An Appraisal of the Doctrine of Non-intervention in International Law
CHAPTER ONE
Objectives of the Study
The aim of this research is to examine critically the principle of nonintervention in international law with a view to realizing the following
objectives: –
- To what extent has the principle of non-intervention been abused?
- To make recommendations or suggestions, as to how to review the law of non-intervention.
CHAPTER TWO
THE DEVELOPMENT OF THE PRINCIPLE OF NON-INTERVENTION
Introduction
After the Second World War, it was the desire of the international community not to do anything which would rupture the stability, peace and security of the world or globe. For this reason, during the preparation of the United Nations Charter at Damberton Oaks, England, it was decided that, in as much as the member nations could seek for specific settlement of international disputes, some limitations were desirable under which circumstances, intervention should not be entertained by the United Nations.[1] One of the circumstances is, when the subject matter of a complaint is essentially within the domestic jurisdiction of a state2. That is to say, if the issue, problem or complaint is absolutely termed local; in which case the attention of the United Nations to the problem, issue or complaint is not necessary. This problem was even perceived during the operation of the League of Nations, which preceded the United Nations.
In this chapter, the task is to define, trace the development and limitations which are placed on the principles of non-intervention. The idea of sovereignty of state shall be discussed and how it is interwoven with the concept and principle of non-intervention.
Lastly, the recent trends of the concept and principle of nonintervention will be discussed.
Meaning of Non-Intervention
Most writers on international law do not bother to define what nonintervention means. Rather, they try to define intervention. Therefore, the meaning of intervention defined in a positive way, will be the meaning of non-intervention in a negative way.
According to international law, the word intervention means “interference with matters essentially, within the domestic jurisdiction of a state.”[2] To Hingorani, intervention means a “dictatorial interference in the affairs of another sovereign state.”[3] In another meaning, it is the use of force or threat of use of force for the purpose of getting support or otherwise of the country for which influence was exerted[4]. Non-Intervention may mean, restrain from exacting an act by use of force on another country, which has sovereign equality with others. Or, in another way it means restrain from act capable of denying or rupturing the idea of the principles of self-determination of a sovereign country[5].
According to Oppenhiem, intervention means, specifically “a dictatorial interference by a state in the affairs of another state for the purpose of maintaining or altering the actual conditions of things.”[6] Stark defines Intervention as “act contrary to the will of the Victim State and must, by design or implication impair the political independence of that state.”[7] It is submitted that, the principle of non-intervention is a fundamental principle of contemporary international law, which prohibits not only armed intervention but all direct and indirect intervention in the domestic affairs of a sovereign state.
CHAPTER THREE
THE MODERN CONCEPT OF THE PRINCIPLE OF NON-
INTERVENTION
Introduction
After the Second World War, the international community was preoccupied with the thought of how to prevent future occurrence of World war. Secondly, it was pre-occupied with how it could promote and guarantee world peace and security. It proclaimed the Second World War as a disaster, the reoccurrence of which could not be tolerated or condoned[1]. The international community wanted some ways to bring together a unifying institution, which could harness human and material resources to tackle the problems of insecurity in the world. To this end, the idea of evolving the United Nations Organisation was conceived with the view of succeeding the League of Nations with all its rights, obligations, duties, privileges and immunities[2].
For this reason, sponsoring governments first met at the Dambarton Oaks, in England culminating into subsequent meetings in San Francisco, United States of America, the result of which led to the draft of the UN Charter[3]. During the draft of the United Nations Charter, the idea of the principle of non-intervention which also featured prominently in the Leagues of Nations was discussed[4].
Both at the Dambarton Oaks and the San Francisco meetings, an Article was enacted which limited the then emerging United Nations from interfering into matters essentially within the domestic jurisdictions of states[5].
As already said above, Article 2(7) of the United Nations does not prohibit intervention of states into the domestic affairs of other states. Also, the Article does not compel states to refer matters which are essentially within their domestic jurisdiction for pacific settlement. As we have already observed, the principle of non-intervention came about as a result of the Declaration on the Inadmissibility of non-intervention in the Domestic
Affairs of states and the Protection of their Independence and Sovereignty.
(Resolution 2131 XXX) which was adopted by the United Nations General Assembly on 21st December, 19656, and Declaration on Principle of International Law concerning Friendly Relations and Co-operation which was adopted by acclamation at the General Assembly‟s 25th session on 24th October, 1970[6]. Since then, relations between states have changed remarkably.
