps have remedied its lack of effectiveness.87 Granted, the Noriega regime was also not recognized by other states and Noriega himself was not considered to be a legitimate leader, nevertheless he still exercised effective control over Panama and its people. The fact that President Endara took the oath of office at a US military base just before the invasion began casts further doubt on the authenticity of his consent; there are indeed doubts as to whether he actually consented to the intervention. Finally, if he actually gave his consent, it is not clear whether it was specific. The latter criterion is important because of the role of consent in removing the wrongfulness of the action. This also means that the action should stay within the bounds of consent.

If Guillermo Endara was considered to be the leader of the opposition at the time the intervention began, his invitation would have been invalid. As the ICJ stated in the Nicaragua case, allowing an opposition to invite troops ‘would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition’.88

In conclusion, this justification fails to withstand legal scrutiny. Yet, the United States did not actually claim such a right; what the United States said is that the action was welcomed or that it was supported by President Endara. This argument refers more to the operation’s legitimacy rather than to its legality.

IV.  Conclusion: Precedential Value

The Panama incident touches upon certain critical aspects of the use of force regime such as the use of force by way of self-defence to protect nationals, intervention by invitation, and intervention on the basis of a treaty. From the debates before the UN political organs and the votes on the General Assembly resolution, it is difficult to identify a clear view about the legal standing of the arguments put forward by the United States because not many states responded to the US legal arguments. The same can be said about the legality or illegality of the action. For example, denunciations of the action were often linked to negative perceptions about the way the United States employs its power or uses legal justifications. This is a critical problem facing international law, namely that assessments of (p. 438) legality or illegality often take place in political arenas and therefore they are influenced by political views. If any opinio juris is to be derived from such statements there needs to be a systematic analysis of each and every state’s attitude towards similar events as well as of their own practice. For instance, the present author is not convinced that any opinio juris can be derived from a state’s negative attitude towards this action if the same opinion is not expressed for a similar action taken by one of its allies.

Another critical issue concerning the precedential value of this or other incidents is that one needs to distinguish its impact on rule development from the way the rule is applied. For example, among states that engaged with the legal arguments and most evidently among academic commentators, the existence of the underlying right—that is, of a right to intervene to protect nationals—was not doubted, however the way such a right was exercised in the particular instance was questioned as well as whether the criteria delimiting its practice were respected.89 Indeed, states that objected to the action claimed that there was no armed attack, that there was no real threat, or that the action was disproportionate. As far as the right to intervene upon invitation or on the basis of a treaty are concerned, they received little attention in the debates before the UN political organs. Academic commentators recognized the underlying rights but doubted whether there was legitimate authority to invite the US troops or doubted whether the Canal Treaties sanctioned the intervention. That being said, to claim that a right does not exist, as was claimed by certain states or commentators, because it may be abused90 or because it may be used for spurious purposes91 is a policy argument and not a legal one. If that were to be the case, the international legal system would have been reduced into mere prohibitions, which, to paraphrase Oscar Schachter, reality would mock.92 Moreover, not satisfying the terms of a right does not take away the right but renders its exercise in the particular instance unlawful. Contrary practice may also change the terms of the right if sufficient opinio juris is established. For this reason, studying precedents provide us with snapshots of a broader legal as well as political picture and, for this reason, they need to be studied in such a context and not in isolation.

Footnotes:

1  (1989) Keesing’s Record of World Events 37112–13

2  See, in general, Milton Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States (John Hopkins Press 1928); and Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Martinus Nijhoff 1985).

3  They consist of two treaties: the Panama Canal Treaty (signed on 7 September 1977); and the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal (signed on 7 September 1977), 1161 UNTS 177.

4  Panama Canal Treaty (n 3) Article 1.

5  Scott Rosenberg, ‘Panama and Noriega: “Our SOB” ’ (Emory University College of Arts and Sciences, Department of History 2007) <http://history.emory.edu/home/documents/endeavors/volume1/Scotts.pdf> accessed 19 October 2016; Frances YF Ma, ‘Noriega’s Abduction from Panama: Is Military Invasion an Appropriate Substitute for International Extradition’ (1991) 13 Loyola of Los Angeles International and Comparative Law Review 925, 927–31.

