[L]

MEMORANDUM

TO: Members of International Politics Seminar

FROM: Morton H. Halperin

The next session of the International Politics Seminar will
take place on Monday December 11 from 4-6 P.M. in the Seminar
Room at the Center. We will discuss Stanley Hoffmann's
"International Systems and International Law" which is in
World Politics for October 1961. Copies are being circulated
to those who indicated that they did not have one.

MHH:nb

INTERNATIONAL POLITICS SEMINAR

MEMORANDUM

FROM: Morton Halperin

The first session of the International Politics Seminar will
take place on Thursday, November 30 from 3-5P.M. in the
Seminar Room at the Center for International Affairs. We
will discuss the paper by Roger Fisher.

In general, this seminar will meet on Mondays from 3-5,
which was the time at which most people seemed to be
available. The dates for the rest of the year will be
set at the first session.

MHH:nb

21 November 1961

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DRAFT

ENFORCING INTERNATIONAL OBLIGATIONS

Roger Fisher

On any agenda for a peaceful future there is a topic which may roughly be called, "world law and machinery for peace." It is invariably recognized that in the future there will continue to be rules among countries and, in fact, that there will be a great number of new rules established by disarmament treaties or otherwise. The existence of such rules, such world law, raises two kinds of problems for the international legal mechanic. First, there is the need for mechanisms to create rules and to interpret and apply them--to determine the obligations of a state when they are in flux or in dispute. Second, there is the need for some mechanism to enforce the rules--to cause a state to do what it is legally obliged to do. This paper is concerned with the second problem.

The first problem, that of the mechanism for deciding authori-
tatively what ought to be done, is no doubt difficult. The general
techniques available for developing rules and resolving disputes are
subject to significant variations. In addition to developing rules
through treaties, agreements, and patterns of conduct, the Inter-
national Court of Justice, the General Assembly, and the Security
Council are institutional means for determining what states ought to
do. Alterations might be made in these institutions. Additional
institutions might be created which would have either the legislative

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power to declare new rules or the authoritative jurisdiction to
decide cases. But discussion of such changes seems somewhat
academic without facing up to the basic problem: Who is going to
make the governments of the world comply with the rules and with
the decisions? International law has always seemed something
other than real law because of the enforcement problem. Before
refining the procedures for interpreting and applying international
rules to governments we should consider the process by which we
hope to cause governments to obey these rules.

The best, sustained consideration of this subject is probably
that of Grenville Clark and Louis Sohn in World Peace through World
Law. That important and valuable book spells out what would be
involved in implementing the most widely held theory of how respect
is to be obtained for international rules against arms and violence.
In essence, the theory is that of the policeman on a larger scale.
As stated by Mr. Clark in his introduction to the second edition:

"In short, our conception is that if police forces
are necessary to maintain law and order even with a mature
community or nation, similar forces will be required to
guarantee the carrying out and maintenance of complete
disarmament by each and every nation and to deter or
suppress any attempted international violence."
(Clark and Sohn, World Peace through World Law, 2d, ed.,
xxix).

Clark and Sohn propose a full-time, professional United Nations
Peace Force of between 200,000 and 600,000 men plus reserves of
between 600,000 and 1,200,000 more. Nuclear weapons would be
available to the Peace Force only in extreme emergencies, but the
units would be strong and mobile so that they could be quickly

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assembled in the event of any "serious defiance of the authority of the world organization."

It is fair to say that reliance upon such an international police force to compel governments to obey international rules is basic to most plans for a disarmed world. American thinking has tended in the direction of the super-state. We foresee an international organization which brings about governmental compliance by threatening action against any country which does not comply.

This paper emphasizes another theory upon which we might proceed. Rather than to threaten nations as such by an external superior force we might seek to weave the international obligations into the domestic law of each country so that, by and large, each government enforced the obligations against itself. This technique would be used in conjunction with other enforcement techniques and would appear to add strength to the forces for compliance.

As Professor Cavers has pointed out, major changes in the arms race are likely to go hand in hand with major changes in political attitudes. In looking forward we are seeking to devise machinery which will operate under and help bring about a steadily improving political climate. It is probably more realistic to assume that the negotiation and implementation of a disarmament agreement will produce a world whose concerns are increasingly directed to other issues than to assume a continuation of the present levels of tension. In such a world the enforcement problem may be a good deal less difficult than it might now appear. In such a world the techniques here discussed may operate more effectively than they could today.

What follows is not a blue print of the legal machinery to
enforce disarmament. Rather an attempt is made to consider the
general theory of the means by which compliance with rules is
sought and to suggest what appears to be a promising approach.
One would be unduly optimistic if he thought that by any combina-
tion of means he could bring about 100% compliance with inter-
national obligations. Governments do not always comply even with
the domestic laws applicable to them. We do not seek, nor can we
await, a perfect legal system. If we can devise means which might
produce a pattern of governmental compliance with international
rules comparable to that now existing for domestic rules we will
be lucky indeed.

In analyzing the ways of bringing about compliance with a
rule or decision it seems wise to distinguish between individuals
and governments. In the international area we are primarily inter-
ested in obtaining the compliance of governments, not of individual
people. In one respect the task is far more difficult since the
governments with which we are most concerned are vast political
enterprises with great power at their disposal. But in another
respect the task may be easier. Big governments, like the United
States, often comply with constitutional restraints and other rules
without a bigger force to make them do so. A government is a gigan-
tic and complex machine. As with other such machines, it may not be
necessary to have a bigger or a stronger one to bring it to a stop.
A monkey wrench may be enough.