CHAPTER FOUR
EXCEPTIONS TO THE RULE OF NON-INTERVENTION
Introduction
This chapter examines the exceptions to the rule of non-intervention in international law. The reason for carrying out this investigation is that, the post-cold war period of development appears to be superimposing on the law of United Nations its own order, the most characteristic feature being intervention by use of force, either for humanitarian assistance or purposes, whether such intervention is undertaken on the independent decision of particular states or on the authority of competent organs of the international community, such as the United Nations Security Council or other bodies/institutions such as International Monetary Fund (IMF), World Bank, etc.
The alleged right to intervention in humanitarian causes is at once related to but broader than the alleged right of humanitarian intervention. But whatever else, it is not new. The right has the imprimatur (an official authoritative approval) of the classical writers. Grotius, in his discourse „On the cause of undertaking war on behalf of others‟[1], considers that (if some tyrant) should inflict upon his subjects such treatment as no one is warranted inflicting, the exercise of the right vested in human society is not precluded[2].
Gentili was categorical that “if subjects are treated cruelly, and unjustly, the principle of defending them is approved”[3]. He further elaborates this statement, that if another sovereign “remote from any nation harasses its own. The duty which I owe to the human race is prior and superior to that which I owe that sovereign”[4]. More significantly, Gentili defends the right to give “aid to the subjects of another even when they are unjustly provided that the purpose of the aid or intervention was to save them from immediate cruelty and unmerciful punishment; for it is the par of humanity to do good even to those who have sinned”[5].
CHAPTER FIVE
Summary, Conclusion and Recommendations
Introduction
The main task of this chapter is to summarize what we have said in the preceding chapters and to endeavour to make findings at the end of this work. The chapter will try to proffer suggestions/recommendations based on what was discussed in the previous chapters.
Summary of the Principles of Non-Intervention
The principle of non-intervention has its origin as far back as medieval period. It is a well established principle of customary international law[1]. Its purpose is to limit illegal involvement of one country in the affairs of others in the ordinary course of relationship among civilized nations. One of the limitations evolved by customary international law is the principle of non-intervention[2]. This means that every country or nation which is a sovereign state has the right to conduct its affairs without outside interference[3]. One of these rights is the choice of a political, economic, social and cultural system and the formulation of foreign policy[4].
However, the principle of non-intervention does not mean prohibition of co-operation, mutual, bilateral and multilateral co-operation and understanding between nations. In fact, because of the complexity of modern world, and because of interconnections and interdependency of nations in most fields of endeavours such as social, cultural, political and economic elements, it has become necessary for nations to evolve common law under which to regulate their activities[5]. Thus, it was argued, that the law of non-intervention merely seeks to prohibit intervention in matters essentially within the domestic jurisdiction of states.
Conclusion
Having analysed the principle of Non-Intervention in International Law, the following are the finding of this research:
- Though in many instances, interventions take the form of use of force or threat of use of force, also non-use of force is an important form of the doctrine of non-intervention. So, intervention as it was initially conceived meant use of force. The finding of this writer is that, the interpretation of the phrase “use of force” is now widened or extended to include non-use of force, which will have same effect with use of force. For example, the US proclamation or declaration in the Ugandan Case regarding the prohibition of same-sex marriage by the Ugandan authorities that it will sever diplomatic relations and stop giving financial aids to Uganda if it did not repeal the law, to which Ugandan authorities tacitly repealed same. This tantamount to depravation of political independence and territorial integrity of Uganda even though force or threat of use of force is absent as contemplated by art. 2(4) of the United Nations Charter. Hence violation of the principle of non-intervention.
- That the anticipatory self-defence and intervention by the authorization of Security council as statutory exceptions under the Charter of the UN are to a large extent open to abuse since only powerful states appear to be invoking them. In respect of anticipatory self-defence, certain states go beyond the provision of the Charter and this occasioned frequent recourse to the use of force, as such there is outright infringement of the Charter. For example in the current Israel-Palestine combat in Gaza, Israel justification for her initiation of hostilities in Gaza against Hamas as self defence cannot be upheld because her action is not proportionate to the object of stopping the infringement. Similarly intervention by the authorization of Security Council as second statutory exception to use force is often accompanied by several other justifications which tend to indicate the presence of other motives.