6  United States of America v Manuel Antonio Noriega, et al, Defendants, No 88-0079 CR (SD Fla filed Feb 4, 1988); United States of America v Manuel Antonio Noriega, et al, Defendants, No 88-28 CR-T (MD Fla filed Feb 4, 1988).

7  (1989) Keesing’s 36645–46. See also: Situation in Panama: hearings before the Subcommittee on Western Hemisphere Affairs of the Committee on Foreign Relations, United States Senate, Ninety-ninth Congress, second session (vol 4, US GPO 10 March 10 and 21 April 1986) 38–43; Marian N Leich, ‘Contemporary Practice of the United States Relating to International Law’ (1988) 82(4) American Journal of International Law 803; Joseph C Lombard, ‘The Survival of Noriega: Lessons From the U.S. Sanctions Against Panama’ (1989) 26 Stanford Journal of International Law 269.

8  ‘Letter Dated 1 September 1989 from the Permanent Representative of Panama to the United Nations addressed to the Secretary-General’ (1 September 1989) UN Doc S/20828, Annex Decision No 1.

9  (1988) Keesing’s 36683–84.

10  See ‘Letter Dated 5 July 1989 from the Permanent Representative of Panama to the United Nations addressed to the Secretary-General’ (5 July 1989) UN Doc S/20719; ‘Provisional Verbatim Record of the Two Thousand Eight Hundred and Seventy-Fourth Meeting’ (11 August 1989) UN Doc S/PV.2874.

11  (1989) Keesing’s 36771.

12  (1989) Keesing’s 37112. The translation of the declaration (in Ruth Wedgwood, ‘The Use of Armed Force in International Affairs: Self-Defense and the Panama Invasion’ (1991) 29 Columbia Journal of Transnational Law 609, 616) is the following: ‘That for the past 2 years the Republic of Panama, a peaceful country traditionally dedicated to hard work to achieve the harmonious development of its population, has been under the cruel and constant harassment of the US Government whose President has used the power of war to try and subject the will of the Panamanian people, a power his nation never exercised against its worst enemies during the wars it has fought on the various continents. It is resolved: 1. To declare the Republic of Panama in a state of war for the duration of the aggression unleashed against the Panamanian people by the US Government.’

13  (1989) Keesing’s 37112.

14  (1989) Keesing’s 37113.

15  United States v Noriega, No 88-79-CR, 746 F Supp 1506 (SD Fla 1990).

16  (1989) Keesing’s 37112.

17  Inter-American Book on Human Rights 1990 (Martinus Nijhoff Publishers 1994) 314–16.

18  ‘Anti-U.S. Protests on Invasion Anniversary’ United Press International (20 December 1990) <http://www.upi.com/Archives/1990/12/20/Anti-US-protests-on-invasion-anniversary/1015661669200/> accessed 19 October 2016.

19  ‘Panama Launches Investigation into 1989 US Invasion’ BBC News (21 July 2016) <http://www.bbc.co.uk/news/world-latin-america-36852120> accessed 19 October 2016.

20  George Bush, ‘Address to the Nation Announcing United States Military Action in Panama’ (The American Presidency Project, 20 December 1989) <http://www.presidency.ucsb.edu/ws/index.php?pid=17965>. See also George Bush, ‘Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on United States Military Action in Panama’ (The American Presidency Project, 21 December 1989) <http://www.presidency.ucsb.edu/ws/index.php?pid=17973>; George Bush ‘Remarks Announcing the Surrender of General Manuel Noriega in Panama’ (The American Presidency Project, 3 January 1990) <http://www.presidency.ucsb.edu/ws/index.php?pid=18000> all accessed 19 October 2016.

21  Marian N Leich, ‘Contemporary Practice of the United States Relating to International Law’ (1990) 84 American Journal of International Law 547–48.

