¹ In its recent Judgment on the Merits in the Nicaragua case, the International Court of Justice found that United States activities in support of Nicaraguan counterrevolutionaries violated a legally binding prohibition on intervention in domestic affairs. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 123–27, 146 (Judgment of June 27). One judge even suggested that the norm should enjoy jus cogens status. Id. at 199–200 (Sette-Camara, J., sep. op.). Although the focus of the case was the use of force, the Judgment also deals with certain nonforcible activities that Nicaragua claimed to be violations of the nonintervention norm. See text at note 144 infra.

² See, e.g., T. Nardin, Law, Morality, and the Relations of States 269–70 (1983) (duty of nonintervention is one of “certain principles of customary international law that are so basic that it makes sense to say that they reflect the requirements of society in the circumstances of international relations”). See also J. Rawls, a Theory of Justice 378–79 (1971) (principles of justice among nations include “the right of a people to settle its own affairs without the intervention of foreign powers”); Falk, Comments, 69 ASIL Proc. 192, 196–97 (1975) (“For the most fundamental postulate underlying the state system is the notion that one does not try to control political developments in foreign societies”).

³ For examples, see text at notes 47–48 and 81–92 infra.

⁴ For examples, see text at notes 45–46, 51–53 and 68 infra.

⁵ The most prominent (and controversial) example of this proposition concerns the prohibition against the use or threat of force in international relations. Despite numerous breaches of the peace since the end of World War II, most international lawyers continue to believe that the prohibition retains its legally binding character. As proof of the continuing validity of the rule, scholars assert that most states comply with it most of the time, that states attempt to justify and explain their conduct in terms consistent with the rule and with generally acknowledged exceptions to it (such as self-defense), that states condemn the behavior of violators of the rule in legal terms, and that the international community makes efforts to impose sanctions on violators even though those sanctions are not always effective. See, e.g., L. Henkin, How Nations Behave: Law and Foreign Policy 138–39, 146–53 (2d ed. 1979); Schachter, In Defense of International Rules on the Use of Force, 53 U. Chi. l. Rev. 113, 128–31 (1986); Schachter, The Right of States to Use Armed Force, 82 Mich. l. Rev. 1620, 1623–24 (1984) [hereinafter The Right of States]. But see Rostow, Disputes Involving the Inherent Right of Self-Defense, in The International Court of Justice at a Crossroads 264, 270 (L. Damrosch ed. 1987).

⁶ In the Nicaragua case, the Court asserted the existence of “established and substantial practice” in support of the principle of nonintervention and concluded that recent instances of conduct prima facie inconsistent with the principle of nonintervention did not change the legal character of the principle or its content. In the Court’s view, the intervening states had not asserted a legal justification for their conduct, nor had other states agreed in principle on any change in the norm. 1986 ICJ Rep. at 106, 108–09. Judge Ago’s separate opinion indicated surprise at the Court’s assurance in finding the requisite degree of practice. Id. at 184 n.1. judge Schwebel’s dissent contended that state practice could at most support a formulation of the rule “much narrower” than that applied by the Court. Id. at 305.

For the argument that the Court improperly disregarded the role of state practice in its treatment of the nonintervention norm, see D’ Amato, Trashing Customary International Law, 81 AJIL 101 (1987).

⁷ See, e.g., L. Henkin, supra note 5, at 18 n.*, 153–62; M. Walzer, Just and Unjust Wars (1977); Intervention in World Politics (H. Bull ed. 1984); F. Tesón, Humanitarian Intervention; An Inquiry into Law and Morality (1988) (with detailed bibliography); and other authorities cited in note 5 supra and note 9 infra.

⁸ Tomislav Mitrović, in his essay Non-Intervention in the Internal Affairs of States, in Principles of International Law Concerning Friendly Relations and Cooperation 219 (M. Šahović ed. 1972), traces the evolution of two different conceptions of intervention in international law. Under the narrow view, which began to crystallize with Vattel’s first usage of the term in 1758, “intervention” consisted of dictatorial interference involving elements of force. Among the scholars espousing such a conception were Bluntschli, von Martens, Rivier, Oppenheim, Brierly, Hyde, Siebert, Rousseau, Dupuy, Delbez, Mosler, Menzel and Verdross. Abroader view took hold in the 20th century and extended the concept of intervention to nonforcible techniques, including (depending on the context) refusal of recognition, economic and financial pressure, propaganda and infiltration. Mitrović identifiesJessup, Friedmann, von Glahn, Cavaré, Berber, Wengler and Dahm with the broader conception of intervention. Id. at 223–36.

⁹ See, e.g., Reisman, Coercion and Self-Determination: Construing Charter Article 2(4), 78 AJIL 642 (1984); Schachter, The Legality of Pro-Democratic Intervention, 78 AJIL 645 (1984); Cutler, The Right to Intervene, 64 Foreign Aff. 96 (1985); and other articles cited in notes 5 and 7 supra.

¹⁰ For conflicting views on the Court’s decision, see generally Appraisals of the ICf’s Decision: Nicaragua v. United States (Merits), 81 AJIL 77 (1987).

¹¹ As to covert action, this article is concerned with what the U.S. intelligence community

calls “political action programs” or “political operations” rather than paramilitary activities. Experts estimate that about one-third of all covert actions in the postwar period have been political operations. See G. Treverton, Covert Action: The Limits of Intervention in the Postwar World 13, 265 n.3 (1987).

¹² For a discussion of the difficulties in distinguishing between nonforcible and forcible forms of influence, see generally id. at 9, 17, 136–43, 175.

¹³ See generally Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Final Report [hereinafter church comm. re port], S. Rep. No. 755, 94th Cong., 2d Sess., Bk. 1, Foreign and Military Intelligence 151–52 (1976); G. Treverton, supra note 11, at 17–25; CIA Gave Political Aid to Contras, Wash. Post, Apr. 14, 1986, at A20, col. 1.

¹⁴ Some revolutionary or insurgent movements have both military and political arms (for example, the Irish Republican Army and its political counterpart, Sinn Fein). It has been estimated that the African National Congress’s annual budget of about $100 million is divided about equally between military and political operations and that most of the ANC’s funds come from foreign governments, including the Soviet Union, East Germany, Czechoslovakia, Sweden and Norway. See South Africa’s Curbs Harden Rebels, N.Y. Times, June 7, 1988, at A8, col. 1.

¹⁵ See generally G. Treverton, supra note 11, at 124–43.

¹⁶ The “dictatorial interference” formulation comes from Oppenheim. See 1 L. Oppenheim, International Law § 134 (H. Lauterpacht 8th ed. 1955). It has also been used by various other scholars. See, e.g., authorities cited in A. Thomas & A.J. Thomas, Jr., Non-Intervention: The Law and Its Import in the Americas 67–68 (1956); see also E. Stowell, Intervention in International Law (1921); Bull (ed.), supra note 7. In the Nicaragua case, Judge Schwebel’s dissent took the position that the Court had erred in applying a nonintervention rule broader than the “dictatorial interference” standard. 1986 ICJ Rep. at 305.

¹⁷ Dec. 26, 1933, 49 Stat. 3097, TS No. 881, 165 LNTS 19, Art. 8.

¹⁸ Apr. 30, 1948, 2 UST 2394, TIAS No. 2361, 119 UNTS 3, Art. 18; see also Art. 19 (on “coercive measures of an economic or political character”). Other inter-American documents embodying the nonintervention norm are described and cited in A. Thomas … A.J. Thomas, supra note 16, at 62–64.

¹⁹ Conference on Security and Co-operation in Europe, Final Act (Helsinki Accord), Aug. 1, 1975, 73 Dep’t St. Bull. 323 (1975), reprinted in 14 ILM 1292 (1975), provides in Principle VI (Non-intervention in Internal Affairs) that the participating states “will refrain from any intervention, direct or indirect, individual or collective, in the internal or external affairs falling within the domestic jurisdiction of another participating State, regardless of their mutual relations.” The succeeding paragraphs prohibit not only armed intervention or threats thereof, but also “any other act of military, or of political, economic or other coercion,” including “subversive or other activities directed towards the violent overthrow” of a state’s government.

²⁰ See, e.g., Organization of African Unity, Charter, May 25, 1963, 2 ILM 766 (1963), Art. III (“non-interference in the internal affairs of States”); Pact of the League of Arab States, Mar. 22, 1945, 70 UNTS 237, Art. 8 (each member “shall respect the form of government obtaining in the other States of the League … and shall pledge itself not to take any action tending to change that form”).

The principle of mutual noninterference in internal affairs is one of the “Five Principles of Peaceful Coexistence” espoused by the People’s Republic of China and embodied in, among other instruments, the Sino-Indian Trade Agreement of 1954. See J. Cohen … H. Chiu, People’s China and International Law 156–201 (1971); Kim, The Development of International Law in Post-Mao China: Change and Continuity, 1 J. Chinese L. 117, 148–57 (1987).