- It is also the finding of this research that, the intervention for the protection of lives and property of nationals, intervention by request, humanitarian intervention, intervention to enforce the provision of a treaty, intervention in support of democracy and intervention against terrorism as an exceptions to the general rule of non-intervention under customary international law has found little favour with the overwhelming number of UN members and there are cogent reasons for considering it to be unlawful[6]. Prominent among these is the specific provision in Article 2(4) of the Charter that restricts members from using force against the territorial integrity and political independence of any sovereign state. The basic assumption of the Charter is that the maintenance of peace and security is the primary purpose of the UN, which is guaranteed by the ban on use of force.
- Another finding of this research is that, in some few occasions the method of intervention is not by use of force, but non-use of force. For example, giving of financial aids, supply of materials, food, arms and logistic7. Sometimes, intervention take the form of aiding insurgents to revolt against legitimate government8 as in Libya and Syria or, aiding a legitimately constituted governments to suppress groups of people with different ideology or different system of economy9 as in Egypt. It is also the finding of this research that, in some of these interventions, the form or type of intervention is by non-use of force. The form of non-use of force generated same effect with the form of use of force. For example, it deprived the countries upon which intervention is set up the political independence and territorial integrity. For example, as we have learnt in Chapter three, Hungary was deprived of deciding for itself what system of economy was suitable for her to practice. In Ukraine, the USA and its western allies sponsored rebellions that ousted a legitimate government of Victor Yanukovych in February, 2014 and installed a government with sympathy towards capitalist system of economy10. In Nicaragua, the contras were assisted with aids varying from military, logistics to material aid. In all these instances, there was no use of force.
- It is also the finding of this research that, some of the modern features of intervention are the development of unauthorized economic and political pressures to bear on a country, with the view of changing its stand or policy. Some of the methods used in actualizing these objectives are the illegal exertion of economic and political pressure by some powerful states such as US and its allies without the authorization of the United Nations Security Council on a country whose co-operation is needed. Some economic measures usually embarking upon include illegal economic embargo or illegal imposition of trade sanctions. In most cases, when these embargoes are imposed, they touch the self-determination character of a country, thereby violating the rule against non-intervention. For example, the illegal economic sanctions against Iraq in 2001, Libya in 2011, and presently North Korea (2012), Iran (2012), Syria (2013), Russia by USA and European Union (2014) etc. These measures take the form of non-use of force which has similar effect with cases where there is physical combat.
- It is also the finding of this research that, Non-use of force may take the form of political pressure put to bear on a country whose cooperation is needed or whose policy is needed to change. In other words at times, intervention needs not necessarily involve the use of force or threat of use of force. It may take the form of political pressures. For example, a country like US may politically pressurise another country to adopt democratic system of government in preference of a monarchical system. Recently, we have seen how USA is putting political pressure to bear on developing countries to adopt democratic system of government, for example, Iran, Iraq, Libya, Sudan and presently Egypt. These are interventions, which take the form of political coercion rather than the use of force which thought to be the most effective way of intervention.
Recommendations
Though it is quite appreciated that, there is currently in existence principle of non-intervention, it is far from being adequate. To this extent the following measures are recommended:
- International law lawyers should advocate for the review of the law of non-intervention and the member states should deliberate for the review of the law at the United Nations floor.
- That in reviewing the law of non-intervention some coherence be brought into the theory and the application of the exceptions to the general rule be carefully defined. Further an effective leadership should be established at the United Nations by democratically electing the Secretary General and other principal officers through free and fear election not by super powers to nominate or influence the nomination of any candidate, any action to be taking must be approved by the General Assembly. This can only be possible when the veto power of the permanent Security Council members is properly regulated or abolished and the permanent Security Council membership should be democratically elected and rotated.
- That in reviewing the law of non-intervention, the meaning of the phrase, “use of force” should be given wider interpretation to include instances where although there is no use of force, but the effect of the fact complained of is the same with action which force or threat of use of force was used. The crux of the matter is that the phrase, “use of force” does not limit activities of wealthy, powerful nations to physical attacks only. It includes actions which are not physical in nature or forms. i.e. to say non-use of force. For example, giving of financial aids; supply of materials, food, arms and logistics, aiding insurgents to revolt against legitimate government or aiding a legitimately constituted governments to suppress groups of people with different ideology or different system of political economy.
- That the phrase “use of force” should be properly and extensively defined to include illegal political pressure, economic pressure, diplomatic pressure, economic sanctions e.t.c., and it must not be defeated by the veto power of any state. This is because the super powers seem to be using the veto granted to them purely on political ground. Lastly it is hereby recommended that further research should undertake because the modern concept of intervention is dynamic not static other forms of illegal interventions are emerging which are not contemplated by the United Nations Charter.
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