International agreements apparently treat an unauthorized threat of force and the actual use of force as equally grave, yet distinct, wrongs. If, however, formal legal appraisals of specific situations are taken as indicators of existing practice, it seems that the threat of force has no separate significance, as it were, beyond the use of force: either it precedes actual violence and therefore is eclipsed in legal appraisals by the latter, or it is not followed by the use of force and thus ceases to demand prompt legal consideration. Such an attitude toward the question of threat implicitly acknowledges that threats of force are a ubiquitous element of international relations and that they may not be detrimental, indeed may even be beneficial, to the preservation of international order. On the other hand, the attitude of apparent tolerance of threats of force ignores that they produce consequences whether or not they are followed by resort to force and for this reason need to be scrutinized more closely and their lawfulness evaluated. This situation reflects a dissonance between the absolutist aspiration of the international principle prohibiting the threat of force and the complex, often ambiguous and rather pragmatic code applied in international practice.

On October 7, 1985, the Achille Lauro, an Italian-flag cruise ship, was seized while sailing from Alexandria to Port Said. The hijackers, members of the Palestine Liberation Front (PLF), a faction of the Palestine Liberation Organization (PLO), had boarded the ship in Genoa, posing as tourists. They held the ship’s crew and passengers hostage, and threatened to kill the passengers unless Israel released 50 Palestinian prisoners. They also threatened to blow up the ship if a rescue mission was attempted. When their demands had not been met by the following afternoon, the hijackers shot Leon Klinghoffer, a Jew of U.S. nationality who was partly paralyzed and in a wheelchair, and threw his body and wheelchair overboard. The United States characterized the seizure as piracy, a position that has been supported by some commentators and opposed by others.

It was with great surprise and some disappointment that I took note in the July 1987 issue of the American Journal of International Law of the decision by the American Society of International Law to divest its investment portfolio of stocks in all corporations with direct investments in South Africa. Despite the sentiments that may have motivated this decision, many of which are reflected in the Note of Henry J. Richardson III, there were no doubt many arguments voiced to the contrary at the meeting of the Society when the matter was discussed.

I am pleased to have been given an opportunity to respond to Professor Barrie’s arguments that the decision of the Executive Council of the Society to divest its portfolio of stocks in all corporations with investments in South Africa was both substantively misguided and legally improper.

The material in this section is arranged according to the system employed in the annual Digest of United States Practice in International Law, published by the Department of State.