On the other hand, even the existence of superior force may
not be enough to make a government comply. The armed forces of the
Federal Government of the United States are vastly superior to those

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of the State of Louisiana, yet years after the Supreme Court's
decision in the school segregation cases the government of Louisi-
ana has failed to comply with that decision. Superior force is
thus neither a necessary nor a sufficient condition to governmental
compliance.

There are two basic ways of bringing about compliance with a
rule. The first of these is to make it *unreasonable* to break the
rule. This method operates on the hopes and fears of the one whose
compliance is sought. The possible consequences of compliance and
of non-compliance are arranged in such a way that they should per-
suade a rational creature to choose compliance over non-compliance.

The second basic way of bringing about compliance is to make
it *difficult* to break a rule. Rather than rely on the state of
mind of the one whose compliance is sought, we construct barriers
so that even should he decide that he wanted to break the rule (and
run the risk of suffering the consequences) he may not be able to
do so. In choosing and devising the best means of causing govern-
ments to comply with international rules one should consider the
advantages and disadvantages of the techniques available. The
following sections explore each of the two basic techniques, first
as applied to individuals and then as applied to governments. Against
this background the paper considers the method of obtaining govern-
mental compliance with international obligations that is based pri-
marily on national enforcement.

*Making non-compliance unreasonable -- for individuals.*

Individuals obey most rules from habit. When an individual is
faced by a choice between compliance and non-compliance with a rule,
he may be affected either by a hoped-for advantage from complying

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or by a feared disadvantage from not complying. The effective force for compliance is the difference between the two. In some instances no institutionalized response need be provided. Compliance brings with it its own reward. A rule that persons going to the top floor of an office building should ride the express elevator is "enforced" by the immediate self-interest of the passengers. In other instances a general pattern of compliance may result from an enlightened self-interest -- from a realization that everyone is better off with the rule than without it. The generally poor compliance with rules against littering the countryside suggests that in that case the hoped-for-reward seems either too little or too unlikely to be a sufficient incentive for compliance.

Most of our rules, particularly legal rules, are enforced by threatening punishment in the event of non-compliance. We try to induce compliance with the rules against murder by threatening a severe punishment in the event the rule is broken. We try to induce compliance with the rules against parking in certain areas by threatening a five dollar fine. The effectiveness of a threat is dependent, of course, upon how it is viewed by the person whose compliance is sought. If he considers the punishment insignificant or believes that it is unlikely to be imposed he will not be deterred. Even a mandatory death sentence may be an ineffective threat, perhaps because death is beyond everyday comprehension, perhaps because one refuses to believe that the sentence would in fact be imposed when the time came. Like the threat of nuclear war it may seem incredible.

- 7 -

A more important limitation on the usefulness of threats and promises, however, is that they are only effective to the extent that the one whose compliance is sought is rationally weighing the pros and cons. Crimes of passion are not deterred by threats of punishment. Persons operating under emotional strain or great anxiety are not likely to make an accurate assessment of advantages and disadvantages.

One factor affecting a rational choice between compliance and non-compliance is that of moral training or indoctrination. The more that society's rules can be respected through internalized controls the easier it is for society and for the individual. To some extent this may be considered as a limitation on rational choice. A man complies with a rule because he has been brought up to comply with such rules. There is no cold weighing of the pros and cons. On the other hand, training to respect rules may be considered as one way of arranging for unpleasant consequences in the event the rules are broken. By education we condition a person so that he is constantly threatened with a guilty conscience should he break the rules which he feels he ought to respect. The potential usefulness of this moral force should be kept in mind in considering the alternative ways of enforcing rules against governments. In the long run, education and indoctrination in support of particular rules or particular categories of rules may be a major means of increasing the forces for compliance. In the short run, moral views can probably be considered as fixed. They are nonetheless important data which should be taken into account in formulating the rules and in devising the procedural means for clarifying and interpreting them.

- 8 -

Making non-compliance unreasonable - for governments.

To some extent a government may be considered as a unit which will respond rationally to the alternatives with which it is confronted. The Government of the United States may be induced to comply with a decision of the Supreme Court by its hope that by doing so it will set a good example for others and by its fears that if it does not comply it may be difficult to convince others of the importance of respecting the law. Governmental respect for rules may sometimes be caused by fear of what the voters would do if the government did not comply.

Internationally, fear of the consequences is a major factor affecting the rational decisions of governments. Every government, irritated at times by the immunity of foreign diplomats, nonetheless decides to respect the international law of diplomatic immunity. It is not reasonable to break it because the probable consequences (reciprocal denial of immunity by other governments) outweigh any immediate gain from non-compliance.

In current thinking, compliance with the most important international rules -- those against waging aggressive war -- is induced at least in part by express and implied threats of retaliation. On political issues such as Berlin one government regularly seeks to cause other governments to comply with what it asserts to be the applicable law by threatening dire punishment if they do not. Proposals for the enforcement of a disarmament agreement usually rely upon the threat of superior force to cause continued respect for its terms. Once the retaliatory forces of other governments have been reduced beyond the point where they could be a serious threat it is

- 9 -

contemplated that there will be an international police force
with sufficient strength to frighten governments into continued
compliance.