²¹ Treaty of Friendship, Co-operation and Mutual Assistance (Warsaw Pact), May 14, 1955, 219 UNTS 3, Art. 8 (“principles of respect for each other’s independence and sovereignty and of non-intervention in each other’s domestic affairs”). For references to nonintervention provisions in other bilateral and multilateral treaties entered into by socialist countries with each other and with capitalist countries, see Mitrović, supra note 8, at 255.

²² “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state … .”

²³ Emphasis added. For discussion of these principles and their application to nonforcible activities, see text at notes 145–57 infra. See generally H. Kelsen, The Law of the United Nations 770 (1950) (“An obligation of the Members to refrain from intervention in domestic matters of other states is not expressly stipulated by the Charter but is implied in the obligation established by Article 2, paragraph 4”). But see Hoffman, The Problem of Intervention, in Bull (ed.), supra note 7, at 21.

²⁴ GA Res. 2131 (XX) (Dec. 21, 1965); see also GA Res. 2225 (XXI) (Dec. 19, 1966).

²⁵ GA Res. 2625 (XXV) (Oct. 24, 1970). Other General Assembly resolutions also enunciate a nonintervention concept. Two of the best known are the Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX) (Dec. 12, 1974), ch. 1(d) and ch. II, Art. 1; and the Declaration on the Establishment of a New International Economic Order, GA Res. 3201 (S-VI) (May 1, 1974), para. 4.

²⁶ In contrast, a number of countries took the view that the 1965 Declaration on Intervention represented a political, rather than a legal, act. In its Judgment in the Nicaragua case, the International Court of Justice concluded that even though the United States had considered the Declaration on Intervention to be only a statement of political intention, the United States had made no disclaimer of the legal effect of the Friendly Relations Declaration. 1986 ICJ Rep. at 107; see also id. at 133.

²⁷ See Schachter, International Law in Theory and Practice, 178 Recueil des Cours 113, 361 n.189 (1982 V); Šahović, supra note 8, at 47–49; Rosenstock, The Declaration of Principles of International Law concerning Friendly Relations: A Survey, 65 AJIL 713 (1971). In addition to its relevance as an aid to the interpretation of that treaty, the Friendly Relations Declaration may also serve as evidence of opinio juris with respect to the customary law norm of nonintervention.

²⁸ The brackets and underlining indicate the changes made from the Declaration on Intervention in the drafting of the Friendly Relations Declaration. The major substantive change is the shift from “condemning” intervention in the Declaration on Intervention to declaring it “in violation of international law” in the Friendly Relations Declaration. The addition in the first line of the phrase “or group of States” is a drafting change only, since the Declaration on Intervention also rules out collective intervention by defining the term “States” to cover “both individual States and groups of States.”

²⁹ The committee, whose full name was Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, was created by GA Res. 1966 (XVIII) (Dec. 16, 1963). See also GA Res. 1815 (XVII) (Dec. 18, 1962).

³⁰ Important records of the work of these committees, including detailed reports of the committees’ discussions on the subject of intervention, can be found in UN Docs. A/5671 (1963), A/5746 (1964), A/6165 (1965), A/6220 (1965), A/6230 (1966), A/6547 (1966), A/6598 (1966), A/6799 (1967), A/6955 (1967) and A/8018 (1970).

³¹ For an acrimonious example, see 21 UN GAOR (1499th plen. mtg.) at 26–28, UN Doc. A/PV. 1499 (1966).

³² See Report of the Special Committee, UN Doc. A/6230, at 148–50 (1966).

³³ See Report of the Special Committee, UN Doc. A/6799, at 161 (1967) (emphasis added).

⁵⁴ Several other important texts also embody a nonintervention concept. Most notably, the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, TIAS No. 7502, 500 UNTS 95, Art. 41(1), and the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261, Art. 55(1), both provide in essentially similar terms that persons enjoying diplomatic or consular privileges and immunities “have a duty not to interfere in the internal affairs” of the receiving state. The travaux preparatoires of these two Conventions are rather clearer than those of the two General Assembly declarations in specifying that involvement in political campaigns is the type of activity comprehended by this prohibition. The commentary of the International Law Commission on the draft provision in the Diplomatic Relations Convention specifically mentions political campaigns, and the concept was apparently not controversial. [1958] 1 Y.B. Int’l L. Comm’n 250, UN Doc. A/CN.4/SER.A/1958; 2 id. at 104, UN Doc. A/CN.4/SER.A/1958/Add.1. In the drafting of the Consular Relations Convention, virtually the only debate regarding the applicability of this provision to political conduct concerned the rights of honorary consuls who are nationals of the receiving state. [1960] 1 id. at 109–10, UN Doc. A/CN.4/SER.A/1960. Legal commentators agree that involvement by diplomats or consuls in local electoral politics is illegitimate and that any person engaging in such activity risks being declared persona non grata. See E. Satow, Guide to Diplomatic Practice, sec. 15.32 (Gore-Booth 5th ed. 1979); B. Sen, A Diplomat’s Handbook of International Law and Practice 75–79 (1979); E. Denza, Diplomatic Law 265–66 (1976); 1 L. Oppenheim, supra note 16, § 383.

⁵⁵ Declaration of the Government of the Democratic and Popular Republic of Algeria, DEP’T ST. BULL., NO. 2047, February 1981, at 1, 2, reprinted in 75 AJIL 418, 418 (1981) (“The United States pledges that it is and from now on will be the policy of the United States not to intervene, directly or indirectly, politically or militarily, in Iran’s internal affairs”) (emphasis added).

⁵⁶ United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 8 (Judgment of May 24).

³⁷ See generally President’s Special Review Board, The Tower Commission Report (1987).

³⁸ Procedure for Establishing Firm and Lasting Peace in Central America, Aug. 7, 1987, reprinted in 26 ILM 1164, 1169 (1987). The agreement is based on the plan developed by President Oscar Arias Sánchez of Costa Rica. For a comment on the agreement in the light of traditional Latin American insistence on the principle of nonintervention, see Purcell, A Flaw in the Latin Plan, N.Y. Times, Aug. 12, 1987, at A23, col. 1.

³⁹ See Bilateral Agreement on the Principles of Mutual Relations, in Particular on Non-interference and Non-intervention, Apr. 14, 1988, Afghanistan-Pak., together with Declaration on International Guarantees, Apr. 14, 1988, U.S.-USSR, and other related instruments, reprinted in 27 ILM 577, 581, 584 (1988).

⁴⁰ Explicit and implicit references to nonforcible intervention are found in, inter alia, the Bilateral Agreement, supra note 39, Art. II, paras. 5 (“armed intervention … or any other form of intervention … or any act of military, political, or economic interference in the internal affairs”), 7 (“any other action which seeks to … undermine or subvert the political order of the other High Contracting Party”), and 10 (“To abstain from any defamatory campaign, vilification or hostile propaganda for the purpose of intervening or interfering in the internal affairs of the other High Contracting Party”).

⁴¹ I differ here from the approach of one political scientist, who deliberately chose to use the term “interference” instead of “influence” in his study. He reasoned that “the suggestion that a substitute be found for interference is somewhat analogous to arguing that Kinsey should have found a euphemism for the term ‘sex.’” R. Cottamm, Competitive Interference and Twentieth Century Diplomacy 76 (1967).

⁴² I Church Comm. Report, supra note 13, at 22, 48–49, 145, 154, 494; id., Bk. 4, Supplementary Detailed Staff Reports on Foreign and Military Intelligence 26–31. The United States continued heavy funding of Italian candidates and parties into the 1970s. Details are described in a report of the House Select Committee on Intelligence (Pike Committee), which—though never officially released—was reprinted in substantial part in the Village Voice, Feb. 16, 1976, at 70, and Feb. 23, 1976, at 60. From 1948 to 1968, total U.S. election funding in Italy amounted to $65 million; and in connection with the 1972 Italian election, the United States expended some $ 10 million in contributions to parties, affiliates and 21 candidates. Id., Feb. 16, 1976, at 71, 84–86. The Carter administration discontinued such funding. For a summary by President Carter’s ambassador to Italy of U.S. policy toward Italian politics, see Gardner, Diplomacy Kept This Domino From Falling, Wall St. J., Sept. 2, 1987, at 18, col. 3; a fuller account may be found in the European edition. How President Carter Dealt With Italy’s Communists, id., Aug. 18, 1987, at 6, col. 3 (Eur. ed.). Memoranda to President Carter on which the U.S. policy was based are reprinted in L. Wollemborg, Stelle, Strisce, e Tricolore 589–96 (1983).

