An act of war and the military instrument

It is 2 p.m., Saturday, the 15th of September, 2001. I have just read the headlines tragically staring at me: "First war of the 21st century"...a big picture of the face of the US president on the left delivering the agony in his tragic and teary eyes close-up. Forty billion dollars has been set aside by the US Congress to undertake what is called in International Law the "Military Instrument" to fight the "act of war," in fact, the act of massive aggression, the worst within living memory, inflicted on the most powerful nation in the world. The perpetrators remain not categorically and specifically named and accounted for. World feeling is not only one of deep sorrow and intense shock, but one of utmost condemnation and revulsion for the aggression undertaken in an unbelievable manner uncannily akin to ugly, terrifying fiction.

William Tecumseh Sherman who certainly knows what war is all about said a couple of decades ago, as he looked at the many faces of the young men in front of him: "There is many a boy here today who looks at war as all glory, but boys, let me tell you, it is all hell." The US Congress very speedily authorized the use of all "necessary and appropriate force" against the terrorists. The US Defense Secretary has asked the US President to call several thousand members of the National Guard and the Reserve Corps to active duty, which I understand is the first presidential "call-up" since January 1991 when more than 265,000 reservists were called for the Gulf War.

I used to be appalled at the absurd paradox of a world desperately in need of every penny of its wealth, to properly house and feed, to educate and protect its people, wasting trillions of dollars on nuclear weapons that can never be used because to fire even one is to doom the world’s very existence. Now I can comprehend...now I understand. Within the past days, every peace-lover like myself has begun to see clearly and fully why that paradox just happens to be. All the events have reached a kind of emotional, critical mass throughout the world and have given every civilized citizen of every nation, the frightening feeling, if not the horror and anguish that something fundamental is awry, in fact, unbelievably grotesque in the world.

International Law governing the use of the military instrument by nation-states has gone through a number of rather profound changes since the United Nations Charter came into force. Although the charter has veered away from the difficulties created by the word "war," the permissibility or impermissibility of the use of military coercion has remained an issue. The military instrument utilizing modes of destruction is commonly associated with force and the obliteration of values, but, and this has to be emphasized, constructively, necessarily and legally employed for the collective security either by the organized general community of nation-states or by individual states. The military instrument is regarded as necessary for the preservation of minimum public order. That self-defense, individual and collective, in case of an act of war or an act of aggression is permissible. It is a matter without question and beyond all doubt.

From the time I was a student of law, I have regarded article 2, paragraph 4 of the UN Charter as the cornerstone of the charter system, which provides, "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." This has begged throughout the years the question: Is the nature of prohibited force limited to military force? Althought there is no unanimity of experts, it has been generally thought that this provision was not intended to cover coercive measures of an economic, ideological or political nature. We cannot lose sight of the fact that the general prescription of the threat or use of force provided for by the UN Charter goes hand in hand with the preservation of the inherent right of self-defense, so that the charter’s article 51 categorically states that "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. 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."

Unequivocably provided for, therefore, is the co-existence of the exercise of the military instrument or the use of military force by the state victim of the act of aggression or act of war, and the formal military action by the Security Council of the United Nations.

About two weeks ago, I was at a dinner given by former Foreign Affairs undersecretary Manuel Collantes and Mrs. Chito Madrigal-Collantes, in honor of "ambassador again" to Japan and Mrs. Domingo Siazon Jr. This is a repeat performance for Jun Siazon who had been, in the not so distant past, the Philippine ambassador to Japan. I found myself seated beside the very articulate, very young DOJ Underseretary Dondi Teehankee, currently very visible, very intelligent and a neighbor of mine at the vacation place called "Tagaytay Enclave." It was great to exchange experiences with Usec Teehankee who is as interested in International Law as a professional discipline as I am. It was exciting to discover that Dondi was very familiar with the great Yale International Law professor Myres S. McDougal who had a special place in his heart for the Philippines and the Filipino. Professor McDougal passed away not too long ago after the Yale Club of the Philippines presented him with an award. I soon became aware that indeed quite a number of years separated me from Dondi Teehankee, for, where he was talking about Myres McDougal as an authority and reference for his studies and treatises, this man had been my living, breathing professor in a subject called "Law, Science and Policy" at the Yale Law School. The trouble with this course, however, was the fact that, for probably the first seven weeks of the class, there was nothing one understood about it, but then, once you survive the seven weeks, everything becomes suddenly crystal clear and the nature of law as analyzed becomes an exciting, interesting discovery, that no one ever wants to let go. Myres McDougal had done eminent work after his teaching stint, with another former professor of mine, Justice Florentino Feliciano. After handling the course called "Legal Bibliography," Toy Feliciano went on to become an Associate Justice of the Supreme Court. Thereafter, ending a professional stint at Yale, Justice Feliciano, a disciple of McDougal, undertook jointly with the latter several profound treatises, one of which dealt with the troublesome question of aggression and self-defense. The two eminent international law experts present a contextual framework of analysis which offers operational indices in the formulation of a distinction between impermissible and permissible coercion. They analyze the many features in the developing process of coercion which have to be taken into account in drawing a distinction between the two.

McDougal and Feliciano point out that, "In a developing process of coercion, there may be a culminating point that creates reasonable expectations on the part of a target state that an immediate military response is necessary for the protection of its own existence – to safeguard its important bases of power from destruction." In the world arena, it has always been a policy and a firm belief that because of the imminent danger of destruction, the common interest in legally allowing self-defense in the form of a commensurate military response is decidedly justified. Art. 51 found its place in the UN Charter to reaffirm, not to limit or curtail the right of self-defense enshrined in customary international law. There can simply be no law that can rationally ask and expect a target state to await attack like a sitting duck to see its own destruction in the face of such danger.

Although it still is sometimes a point of contention that Art. 51’s precise wording is "an armed attack"...does it mean that self-defense must always wait for an actual armed attack? Or, can it be anticipatory self-defense? This issue is not just a matter for classic debate or for academic discussion. It is one of utmost importance and the greatest concern within the practical context where it has very definitely become a matter of human survival in this nuclear age of today.

Self-defense allows the exercise of the military instrument against an alleged aggressor to protect the sovereign fabric of territorial integrity. Nothing could be more justifiable than the situation presented by the destruction of numerous innocent lives and the devastation of centers of political and industrial power that have caused the unprecedented global support for America. The USA is not just a target state...she is a victim state. There is no imminence...it is a completion of destruction we are talking about. The act of war/aggression is a completed undertaking...it is not just the threat thereof. The exercise of the military instrument becomes a justifiable act of reprisal pursuant to the necessary right of a nation-state to survival and the inherent right of self-defense.

Spacecraft enhanced our appreciation of the world. They provided the first pictures of the whole earth. The most striking were the first such pictures, the color photos of earth taken by the Apollo astronauts on their voyages to the moon. What we saw was a small, beautiful, blue and white jewel-like world set against the velvet backdrop of space. You look at these pictures and, unbidden, the thought arises that this is a fragile and vulnerable place.

Earth indeed is fragile, is vulnerable...this is the nuclear age.