But there are serious problems when one seeks to induce a
country to comply with a rule by making it unreasonable to break
it. A country is not a single entity. It is made up of a great
many individuals. When one seeks to affect a country's rational
behaviour by giving it the choice between the advantages of com-
plying with a rule and the disadvantages of not complying, one
must consider not how those advantages and disadvantages would
appear to us, nor even how they should appear to the other country
as a whole, but rather how they appear to the various individuals
who will in fact be making the decision.

Most simply stated, a foreign threat of violence to a country
may strengthen the hand of the local government, not weaken it.
The alternatives open, and the probable consequences of each, may
look quite different from the personal point of view of an
official than they look from the point of view of the country as a
whole. Assume, for example, that the United States should tell
Communist China that it must withdraw from Tibet or suffer nuclear
attack on one of its major cities. Assume also, that the best
judgment of the leaders of China was that there was a 60% chance
that the United States would carry out its threat. From the point
of view of the country as a whole it might be wise to leave Tibet.
But from the point of view of the officials in control the balance
might appear quite different. Perhaps, if these officials should

- 10 -

thus bow to a nuclear threat from the West, the army or some
rival political force within the country might oust them. On
the other hand, an American nuclear attack on one city might
cause the entire populace to rally firmly behind the regime. It
might, in fact, entrench the existing regime so that it could
eliminate some rival interests and be secure in power for years
to come. If these were the circumstances, a threat of "unaccept-
able consequences" to the country would not be a threat of unaccept-
able consequences to the officials who would be making the decisions.
One could expect the threat to prove ineffective.

Even in our own country threats of superior force may not
make non-compliance unreasonable from the point of view of officials
in charge even if it is unreasonable for the governmental unit as
a whole. For years West Virginia failed to comply with its legal
obligation to pay its fair share of the debt of the pre-Civil War
Commonwealth of Virginia. In theory, the United States Army was
available to enforce the decision of the Supreme Court telling West
Virginia to pay the debt. But from the point of view of a legis-
lator of West Virginia the consequences of superior force by the
United States army seemed less threatening than the consequences of
an irate electorate should he vote to increase West Virginia taxes
in order to pay money to Virginia.

We in the United States often insist that the officials in
control of some country are serving themselves and are not really
concerned with the welfare of the people. At the same time we may
seek to influence that government's conduct by threatening dire con-
sequences for the people. Since an economic boycott, for example,

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would be hard on "Russia" we tend to assume that "Russia" will not take steps which would result in our imposing a boycott.

The two "Russias" here involved are not the same entity. The decision makers are not the ones directly threatened. A threat to the country affects the decision makers only to the extent that they truly have the country's interests at heart. And however honestly an official may try, his appraisal of the national interest is likely to be affected by his personal perspective.

In an effort to induce governmental compliance with rules, threats are sometimes directed at the individual officials concerned. To deter the government from engaging in unlawful searches and seizures we allow actions for damages against the individual officers who engage in such activities. But there is also an opposing interest. In order to have our officials act wisely and free from undue fear we want them to be immune from liability for their official actions. We want our courts to decide cases according to the law, but we do not want to enforce this rule by making the judge personally liable for his mistakes. Some margin for official discretion is desirable.

The same technique of threatening the individual officer is attempted in the international area with respect to war crimes. We may be able to make it unreasonable for the country as a whole to break a rule, but decisions are not made by countries as a whole.

To be most effective the threatened consequences on non-compliance must be directed not only at the political abstraction that is a country but also at the individual human beings who make the decisions.

We try to make it unreasonable for them to act contrary to the rule.

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The consequences for them of non-compliance must appear to them
to be worse than the consequences for them of compliance. But
the threat of a war crimes persecution against individuals has
only limited effect on decisions. This is true not because of
any lack of severity of the threat (the death penalty is about
as serious a threat to an individual as one can make), but from
the lack of certainty that the threat will be carried out. By
and large war crimes trials are carried out only by other govern-
ments and only after a war has been lost. The punishment is severe
but it is neither swift nor sure.

Today the threat of individual punishment by hostile govern-
ments seems even less likely to be effective than heretofore.
Unconditional surrender would seem to be a prerequisite to trials
by one government of the officials of another for war crimes or
comparable offenses. Unconditional surrender seems today an un-
likely outcome for any but the most catastrophic wars. Any threat
that could be carried out only after a major nuclear war is hardly
likely to be effective.

Making *non-compliance* difficult -- for individuals.

The second basic method of enforcing rules is to make it
difficult to break them. Rather than rely upon a potential rule-
breaker's making a rational choice between the probable consequences
of compliance and of non-compliance we try to handicap his ability
not to comply. We may seek to control a horse by a judicious use
of the carrot and the stick -- or we may build a fence. And there
is much to be said in favor of the fence.

- 13 -

The technique of inducing respect for rules by making it
difficult to break them is frequently used in addition to the
method of threatening punishment for non-compliance. Not only
is the child threatened with a Spanking if he steals the cookies,
but the cookies are placed on the top shelf. We are not satisfied
to rely wholly on the fear of punishment to protect the President's
life, we make it difficult to kill him. He is provided with Secret
Service men, cars with bullet-proof glass, and other preventive
devices. We not only punish thieves, we use locks and safes.