⁴³ See generally Intelligence Activities: Senate Resolution 21, Hearings Before the Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities: Vol. 7, Covert Action, 94th Cong., 1st Sess. 156–57, 161–71, 175–76 (1975) [hereinafter 7 Church Comm. Hearings]. The Chilean program is probably the most thoroughly documented covert action ever exposed.

The covert political programs mentioned in the text at note 13 supra also involved electoral transfers to Nicaraguan opposition groups.

⁴⁴ I Church Comm. Report, supra note 13, at 146; see also 4 id. at 49–50.

⁴⁵ See generally Lewis, Hidden French “Parallels,” N.Y. Times, Aug. 15, 1986, at A27, col. 2 (summarizing recent disclosures of partisan financial transfers between France and Africa).

⁴⁶ See text at note 68 infra. For discussion of the German party foundations’ involvement in strengthening centrist parties in Central America, see Mertes, Europe’s Role in Central America: A West German Christian Democratic View, in Third World Instability: Central America as a European-American Issue 106, 131–32 (A. Pierre ed. 1985).

⁴⁷ For discussion of these allegations and of changes in U.S. legislation as a result of investigations into them, see text at notes 89–92 infra.

⁴⁸ Such allegations concerning various foreign governments were explored in the 1960s in hearings chaired by Senator Fulbright. See text at notes 80–88 infra.

For references to allegations of contributions from the Greek junta to the Nixon campaigns in 1968 and 1972, and evidence concerning those allegations received by the House Intelligence Committee in 1976, see S. Hersh, The Price of Power 137–39, 648–49 (1983).

For evidence that the Marcos Government of the Philippines made or planned to make contributions to various U.S. presidential and congressional campaigns, see R. Bonner, Waltzing with a Dictator 140–41 (1987) (Nixon campaigns); Plan for Contributions to Reagan and Carter Found in Marcos Files, N.Y. Times, Mar. 19,1986, at A1, col. 4; The Case of the Marcos Millions, Newsweek, Oct. 31, 1988, at 47.

For references to campaign contributions by the Nationalist Chinese Government in the 1950s and 1960s, see R. Cottam, supra note 41, at 42, 59–60.

South Africa’s Information Department channeled hundreds of thousands of dollars through “front organizations” and sympathetic individuals in the United States in successful operations in 1976 and 1978 to defeat two incumbent U.S. senators (John Tunney and Dick Clark) who had taken positions adverse to South Africa’s interests. See Ungar, South Africa’s Lobbyists, N.Y. Times, Oct. 13, 1985, §6 (Magazine), at 30.

For testimony concerning offers by agents of South Korea to contribute to congressional and gubernatorial campaigns, see Activities of the Korean Central Intelligence Agency in the United States: Hearings Before the Subcomm. on International Organizations of the House Comm. on International Relations, 94th Cong., 2d Sess. 66, 68, 101 (1976).

These examples are intended to be illustrative, not exhaustive.

⁴⁹ Ledeen & Sterling, Italy’s Russian Sugar Daddies, New Republic, Apr. 3, 1976, at 18, cited in Cong. Research Service, Report on West European Communist Parties 54 (1977).

⁵⁰ Through vehicles such as the Communist International (Comintern), and later the Communist Information Bureau (Cominform) and successor networks, the Soviet Union has engaged in ongoing financial support to pro-Soviet Communist parties all over the globe and seeks to control or at least influence their political direction. The Report on West European Communist Parties, supra note 49, contains information on funding sources and Soviet influence on Communist parties in Italy, id. at 52–55, 66–68; France, id. at 87–88, 102–04; Portugal, id. at 126–27, 136; Spain, id. at 155–56, 164–65; and elsewhere.

⁵¹ A. Pelinka, Social Democratic parties in Europe 124 (1983); G. Pridham & P. Pridham, Transnational Party Cooperation and European Integration 72, 198–99(1981).

⁵² J. Dominguez & M. Lindenberg, Central America: Current Crisis and Future Prospects 49, 53 (1985); Mertes, supra note 46.

⁵³ For information on party finances, including state financing, see generally K. Von Beyme, Political Parties in Western Democracies 196–211 (1985); A. Pelinka, supra note 51, at 57–63; Paltiel, Campaign Finance, in Democracy at the Polls 138 (D. Butler, H. Penniman & A. Ranney eds. 1981).

⁵⁴ ITT’s involvement was studied in depth by several U.S. congressional committees and is described in 7 Church Comm. Hearings, supra note 43, at 158–60. See also G. Treverton, supra note 11, at 161–64.

⁵⁵ See generally N. Jacoby, P. Nehemkis & R. Eels, Bribery and Extortion in World Business: A Study of Corporate Political Payments Abroad (1977) (surveying attitudes and practices in various countries); J. Noonan, Jr., Bribes 637–79 (1984) (discussing the Lockheed Corporation’s links to the U.S. Government at pp. 654–68); see also Multinational Corporations and U.S. Foreign Policy: Hearings Before the Subcomm. on Multinational Corporations of the Senate Comm. on Foreign Relations, 94th Cong., 1st Sess. (1975).

⁵⁶ Measures used in the past have included threatening denial of a U.S. passport or with drawal of diplomatic protection to persons engaging in the local politics of foreign countries. See 3 G. HackwortH, Digest of International Law 509 (1942); 5 id. at 709–10 (1943). Statutory provisions concerning loss of citizenship for voting in a foreign election or assuming a foreign governmental office were in force in the United States for many years but were held unconstitutional in Afroyim v. Rusk, 387 U.S. 253 (1967), overruling Perez v. Brownell, 356 U.S. 44 (1958), and thus are no longer in effect.

⁵⁷ U.S. measures currently in force that regulate or require disclosure of certain foreign political activities by private companies include the Foreign Corrupt Practices Act, 15 U.S.C. §78dd-2(a)(2) (1982); and the International Traffic in Arms Regulations, 22 C.F.R. §130 (1988).

⁵⁸ International efforts to prohibit involvement of transnational corporations in host country politics have not borne fruit so far. A draft code of conduct for transnational corporations has been in preparation under the auspices of the UN Commission on Transnational Corporations for many years. One of the issues in continuing dispute is how the draft code should deal with corporate political activities, in view of widely diverse attitudes and practices in different parts of the world. See, e.g., Commission on Transnational Corporations, Work on the Formulation of the United Nations Code of Conduct on Transnational Corporations: Outstanding issues in the draft Code of Conduct on Transnational Corporations, UN Doc. E/C.10/1985/S/2, at 24–26.

The Guidelines for Multinational Enterprises adopted by the Organisation for Economic Co-operation and Development in 1976, reprinted in 15 ILM 969 (1976), stop short of a binding prohibition. They provide that enterprises “should, … (8) unless legally permissible, not make contributions to candidates for public office or to political parties or other political organizations; (9) abstain from any improper involvement in local political activities.” Id. at 972 (emphasis added).

⁵⁹ Fatouros, Transnational Enterprise in the Law of State Responsibility, in International Law of State Responsibility for Injuries to Aliens 361, 374–75, 378, 400 n.38 (R. Lillich ed. 1983).

⁶⁰ Christenson, The Doctrine of Attribution in State Responsibility, in id. at 321, 327–29, 332–33, 338.

⁶¹ Katzenbach, Foreign Policy, Public Opinion and Secrecy, 52 Foreign Aff. 1, 15–16 (1973). Cf. Rositzke, America’s Secret Operations: A Perspective, 53 id. at 334, 345–47 (1975) (stressing inevitable political implications of intelligence relationships); G. Ball, Diplomacy for a Crowded World 211–30 (1976).

⁶² 7 Church Comm. Hearings, supra note 43, at 54.

⁶³ 1 Church Comm. Report, supra note 13, at 33; 7 Church Comm. Hearings, supra note 43, at 6.

⁶⁴ 1 Church Comm. Report, supra note 13, at 154–61, 448.

⁶⁵ Hughes-Ryan Amendment of 1974 to the Foreign Assistance Act, codified at 22 U.S.C §2422 (1982).

⁶⁶ 1 Church Comm. Report, supra note 13, at 502–03 (citing 120 Cong. Rec. H9492–93 (daily ed. Sept. 24, 1974)).

⁶⁷ See, e.g., Intelligence Oversight Act of 1980, as amended, 50 U.S.C. §413 (1982).

⁶⁸ The U.S. Congress was informed not only of the foundations affiliated with the four major West German political parties, which at that time collectively received over $150 million annually from the Bundestag for political activities in some five dozen countries, but also of similar programs undertaken by Spain, Portugal, Finland and Venezuela. See H.R. Rep. No. 130, 98th Cong., 1st Sess. 86 (1983), reprinted in 1983 U.S. Code Cong. & Admin. News 1484, 1569; 129 Cong. Rec. H3812, 3815 (daily ed. June 9, 1983); id., S12706, 12709, 12713–14, 12718, 12720 (daily ed. Sept. 22, 1983).

