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The Principle of Non-intervention

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Abstract

This article examines the existence, nature, and content of the non-intervention principle in contemporary international law, concentrating on the application of the principle to areas other than the use of force. It looks at the historical development of the principle and the sources and evidence of the law, in particular resolutions of the UN General Assembly, the decisions of the International Court of Justice, and the practice of states. The article then considers some specific treaty-based applications of the principle, and explores how far the principle may apply to non-treaty, non-forcible situations. It next considers a number of circumstances that may preclude the wrongfulness of intervention (Security Council authorization, consent, and countermeasures), before drawing some tentative conclusions.

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1 V. Lowe, International Law (2007), 104. For Verzijl, ‘intervention’ is ‘a truly Protean concept’. Verzijl J. H. W., International Law in Historical Perspective (1968), I, 236. Hafner puts it as follows: ‘Hardly any other expression used in international law is as vague, blurred, controversial and disputed as the term “intervention”'. G. Hafner, Sub-group on Intervention by Invitation, Preliminary Report, 26 July 2007, (2007) Yearbook of the Institute of International Law, Santiago Session 226, at 236. Some 85 years earlier, Winfield wrote in similar terms: ‘The subject of intervention is one of the vaguest branches of international law’. Winfield P. H., ‘The History of Intervention in International Law’, (1922–3) 3 British Yearbook of International Law 130. For a similar view see H. W. Briggs, The Law of Nations (1952), 960.

2 R. Y. Jennings and A. D. Watts, Oppenheim's International Law (hereafter Oppenheim), 428.

3 It should at the same time be recalled that international law does not change merely because politicians say it should. International law does not usually change even if governments act as though it has changed, unless they are explicit about the new legal basis for the action and states generally accept that new basis. In recent years certain politicians have referred a good deal to ‘intervention’, but it is doubtful how far they have legal considerations in mind, even when their remarks are cloaked in legal language. Shortly before leaving office, the then British Prime Minister, Tony Blair, described his foreign policy as ‘very interventionist’ (Oral Evidence before the Liaison Committee, 6 February 2007, answer to Q1). Already, on 5 March 2004, Blair had proclaimed in a speech at his Sedgefield constituency that ‘[i]t may well be that under international law as presently constituted, a regime can systematically brutalize and oppress its people and there is nothing anyone can do about it [. . .] unless it come within the definition of a humanitarian catastrophe . . . This may be the law, but should it be?’ Speech on the threat of global terrorism, www.number10.gov.uk/Page5461.

4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14 (hereafter Nicaragua), para. 202.

5 J. Verhoeven, ‘Non-intervention: “affaires intérieures” ou “vie privée”?’, in Liber Amicorum Michel Virally, Le droit international au service de la paix et du développement (1991), 493–500; Klein P. and Corten O., ‘Droit d'ingérence ou obligation de réaction non armée? Les possibilités d'actions non armées visant à assurer le respect des droits de la personne face au principe de non-ingérence’, (1990) 23 Revue Belge de Droit International 368.

6 Nicaragua, supra note 4, para. 205.

7 The more common term is ‘non-intervention’, although ‘non-interference’ is also used. The two seem to be interchangeable, but ‘interference’ may suggest a wider prohibition, especially when used alongside ‘intervention’.

8 Oppenheim, supra note 2, at 428.

9 UN Doc. A/Res/2625(XXV).

10 Nicaragua, supra note 4, para. 205. See also Judge Schwebel in his Dissenting Opinion: ‘The essence of [such customary international law of non-intervention as there is] long has been recognized to prohibit the dictatorial intervention by one State in the affairs of another’ (para. 98).

11 ‘While the customary rules of international law relating to intervention have now to a considerable extent to be considered alongside the more general prohibition on the use of force, intervention is still a distinct concept.’ Oppenheim, supra note 2, at 429.

12 During the negotiation of the UN Charter, the Brazilian delegation proposed to extend Art. 2(4) to economic as well as armed force, but the proposal was rejected (6 UNCIO Documents 335). An argument is still occasionally heard that the reason for the rejection of the Brazilian proposal was that Art. 2(4) as it stands extends to economic force.

13 UN Doc. A/RES/60/1 (2005 World Summit Outcome), paras. 138–139; UN Doc. S/RES/1674 (2006); and UN Doc. S/RES/1706 (2006).

