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The Principle of Non-Intervention 25 Years after the Nicaragua Judgment

  • MARCELO KOHEN
Abstract

This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court's 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.

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1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986]f ref-type="fn" xlink:href="fn"> ICJ Rep. 14 (hereafter, Nicaragua).

2 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16; Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12.

3 Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226.

4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136.

5 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010.

6 East Timor (Portugal v. Australia), Judgment of 30 June 1995, [1995] ICJ Rep. 90; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168 (hereafter, Congo).

7 Nicaragua, supra note 1, at 106, para. 202.

8 Corfu Channel Case, Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 35; Nicaragua, supra note 1, at 106, para. 202.

9 Nicaragua, supra note 1, at 106, para. 202.

10 There was remarkable unanimity on this point among states participating in the advisory proceedings on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, including those states that have not been consistent in their application of the principle to the case of Kosovo (see, e.g., the Written Statement of the United Kingdom (para. 5.34) and the Written Comments by France (para. 29), available on the website of the Court at www.icj-cij.org). In terms of legal scholarship on this point, see M. Wood, ‘The Principle of Non-Intervention in Contemporary International Law: Non-Interference in a State's Internal Affairs Used to be a Rule of International Law: Is it Still?’, Summary of the Chatham House International Law discussion group meeting of 28 February 2007, available online at www.chathamhouse.org.uk/research/international_law/papers, at 7; J. Crawford, The Creation of States in International Law (2006), 388–9; J. Crawford, State Practice and International Law in Relation to Unilateral Secession, Report for the Attorney General of Canada, 19 February 1997, reprinted in A. Bayefsky (ed.), Self-Determination in International Law: Quebec and Lessons Learned (2000) 31, at 36.

11 Sir John Sawers (United Kingdom), 8 October 2008, UN Doc. A/63/PV.22, at 3.

12 Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Verbatim Record, 2 December 2009, CR 2009/26 (Ruiz Cerutti), at 39.

13 Nicaragua, supra note 1, at 108, para. 205.

14 This is not because of the application of a ‘principle of sovereignty’. Sovereignty is not a ‘principle’, but the essential characteristic of independent states. In order to speak about a principle in this area, this should be directed to the principle of equal sovereignty of states (see Kohen, M. G., ‘Article 2 Paragraph 1’, in Cot, J.-P., Pellet, A., and Forteau, M. (eds.), La Charte des Nations Unies (2005), 399.

15 Congo, supra note 6, at 227, para. 163.

16 Nicaragua, supra note 1, at 108, para. 206.

17 See Art. 2, para. 7 of the UN Charter.

18 For example, the SC failure to adopt a resolution on Myanmar due to the Chinese and Russian vetoes on 17 February 2007.

19 For an analysis by this author of these cases, see ‘L'emploi de la force et la crise du Kosovo: Vers un nouveau désordre juridique international’, (1991) 1 RBDI 122; ‘L'administration actuelle de l'Irak: Vers une nouvelle forme de protectorat?’, in K. Bannelier, T. Christakis, O. Corten, and P. Klein (eds.), L'intervention en Irak et le droit international (2004), 299.

20 Para. 69; text available online at www.g77.org/doc/Decl1999.html.

21 See GA Res. 46/182 of 19 December 1991. For further resolutions, see United Nations, OCHA, Compilation of United Nations Resolutions on Humanitarian Assistance (2009).

22 Nicaragua, supra note 1, at 124, para. 242.

23 UNGA Res. 60/1, 24 October 2005.

24 UNSC Res. 1674 (2006), 28 April 2006, ‘Protection of Civilians in Armed Conflict’.

25 UN Secretary-General, Implementing the Responsibility to Protect, report of the Secretary-General, 12 January 2009, UN Doc. A/63/677; see also UNGA Res. 63/308; see Abi-Saab, G., ‘Some Prefatory Thoughts on “Humanitarian Intervention”’, in Kohen, M., Kolb, R., and Tehindrazanarivelo, D. L. (eds.), Perspectives of International Law in the 21st Century: Liber Amicorum Christian Dominicé in Honour of His 80th Birthday (2012), 365.

26 Nicaragua, supra note 1, at 134–5, para. 268.

27 Corfu Channel Case, Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 35. Nicaragua, supra note 1, at 107, para. 202.

28 J. Jaurès, L'Armée nouvelle (1910), reprinted in 1992, Vol. 1, at 125 (author's translation: ‘To free people by force is a strange undertaking full of hazards. By setting them free, their freedom is taken away. And people begrudge the brutal gift that humiliates them’).

* Professor of International Law, Graduate Institute, Geneva; Associate Member of the Institut de droit international [].

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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