⁶⁹ National Endowment for Democracy Act, Pub. L. No. 98–164, title V, §502, 97 Stat. 1039 (1983) (codified at 22 U.S.C. §4411(b)(4) and (6) (Supp. IV 1986)).

⁷⁰ Secretary of State George P. Shultz, in testimony on Feb. 23, 1983, supporting establishment of a program such as the endowment, stated: “[T]his is a legitimate and important activity that can and should be done openly. There is democracy today in Spain and Portugal in large part because of the substantial support provided democratic parties in these two countries by their West European counterparts.” Dep’t St. Bull., No. 2073, April 1983, at 47, 48.

⁷¹ See, e.g., 130 Cong. Rec. S8624 (Sen. Kennedy), 8641 (Sen. Hawkins) (daily ed. June 28, 1984); G. Treverton, supra note 11, at 207–12; Goodman, Reforming U.S. Intelligence, Foreign Pol’y, No. 67, Summer 1987, at 121, 131.

⁷² See, e.g., Shultz, supra note 70, at 49.

⁷³ 130 Cong. Rec. S8635 (daily ed. June 28, 1984) (Sen. Durenberger). Senator Durenberger’s statement was made on the assumption that the NED would not directly fund electoral campaigns, although it would assist political parties in various ways. See id. and note 76 infra.

⁷⁴ National Endowment For Democracy, Statement of Principles and Objectives 1 (1984).

⁷⁵ The issue was debated in connection with a controversy over a $20,000 grant from an NED affiliate that was used for the benefit of a candidate in a close election in Panama. See generally 130 Cong. Rec. H5017-28 (daily ed. May 31, 1984). A report by the Inter-American Dialogue (a group of Western Hemisphere leaders) urged “that the Endowment avoid interfering, or even appearing to interfere, in sensitive political affairs in any country,” and suggested that the NED should not support partisan activities. See id. at S8635, 8638–39 (daily ed. June 28, 1984).

⁷⁶ 22 U.S.C. §4414(a)(1) (Supp. IV 1986), as added by Pub. L. No. 99-93, title II, §210(a), 99 Stat. 431 (1985). The NED board of directors had adopted a resolution to this effect onjune 8, 1984. See 130 Cong. Rec. S8635, 8639 (daily ed. June 28, 1984).

⁷⁷ See Group Is Channeling U.S. Funds to Parties Opposing Pinochet, N.Y. Times, June 15, 1988, at Al, col. 6; How U.S. Political Pros Get Out the Vote in Chile, N.Y. Times, Nov. 18, 1988, at B6, col. 1. The grants are part of a total of $1 million earmarked by Congress for distribution in Chile. They do not implicate the statutory prohibition on financing “campaigns of candidates.” The terms of the plebiscite did not permit opposition candidates but merely a yes or no vote on the military’s chosen candidate. The statutory prohibition was apparently not intended to prevent the sorts of activities funded by the NED in Chile—voter registration, education, independent polling, election observation, and so on—even though these activities clearly aided the opposition in its anti-Pinochet efforts.

⁷⁸ Grants to the Social Democratic and Labor Party of Northern Ireland have been controversial because that party is a member of the Socialist International. See Democracy’s Missionaries: U.S. Pays for Pluralism, N.Y. Times, June 1, 1986, at Al, col. 5. Other party beneficiaries of NED funds have included the New Korea Democratic Party, the Conservative Party of Colombia, the Grenada New National Party, and the foundations of the Uruguayan Blanco and Colorado parties. See NED, 1986 Annual Report 15, 20, 38 and 44; 1985 id. at 10 and 20; 1984 id. at 34. NED programs in Nicaragua, totaling $807,782 in the last year, have includedgrants to the opposition paper La Prensa and to the Democratic Coordinator, which is the principal group coordinating anti-Sandinista political parties and other opposition groups. See N.Y. Times, Sept. 25, 1988, at A15, col. 1.

The Polish Solidarity movement has also been a recipient of NED grants. U.S. Helping Polish Underground With Money and Communications, N.Y. Times, July 10, 1988, at A14, col. 5. An amount of $1 million for Solidarity, to be disbursed through the NED, was earmarked by Congress in its appropriations for fiscal year 1988. See Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100–204, §1207, 101 Stat. 1331, 1412 (1987); see also 1987 Cong. Q. Almanac 156, 404, 660; H. Conf. Rep. No. 475,100th Cong., 1st Sess. 112 (1987), reprinted in 1987 U.S. Code Cong. & Admin. News 2370,2373. Although Solidarity is a labor union rather than a political party, NED grants in support of Solidarity could certainly have a significant impact on Poland’s internal political situation.

⁷⁹ The attitudes of target states are reflected in many other forms of practice, including diplomatic protests against actions of influencing states, attempts to mobilize international public opinion against the activity in international or regional organizations, expulsion of diplomats who engage in political activities, and so on. The actions and attitudes of opposition political factions may sometimes carry as much weight as formal governmental actions, especially where the opposition enjoys more popular support than the incumbent regime (examples are given in the discussion of responses to economic leverage at notes 141–42 infra). The emphasis on legislative activity for the two purposes indicated in the text is not meant to exclude the relevance of other forms of practice.

⁸⁰ One statute, 18 U.S.C. §610, in effect since 1907, had long prohibited corporate campaign contributions. For discussion of the law currently governing contributions by corporations controlled by foreign principals, see text at notes 93–97 infra.

⁸¹ Activities of Nondiplomatic Representatives of Foreign Principals in the United States: Hearings Before the Senate Comm. on Foreign Relations, 88th Cong., 1st Sess. (1963) [hereinafter Fulbright Hearings]. Other aspects of U.S. concern over suspected activities of foreign governments to influence U.S. legislators are summarized in Church Comm. Report, supra note 13, Bk. 3, Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans, at 313, 328–30, 340 and 345–46.

⁸² See Fulbright Hearings, supra note 81, at 195–212 (testimony of John A. O’Donnell, registered agent for the Philippine Sugar Association). O’Donnell identified contributions that he had made to the campaigns of some 20 incumbent congressmen out of funds received from unnamed “members of the sugar industry in the Philippines.” Id. at 201. Although the ultimate source of the funds was never fully clarified, the witness testified that he had consulted with the Philippine ambassador concerning the disposition of the funds. Id. at 212, 227, 236, 239–47 and 251–53.

⁸³ One witness, who had served as a registered agent for Nicaragua, Ecuador, Indonesia and Israel, testified about campaign contributions made with funds that had apparently been received from President Somoza of Nicaragua, but the facts remained ambiguous as to whether the contributions were made on behalf of Nicaragua or in the witness’s personal capacity. Id. at 1524, 1572–75, 1584–85 and 1627–31 (testimony of I. Irving Davidson).

⁸⁴ See, e.g., id. at 2–3 (opening statement of Sen. Fulbright).

⁸⁵ Id. at 31–32, 38 and 41 (Ball testimony); id. at 149–52 (Katzenbach testimony). Ball noted, id. at 31, that contributions on behalf of foreign corporations would presumably be prohibited under then existing law (cited in note 80 supra). Katzenbach considered that contributions on behalf of a foreign principal ought to be disclosed as expenditures in an agent’s report under the Foreign Agents Registration Act (22 U.S.C. §§611–621), Fulbright Hearings, supra note 81, at 149. He further commented that the U.S. Government could require the recall of an ambassador who violated the “general understanding … that a foreign government does not interfere with the internal affairs of another.” Id. at 150.

⁸⁶ Fulbright Hearings, supra note 81, at 204, 383 and 432.

⁸⁷ For background on the bill, see H.R. Rep. No. 1470, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S. Code Cong. & Admin. News 2397, 2399, 2410–11.

⁸⁸ Pub. L. No. 89–486, §8, 80 Stat. 244, 249 (1966) (codified at 18 U.S.C. §613 (1970) (repealed 1976; current prohibition discussed at note 91 infra)). The term “agent of a foreign principal” was defined by reference to the Foreign Agents Registration Act, 22 U.S.C. §611(b) and (c); “foreign principals” included foreign governments and foreign political parties as well as other foreign persons and entities. For a compilation of relevant legislative history, see Cong. Research Service, American Law Division, 95th Cong., 1st Sess., The Foreign Agents Registration Act (Comm. Print 1977).

⁸⁹ For references to some of the countries allegedly involved, see note 48 supra. For the point of view of the head of the Nixon campaign’s finance committee, see M. Stans, The Terrors of Justice 182–84, 371–72 (1978).

⁹⁰ See 120 Cong. Rec. 8782 (1974) (letter from General Accounting Office paraphrasing interpretation of Department of Justice that “foreign principal” does not have same meaning as “foreign national”). See also Senate Select Comm. on Presidential Campaign Activities, Final Report, S. Rep. No. 981, 93d Cong., 2d Sess. 573–75 (1974).