At the outset one basic limitation on this preventive tech-
nique should be noted. The difference between preventing bad action
and requiring good action is significant. If the rule is that the
horse should not leave the pasture we can enforce it with a fence.
But if the rule is that the horse should pull the wagon to market
we must rely upon the carrot or the stick. We can make inaction
seem unreasonable; we are usually unable to make inaction difficult.
If the rule is that young men must report to the draft board, a
rule which requires affirmative action, we have no ready way of
making non-compliance difficult. We must satisfy ourselves with
offering rewards for performance and threatening punishment for
non-performance -- and hope that the young men will be persuaded
to comply by examining rationally the alternatives open to them.

Creating a precautionary rule back from the brink. Up to this
point we have considered society's interest to be that the rule not
be broken. In many cases this is true. Where the rule is against
murder any violation of the rule is certain to offend the interest
which the rule is designed to protect. But in many instances we

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are more clever than that. We construct a rule some distance
back from the interest we are trying to protect so that a breach
of the rule does not necessarily offend that interest. Creating
and enforcing a precautionary rule of this kind is one method of
preventing any real injury to the interest which the rule is
designed to protect. Having built a house near some dangerous
rapids in the Potomac a friend of mine was worried about the
safety of his two young girls. He had a rule that they should
not play in the water. But any violation of that rule was likely
to be fatal. So he marked a line about fifty feet back from the
river and made the rule that children should not cross the line.
By making the rule in this fashion he allowed for the possibility
of some breaches in the rule without any real injury.

By creating and enforcing a precautionary rule violations of
the basic rule are reduced. To some extent this result is simply
one of statistical probabilities. If we do not want cars to park
in frontof hydrants when there is a fire we draft and enforce a
rule to take effect earlier (never park in front of hydrants).
Quite a few violations of this precautionary rule can be tolerated
without creating much risk of a violation of the basic rule. Vio-
lations of the basic rule can be further reduced by combining the
precautionary rule with a technique for intervening after it has
been broken. In our fire hydrant case the police might too away
cars parked in front of hydrants. Such police action, although
occurring after a breach of the precautionary rule, is nonetheless
preventive action making it physically difficult to break the
essential rule, that cars should not be in front of hydrants when

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there is a fire.

Other examples of precautionary rules which lay the basis for preventive action include rules against carrying dangerous weapons, against possessing narcotics, and against storing dynamite in residential areas. In each of these cases breach of the precautionary rule may enable action to be taken which will prevent any real injury from taking place; the dangerous weapons and the narcotics may be confiscated before they are used and the dynamite may be removed before there is an explosion. Although this technique may not make it difficult to break the precautionary rule it is designed to make it difficult to injure the community. In each case there is either expressly or impliedly, an essential rule (against using dangerous weapons or narcotics, against setting off dynamite in residential areas) and action is taken which tends to make it difficult to break that rule. We are not limiting ourselves to the method of persuasion. By seizing the dangerous weapon we operate on the ability to use it. The preventive technique may also be applied after there has been a real injury in order to avoid its repetition. We may let a dog have one bite but after that tie it up. Some persons are kept in prison not simply to keep the threat of punishment credible but to prevent their committing crimes during the period of their confinement.

There are great administrative advantages in building a rule back from the water's edge. There is frequently less incentive to break such a rule. In the event of a breach the authorities have time to act and they also have a standard by which to act. But there are also drawbacks to such precautionary rules. One's freedom is

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restricted even though breaking the rule will not injure society. Innocent acts which cause no direct harm will be punished. Precautionary rules are thus likely to seem arbitrary and to command less popular support than the more basic rules against conduct that is directly harmful.

**Preventing non-compliance by preventing cooperation.** Another, and for our purposes the most interesting, method of making non-compliance with a rule difficult for individuals is to construct the situation so that to break the rule requires the cooperation of two or more people. The rule is made to run to the individuals. We seek to induce each individual to comply with the rule by threatening him with punishment or otherwise trying to make it unreasonable for him to attempt to break the rule. But in addition the situation is physically arranged so that it will take a joint and simultaneous illegal action to succeed in breaking the rule.

The simplest example is that of the grocery store safe which requires two keys to open it, each key being given to a different employee who is supposed to keep it at all times. Compliance with the rule against embezzling funds is thus made increasingly likely. To embezzle the money will require the joint illegal conduct of both trusted employees. Either employee, in suggesting embezzlement to the other, runs a substantial risk. Neither has it in his power to break the rule. Another example is that of a policeman directing a crowd. The crowd respects the orders of the policeman not because he is more powerful than they are taken as a whole. On the contrary, taken as a whole they could easily overpower him. But probably no one individual by himself is physically able to ignore the policeman's

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commands, and it is extremely difficult to organize the crowd
to take joint and simultaneous illegal action.

Here again the difference between action and inaction is
important. It is difficult to organize joint undertakings. A
single policeman is usually able to prevent a large crowd from
embarking on an illegal program of action. On the other hand,
group inaction is comparatively simple. A sullen crowd may
just sit tight. A policeman may find it hard to get them to
obey his orders if to do so requires affirmative cooperation
among them.

Making non-compliance difficult -- for governments.

Governments are legally bound by many provisions of domestic
law and, in general, comply with them. Some of these domestic
rules, as discussed above, are enforced by a fear of the conse-
quences to the government of breaking them, a fear held up by
officials who have the ability to break the rule if they want to.
But perhaps the most important factor tending to cause compliance
is that non-compliance by a government is often difficult to bring
about.