14 See, for example, the arguments in the Security Council against a draft resolution on Myanmar: S/PV. 5526, S/PV.5619; and against a draft resolution on Zimbabwe: S/PV.5933.

15 E. Vattel, Droit des gens ou principes de la loi naturelle (1758), I, para. 37. For a somewhat earlier formulation see C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (1749), paras. 255–257. For a historical overview, see Verzijl, supra note 1, at 236–43.

16 See Nolte G., ‘Monroe Doctrine’, (1997) 3 Encyclopedia of Public International Law 460; T. Grant, ‘Doctrines (Monroe, Hallstein, Brezhnev, Stimson)’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2008, online edn). The British Law Officers did not think that the Monroe Doctrine was a legal doctrine: A. D. McNair, Law Officers’ Opinions, I, 118–21. Art. 21 of the Covenant of the League of Nations referred to it as a ‘regional understanding’.

17 159 LNTS 199. A US declaration accompanying the Convention said that it prohibited ‘interference with the freedom, the sovereignty or other internal affairs, or the processes of the Governments of other nations’.

18 188 LNTS 31.

19 Charter of the Organization of American States (amended by the protocols of 1967, 1985, 1992 and 1993), Arts. 3 and 19.

20 Peaceful and Neighbourly Relations among States, UN Doc. A/1236 (XII) (1957); Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, UN Doc. A/2131 (XX) (1965 Declaration); Status of the Implementation of the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Security, UN Doc. A/Res/2225 (XXI) (1966); Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UN Doc. A/Res/2625(XXV) (1970); Charter of Economic Rights and Duties of States, UN Doc. A/Res/3281(XXIX) (1970); Declaration on the Establishment of the New International Economic Order, UN Doc. A/Res/3201 (S-VI) (1974); Non-interference in the Internal Affairs of States, UN Doc. A/Res/31/91 (1976 Declaration); Non-interference in the Internal Affairs of States, UN Docs. A/Res/32/153 (1977), A/Res/33/74 (1978), A/Res/34/101 (1979), A/Res/35/159 (1980); Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, UN Doc. A/Res/36/103 (1981 Declaration); Solemn Appeal to States in Conflict to Cease Armed Action Forthwith and to Settle Disputes between Them through Negotiations, and to States Members of the United Nations to Undertake to Solve Situations of Tension and Conflict and Existing Disputes by Political Means and to Refrain from the Threat or Use of Force and from any Intervention in the Internal Affairs of Other States, UN Doc. A/Res/40/9 (1985); Economic Measures as a Means of Political and Economic Coercion against Developing Countries, UN Docs. A/Res/39/210 (1984), A/Res/40/185 (1985), A/Res/41/165 (1986), A/Res/42/173 (1987), A/Res/44/215 (1989), A/Res/46/210 (1991), A/Res/48/168, (1993); Unilateral Economic Measures as a Means of Political and Economic Coercion against Developing Countries, UN Docs. A/Res/52/181 (1997), A/Res/54/200 (1999), A/Res/56/179 (2001), A/Res/58/198 (2003), A/Res/60/185 (2005), A/Res/62/183 (2007); Respect for the Principles of National Sovereignty and Non-interference in the Internal Affairs of States in Electoral Processes, UN Docs. A/RES/44/147 (1989), A/RES/45/151 (1990), A/RES/46/130 (1991), A/RES/47/130 (1992), A/RES/48/124 (1993), A/RES/50/172 (1995), A/Res/52/119 (1997), A/RES/54/168 (1999); Respect for the Principles of National Sovereignty and Non-interference in the Internal Affairs of States in Electoral Processes as an Important Element for the Promotion and Protection of Human Rights, UN Doc. A/Res/56/154 (2001). The principle of non-intervention continues to be referred to in resolutions of the UN General Assembly, for example in the annual resolution on the US embargo against Cuba. See, e.g., UN Doc. A/RES/62/3, 30 October 2007, which was adopted by 184 votes to 4 (Israel, Marshall Islands, Palau, United States), with 1 abstention (Federated States of Micronesia) and three states absent (Albania, El Salvador, Iraq). For the debate see A/62/PV.38. The Security Council has also affirmed the importance of non-interference in internal affairs: Resolution 1790 (2007).