⁹¹ Pub. L. No. 93–443, §101, 88 Stat. 1267 (1974). In 1976 the prohibition was incorporated into the Federal Election Campaign Act. Pub. L. No. 94–283, §112(2), 90 Stat. 493 (1976) (codified at 2 U.S.C. §441e (1982)). The term “foreign national” is defined to exclude U.S. citizens and permanent residents. 2 U.S.C. §441e(b)(2). The prohibition applies not only to campaigns for federal office but also to state and local elections and primary campaigns. See 11 C.F.R. § 110.4(a).

⁹² 120 Cong. Rec 8783 (1974). Senator Bentsen noted that the Senate Watergate Committee was then investigating contributions by foreign nationals and that President Nixon had recently called for a ban on such contributions.

⁹³ 2 U.S.C. §441b(a) (1982) (applicable to federal elections). The loophole may be larger in the case of campaigns for state and local office in states that do not have a comparable prohibition on corporate contributions. For discussion of corporate contributions to campaigns for state office, see M. Tolchin & S. Tolchin, Buying into America 17–18, 20, 111–15 (1988).

⁹⁴ For relevant commission opinions, including discussion of efforts to ensure that PACs established by U.S. subsidiaries of foreign companies remain immune from policy direction by their foreign parents, see Federal Election Commission Advisory Opinion Nos. 1978–21, 1980–100, 1982–10, 1982–34, 1983–19, 1983–31 and 1985–3, reprinted in 1 Fed. Election Camp. Fin. Guide (CCH) U¶¶5327 (July 17, 1978), 5548 (Sept. 19, 1980), 5651 (Mar. 29, 1982), 5678 (June 9, 1982), 5722 (Aug. 19, 1983), 5735 (Nov. 10, 1983) and 5809 (Mar. 4, 1985). Concerning PACs formed by trade associations with foreign members, see Advisory Opinion Nos. 1977–53, 1980–111 and 1981–36, reprinted in id. ¶¶5294 (Jan. 12, 1978), 5560 (Oct. 16, 1980) and 5632 (Dec. 9, 1981).

⁹⁵ Advisory Opinion No. 1978–21, reprinted in id. ¶5327 (July 17, 1978).

⁹⁶ See generally Foreign Money, U.S. Fears, N.Y. Times, Dec. 13, 1987, §6 (Magazine), at 63; U.S. Elections Got More Foreign Cash—PAC’s of Overseas Companies Gave $2.3 Million in 1986 Congress Campaigns, N.Y. Times, May 24, 1987, at A21, col. 1; Foreign Role in U.S. Politics Questioned, N.Y. Times, Jan. 8, 1986, at B7, col. 1; Foreigners’ Political Roles in U.S. Grow by Investing, N.Y. Times, Dec. 30, 1985, at A1, col. 2; M. Tolchin &S. Tolchin, supra note 93, at 16–21, 263, 279–80.

⁹⁷ The FEC’s legislative recommendations and responsive bills are discussed in T. Durbin, Foreign Participation in Federal Elections: A Legal Analysis (Cong. Research Serv. Rep. No. 87–554A, 1987).

⁹⁸ See generally P. Findlay, They Dare to Speak Out 41–47, 287 (1985) (former member of Congress claims his and other reelection campaigns were adversely affected by activities of pro-Israel groups, including PACs). See also E. Tivnan, The Lobby (1987). There is no official list of pro-Israel PACs, but a recent survey identified some 60 PACs identified with pro-Israel causes, which contributed $3.8 million to candidates in 1985–1986. See Pro-Israel Group Exerts Quiet Might As It Rallies Supporters in Congress, N.Y. Times, July 7, 1987, at A8, col. 1.

⁹⁹ See generally I. Kenan, Israel’s Defense Lines: Her Friends and Foes in Washington 68–69 (1981); Fulbright Hearings, supra note 81, at 1779–80 (Kenan testimony); The Lobby with a Lock on Congress, Newsweek, Oct. 19, 1987, at 46; Lobbying and the Middle East, 39 Cong. Q. Weekly Rep. 1523 (1981).

¹⁰⁰ 2 U.S.C. §441e (1982); see also FEC advisory opinions cited in note 94 supra.

¹⁰¹ As to whether foreign governments themselves have any constitutional rights, see generally Damrosch, Foreign States and the Constitution, 73 Va. L. Rev. 483, 527–28 n.180 (1987) (while foreign governments do not themselves enjoy constitutional protections, U.S. persons may be able to achieve the objectives of foreign states by enforcing their own constitutional rights); cf. Fulbright Hearings, supra note 81, at 3.

¹⁰² These provisions illustrate the election laws of countries with diverse political traditions. Relevant legislation may be found in more general provisions, e.g., in Brazil, which makes it a criminal offense for a foreigner to intervene in its internal affairs. See Brazil Accuses Scholar of Aiding Indian Protest, N.Y. Times, Aug. 14, 1988, at A14, col. 5. Brazil forbids foreigners from engaging in any kind of political activity in Brazil. See Código Penal, Estrangeiro, Art. 107 (1984); see also Law No. 7.170, Dec. 14, 1983, Art. 9, reprinted in id. at 3.

On Canadian provincial laws forbidding foreign campaign donations, see Paltiel, supra note 53, at 161.

¹⁰³ Loi organique no. 88–226 relative à la transparence financière de la vie politique, Mar. 11, 1988, Journal Officiel de la République Francaise 3288, Art. 8 (Mar. 12, 1988) (adding Art. L.O. 163–4 to electoral code).

¹⁰⁴ Pres. Decree No. 1296, §36, cited in R. Martin, Administrative Law, Law of Public Officers and Election Law 382 (1983). Section 65 of the same decree provides: “No contribution shall be made directly or indirectly by any of the following: … (g) Foreigners and foreign corporations.”

¹⁰⁵ Public Officials Election and Recall Law, May 14, 1980, amended July 7, 1983, Art. 45–2(1). See generally Asia Watch, Human Rights in Taiwan 1986–87, at 197–239 (1987).

¹⁰⁶ Chile Const. Art. 19(15), in 3 Constitutions of the Countries of the World (A. Blaustein & G. Flanz eds.). See Ley orgánica constitucional de los partidos políticos, Law No. 18.603, Mar. 23, 1987, Art. 33.

¹⁰⁷ Political Parties (Financing) Law, 5733–1973, §8, 27 Laws of the State of Israel 48, 50 (1972–73), as amended by Political Parties (Financing) (Amendment No. 5) Law, 5742–1982, §§3–4, 36 id. at 81, 82 (1981–82). The 1982 amendment extended the prohibition on corporate contributions to foreign corporations.

¹⁰⁸ See, e.g., advertisement seeking funds for Meir Kahane’s party, N.Y. Times, Feb. 2, 1988, at Al8, col. 1.

¹⁰⁹ Affected Organizations Act No. 31, 1974, §2; see also Fund-raising Act No. 107, 1978. See 1974 Stat. Rep. S. Afr” No. 4222; 1978 id., No. 6099. These laws would be amended or superseded by the new legislation referred to in notes 111–14 infra.

¹¹⁰ See N.Y. Times, Oct. 22, 1986, at Al, col. 3; see also N.Y. Times, Oct. 6, 1988, at A17, col. 1 (on litigation resulting from the cutoff).

¹¹¹ See N.Y. Times, Aug. 14, 1987, at A3, col. 5.

¹¹² Promotion of Orderly Internal Politics Bill, §2, discussed in 4 S. Afr. J. Hum. Rts. 139, 148–50, 261 (1988).

¹¹³ Promotion of Orderly Internal Politics Bill, §2.

¹¹⁴ Id. §5. See also Pretoria May Ban Foreign Funds for Rights Groups, N.Y. Times, Mar. 2, 1988, at A9, col. 1. The Department of State has criticized the measure as “unwarranted.” See South Africa’s Proposal to Ban Foreign Funds, Dep’t St. Bull., No. 2134, May 1988, at 23.

¹¹⁵ Until 1966, when the United States first restricted foreign campaign contributions, U.S. law belonged on the permissive end of the spectrum. France maintained a laissez-faire approach to campaign financing until 1988 and apparently did not exclude foreign money until several recent controversies eventually prompted reform of the electoral code. See generally France Moves to Curb Campaign Funds, N.Y. Times, Jan. 4, 1988, at A3, col. 4; see also Lewis, supra note 45. The new French law restricting foreign contributions is cited in note 103 supra.

¹¹⁶ It is the assumption of programs like those sponsored by the U.S. National Endowment for Democracy and the West German political party foundations that such programs serve the mutual interests of influencing and influenced states. See text at notes 68–78 supra.

