A SURFACE STUDY OF THE INTERNATIONAL PRINCIPLE OF NON-INTERVENTION

Abstract

At the end of the Second World War, the international community unanimously decided that it shall take no actions that will put into jeopardy the newly acquired peace and security of the world. To that end, at the signing of the United Nations Charter, it was concluded that if individual member nations desire to settle international disputes there shall be some limitations; one of which was the intervention of other nations in the internal affairs of other nations. The principle of non-intervention is of great importance in the international legal system. It is important to examine both the content of that principle and its application under international law.

1.0 INTRODUCTION

The principle of non-intervention is that sovereign states shall not intervene in each other’s internal affairs.[1] It is a policy characterized by the absence of “interference by a state or states in the external affairs of another state without its consent, or in its internal affairs with or without its consent.”[2] It is the general principle of contemporary international law that the non-intervention in each other’s internal affairs is based on respect for states’ sovereignty and territorial integration, which governs the relations between states regarding their rights and obligations. It has been established as the general principle of international law or customary law in compliance with the purposes and principles of the UN Charter. Nevertheless, its application depends on the determination of the matter in question within the domestic jurisdiction and of the applicable international laws accordingly. It was and is still controversial in practices of international law to make such determination. The principle of non-intervention remains one established in contemporary international law according to the International Court of Justice on several occasions also reflected in many treaties.[3]

Before it became a recognized international principle, the intervention was commonplace in global discussions and occurred in some ways which we shall examine further.

2.0 TYPES OF INTERVENTION

Prior to the introduction of the principle of non-intervention, intervention occurred in several forms amongst nations as either direct or indirect[4]. The direct intervention occurred through military intervention and intervention by forcible means. This intervention usually occurred in the form of military occupation of territories, embargos, demonstration, blockade, seizure of assets of another state or its nationals, arrest, and detention of foreigners, or expulsion of foreign diplomats.

It was also possible for nations to indirectly interfere in the affairs of other states without the use of force. One such way was through subversive intervention which refers to any activity by one state with the intention to affect the situation in another state. Such activity was conducted through mediums such as radio or television shows, aiming to encourage revolt or civil strife in other states or provide assistance to illegal activities that oftentimes turned violent.[5]

Another is through economic intervention which involves the imposition of sanctions, embargoes, and boycott by interfering with trade and shipping and by denial of access by land and water. Furthermore, banning export and import or external economic policy impositions (interventions) by International Financial Institutions (IFIs), while taking action under Article 4112 of the UN Charter, is another form of economic intervention especially when a wrongful act is done by that state.[6] Economic intervention is a slightly grey area however as it is sometimes difficult to draw a line between the legitimate economic sanctions and illegal pressure put upon another state. However, to determine whether economic intervention is legitimate under law, two tests are important: identifying the relationship between the means and the object and following the procedure laid down under Chapter VIIof the UN Charter (Resolution by United Nations Security Council [UNSC].[7] The ICJ in Military and Paramilitary Activities in and against Nicaragua Case stated that the mere refusal or termination of aid to developing countries or the breach of an economic treaty do not constitute a breach of the non-intervention principle as states are free to decide which other states they want to give economic support to.[8]

Finally, diplomatic intervention. This generally does not amount to illegal intervention but may be considered forbidden intervention, if it involves communications of threatening tone, use of military or other coercive measures.

To prevent future instances of unsanctioned state interventions in the affairs of others, it was important for the international community to declare articles and treaties that represent the international community’s acceptance of the principle of non-intervention.

3.0 PROVISIONS FOR NON-INTERVENTION

In safeguarding the sovereignty of nations, Article 2.4 of the UN Charter, widely regarded as the most important manifestation of the principle of non-intervention, was declared (although it is occasionally not associated with this principle)[9]. It frowns on the use of threat and force in international relations. Threats to use force contravene the principle; even where it is unclear if the threat were carried out it would necessarily be unlawful. Furthermore, Article 2.7 of the Charter of the United Nations provides against United Nations intervention in matters which are within the domestic jurisdiction of any state;[10]although it provides for an exception to this rule further down the charter.

The Friendly Relations Declaration[11] included under the principle of non-intervention that no State or group of States has the right to intervene, “directly or indirectly, for any reason whatever”, in the internal or external affairs of any other State. Therefore, all other forms of intervention or attempted threats including armed intervention against a State or its regional elements violate international law.[12]

The growth of international law on human rights in treaties and in customary international law as well, and in particular acceptance of the rights of States to criticize other States’ human rights record and the inter-State complaint mechanisms, has made for a suitable check to prevent the incursion of nations in the affairs of other states.