Governments are rarely restrained from breaking domestic rules
by simple physical limitations such as locks and fences. To be sure,
it was early proposed that the Federal Government be prevented from
usurping powers reserved to the states by not allowing it to have a
standing army. To some extent the locks on our doors may prevent
illegal entry by the police as well as by burglars. But the basic
method used to prevent the government from breaking rules is that of
the two keys to the grocery store safe. We establish subsidiary

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rules which run to the individuals whose conduct is involved
and then we arrange matters so that it will require the joint
illegal action of many people to break the big rule with which
we want the government to comply. It is largely by such means
that the United States Government is prevented from violating
the Constitution. By such means general governmental compliance
with court decisions is obtained.

The Government is big and has a vast army. The Supreme Court
is weak and has no army; it has no more soldiers at its disposal
than does the International Court at the Hague. General compliance
with the decisions of the Supreme Court and with the Constitution
and statutes of the United States, is not simply the result of a
conscious weighing by the government, as a unit, of the pros and
cons of compliance and non-compliance. That question, in fact,
rarely arises because the Government is not a unit; it is a lot
of individuals each of whom regards it as his duty to comply with
the law. For the government to take any major action requires the
cooperation and participation of a large number of individuals. No
one individual by himself can cause the government to take affirma-
tive action in violation of an important rule. And there is a
personal risk to him of suggesting to others that they jointly
undertake a course of illegal conduct. Every government officer
has not only a loyalty to his Superior but a loyalty to the system
and to the rules. Every government, even the most dictatorial,
tends to establish loyalties to programs and principles, loyalties
to the system. Those rules which hold the system together and which
are the product of the system cannot easily be broken by any one

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individual, even an individual on top. Obviously some governments are domestically more law-abiding than others. But every government of size is an institution which operates according to set rules. The functions of government cannot be carried on in a state of anarchy nor by a wholly ad hoc series of decisions. To the extent that governments do comply with rules relating to their domestic order a major factor appears to be a form of institutional inertia -- the physical difficulty of suggesting reaching agreement upon, and carrying out an institutional decision to violate the rule.

The separation of powers is thus a far more basic phenomenon of government than the division between the executive, the legislative, and the judicial. To achieve maximum governmental compliance with a rule it is desirable to establish subsidiary rules which run directly to the many individuals who make up the government and to induce individual compliance with these rules by all the normal means at one's disposal. In these circumstances it will be more difficult for the government to bring about and execute a collective decision to break the rule.

### Applying the analysis to the international problem.

In the light of the foregoing discussion, what are the best means of enforcing international obligations, particularly those relating to disarmament? First, it is apparent that there is no necessity that one means should be used to the exclusion of any other. In fact, quite the contrary. The chances for compliance with any given international obligation will in large part depend upon the extent to which a combination of forces can be marshalled in its support. But running through the various techniques suggests

- 20 -

that in marshalling the forces in support of compliance we
should place less emphasis than is currently proposed on inter-
national armed forces and a greater emphasis upon the national
enforcement of international law.

Making non-compliance unreasonable. A nation may be deterred from breaking an international obligation by fear of such unorganized responses as an adverse world public opinion. We are here concerned, however, with the institutionalized threat, the organized deterrent. We are interested in designing appropriate legal machinery, which would, among other things, tend to make public opinion part of an organized response. The basic deterrent suggested for a disarmed world has been a United Nations peace force, stronger and more powerful than the remaining internal forces of any one state. There are serious initial problems of getting the nations of the world to accept the idea of a superior international army. As the prospects came closer to realization the difficulties would become more apparent and the objections could be expected to increase. Much of the powerful force behind the disarmament movement rests upon the conviction that it is impossible to devise political controls which can be sure to prevent improper use of military weapons. Arms control techniques are thought unsatisfactory. The weapons themselves must be abolished. But an international police force will have weapons. For an international police force we will have to rely on political controls to prevent the misuse of the weapons. We will have to rely on arms control techniques comparable to those we now reject for national armies. The large role which armies have played in overthrowing political authority in one country

- 21 -

after another through the course of history will cause many
governments to worry about a United Nations army. What is to
prevent the commander-in-chief of the U.N. forces, or some other
officer, from ousting the Secretary General and from using the
U. N. forces for his own political ends? The detailed suggestions
of Clark and Sohn for lessening this problem do not resolve it.
The United States Senate is not likely to be the only voice which
expresses doubts about creating an international army capable of
threatening any nation.

An international army, once established, should be able to
make it unreasonable for any government with weaker arms to engage
in open military aggression against another country. It should also
be a useful instrumentality for pulling apart opposing forces and
preventing the continuation of hostilities that may have broken out.
In such cases there would not only be clear grounds for international
action; the appropriate responsive action by the U.N. forces would
also be apparent. But it would appear to be no easier for a U N.
force to deal on a governmental level with many breaches of inter-
national law than it is now for the United States. A threat of
punishment is both difficult to make and difficult to carry out.
To seek to deter governmental action by threat of punishment to
the nation raises all the problems inherent in massive retaliation
and the problem of threatening the wrong party discussed above. To
make the threat credible and moral it must be appropriate to the
offense. It is extremely difficult to devise national punishments
that are appropriate for various assumed national actions. As
suggested by Clark and Sohn, the most promising appropriate deterrent

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actions by an international force consists of measures such as
the confiscation of prohibited weapons and the destruction of
prohibited facilities. The fear of such actions might act as
a deterrent but the actions themselves are primarily effective
not because they make it unreasonable for the government to break
the rule but because they make it difficult for it to continue
to do so.

