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Defensible, but Only to a Degree : Panama: Noriega’s state of war could not be tolerated very long if the canal’s neutrality were truly to be protected. Still, the legal case is far from sound.

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<i> David J. Scheffer is a lawyer and a senior associate at the Carnegie Endowment for International Peace in Washington. </i>

There will be much hand-wringing in the coming days over the legality of the United States, intervention in Panama. The legal gymnastics once again will frustrate those who, for example, wanted international lawyers to shut up during the Grenada invasion in 1983. But there is every reason to weigh the political expediency of such actions against the legal defenses erected by government officials.

Four justifications have been offered by the Bush Administration to legitimize this extraordinary operation. They are: to protect American lives, to defend democracy in Panama, to apprehend the indicted drug trafficker Manuel A. Noriega and to protect the integrity of the Panama Canal Treaty. Secretary of State James A. Baker III described the action as fully in accord with international law. He stressed the inherent right of self-defense under the United Nations Charter.

The facts of the Panama action are still too sketchy to reach any definitive opinions, but it appears even at this early stage that none of these justifications are free of criticism under international law.

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The first justification, to defend American lives, is premised on hundreds of cases of harassment during the last two years, the murder of a U.S. Marine over the weekend, and an intelligence report about a planned urban commando attack on U.S. citizens. As threatening as these actions are, the Administration will be hard- pressed to prove that a full-scale invasion of Panama and the installation of a new government there were essential for the defense of American lives. Other alternatives short of invasion (such as evacuating all Americans to U.S. bases) could have been more proportional responses to the threats posed by Noriega’s soldiers.

The second justification, to defend democracy in Panama, has enormous popular appeal and moral legitimacy. But most international law scholars agree that the U.N. Charter does not endorse the unilateral use of military force to install democracy any more than it does to promote other forms of government. Perhaps someday operations to promote democracy will be launched with the approval of relevant multilateral bodies, but that day has not yet arrived.

The pursuit of Noriega, which frames the third justification, is premised on an undisclosed set of legal claims. The Office of Legal Counsel of the Justice Department has issued three opinions this year that attempt to establish the legality of seizing Noriega or taking actions that might lead to his death. These opinions remain classified and therefore are shielded from the critical scrutiny of legal scholars.

We can glean, though, from press accounts and congressional testimony, that the Justice Department is reaching its opinions on the basis of what might be possible under narrow readings of federal law, but unacceptable under international law. Until these opinions are released to the public (as were similar opinions from the Office of Legal Counsel during the Iran-Contra investigations), the Administration’s justification will ring hollow for international lawyers.

The final justification may offer the best case under international law. The United States exercises a panoply of rights and obligations in Panama as an operator and guarantor of the security of the Panama Canal. The U.S. Southern Command in Panama is authorized to use military force to meet the danger resulting from an armed attack or other actions that threaten the security of the canal. U.S. forces also are authorized to guarantee the security of themselves, their dependents and their civilian components. If the canal’s operations are interfered with, the United States can use military force to reopen the canal or restore its operations.

Last Friday, Panama’s National Assembly, hand-picked by Noriega, approved a resolution stating: “The Republic of Panama is declared to be in a state of war while the aggression (of U.S. economic sanctions) lasts.” The Panama Canal Treaty prohibits Panama from adopting or enforcing any law or decree or taking any action that purports to interfere with the exercise by the United States of its rights under the treaty or related agreements.

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There are plenty of provisions in the Panama Canal treaties that prohibit any American intervention in the internal affairs of Panama or any action against the territorial integrity or political independence of Panama. But other provisions stress the neutrality of the Panama Canal and the obligation of each party to ensure that neutrality. Noriega’s state of war could not be tolerated very long if the canal’s neutrality were truly to be protected.

Nonetheless, the treaties do not grant carte blanche for U.S. interventions on the scale currently under way. The coming days will be critical in establishing a lasting legal foundation for this politically momentous action.

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