21 M. Wood, ‘State Practice’, Max Planck Encyclopedia of Public International Law, supra note 16.

22 Brownlie has a non-exhaustive list of sources of custom:

[D]iplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, e.g. manuals of military law, executive decisions and practices, orders to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly. (I. Brownlie, Principles of Public International Law (2008), 6–7)

23 L. F. Damrosch, ‘Politics across Borders: Nonintervention and Nonforcible Influence over Domestic Matters’, (1989) 83 AJIL 1. According to Lowe, ‘[t]he most interesting question regarding the principle of non-intervention in international law is why on earth anyone should suppose that it exists.’ Lowe V., ‘The Principle of Non-intervention: Use of Force’, in Lowe V. and Warbrick C. (eds.), The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst (1994), 66 at 67.

24 Nicaragua, supra note 4, paras. 202–203.

25 Judge Ago expressed some surprise ‘at the assurance with which the Court in its [Nicaragua] Judgment (para. 202) has felt able to assert that “the existence in the opinio juris of States of the principle of non-intervention is backed by established and substantial evidence”: Nicaragua, supra note 4, para. 184, footnote. For a more positive view, see the 1975 statement by the US Department of State: ‘To the extent, which is exceptional, that [GA] resolutions are meant to be declaratory of international law, are adopted with the support of all members, and are observed by the practice of States, such resolutions are evidence of customary international law on a particular matter.’ 1975 US Digest of International Law 85.

26 On the Friendly Relations Declaration see R. Rosenstock, ‘The Declaration of Principles of International Law Concerning Friendly Relations: A Survey’, (1971) 65 AJIL 713; M. Šahović (ed.), Principles of International Law Concerning Friendly Relations and Cooperation (1972); M. Šahović, ‘Codification des principes du droit international des relations amicales et de la co-opération entre les Etats’, 137 RCADI 243; G. Arangio-Ruiz, ‘The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations’, 137 RCADI 419; I. M. Sinclair, ‘Principles of International Law Concerning Friendly Relations and Co-operation among States’, in M. K. Nawaz (ed.), Essays on International Law in Honour of Krishna Rao (1976), 107; in Lowe and Warbrick, supra note 23; H. Keller, ‘Friendly Relations Declaration’, Max Planck Encyclopedia of Public International Law, supra note 16.

27 The General Assembly declared that

[t]he principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of their strict observance’ (Friendly Relations Declaration, section 3)

28 UN Doc. A/AC 123/L 13 (1966).

29 According to Rosenstock, the length of the preamble resulted, inter alia, from ‘a compromise between Latin American insistence on special emphasis on non-intervention and the views of most of the rest of the members that all the principles were equal and interrelated.’ Rosenstock, supra note 26, at 717.

30 This formulation essentially repeats the main paragraphs of the General Assembly's 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, UN Doc. A/RES/2131 (XX). That in turn followed closely the OAS Charter (section 6.2 infra).

31 UN Doc. A/3281 (XXIX). See also the Declaration on the Establishment of the New International Economic Order, UN Doc/A/3201(S-VI) of 1 May 1974, para. 4. The Definition of Aggression (UN Doc. A/3314 (XXIX), annex) provides in Art. 5(1) that ‘No consideration of whatever nature, whether political, economic, military or other, may serve as a justification for aggression.’ This has been said to reflect the principle of non-intervention: B. B. Ferencz, ‘Aggression’, (1992) 1 Encyclopedia of Public International Law 58, at 62.

32 Not least because it was adopted by 102 votes to 22 with 6 abstentions. West European and Other Group states voted against the resolution, in the face of support from the Non-Aligned Movement and the Soviet bloc, mainly because of the references to armed insurrection.

33 Helsinki Final Act of the Conference on Security and Co-operation in Europe (CSCE) of 1 August 1975 (sixth of the ten principles in the ‘Declaration on Principles Guiding Relations between Participating States’), (1975) 14 ILM 1292. Like the Friendly Relations Declaration, the Helsinki Declaration was cited by the Court in Nicaragua, supra note 4 (para. 204).

34 Corfu Channel (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 9, at 35. The principle has also been considered by arbitral bodies, notably in Spanish Zone of Morocco Claims (Great Britain v. Spain) (1924), 2 RIAA 615.

35 Nicaragua, supra note 4, paras. 202, 205, 206, 208, 209.

36 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Merits, Judgment of 19 December 2005, [2005] ICJ Rep., paras. 164 and 165.