Turning from international to national threats, the one most
basic to a disarmament agreement is the threat of reciprocal non-
compliance: "If you rearm, so will we." As with other threats,
knowledge of the violation is required to make the threat effective.
But inspection does not necessarily produce compliance. To a coun-
try that now thinks disarmament unwise, a threat of reciprocal non-
compliance is no real threat at all. The only enforcement action
other countries threaten is to participate in tearing up the rule.
This is hardly an effective deterrent for a state that wants to
abolish the rule. National retaliatory action of a more drastic
sort involves the full range of problems involved in current mili-
tary deterrence, among which the problem of making the punishment
fit the crime is perhaps the most difficult.

**Making non-compliance difficult.** Perhaps the oldest means of
trying to bring about compliance with international rules against
waging war was that of trying by physical means to prevent a suc-
cessful violation from occurring. Just as we put locks on our door
to prevent Burglars from stealing we put soldiers along the frontier
to prevent a foreign country from violating our rights. Tree
defensive weapons like the Maginot Line and the anti-missile missile

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are international versions of the lock on the door.

Rules against aggression leave no margin for safety. In international affairs even more than in domestic there are great advantages in moving the rule back from the edge of the water. The entire movement for disarmament can be viewed as an effort to make the international situation less precarious by moving the rules further back from the vital interests they are designed to protect. Just as in the domestic community we outlaw the carrying of concealed weapons or the possession of narcotics so in the international community we seek to outlaw the possession of the major weapons of war. Such rules increase our margin for safety. They give us time and a situation in which we can tolerate some violations. By having rules against possessing arms rather than against waging war we do not need to have 100% compliance in order fully to protect the interests at stake. Disarmament itself, is thus a means of securing compliance with rules against waging war by physically preventing countries from being able to do so.

By creating precautionary rules against possessing arms--by moving the rule back from the brink--we not only make some violations tolerable, we make it possible to prevent violations of the basic rule against using weapons) through techniques of intervention. Here is where an international police force might be extremely useful. The task of confiscating or destroying particular weapons involves far fewer problems than the task of punishing a nation for having been bad. There is no need to determine what action is appropriate to the violation. There is no need to determine responsibility

- 24 -

or guilt. Just as narcotics are confiscated without deter-
mining ownership and just as the car in front of the hydrant
is towed away regardless of how it got there, so weapons might
be confiscated and removed by an international police force.
Major difficulties might exist, particularly if the local govern-
ment presented organized opposition. But an international force
would appear to have greater chance of success where it is taking
preventive action than where it is making deterrent threats.

Although disarmament moves the rules back from the brink,
there remains the basic problem of preventing breaches of the
precautionary rules. One cannot go back indefinitely by having
rules against possessing the machines which can make the machines
which make arms, etc. At some point we must stop trying to prevent
by physical means a breach of the rules and try to prevent a breach
by using other techniques including the method of the two keys to
the grocery store safe. With governments as with individuals the
merits of internalized controls are great. It would seem that we
have been too quick to reject them for the enforcement of inter-
national obligations and, in particular, for the enforcement of dis-
armament. Internal controls by themselves are not likely to be
enough but when supported by a modest amount of international machinery
they may well be able to carry the bulk of the lead.

The object would be to weave the international rules into the
domestic law system of each government. As suggested above, every
government must act according to some book, and the goal of the promoter
of international law would be to have his rules written in *that* book.
In some countries this may be the constitution or the statutes at

- 25 -

large. In other countries it may be the precepts of the party
constitution as elaborated by the current party line. But where-
ever the rules are that are taken as authoritative or binding by
government officials as well as by the man in the street that is
where the terms of a disarmament agreement should be incorporated
if one wants the highest probability of compliance. In the United
States a treaty can be repudiated by the President but a statute
cannot. If one wished to minimize the chance that the United States
would break a disarmament treaty one might incorporate its basic
terms in the U.S. Constitution. The treaty should require the
United States to adopt comprehensive legislation at both the fed-
eral and state level implementing its provisions. The rules should
be mingled with the regular domestic statutes to the point where
they became indistinguishable. Rather than have a separate disarma-
ment statute which pulled together all the terms (and which could
more easily be identified as a statute to be ignored) the new pro-
visions should be scattered throughout the existing laws. The
Interstate Commerce Act might be amended to regulate the shipping
of arms by railroads. Statutes might authorize recovery of one's
land plus triple damages for anyone whose land was taken by the
government for an illegal purpose. The Criminal Code should be
amended to include a great variety of crimes dealing with the design,
construction or interstate transportation of armaments. To the extent
possible each rule should be one of domestic law which would be en-
forced as a matter of course as are other provisions of domestic
law.

- 26 -

In addition one would seek to create groups and indivi-
duals who would acquire vested interests in the carrying out
of the disarmament program. Government agencies should be
established at the federal and perhaps at the state levels
charged with implementing the agreement and working out appro-
priate administrative regulations -- getting Parkinson's Law
on the side of disarmament. Statutes rewarding informers might
be adopted. The general techniques of inspection by the people
should be aligned not only on behalf of collecting information
but also on behalf of the domestic enforcement of the rules.