22  ‘Letter Dated 20 December 1989 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council’ (20 December 1989) UN Doc S/21035.

23  UNSC Provisional Verbatim Record (20 December 1989) UN Doc S/PV.2899.

24  ibid 3–17.

25  ibid 17–21.

26  ibid 21–22.

27  ibid 23–25.

28  ibid 26–27.

29  ibid 27–30.

30  ibid 31–35.

31  UNSC Provisional Verbatim Record (21 December 1989) UN Doc S/PV.2900.

32  ibid 6.

33  ibid 8.

34  ibid 11.

35  ibid 16.

36  ibid 22.

37  ibid 15–16.

38  ibid 23–33.

39  ‘Algeria, Colombia, Ethiopia, Malaysia, Nepal, Senegal and Yugoslavia—Draft resolution’ (22 December 1989) UN Doc S/21048.

40  UNSC Provision Verbatim Record (23 December 1989) UN Doc S/PV.2902, 8–16.

41  ibid 16–20.

42  ibid 23–25.

43  ibid 21–22.

44  ibid 22–23.

45  ‘Letter Dated 21 December 1989 from the Permanent Representative of Argentina to the United Nations addressed to the President of the Security Council’ (21 December 1989) UN Doc S/21042; ‘Letter Dated 2 December 1989 from the Permanent Representative of Peru to the United Nations addressed to the President of the Security Council’ (20 December 1989) UN Doc S/21044; ‘Letter Dated 22 December 1989 from the Permanent Representative of Indonesia to the United Nations addressed to the President of the Security Council’ (22 December 1989) UN Doc S/21060.

46  John M Goshko and Michael Isikoff, ‘OAS Votes to Censure U.S. for Intervention’ The Washington Post (23 December 1989) <https://www.washingtonpost.com/archive/politics/1989/12/23/oas-votes-to-censure-us-for-intervention/807f91f4-6f43-4b0b-8021-6bb994f83244/> accessed 19 October 2016.

47  ‘The US Invades Panama’ History <http://www.history.com/this-day-in-history/the-u-s-invades-panama> accessed 19 October 2016.

48  UNGA Res 44/240 (29 December 1989) UN Doc A/RES/44/240.

49  Voted against: Australia, Belgium, Canada, Denmark, Dominica, El Salvador, France, Federal Republic of Germany, Israel, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Panama, Portugal, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America. Abstained: Antigua and Barbuda, Bahrain, Brunei Darussalam, Cape Verde, Central African Republic, Chad, Costa Rica, Egypt, Fiji, Greece, Grenada, Honduras, Iceland, Ireland, Kenya, Lebanon, Liberia, Madagascar, Malawi, Malta, Morocco, Niger, Oman, Papua New Guinea, Philippines, Poland, Qatar, Rwanda, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Saudi Arabia, Singapore, Somalia, Thailand, Togo, Tunisia, United Arab Emirates, Yemen, Zaire.

50  ‘The Legal Effect of Resolutions and Codes of Conduct of the United Nations’ in Stephen Schwebel, Justice in International Law: Selected Writings of Stephen M. Schwebel (1994) 499; Jorge Castañeda, Legal Effects of UN Resolutions (Colombia University Press 1969) 154–55.

51  Legality of the Use or Threat of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 1996 [70].

52  ibid [71].

53  ibid [70].

54  UNGA Provisional Verbatim Record (10 January 1990) UN Doc A/44/PV.88, 7–11.

55  UNGA Provisional Verbatim Record (10 January 1990) UN Doc A/44/PV.87, 18–21.

56  ibid 36.