37 See, e.g., R v. Hape, [2007] S.C.J. No. 26, (2007) 46 ILM 813, para. 65; R (Al-Saadoon and Mufdhi) v. Secretary of State for Defence, Judgment of 19 December 2008, [2008] EWHC 3098 (Admin), paras. 68–69; and see also the Tadić decision of the Bundesverfassungsgericht (cited by Judge Guillaume in his Separate Opinion in Arrest Warrant (Democratic Republic of the Congo v. Belgium), [2002] ICJ Rep. 3, at para. 12), and F Hoffman-La Roche Ltd et al. v. Empagran SA et al., (2004) 124 S. Court 2359, 2366.

38 D. O'Connell, International Law (1971), 299–306; Oppenheim, supra note 2, 427–51; Brownlie, supra note 22, at 292–4; M. Shaw, International Law (2008), 1147–58; A. Cassese, International Law (2005), 53–5; P. Daillier and A. Pellet, Droit International Public (2002), 283–8; P. M. Dupuy, Droit international public (2004), paras. 106–110; D. J. Harris, International Law (2004), 916–20; V. Lowe, International Law (2007), 104–10.

39 A. Thomas and A. J. Thomas, Non-Intervention: The Law and Its Import in the Americas (1956); R. A. Falk, ‘The United States and the Doctrine of Non-Intervention in the Internal Affairs of Independent States’, (1959) 5 Howard Law Journal 163; A. Gerlach, Begriff und Methoden der Intervention im Völkerrecht (1967); Verzijl, supra note 1; Farer T., ‘Problems of an International Law of Intervention’, (1968) 3 Stanford Journal of International Studies 20; N. Ouchekov, ‘La compétence interne des Etats et la non-intervention dans le droit international contemporaine’, (1974) 141 RCADI 5; R. J. Vincent, Nonintervention and International Order (1974); O. R. Young, ‘Systemic Bases of Intervention’, in J. N. Moore (ed.), Law and Civil War in the Modern World (1974), 111; R. Wehser, ‘Die Intervention nach gegenwärtigem Völkerrecht’, in B. Simma and E. Blenk-Knocke (eds.), Zwischen Intervention und Zusammenarbeit (1979), 24; J. Noël, Le principe de non-intervention: Théorie et pratique dans les relations inter-américains (1981); R. Higgins, ‘Intervention and International Law’, in H. Bull (ed.), Intervention in World Politics (1984), 29, reproduced in R. Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law (2009), 269; Conforti B., ‘The Principle of Non-intervention’, in Bedjaoui M. (ed.), International Law: Achievements and Prospects (1991), 467; Schroeder M., ‘Non-intervention, Principle of’, (1997) 3 Encyclopedia of Public International Law 619 and the works cited therein; Redmond T., ‘The Rules and How They Were Broken: The Changing Face of State Sovereignty’, (2002) 10 Irish Student Law Review 50; P. Kunig, ‘Intervention, Prohibition of’, Max Planck Encyclopedia of Public International Law, supra note 16. For classic works, see J. S. Mill, A Few Words on Non-Intervention (1859), and E. C. Stowell, Intervention in International Law (1921).

40 Nicaragua, supra note 4, at 534 (Judge Jennings, Dissenting Opinion).

41 The Friendly Relations Declaration's strained reference to ‘The principle concerning the duty . . .’ in the heading of the third principle presumably reflects the wish of some to present non-intervention as a rule of law, and the insistence of others that it be seen essentially as a principle. For a jurisprudential examination of the difference between principles and rules in this context see Lowe, supra note 1, at 101. Lowe also points to another aspect of non-intervention: ‘Certain matters cannot be investigated by international tribunals because they are not regulated by international law.’ He sees this as introducing ‘the element of non-justiciability into the principle of non-intervention’. Lowe, supra note 23, at 72–3.

42 Art. 3 read, ‘Every State has the duty to refrain from intervention in the internal or external affairs of any other State’. Yearbook of the International Law Commission (1949); A. D. Watts, The International Law Commission 1949–1998 (1999), III, 1650.

43 Yearbook of the International Law Commission, supra note 42; Watts, supra note 42, at 1655; Cf. Lowe, supra note 1, at 101 (discussing the principles embodied in the Friendly Relations Declaration).

44 Sixth preambular paragraph. Also included in the preambles to the 1978 Vienna Convention on Succession of States in respect of Treaties, the 1983 Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations.