This paper has avoided the problem of the mechanisms for
determining what are the obligations of a nation when they are
in dispute, concentrating on the problem of enforcing the obli-
gation once it has been determined. To a large extent such
separation is unrealistic. The incorporation of the substantive
provisions of a disarmament agreement into the domestic law of
each nation would necessarily mean that problems of litigating
facts and interpreting the provisions of law would first come up
in the national courts. All in all this seems wise. To the
maximum extent local courts should be used in the first instance
for both criminal and civil actions. Where possible civil actions
should be directed against an individual officer on the theory
that he is acting improperly. The technique of litigating against
an officer rather than against the government itself, a technique
that is widely used here and is used to some extent in the Soviet
Union, has distinct advantages. It saves face. It tends to narrow
the question to one which a court can properly and more easily de-
cide. And a specific judicial command against an officer is more
likely to be complied with than a general decision that the govern-

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ment ought to do something.

One way of modifying municipal procedure to make it more
certain that cases would actually be brought would be to give
representatives of foreign governments, international inspectors,
and perhaps private citizens the right (and standing) to initiate
judicial proceedings for injunctive relief against government
officers or others. Truly international judicial machinery could
be limited to courts which would review the decisions of the
national courts, at the request of an aggrieved state or at the
request of the international disarmament organization. Presumably
there might be enough judicial business to require using panels
of the International Court of Justice or otherwise to increase the
capacity of that Court.

To the extent that decisions would be directed at individuals
the only force one would contemplate using would be the force
necessary to arrest an individual and either to punish him or to
hold him in contempt for failure to respect a judicial command.
Most of such operations would be done by the local judicial mach-
inery itself. Even should the political branch of a government
reach a collective decision to resist a decision further efforts
through the local courts might still be worthwhile. The courts
themselves might not be involved in such a political decision and
might see the national interests differently. It was the Virginia
Supreme Court, which owed much to the major political forces of
Virginia, and which generally shared their views on racial inte-
gration of the schools, which nonetheless held unconstitutional the
Virginia "massive resistance" laws. The collective political deci-
sion of Louisiana to try to frustrate compliance with the constitu-
tional requirement of unsegregated schools becomes somewhat fractured

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by judicial actions against individual officers which achieve
ultimate success in the Supreme Court. Rather than openly to
defy any specific judicial order collective action is limited
to seeking other "legal" means of accomplishing the result de-
sired. One advantage of having the rules back from the brink
is that there may be time for such methods. If a nation should
effectively organize non-compliance the two-keys-to-the-safe
method would have failed (just as it would if the two employees
got together and used both their keys) and other techniques would
have to be used.

An obvious question is whether any such domestication of
international obligations would be acceptable to communist coun-
tries. Would they agree to incorporate the disarmament rules into
their internal system and to enforce them? One cannot know for
sure. Probably the communist leaders themselves will not know
until they are confronted with particular proposals in a parti-
cular context. In general the Soviet Union would seem far more
likely to accept such self-enforcement of international obligations
than they would be to accept the establishment of a world peace
force with an army stronger than theirs. In June 1946 the Soviet
Union proposed the outlawing of nuclear weapons under a convention
which would have included some explicit self-enforcement provisions.

Under Article 3 of the draft convention each nation, within six
months of the entry into force of the convention, was required to
pass legislation providing severe penalties for violators of the
terms of the convention. Difficulties would no doubt arise over
the measures necessary to satisfy other nations that each country
was in fact enforcing such local legislation as was adopted. But

- 29 -

there is no reason to suspect that the verification of enforce-
ment measures would be more objectionable than the verification
of compliance.

The more critical question is whether self-enforcement would
work. As one moves from the domestic analogy of the United States
enforcing the Constitution against itself to the immediate prob-
lem of the Soviet Union enforcing disarmament against itself
there are a number of differences which may be crucial. One
issue is whether international obligations are inherently differ-
ent from domestic ones. The superficial suggestion that it is to
our self-interest to enforce domestic obligations but not inter-
national ones must be dismissed. Once an international obligation
is incorporated in our domestic law it becomes a domestic obli-
gation, and we tend to comply with it no matter who benefits direct-
ly and no matter how remote might be the indirect benefit to this
country. The United States pays just compensation to aliens as
required by the Fifth Amendment. Government officials comply with
the terms of foreign aid legislation for the benefit of foreign
governments. The laws against counterfeiting foreign currency and
stamps are enforced. The Government regularly enforces the sta-
tutory standards for the export of apples and pears, dairy products,
and livestock and the labeling requirements of other goods being
shipped abroad. The fact that the immediate beneficiary of one of
our laws is a foreigner or a foreign government does not appear to
be significant. In fact laws against the manufacture or possession
of weapons in this country would in many ways seem more of a truly

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domestic matter than many statutes now on the books.