¹¹⁷ Some of the programs sponsored by the institutions mentioned in the preceding note aim at promoting this objective, as do transnational associations of likeminded political parties (such as the Socialist International).

¹¹⁸ Arguably, this process is under way in Western Europe, where the extent of homogeneity of party structures and similar political institutions might have some bearing on the long-term prospects for the European Parliament. See generally A. Pelinka, supra note 51, at 7, 115–18; G. Pridham & P. Pridham, supra note 51.

¹¹⁹ Letter to the editor from Carlos Tunnermann, N.Y. Times, Aug. 19, 1987, at A22, col. 6. The relevant Nicaraguan law has subsequently been changed to prohibit donations from foreign countries. See Nicaragua Bars Opposition from Getting U.S. Aid, N.Y. Times, Nov. 7, 1988, at All, col. 1 (noting that in Nicaragua, “as elsewhere in Central America, many parties receive regular help from like-minded parties in Europe and elsewhere”; that the Sandinista party itself had received foreign help in the 1984 election; and that the new law could significantly affect political life and possibly result in a switch from overt to covert aid).

¹²⁰ See generally D. Baldwin, Economic Statecraft (1985).

¹²¹ See generally G. Hufbauer & J. Schott, Economic Sanctions in Support of Foreign Policy Goals (1983); Economic Sanctions Reconsidered (1985).

¹²² See, e.g., Economic Coercion and the New International Economic Order (R. Lillich ed. 1976); D. Baldwin, supra note 120, at 336–59; Bowett, Economic Coercion and Reprisals by States, 13 Va. J. Int’l L. 1 (1972). In a separate work in progress, I am considering broader issues concerning economic leverage in international law and practice.

¹²³ This perception was bolstered by indications of intangible support. For example, when President Nixon visited Manila in July 1969, shortly before a Philippine election, the U.S. Embassy reported a political windfall for Marcos: “President Nixon’s mere presence in Manila will convey to the average voter a U.S. endorsement and protect Marcos from opposition charges that he is not a good friend of the U.S.” R. Bonner, supra note 48, at 65.

¹²⁴ See generally id. at 51–53, 265. The extent to which Marcos may have diverted U.S. aid funds for personal purposes has been a focus of recent investigations in both the Philippines and the United States.

¹²⁵ See id. at 38–44, 142–43, 203–23.

¹²⁶ The CIA is believed to have given amounts aggregating about $200,000 to a slate of six senatorial candidates in the 1959 elections, but all the CIA-backed candidates lost. Id. at 42–44, 142–43. Ferdinand Marcos, the top vote getter in that senatorial campaign, was not on the U.S. slate. In the 1965 presidential election, the CIA apparently bet on both the competitors— Ferdinand Marcos and Diosdado Macapagal—presumably with the objective of enhancing postelectoral influence with whichever was the winner. Id. at 42–44.

¹²⁷ Id. at 38–44.

¹²⁸ In the case of Chile, there was an equally dramatic disparity between the relatively minimal sums contributed to the 1964 campaign of Eduardo Frei—about $3 million—and the nearly $1 billion in foreign assistance to Chile during the Frei administration. See H. Kissinger, The White House Years 659–77 (1979). In Kissinger’s view, the amounts the United States offered to oppose Salvador Allende in the 1970 elections were exasperatingly small. As to results, electoral aid produced mixed success in Chile: in the congressional elections of 1965 and 1968, 22 candidates received CIA funding, of whom 9 were elected. In 1970, of course, U.S. aid to Allende’s opponents failed to produce the desired result. See 7 Church Comm. Hearings, supra note 43, at 166–73.

¹²⁹ Schachter has made a related point in the context of armed interventions: “It cannot be assumed that governments will, as a rule, invite foreign interventions that leave the people entirely free to make their own political determinations, though on occasion this may be the case.” The Right of States, supra note 5, at 1645.

¹³⁰ For examples, see text at notes 141–42 infra.

¹³¹ In the Nicaragua case, the World Court approved the notion that intervention is “allow able at the request of the government of a State.” 1986 ICJ Rep. at 126. The context of the Court’s remarks was military assistance offered by one government to another; a fortiori, nonmilitary economic assistance should be considered lawful.

¹³² G. Hufbauer &J. Schott, supra note 121, at 6–7, 43–45, 51, 70.

¹³³ Id. at 3–4, 32. Thus, for example, United Nations sanctions against South Africa are categorized as attempting to achieve “major changes in target country policies” rather than to undermine the Government. Id. at 54. Sanctions for human rights purposes (such as by the United States against various countries during the Carter administration) are categorized as efforts toward “modest changes in target country policies.” Id. at 31, 49–50. I would consider both of these kinds of sanctions as attempts to influence political developments in the target state.

¹³⁴ Id. at 2, 31–32.

¹³⁵ The United States has attached such political conditions to foreign aid in a variety of cases. Recent examples may be found in 22 U.S.C.A. §§2271–2276 (West Supp. 1988) (establishing policies for U.S. aid to Central American countries, including “opening the political process to all members of society”); and in id. §2370 note (requiring as a condition of U.S. aid to El Salvador in fiscal years 1982 and 1983 that the President certify, inter alia, that the Government of El Salvador “is committed to the holding of free elections at an early date”). For discussion of the application of U.S. pressure (including the design of aid policies) to influence an election, see Meyer, The Limits of Intervention in the Political Process: The Role of the United States in El Salvador, 7 ASILS Int’l L.J. 89 (1983).

¹³⁶ For a discussion of an unsuccessful effort by certain developing countries at the Vienna Conference on the Law of Treaties to define “force” as including “economic or political pressures,” see Kearney & Dalton, The Treaty on Treaties, 64 AJIL 495, 533–35 (1970).

¹³⁷ In 1987–1988 alone, the United States escalated economic pressure against South Africa, Haiti, Chile and Panama, with the overt motivation of achieving political change in those countries. See Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99–440, 100 Stat. 1086 (South Africa); N.Y. Times, Nov. 30, 1987, at Al, col. 5 (Haiti); 52 Fed. Reg. 49,129 (1987) (Chile); Dep’t St. Bull., No. 2134, May 1988, at 69–73; and id., No. 2136, July 1988, at 75 (Panama).

¹³⁸ West European governments, Japan and the United States have all recently curtailed economic relations with Burma pending political change there. See Thailand Seeks to Increase Links to Burma’s Military Government, N.Y. Times, Nov. 9, 1988, at A12, col. 1; Burma’s Opposition Appears to Falter, N.Y. Times, Oct. 9, 1988, §1, at 3, col. 1.

For noneconomic examples of multilateral pressure, see text at notes 170–74 infra.

¹³⁹ In February 1987, the negative votes of two permanent members (the United Kingdom and the United States) blocked passage of a Security Council resolution aimed at imposing such sanctions. The resolution otherwise enjoyed broad support. See UN Doc. S/PV.2738, at 67 (1987).

¹⁴⁰ Italy and the Scandinavian countries recently opposed a World Bank loan to Chile, while France, Belgium, Spain, the Netherlands and the United States abstained. The votes were viewed as a signal to Chile of international concern over its political situation. See 250m Loan Approved for Chile: Critics Say World Bank Funds Will Help Boost Pinochet Rule, Boston Globe, Dec. 16, 1987, at 3, col. 3; cf. N.Y. Times, Aug. 12, 1987, at A22, col. 4.

¹⁴¹ See Noriega Foes are Wary of U.S. Deal: Lifting Sanctions Could Bolster the General, N.Y. Times, Apr. 30, 1988, at A4, col. 4 (“Opposition leaders have repeatedly insisted that only continued American sanctions will guarantee that General Noriega steps down”). The Congress of South African Trade Unions and many black groups have called for sanctions; other opposition groups argue against them. See Sanctions Squeeze South Africa, N.Y. Times, Nov. 13,1988, §3, at 1, col. 3; N.Y. Times, Oct. 22, 1986, at Al, col. 3.

¹⁴² Thus, the Chilean opposition has had difficulty reaching a unified position on whether to call on the outside world to sever financial ties with Chile as an inducement to political liberalization, in view of the likely economic hardship that would result. See Chile’s Leader Takes to Task Foreign Foes, N.Y. Times, Dec. 11, 1987, at Al 1, col. 1.

¹⁴³ See U.S. Effort to Remove Noriega Begins to Irk Latins, N.Y. Times, Apr. 6, 1988, at A6, col. 3; see also Caribbean Officials Criticize Outside Pressure on Panama, N.Y. Times, May 23, 1988, at A3, col. 3.

¹⁴⁴ 1986 ICJ Rep. at 126.

¹⁴⁵ As to human rights values, see, inter alia, UN CHARTER, Preamble, Art. 1(3) and Arts. 55–56. As to state system values, see, inter alia, id., Preamble, Art. 1(2) and Art. 2(1), (4) and (7).