45 Nicaragua, supra note 4, para. 245. It has even been suggested that non-intervention is a ‘master principle,’ that ‘includes large areas of law’ (Brownlie, supra note 22, at 290), and one of the ‘fundamental principles governing international relations’ (Cassese, supra note 38, ch. 3, title).

46 Judge Sette-Camara in his Separate Opinion in Nicaragua, however, stated that the non-intervention principle ‘would certainly qualify’ as jus cogens: Nicaragua, supra note 4, at 199.

47 ‘Those peremptory norms that are clearly accepted and recognised include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right of self-determination’: para. (5) of the commentary to Art. 26 of the 2001 Articles on State Responsibility, J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002), 188. The Commission's list was cited by the English Court of Appeal in R (on the application of Al-Jedda) v. Secretary of State for Defence, [2006] 3 WLR 954 at 976, para. 66.

The most frequently cited examples of jus cogens norms are the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination, apartheid, and torture, as well as basic rules of international humanitarian law applicable in armed conflict, and the right to self-determination. (2006 Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.702, para.14 (33))

The Draft Conclusions had contained a more general statement of the content of jus cogens (UN Doc. A/CN.4/L.682/Add.1). The full report of the Study Group (finalized by Martti Koskenneimi) had a more elaborate list, stating that

[t]he most frequently cited candidates for the status of jus cogens include: (a) the prohibition of aggressive use of force; (b) the right of self-defence; (c) the prohibition of genocide; (d) the prohibition of torture; (e) crimes against humanity; (f) the prohibition of slavery and the slave trade; (g) the prohibition of piracy; (h) the prohibition of racial discrimination and apartheid; and (i) the prohibition of hostilities directed at civilian populations. (UN Doc. A/CN.4/L.682, para. 374).

49 It had also been included in the 1954 draft Code.

50 Linarelli J., ‘An Examination of the Proposed Crime of Intervention in the Draft Code of Crimes against the Peace and Security of Mankind’, (1995) 25 Suffolk Transnational Law Review 1.

51 See generally Lowe, supra note 23.

52 See N. Stürchler, The Threat of Force in International Law (2007); M. Wood, ‘Use of Force, Prohibition of Threat’, Max Planck Encyclopedia of Public International Law, supra note 16.

53 Works on ‘intervention by invitation’ include G. Nolte, Eingreifen auf Einladung (1999), and Hafner, supra note 1.

54 For writings on ‘humanitarian intervention’ see the bibliography in the report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Vol. 2; S. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (1996); S. Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (2001). The term has also sometimes been used to refer to the rescue of nationals abroad, on which see N. Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity (1985).

55 See, e.g., UK Foreign Office Policy Document no. 148, (1986) 57 British Yearbook of International Law 614.

56 The strict nature of ‘humanitarian intervention’ is apparent in the speech by the United Kingdom Secretary of State for Foreign and Commonwealth Affairs (Robin Cook) of 19 July 2000, (2000) 71 British Yearbook of International Law 646.

57 UN Doc. A/Res/60/1.

58 M. C. Wood, ‘The Law on the Use of Force: Current Challenges’, (2007) 11 Singapore Year Book of International Law 1, and works cited therein.

59 UN Doc. A/Res/60/1, paras. 138–139.

60 See also the references to the principle of non-intervention in the ILC's consideration of the topic ‘Protection of Persons in the Event of Disasters’: ILC Report 2008, Chapter IX. In May 2008, the refusal of the authorities in Myanmar to allow the prompt entry of aid and aid workers in the aftermath of the devastating Cyclone Nargis led some to threaten to drop food aid with or without the government's consent.

61 In accordance with the rules on attribution set out in Part One, Chapter 2 of the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts (ILC State Responsibility Articles), Report of the 53rd Session, ILC (2001), GAOR 56th Session, Supp. 10. See Crawford, supra note 47.

62 Though the state could be liable under international law for aiding and assisting acts in breach of Art. 2(4): ILC State Responsibility Articles, Art. 16.

63 See Nicaragua, supra note 4, para 195.

64 The wording of the 1965 Declaration was identical. The 1976 Declaration frames the duty in somewhat more precise terms at para. 5. The fullest treatment of this point is in the 1981 Declaration at para. II (b) and (m).

65 In addition, organizing an armed group that carries out acts against another state may well make the actions of the group attributable to the state.