Another question is whether countries like the Soviet Union have a stable core of domestic law which in fact limits the freedom of action of the government. Certainly they have no such system of checks and balances as do we. Soviet experts will have to appraise the degree to which the man at the top has complete freedom to change the rules of the game. Some points stand out. The role of dogma and party lines seems large. If nuclear weapons were once firmly labeled as immoral and contrary to party policy there would apparently be risks for any leader in trying to reverse the position. There are others who might like to be on top, and being a "deviationist" is risky. In any regime there are some checks and balances which tend to favor the existing rules of the game. Apparently at the present time Mr. Khruschev is seeking to make a rule of international behaviour, coexistence, a matter of Communist Party doctrine. Here is an attempt to wrap into the domestic fabric of rules the international obligation to refrain from aggressive war. Should coexistence be accepted as party doctrine we might expect some lasting effect. Any government which devotes as much attention to doctrine and to propaganda as does the Soviet Union must to some extent become the victim of its own words. The government buys popular enthusiasm, conviction, and support for its present policies at the cost of limiting the freedom with which it can change them. The importance of doctrine to the Soviet Union is demonstrated by the current controversy in the Communist world which is apparently not over proposals for immediate action as might be expected in this country

- 31 -

but over doctrine. The strength of the felt necessity to con-
form to such doctrine is suggested by the efforts repeatedly
made to demonstrate that current actions are consistent with
past doctrine.

A major difficulty in internalizing the control over disarm-
ament is the ease with which government officials assume that they
are above the rules. In this country, and presumable elsewhere
the government official is all too ready to break the law in order
to carry out what he believes to be wise government policy. Offi-
cials of the Central Intelligence Agency lend support to a military
attack on a country with which we are at peace in violation not
only of international law but of the apparently plain language
of the Criminal Code of the United States. State police regularly
tap wires, disclose the information in violation of the Federal
Communications Act, and go unprosecuted. The history of unlawful
searches and seizures by federal officers in violation of the
Fourth Amendment suggests that they might also think it their
duty to violate a disarmament agreement. This matter of the
effectively implied exception to the laws for official acts poses
the most serious threat to the self-enforcement technique.

The first essential to lessening the problem lies in knowledge.
In secret much can be done, but if the facts can be disclosed by
inspection and verification techniques the forces for compliance
are greatly increased. The more quickly and more widely the data
can be disclosed the more chance there will be to bring local
self-enforcement into action. Often the alleged "official excep-
tion" will not be able to stand the light of day. Where the rule

- 32 -

is one primarily directed at government officials, as is the case with disarmament, it is hard to read in an exception for government officials. Also, careful drafting of the statutes can make it difficult indeed to imply an exception.

In considering the effectiveness of internal checks and balances as a way of enforcing disarmament it is important to remember that we are seeking to prevent action, not bring it about, and that the kind of action we are seeking to prevent is large scale action involving a great many people. Some governmental obligations, whether they be domestic, like integrating the schools, or international, like allowing ships to go through the Panama Canal, in fact require affirmative governmental action of a substantial sort. As pointed out above, it is easier to enforce rules which prevent action than those which require it. In this respect it should be easier to maintain disarmament than to integrate schools, and easier to maintain disarmament than to bring it about. It should be easier to prevent the manufacture of weapons than to require their disclosure and destruction. Once a state of disarmament has been reached, the enforcement should be facilitated not only by the political atmosphere which one would hope would accompany it but also by the nature of the involved and complicated rearmament process which is barred.

A government in order to rearm would not simply need to reach agreement between two key holders to break the rules. Significant rearmament would be a "mega-key" project requiring the united and affirmative cooperation of a great many people, many of whom would undoubtedly be both opposed to it and feel that they had the law

- 33 -

on their side. Rearmament operations would be likely to come
to light at a fairly early stage, when they were under discus-
sion or were first being organized. The difficulty of secretly
recruiting and training of a comparatively small band of Cuban
refugees suggests the magnitude of the problem with which a
government would be confronted. Increasing the number of people
who could start a case in court increases the chances that the
issues will be raised. Providing an institutional framework
of law within which the issues can be raised gives the forces
of restraint a better chance of prevailing than they otherwise
have. A prosecutor might use his discretion not to prosecute
the Deputy Director of CIA for conducting enlistment and train-
ing activities in apparent violation of the Neutrality Act.
If the Fair Play for Cuba Committee is given standing to initiate
litigation, however, a court might well injoin such activity. In
the face of an adverse court decision either by its own courts,
or under our hypothesis, by an international appellate court, the
government might well quit doing what it set out to do.

It may be said that such a system of national enforcement
of international obligations as is suggested in this paper requires
the constant consent of the governments involved. But it is not
foreign to our thinking that a government should rest upon the
consent of the governed. We cannot by paper rules contain violent
forces, whether those rules limit the way in which a government
is supposed to behave or limit the way in which an international
police force is supposed to behave. The best we can do is to look
to experience and see what can be done to structure forces so that

- 34 -

those forces in support of respecting rules have the maximum
opportunity to be effective. It is suggested that a promising
way to do this is to try to weave the international obligations
into the domestic rules in each country, and rely in the first
instance upon national enforcement. International judicial
machinery and an international police force should supplement
such internal enforcement rather than having to carry the full
burden by themselves.

Such a combination of domestic and international legal
machinery would not guarantee compliance with a disarmament
agreement. One can be confident that there would be continuing
problems, repeated violations of rules, and many difficulties.
The question is not what will assure us of a peaceful world.
There can be no assurance. The question is rather what approaches
may offer us a good chance of survival. Examination suggests
that a combination of domestic and international enforcement tech-
niques would be better than relying exclusively on enforcement
by a superior international armed force. The existing compara-
tively strong and effective national governments may be our best
means of controlling human conduct to conform to agreed rules for
the preservation of peace.

October 31, 1961