¹⁴⁶ GA Res. 217A (III), UN Doc. A/810, at 71 (1948) [hereinafter Univ. Dec.]. Several treaties also elaborate the political human rights that are of interest here. They include (non-exclusively) the International Covenant on Civil and Political Rights, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966) [hereinafter Int’l Cov.]; the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221, and its several protocols [hereinafter Eur. Conv.]; the American Convention on Human Rights, Nov. 22, 1969, reprinted in Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System, OAE/Ser.L/V/II.65, doc. 6, at 103 (1985) [hereinafter Am. Conv.]; and the African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted in 21 ILM 58 (1982) [hereinafter Afr. Ch.].

¹⁴⁷ See note 25 supra. The Friendly Relations Declaration also embodies human rights values, especially in its “principle of equal rights and self-determination of peoples.”

¹⁴⁸ Univ. Dec, Art. 21(1); see also Int’l Cov., Art. 25(a); Am. Conv., Art. 23(l)(a); Afr. Ch., Art. 13 (all supra note 146). The inter-American system recognizes “representative democracy” as the form of government for the American states in, inter alia, the OAS CHARTER, supra note 18, Art. 3(d), and the Am. Conv., supra, Art. 29(c).

¹⁴⁹ On freedom of thought, expression, assembly and related rights, see Univ. Dec, Arts. 18–20; Int’l Cov., Arts. 18–22; Eur. Conv., Arts. 9–11; Am. Conv., Arts. 12–16; Afr. Ch., Arts. 8–11 (all supra note 146).

¹⁵⁰ Univ. Dec, Art. 21(3); see also Int’l Cov., Art. 25(b); Am. Conv., Art. 23(1)(b) (all supra note 146); Eur. Conv., Protocol No. 1, 213 UNTS 262, Art. 3.

¹⁵¹ UN Charter Art. 2(4); Friendly Relations Declaration, supra note 25, principle (a).

¹⁵² UN Charter Art. 1(2); Friendly Relations Declaration, supra note 25, principle (e). The principle of self-determination is also embodied in international human rights law, e.g., Int’l Cov., supra note 146, Art. 1.

¹⁵³ UN Charter Art. 2(1); Friendly Relations Declaration, supra note 25, principle (f).

¹⁵⁴ For example, it is given equal status in the Friendly Relations Declaration as principle (c). The “General Part” of the Friendly Relations Declaration declares that “the above principles are interrelated and each principle should be construed in the context of the other principles.”

On the other hand, the argument could be made that the nonintervention norm is a weaker norm than the ones referred to in the previous three notes, all of which are explicit treaty obligations of states under the UN Charter. As noted in the text at notes 22–23 supra, the Charter does not explicitly impose a duty on states not to intervene in domestic matters, although Article 2(7) does impose such a duty on the UN Organization.

¹⁵⁵ The quoted phrase is from the formulation of the principle of sovereign equality of states in the Friendly Relations Declaration, supra note 25. Similar formulations are found in id., the principle concerning the duty not to intervene in matters within domestic jurisdiction (quoted in the text at note 28 supra); in the Charter of Economic Rights and Duties of States, supra note 25, ch. II, Art. 1; in the Helsinki Accord, supra note 19; and in the OAS CHARTER, supra note 18, Art. 13; among other international instruments.

¹⁵⁶ See generally T. Nardin, supra note 2.

¹⁵⁷ I am not persuaded by the position that the value of maximizing human dignity is the raison d’etre of the international legal order and should take precedence over all other competing claims. See, e.g., Reisman, supra note 9. Reisman goes so far as to elevate human dignity values above the value of conflict avoidance; hence, in his view, even forcible intervention in aid of the human rights of the target state’s inhabitants is legitimate. I endorse Schachter’s critique of this position. See Schachter, supra note 9.

¹⁵⁸ I associate myself with the positions concerning the illegitimacy of forcible intervention set forth in L. Henkin, supra note 5, and Schachter, supra notes 5 and 9. Impermissible forcible intervention should include not only outright invasions but also proxy wars, military support for guerrillas, state-supported terrorism and similar techniques of transboundary violence.

¹⁵⁹ See note 146 supra and accompanying text. The African Charter does not explicitly recognize a citizen’s right to vote or a country’s obligation to hold periodic elections, but its Article 13 does embody more general rights of political participation. See Gittleman, The African Charter on Human and Peoples’ Rights: A Legal Analysis, 22 VA. J. Int’l L. 667, 699 (1982). The other regional treaties do contain specific provisions on voting and elections, as does the International Covenant. See Int’l Cov., supra note 146, Art. 25(b); Eur. Conv., Proto col No. 1, supra note 150, Art. 3; Am. Conv., supra note 146, Art. 23(1)(b). Under the American Convention, no derogation is permitted from the right to participate in government. Id., Art. 27.

¹⁶⁰ 1986 ICJ Rep. at 131; see also id. at 382–85 (Schwebel, J., dissenting); H. Kelsen, supra note 23, at 776, 779–80 n.5, 785 n.9 (there are no matters which by their nature are “solely” or even “essentially” within a state’s domestic jurisdiction, since even a state’s form of government may be the object of an international agreement; the United Nations has treated existence of certain governments as an international, rather than a domestic, matter).

¹⁶¹ 1986 ICJ Rep. at 131–35. The Court examined Article 3(d) of the OAS Charter, which provides for “the effective exercise of representative democracy,” but concluded that this article provided no warrant for the United States to intervene on behalf of the contras. Judge Schwebel’s dissenting opinion took the position that the Nicaraguan Government had made binding commitments concerning its internal policies and had deliberately violated them. Id. at 259, 274, 382–86, 395–402; see also id. at 283, 526–27 (Central American peace process assumes that certain political processes are matters of international concern).

¹⁶² Id. at 134–35.

¹⁶³ The World Court was unsympathetic to the position that the United States could act as an enforcer of human rights norms against Nicaragua. In addition to its disapproval of modes of enforcement that were at least partly forcible, the Court took note of the fact that while Nicaragua had ratified the American Convention (see id. at 134), the United States had not. The Court noted that the OAS mechanisms for enforcing the Convention were functioning; and it stated, in an overly restrictive dictum, that “where human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves.” Id. In my view, remedies for enforcement of human rights standards should be cumulative, and the specification of certain protective mechanisms in a treaty should not preclude resort to other nonforcible measures. Cf. Am. Conv., supra note 146, Art. 29 (Convention not to be interpreted as restricting other sources of rights); Restatement (Third) of Foreign Relations Law of the United States §703 Reporters’ Note 1 (1987) [hereinafter Restatement (Third)].

For criticism of this aspect of the Court’s Judgment, see F. Tesón, supra note 7, at 218–20; see also Tesón, Le Peuple, c’est moi! The World Court and Human Rights, 81 AJIL 173 (1987).

¹⁶⁴ See Schachter, The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977). There is a strongly held view that aspects of the Universal Declaration have become legally binding as customary international law or as an authoritative interpretation of the UN Charter. See L. Henkin, R. Pugh, O. Schachter & H. Smit, International Law: Cases and Materials 987–88 and references cited therein (2d ed. 1987). For comment on the Helsinki Accord as a “non-binding” instrument, see Russell, The Helsinki Declaration: Brobdingnag or Lilliput?, 70 AJIL 242 (1976); and Restatement (Third), supra note 163, Intro. Note topt. VII, at 150 n.6.

¹⁶⁵ See Schachter, supra note 164, at 304; Henkin, Human Rights and “Domestic Jurisdiction,” in Human Rights, International Law and the Helsinki Accord 21, 29 (T. Buergenthal ed. 1977) (although the Helsinki Accord is not a binding treaty, it involves undertakings that preclude the suggestion that the matters dealt with are within the exclusive domestic jurisdiction of the signatory states).

¹⁶⁶ Cf. Steiner, Political Participation as a Human Right, 1 Harv. Hum. Rts. Y.B. 77, 134 (1988) (discussing diverse conceptions of rights of political participation and arguing that the right is programmatic in the sense that “it could never be fully realized”); see also The Right to Participate in Government: Toward an Operational Definition, 82 ASIL Proc. (1988, forthcoming) (discussion of whether the holding of elections is either a necessary or a sufficient condition for compliance with international human rights obligations of political participation; consideration of relationship to other political rights, including free expression and association).

¹⁶⁷ See note 159 supra. For other instruments, see, e.g., International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 UNTS 195, Art. 5(c), which calls for equal enjoyment of political rights, “in particular the rights to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage.”