It seems to be still well-established the diplomats should not interfere in the internal affairs of the State to which they are accredited. Article 41 of the Vienna Convention makes it abundantly clear that state officials serving as diplomats are not to interfere in the internal affairs of the receiving State. It is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.[13]

The International Court further expounded on the principle of non-intervention in its 1986 judgment in the Nicaragua case,[14] setting a precedent for future claims on the subject. According to the court, the principle of non-intervention requires every sovereign State to conduct its affairs without outside intervention; though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of customary international law. The Court went on to say that “the principle forbids all States or groups of States to intervene directly or indirectly in the internal or external affairs of other States.” Intervention is wrongful when it uses methods of coercion regarding such choices, which must remain free ones. Here, the plea of Nicaragua was that the United States had violated its treaty obligations to Nicaragua under Article 2(4) of the UN Charter by involving in training, recruiting, equipping, arming, financing, supplying and supporting, and aiding and directing military and paramilitary actions in and against Nicaragua. This decision served as the guiding principle in the Democratic Republic of Congo v Uganda on 19 December 2005, when it concluded “that Uganda had violated the sovereignty and also the territorial integrity of the DRC since it had not consented to the presence of Ugandan troops on its territory as well as actively extending military, logistic, economic and financial support to irregular forces operating on the territory of the DRC.[15]

Indeed, the widely upheld character of the principle of non-intervention by governments has made it jus cogens.[16] The General Assembly, in its Declaration of 9 December 1981, espoused that the non-intervention principle embodies the requirement that States refrain from entering into agreements with other States to intervene or interfere in the internal or external affairs of other States.[17] Although this declaration, like many others, is not in itself law-making, it nevertheless restates the law, and at least reflects, to a large extent, the general legal conviction of States in this regard.

4.0 EXCEPTIONS TO THE PRINCIPLE OF NON-INTERVENTION

The principle of non-intervention, however, like most legal principles is not without its exceptions. Under the UN Charter, only two entities have permission to intervene: the UN and a state. No other entity can violate the principle of non-intervention through their behavior as international law provides under the Responsibility of States for Internationally Wrongful Acts, 2001, that state responsibility becomes operative for the acts of private entities if its organs have cooperated with these entities and thereby contributed to the breach of an international state obligation.[18] Let us analyze intervention by the UN or a state.

5.0 INTERVENTION BY UN

Under Chapter VII of the charter, collective intervention is stated as an exception to the general principle of non-intervention mentioned under Article 2(7) of the Charter. UN intervention may come in the form of collective intervention. In this instance, the UNSC is empowered to take collective actions where there is a threat to the peace, a breach of the peace, or an act of aggression has taken place. For a collective intervention to commence, first, UNSC determines under Article 39 of Chapter VII of the UN Charter whether there exists a threat to peace or breach of the peace or whether any act of aggression has taken place and makes recommendations or decides what measures are to be taken to maintain or restore international peace and security.[19] This means that the UNSC will not immediately resort to force or military aggression in cases of suspected threat to international peace and order. If the UNSC is satisfied with the existence of such threat or breach, then it is required to use provisional measures, provided it is sanctioned by an agreement involving all its permanent members. However, where such measures prove to be inadequate, it can take such action by air, sea, or land forces of the member state as are essential for maintaining international peace and security.[20]

For sanctioned collective intervention, one of the reasons is that it must be on humanitarian grounds. Today, human rights law has become a part and parcel of international law; therefore, humanitarian intervention has become a debatable issue. Humanitarian intervention in a strict sense means an international intervention through the use of force for the protection of the inhabitants of another state who are subjected to human rights violations. Once it has been adjudged that there are aggravated violations where the national authorities either are unwilling or unable to protect its nationals and the situation affects international peace and security, provisions of Chapter VII will be applicable. An example of intervention by the UN is in Iraq on behalf of the Kurdish people in 1991.[21] A civil war is also one of such grounds permitting collective intervention.  Although a civil war is an internal affair of the state, which under Article 2(7),[22] UN cannot intervene, if such a civil war threatens to affect international peace and security, the provisions of Chapter VII will be applicable. According to Article 39, the Security Council must first determine whether such a civil war in a state will pose a threat to the peace or breach of the peace or amount to an act of aggression.[23] Finally, if it has been revealed to lead to possible grave consequences for the entire globe, environmental catastrophes may be considered a threat to peace, and hence, legitimate collective action by the UNSC may be taken. Although the UNSC has not taken any collective action on an environmental matter, some jurists believe that environmental catastrophes may lead to collective interventions in the future as the practice has shown that the definition of a threat to peace is widening with time.