66 Art. 15(8) of the Covenant of the League of Nations provided, ‘If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which, by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.’

67 R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963), 58–130; J. S. Watson, ‘Autointerpretation, Competence and the Continuing Validity of Article 2(7) of the United Nations Charter’, (1977) 71 AJIL 60; A. Verdross, ‘Le principe de la non-intervention dans les affaires relevant de la compétence nationale d'un Etat et l'Article 2(7) de la Charte des Nations Unies’, in Mélanges offerts à Charles Rousseau (1974); D. Gilmour, ‘The Meaning of “Intervene” within Article 2(7) of the United Nations Charter – An Historical Perspective’, (1967) 16 ICLQ 330; Nolte G., in Simma B. (ed.), The Charter of the United Nations: A Commentary (2002), 148 at 148–71; Guillaume G., in Cot J.-P., Pellet A. and Forteau A. (eds.), La Charte des Nations Unies: Commentaire article par article (2005), 485 at 485509; Ahmed K., ‘The Domestic Jurisdiction Clause in the United Nations Charter: A Historical View’, (2006) 10 Singapore Year Book of International Law 175.

68 The OAS Charter was preceded in the region by the Montevideo Convention of 1933 and its Additional Protocol of 1936. Judge Schwebel in Nicaragua refers to ‘the comprehensive and categorical injunctions of the OAS Charter against intervention, and the much narrower but significant rules of non-intervention in customary international law’ (Nicaragua, supra note 4, Dissenting Opinion, para. 242).

69 O.J. C 191, 29 July 1992 (as it would be amended if the Treaty of Lisbon (O.J. C 306 17 December 2007) enters into force).

70 Sanctions were imposed on Austria in 2000 by all other EU member states following the formation of a coalition between the People's Party and Jörg Haider's Freedom Party. Although the action was announced by the Council Presidency, and included all member states, formally the sanctions were unilateral measures by fourteen states and not an act of the EU. See M. Happold, ‘Fourteen against One: The EU Member States’ Response to Freedom Party Participation in the Austrian Government’, (2000) 49 ICLQ 953; F. Schorkopf, Die Maßnahmen der XIV EU-Mitgliedstaaten gegen Österreich – Möglichkeiten und Grenzen einer ‘streitbaren Demokratie’ auf europäischer Ebene (2002).

71 Art. 4(f).

72 It is unclear what the procedural requirements would be if the Union sought to invoke Art. 4(h). S. M. Makinda and F. W. Okumu, The African Union: Challenges of Globalization, Security and Governance (2007), passim and appendix 1, 122. See also Kioko B., ‘The Right of Intervention under the African Union's Constitutive Act: From Non-interference to Non-intervention’, (2003) 85 International Review of the Red Cross 807. The texts of the AU treaties are set out in Makinda and Okumu.

73 Charter of the Association of Southeast Asian Nations, done in Singapore on 20 November 2007, entered into force 15 December 2008. See D. Seah, ‘ASEAN Charter’, (2009) 58 ILCQ 197.

74 70 UNTS 237, Art. 8.

75 Adopted March 2008, Dakar, Senegal.

76 500 UNTS 95. See E. Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations (2008), at 464–8. See, to the same effect, Art. 55 of the 1963 Vienna Convention on Consular Relations; Art. 47 of the 1969 Convention on Special Missions; and Art. 77 of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.

77 1935 LNTS 261 (No. 3581). Art. 12 of the Havana Convention read, ‘Foreign diplomatic officers may not participate in the domestic or foreign policies of the State in which they exercise their functions.’

78 1957 YILC, I, 143–50.

79 1957 YILC, I, 147, para 22. In 1888, Sir Lionel Sackville-West, the British minister in Washington, received a letter from an American citizen of British birth asking which candidate to support in the presidential election. Sir Lionel replied that the election of Mr Cleveland would be satisfactory to Great Britain. His recall was swiftly demanded by the US government and his sudden departure became something of a cause célèbre.

80 1957 YILC, I, at 80; P. Kim, ‘The Duty of Non-interference and Its Impact on the Diplomatic Message under the Vienna Convention on Diplomatic Relations’, Ph.D. thesis, University College London, 2007, 81 ff.

81 1958 YILC, II, 104.