57  The Representative of Trinidad and Tobago said that he supported the resolution because of the principles it reaffirmed but also noted that it addressed only one aspect of the problem, UN Doc A/44/PV.88 (n 54) 27–28. Honduras explained that it abstained during the vote because the principle of self-determination was not mentioned in the resolution (ibid 31); El-Salvador and Tunisia made the same criticism and voted against the resolution (ibid 33 and 36); Spain voted for the resolution but said the resolution was not balanced and made no reference to democracy or the previous situation in Panama (ibid 32). Finally, Italy, Turkey, Japan, New Zealand, and the United Kingdom thought the resolution was unbalanced and voted against it (ibid 52, 53, 54, 57).

58  For a defence of the pro-democratic intervention theory see Anthony D’Amato, ‘The Invasion of Panama Was a Lawful Response to Tyranny’ (1990) 84 American Journal of International Law 516.

59  Derek W Bowett, Self-Defence in International Law (Manchester University Press 1958) 87–105; Derek W Bowett, ‘The Use of Force for the Protection of Nationals Abroad’ in Antonio Cassese (ed), The Current Legal Regulation of the Use of Force (Martinus Nijhoff 1986) 39; Oscar Schachter, ‘The Right of States to Use Armed Force’ (1984) 82 Michigan Law Review 1620, 1632; Claud HM Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’ (1952) 81 Hague Academy of International Law 467; Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (OUP 2012) 227; Oliver Dörr, ‘Use of Force, Prohibition of’ (2012) Max Planck Encyclopedia of Public International Law 616–17; Yoram Dinstein, War, Aggression and Self-Defence (CUP 2011) 255–56; Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (Manchester University Press 2006) 170–74. For the opposite view see Ronzitti (n 2) 62–72, 89–113; Tom Ruys, ‘The “Protection of Nationals” Doctrine Revisited’ (2008) 13(2) Journal of Conflict and Security Law 233. Regarding state reactions to the inclusion of such a right in the articles on diplomatic protection, they need to be seen in context that is, whether it is part of diplomatic protection. See Article 2 of ILC, ‘First Report on diplomatic protection, by Mr. John Dugard, Special Rapporteur’ (7 March 2000) UN Doc A/CN.4/506, [46] and; UNGA, ‘Report of the International Law Commission on the work of its fifty-second session’ (meetings held 24 October to 3 November 2000) UN Docs A/C.6/55/SR.15 to A/C.6/55/SR.24. Also see Olivier Corten, The Law Against War (Hart 2010) 523–26.

60  Bowett, (n 59) 91ff. Christopher Greenwood, ‘Self Defence’ (2011) MEPIL 103, [108].

61  ‘Letter Dated 25 April 1980 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council’ (25 April 1980) UN Doc S/13908.

62  Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ Rep 1980 [57]; but rejected by Judges Morozov (ibid Dissenting opinion of Judge Morozov, 56-57) and Tarazi (ibid Dissenting opinion of Judge Tarazi (translation) 64–65). The Court did not deal with the question of the legality of the US action since this question was not before the Court [94].

63  Case concerning Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 1986 [191].

64  ibid [176].

65  See UNSC Verbatim Record (9 July 1976) UN Doc S/PV.1939 57, 59-60 (Israel). See Chapter 19, ‘The Entebbe Raid—1976’ by Claus Kreß and Benjamin K Nußberger in this volume.

66  ‘US Department of State Bulletin’ (vol 80, No 2039, June 1980) 42–43. See Chapter 26, ‘The US Hostage Rescue Operation in Iran—1980’ by Mathias Forteau and Alison See Ying Xiu in this volume.

67  UK Ministry of Defence, ‘Joint Doctrine Publication 3-51, Non-Combatant Evacuation Operations Joint Doctrine Publication 3-51’ (February 2013) Annex 3B <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/142584/20130301-jdp3_51_ed3_neo.pdf> accessed 19 October 2016.

68  Rosalyn Higgins, Problems and Processes: International Law and How We Use It (OUP 1994) 220–21; Richard B Lillich, ‘Forcible Self-Help to Protect Human Rights’ (1967) 53 Iowa Law Review 336–37.

69  Abraham Sofaer, ‘The Legality of the United States Action in Panama’ (1991) 29 Columbia Journal of Transnational Law 281.