6.0 INTERVENTION BY STATES

Furthermore, despite articles 2(3) and 2(4) of the UN Charter making emphasis on the principle of non-intervention amongst states, Article 51 makes provision for the exception of self-defense.   According to the rules of international law, whenever a state intervenes in the internal affairs of another state violating the non-intervention principle, the affected state can react to such breach with a reprisal, which is permitted under Article 51 of the Charter.[24] Therefore, according to Article 51 of the UN Charter, whenever an arms attack occurs against a state, the affected state can use force against the wrongdoer state on the ground of self-defense. In the case of The Caroline, Mr. Webster, the Secretary of the United States of America, laid down a very important principle for exercising the right of self-defense: the necessity of self-defense should be instant, overwhelming, and leaving no choice of means and no moment for deliberation. This principle was affirmed by Nuremberg Tribunal in 1946 and by the ICJ in the Corfu Channel case.[25]

7.0 CONCLUSION

In modern times, the principle of non-intervention has become jus cogens. Neither the UN nor a state can intervene in the domestic jurisdiction of another state without reasonable proof and valid intentions. Although there are various instances of nations violating this principle amongst one another, states need to adhere to this principle as its existence remains necessary for the safeguard of the sovereignty nations and for the achievement of global peace and security.

About the Author

Martin Achimugu is a final year student of the Faculty of law, University of Lagos. He possesses experience writing, researching and speaking on various aspects of the law with particular interests in Human Rights related issues and International Law. He is also an Executive Editor at the UNILAG Law Review.

[1]                      Zhang Naigen “The Principle of Non-interference and its Application in Practices of Contemporary international law” available at https://link.springer.com/article/10.1007/s40647-016-0126-y#:~:text=The%20principle%20of%20non%2Dinterference%20is%20that%20sovereign%20states%20shall,in%20each%20other’s%20internal%20affairs.&text=It%20has%20been%20established%20as,principles%20of%20the%20UN%20Charter. (accessed 16 August 2020)

[2]                      Hodges, Henry G, The Doctrine of Intervention, 1915, The Banner press. Princeton.

[3]                      Chatham House “THE PRINCIPLE OF NON-INTERVENTION IN CONTEMPORARY INTERNATIONAL LAW” available at http://www.aalep.eu/principle-non-intervention-contemporary-international-law (accessed 16 August 2020)

[4]                      Nicaragua v United States of America; [1986] ICJ Rep 108

[5]                      Phillip Kunig, LERN- UND ARBEITSBUCH UMWELTPOLITIK, 2003, 2nd updated edition

[6]                      United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,

[7]                      Boris Kondoch, International Peacekeeping;The Library of Essays in International Law, 28 Sep 2007, Aldershot, England, United Kingdom.

[8]                      Supra Note 4.

[9]                      United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,

[10]                    ibid

[11]                    General Assembly: A/RES/2625(XXV), 1970

[12]                    ibid

[13]                    United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155

[14]                    Nicaragua v United States of America; [1986] ICJ Rep 108

[15]                    Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168.

[16]                    D’Amato, Anthony, “There is No Norm of Intervention or Non-Intervention in International Law” (2010) available at http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/80 (accessed 15th August 2020)

[17]                    UN General Assembly: (A/RES/36/103), December 1961

[18]                    General Assembly resolution 56/83 of 12 December 2001

[19]                    Supra Note 9, Art. 39.

[20]                    ibid

[21]                    Fernando Teson, The Liberal case for Humanitarian Intervention available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=291,661 (accessed 16 August 2020)

[22]                    Supra Note 9, Art 2(7)

[23]                    Supra Note 18.

[24]                    Supra Note 9, Art. 51

[25]                    Jyoti Rattan “Changing Dimensions of Intervention Under International Law: A Critical Analysis” available at https://journals.sagepub.com/doi/full/10.1177/2158244019840911 (accessed 15 August 2020)