82 Cited in Denza, supra note 76.

83 One way of analysing the actions of President de Gaulle described at the beginning of this article could be to regard the rule in Art. 41 of the Vienna Convention as equally applicable, as a matter of customary international law, to visiting heads of state, heads of government, foreign ministers, and other high representatives of the state. On this approach, it is clear that de Gaulle's statement violated the duty not to interfere in the internal affairs of Canada, even though it may well not have been regarded as ‘coercive’.

84 Multilateral Treaties deposited with the Secretary-General, Part II, 1.

85 1342 UNTS 7.

86 (1999) 38 ILM 769.

87 2187 UNTS 90.

88 ‘Official Documents, Settlement of the Iran Hostages Crisis, Declaration of the Government of the Democratic and Popular Republic of Algeria’, (1981) 75 AJIL 418.

89 See, e.g., Art. II of the Basic Treaty of Friendship and Cooperation between Australia and Japan 1976; first preambular paragraph of the Treaty of Friendship and Cooperation between the Federative Republic of Brazil and the Republic of Peru 1979; and the preamble to the Treaty of Friendship, Partnership and Co-operation between the Italian Republic and the Republic of Iraq 2007.

90 Nicaragua, supra note 4, para. 205.

91 Ibid., para. 263.

92 The situations considered below are not exhaustive of circumstances which could give rise to a claim that the prohibition against intervention has been breached. They are a sample of situations with which writers have been preoccupied.

93 Q. Wright, ‘Subversive Intervention’, (1960) 54 AJIL 521; Williams W. Jr, ‘Non-military Strategies and Competition for Power: The Need for Expanded Regulation of Coercion’, (1976) 70 American Society of International Law Proceedings 165; O'Malley E., ‘Destabilization Policy: Lessons from Reagan on International Law, Revolutions and Dealing with Pariah Nations’, (2002–3) 43 Virginia Journal of International Law 319.

94 Nicaragua, supra note 4, para. 241.

95 For assertions to the contrary see United States, National Security Strategy 2002.

96 See Damrosch, supra note 23.

97 Particularly active in funding foreign political parties are the ‘foundations’ funded by German political parties, the US-funded National Endowment for Democracy, and the UK Foreign and Commonwealth Office-funded Westminster Foundation for Democracy.

98 E.g., United States, Bipartisan Campaign Finance Reform Act 2002, s. 303; France, Loi Organique no 88–226; Philippines, Election Code 1978; Taiwan, Public Officials Election and Recall Law 1980; Chile, Constitution, Art. 19(15); United Kingdom, Political Parties, Elections and Referendums Act 2000, s.54.

99 Examples typical of state practice include the US funding to the Philippines under the Marcos regime, or the refusal of the EU and the United States to provide assistance to the Palestinian Authority while under Hamas control.

100 See section 8.2, infra.

101 There has been a recent shift away from such a characterization; see World Duty Free v. Republic of Kenya (ICSID Case No. ARB/00/7), Award, 4 October 2006.

102 See supra note 20.

103 Asante K. D., ‘Election Monitoring's Impact on the Law: Can It Be Reconciled with Sovereignty and Nonintervention?’, (1993–4) 26 New York University Journal of International Law and Politics 235.

104 See Bowett D. W., ‘International Law and Economic Coercion’, (1975–6) 16 Virginia Journal of International Law 245; Shihata I., ‘Arab Oil Policies and the New International Economic Order’, (1975–6) 16 Virginia Journal of International Law 261; J. Paust and A. Blaustein, ‘The Arab Oil Weapons – A Threat to International Peace’, (1974) 68 AJIL 410; Les moyens de pression économiques et le droit international (Actes du Colloque de la S. B. D. I.) (1985); Porotsky R., ‘Economic Coercion and the General Assembly’, (1995) 28 Vanderbilt Journal of Transnational Law 901.

105 Though see supra note 12.

106 In 1993 a United Nations panel of experts assembled to look into ways of eliminating economic coercion found insufficient consensus in international law to allow any instrument to be formed: Note by the Secretary-General prepared pursuant to G.A. Res. 46/210, UN Doc. A/48/535 (1993).