¹⁶⁸ A proposal that would have defined “genuine” elections as involving a choice between at least two parties and the right to organize a political opposition was not adopted in the International Covenant. See UN Doc. A/C.3/SR.298, para. 26 (1950), cited in International Human Rights Law Group, Guidelines for International Election Observing (1984) [hereinafter Law Group Guidelines]; see also Steiner, supra note 166, at 85–96 (summary of debates leading to adoption of texts that would allow states to implement their own structures for rights of political participation and electoral systems).

¹⁶⁹ See Steiner, supra note 166, at 129 n.175; and Law Group Guidelines, supra note 168, Commentary to Guideline V.C (citing International Commission of Jurists, Human Rights in a One-Party State (1978)). The Restatement (Third) notes that states differ as to whether elections in a one-party state can be considered “genuine” within the meaning of international human rights instruments. RESTATEMENT (THIRD), supra note 163, §702 Reporters’ Note 10.

¹⁷⁰ See generally Law Group Guidelines, supra note 168. International attention has recently focused on elections in El Salvador, Nicaragua, the Philippines, Haiti, South Korea and Chile. For evidence of the trend toward involvement by foreigners from many parts of the world, see, e.g., Foreigners to Observe the Plebiscite in Chile, N.Y. Times, Sept. 18, 1988, §1, at 6, col. 1 (former Spanish prime minister heading delegation of “several dozen former chiefs of state or government from Europe and Latin America”).

¹⁷¹ See discussion in part III supra.

¹⁷² Following an on-site study by the Inter-American Commission on Human Rights of human rights violations in Nicaragua, the OAS adopted a resolution calling for the “immediate and definitive replacement of the Somoza regime.” See Res. II, June 23, 1979, adopted at the 17th Meeting of Consultation of Ministers of Foreign Affairs, OEA/Ser.F/II, doc. 40/79, rev.2, discussed in Weston, Lukes & Hnatt, Regional Human Rights Regimes: A Comparison and Appraisal, 20 Vand. J. Transnat’l L. 585, 619 n.186 (1987). The resolution is cited and discussed by the World Court in the Nicaragua case, 1986 ICJ Rep. at 89–92, 131–32; and in Judge Schwebel’s dissenting opinion in the same case, id. at 259, 273–74, 382–86, 395–402.

¹⁷³ In South Korea the Government declined to permit the same degree of intensive election monitoring by outsiders as had taken place in the Philippines in 1986, characterizing such activities as “meddling in domestic affairs.” See U.S. Keeping Clear of Seoul Election, N.Y. Times, Dec. 7, 1987, at A7, col. 1. In other cases, incumbent regimes have maintained that foreign pressure for any deviation from domestic election law is impermissible interference. Chile, Haiti and South Africa are among the states whose ruling regimes have recently raised such objections. See Botha Says Foreign Envoys Undermine Pretoria’s Rule, N.Y. Times, Aug. 14, 1987, at A3, col. 5; Chile’s Leader Takes to Task Foreign Foes, N.Y. Times, Dec. 11, 1987, at Al 1, col. 1; Haitian General Disavows Killings, N.Y. Times, Dec. 16, 1987, at A8, col. 1 (Haitian leader charged that “foreign countries” had “financed the disorder” that disrupted Haitian presidential elections).

¹⁷⁴ See letters to the editor, N.Y. Rev. Books, June 26, 1986, at 42, col. 1 (concerning recent Salvadoran and Nicaraguan elections).

¹⁷⁵ The World Court applied a countermeasures analysis in its discussion of the nonintervention norm and concluded that the United States had not established the conditions for the legitimate application of countermeasures. 1986 ICJ Rep. at 130–35. Clearly, a major factor in the Court’s consideration was the impermissibility of measures involving the use of force in purported enforcement of human rights norms. Id. at 134–35.

For the view that the Court erred in condemning forcible measures to enforce human rights, see F. TESÓN, supra note 7, at 201–44. My own position, of course, is limited to the application of nonforcible measures. See text at note 158 supra.

¹⁷⁶ Univ. Dec, Art. 20; Int’l Cov., Art. 22(1); Eur. Conv., Art. 11; Am. Conv., Art. 16(1); Afr. Ch., Art. 10 (all supra note 146).

¹⁷⁷ Univ. Dec, Art. 19; Int’l Cov., Art. 19(2); Eur. Conv., Art. 10(1); Am. Conv., Art. 13(1) (Art. 13(3) prohibits indirect restrictions on this right as well); cf. Afr. Ch., Art. 9 (individuals have right to receive information and express opinions, but no mention in article of transfrontier activities) (all instruments cited in note 146 supra).

¹⁷⁸ One nongovernmental human rights organization has taken a first step toward recognizing the importance of the campaign finance issue in evaluating the climate for an election, but it has not yet suggested that there are any international standards governing campaign finance as such. In its Guidelines for an In-Depth Analysis of an Electoral Process, reprinted as App. IV to Law Group Guidelines, supra note 168, at 53, the International Human Rights Law Group encourages election observers to examine all aspects of a country’s electoral law, including whether there are provisions pertaining to campaign financing. See also id. at 73, 76, 80 (participants in conference sponsored by Law Group note that the “quality of the campaign climate” includes “sources of party financing”).

¹⁷⁹ See Int’l Cov., Art. 25(b), which provides that every citizen shall have the right to vote, to be elected to office and to have equal access to public service. (Most other provisions of the Covenant concern the rights of “human beings,” “everyone” or “all persons.”) See also Eur. Conv., Art. 16; Am. Conv., Art. 23 (which also provides that the law may regulate the exercise of these rights of political participation only on the basis of “age, nationality, residence, language, education, civil and mental capacity, or sentencing … in criminal proceedings”) (emphasis added).

International law may prevent states from resorting to involuntary denationalization as a technique for limiting civil and political rights. See, e.g., Univ. Dec, Art. 15(2) (“No one shall be arbitrarily deprived of his nationality”); Am. Conv., Art. 20(3) (all instruments cited in note 146 supra).

¹⁸⁰ In addition to the treaties discussed in the preceding note, bilateral treaties of friendship, commerce and navigation typically contain a provision to the effect that the treaty “does not accord any rights to engage in political activities.” See, e.g., Treaty of Amity, Economic Relations, and Consular Rights, Aug. 15, 1955, U.S.-Iran, Art. XX(2), 8 UST 899, TIAS No. 3853.

¹⁸¹ Thus, influencing states need not honor South Africa’s restrictive legislation (cited in notes 109–14 supra) that is aimed at preventing opposition political groups from receiving funds and other support from abroad. The Chilean laws cited in note 106 and similar laws elsewhere would be suspect if they could be shown to be part of an overall scheme for denying citizens the right to organize in opposition to the government.

Similarly, U.S. support (recently undertaken through the National Endowment for Democracy) of the outlawed Solidarity movement in Poland does not violate the nonintervention norm. See note 78 supra.

¹⁸² Numerous issues could arise in implementing the approach that I have suggested, such as the status of campaign finance legislation adopted by the target at a time when its human rights performance was substantially better (or worse) than at the time of the influencing activity, or legislation that is facially neutral or adopted through seemingly democratic processes but has a deleterious impact on the political rights of some societal group. Space limitations do not permit addressing these points of detail. Suffice it to say that, in my view, the emphasis should be not so much on the process by which the legislation was adopted, but rather on whether it contributes to a current pattern of serious political repression in violation of the minimum rights embodied in generally accepted human rights instruments.

¹⁸³ Restatement (Third), supra note 163, §703 comment/ Although the Restatement’s usage in the same comment of the terms “violating state” and “violations” might seem to imply that breach of a customary law obligation would be a prerequisite to the application of economic sanctions, the better view is that economic sanctions may be employed to induce observance of any human rights standard “recognized” by the Universal Declaration and other international instruments. See id. §702 comment m.

¹⁸⁴ The exercise of such influence may indeed contribute to the process by which human rights principles evolve from aspirational objectives to customary law obligations.

¹⁸⁵ For a catalog of U.S. measures of an economic character aimed at “gross” human rights violations, see Restatement (Third), supra note 163, §702 Reporters’ Note 10.

¹⁸⁶ For example, the Jackson-Vanik Amendment to the U.S. Trade Act denies most-favored-nation trade status to non-market economy countries that do not provide adequate assurances of freedom of emigration; and the Trade Act also provides for withdrawal of trade preferences for developing countries that do not afford “internationally recognized worker rights.” See 19 U.S.C. §§2432, 2462 (Supp. IV 1986). Although rights of emigration and worker protection are embodied in many human rights instruments, the Restatement (Third) does not include them on the “short list” of rights that are generally considered to have attained customary law status (§702), unless the violations are part of a “consistent pattern of gross violations.”

¹⁸⁷ See text at note 144 supra.

¹⁸⁸ For the reasons previously given, any such laws adopted as part of a systematic program of violation of the internationally protected political rights of the target’s citizens would not have to be honored.