70  Robert Y Jennings and Arthur D Watts (eds), Oppenheim’s International Law (Longman 1996), 440; Edwin M Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims (WS Hein & Company 1919) 353–54; Theodor Schweisfurth, ‘Operations to Rescue Nationals in Third States Involving the Use of Force in Relation to the Protection of Human Rights’ (1980) 23 German Yearbook of International Law 159, 161.

71  Waldock (n 59) 467; Greenwood (n 59) [108]; Simma et al (n 59) 228; Dörr (n 59) 617.

72  Wedgwood (n 12) 621–28.

73  Louis Henkin, ‘The Invasion of Panama Under International Law: A Gross Violation’ (1991) 29 Columbia Journal of Transnational Law 293, 309; Ved P Nanda, ‘The Validity of United States Intervention in Panama under International Law’ (1990) 84 American Journal of International Law 494; Tom J Farer, ‘Panama: Beyond the Charter Paradigm’ (1990) 84 American Journal of International Law 503; Alan Berman, ‘In Mitigation of Illegality: The U.S. Invasion of Panama’ (1991) 79 Kentucky Law Journal 735; Simon Chesterman, ‘Rethinking Panama: International Law and the US Invasion of Panama, 1989’ in Guy S Godwin-Gill and Stefan Talmon (eds), The Reality of International Law: Essays in Honour of Ian Brownlie (OUP 1999) 57.

74  Sofaer (n 69) 287–88. The United States, however, did not take the declaration of war seriously: ‘Opposition Leader in Panama Rejects a Peace Offer from Noriega’ New York Times (17 December 1989) <http://www.nytimes.com/1989/12/17/world/opposition-leader-in-panama-rejects-a-peace-offer-from-noriega.html> accessed 19 October 2016.

75  Panama Canal Treaty (n 3).

76  Marian N Leich, ‘Contemporary Practice of the United States Relating to International Law’ (1984) 78 American Journal of International Law 200, 205–07.

77  Panama Canal Treaty (n 3) Article 1(4).

78  John Quigley, ‘The Legality of the United States Invasion of Panama’ (1990) 15 Yale Journal of International Law 287, 297–303.

79  Wilbur Hamlin, ‘Legal Issues Involved in the Transfer of the Canal to Panama’ (1978) 19 Harvard International Law Journal 279, 295.

80  David Wippman ‘Treaty-Based Intervention: Who Can Say No?’ (1995) 62 University of Chicago Law Review 607, 681–84.

81  Jennings and Watts (n 62) 435; Louise Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ (1985) 56 British Yearbook of International Law 189. See also Geoffrey Marston (ed), ‘UK Materials on International Law’ (1986) 57 British Yearbook of International Law 487, 616.

82  Military and Paramilitary Activities (n 63) [246]; Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) (Merits) [2005] ICJ Rep 2005 ‘Armed Activities’, [47].

83  ‘Letter dated 23 September 2014 from the Permanent Representative of the US of America to the United Nations addressed to the Secretary-General’ (23 September 2014) UN Doc S/2014/695; ‘Identical letters dated 25 November 2014 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General and the President of the Security Council’ (26 November 2014) UN Doc S/2014/851.

84  ILC, ‘Report of the International Law Commission on the work of its 31st session’ (14 May–3 August 1979) UN Doc A/34/10 112.

85  Quincy Wright, ‘Editorial Comment: United States Intervention in the Lebanon’ (1959) 53 American Journal of International Law 112, 120.

86  Sofaer (n 69) 290.

87  Jennings and Watts (n 70) 437.

88  Military and Paramilitary Activities (n 63) [246]; Armed Activities (n 82) [162]–[165].

89  Antonio Tanca, Foreign Armed Intervention in Internal Conflict (Martinus Nijhoff Publishers 1993) 119; Farer (n 73) 505.

90  Ian Brownlie, International Law and the Use of Force by States (Clarendon Press 1963) 301.

91  Quigley (n 78) 310–14.

92  Schachter (n 59) 1620.