107 A 1973 General Assembly resolution on ‘Permanent sovereignty over natural resources’ deplored ‘acts of States which use force, armed aggression, economic coercion or any other illegal or improper means in resolving disputes’ and emphasized ‘the duty of all States to refrain in their international relations from military, political, economic or any other form of coercion aimed against the territorial integrity of any State and the exercise of its national jurisdiction’: UN Doc. A/Res/3171 (XXVIII). The 1974 Charter of Economic Rights and Duties of States and the 1981 Declaration deal with the issue at some length. The 1981 Declaration even included a duty on states to prevent the use of ‘transnational and multinational corporations under its jurisdiction and control as instruments of political pressure or coercion against another State, in violation of the Charter of the United Nations’. The more expansive elements of these resolutions do not reflect customary international law.

108 Nicaragua, supra note 4, paras. 244, 245.

109 The 1973 oil embargo was organized through the Organization of Arab Petroleum Exporting Countries (OAPEC), an Arab-only organization with political as well as market-related goals.

110 See supra note 20.

111 Part One, Chapter II, of the ILC Articles on State Responsibility. See most importantly the test in Art. 8: ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.’

112 Judges Higgins, Kooijmans, and Buergenthal referred to ‘legal obligations . . . [which] pertain to the non-exercise of power in the territory of another State’ (Arrest Warrant case, supra note 37, at para. 79). The PCIJ in Lotus said that ‘the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State’: PCIJ, (1927) Series A, No. 10, at 18.

113 As in the Corfu Channel case, supra note 34.

114 See, e.g., the facts in the Canadian case R v. Hape, supra note 37.

115 Chiefly through the US Export Administration Act 1979 and 2001, and the Sherman Act 1890. For case law see Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation [1978] AC 547. For examples from the European Union see the Woodpulp case, Case 89, 104, 114, 116, 117 and 125–129/85; A. Ahlstrom Oy v. Commission [1988] ECR 5193, [1988] 4 CMLR 901; and Gencor Ltd v. Commission, Case T-102/96, [1999] ECR II-753, [1999] 4 CMLR 971. Relevant US foreign policy aims have included the control of the global competition environment, blocking construction of the Siberian pipeline, control over the uranium trade, supporting anti-communist sentiments in Poland and restricting trade with Cuba.

116 The United Kingdom, for example, enacted the Protection of Trading Interests Act 1980 to block the application of offending US legislation.

117 C. Ryngaert, Jurisdiction in International Law (2008). In April 2007 Rwanda lodged an application with the ICJ alleging inter alia that France, following an investigation into the 1994 downing of the aircraft in which President Juvenal Habyarimana was travelling, breached the principle of non-intervention by issuing arrest warrants for Rwandan President Paul Kagame on the basis of the French nationality of the pilots, and by requesting the UN Secretary-General to begin prosecution through the International Criminal Tribunal for Rwanda (ICJ press release, 18 April 2007). The only basis for jurisdiction would have been forum prorogatum. The application was not registered since France did not accept jurisdiction.

118 ‘In accordance with the general principles of international law, a domestic criminal justice system should avoid intervening in the affairs of other States.’ Evgeny Adamov v. Federal Office of Justice, Federal Tribunal, Switzerland, Judgment of 22 December 2005, ATF 132 II 81, para. 3.4.3, ILDC 339 (CH 2005).

119 I. Sinclair, ‘The Law of Sovereign Immunity: Recent Developments’, (1980-II) 167 RCADI 113, at 198–9.

120 J. Dugard, D. Raič, ‘The Role of Recognition in the Law and Practice of Secession’, in M. G. Kohen (ed.), Secession: International law Perspectives (2006), 94–137.

121 M. G. Kohen, ‘La création de l'Etat d'Israël à la lumière du droit international’, in I. Buffard, J. Crawford, A. Pellet, and S. Wittich (eds.), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (2008), 441–54.

122 Opinions 1–3, (1992) 3 EJIL 1 at 182, and opinions 4–10, (1993) 4 EJIL 1, at 74.

123 UN Doc. A/RES/63/3 of 8 October 2008. W. Benedek, ‘Implications of the Independence of Kosovo for International Law’, in Buffard et al., supra note 121, at 391–412.

124 See for background Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Interim Measures, ICJ Order of 15 October 2008.

125 Application of the Interion Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) case. See M. Craven, ‘What's in a Name? – The Former Yugoslav Republic of Macedonia and Issues of Statehood’, (1995) 16 Australian Yearbook of International Law 199; M. C. Wood, ‘Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties’, (1997) 1 Max Planck Yearbook of United Nations Law 231; M. C. Wood, ‘Macedonia’, Max Planck Encyclopedia of Public International Law, supra note 16. See generally J.-P. Queneudec, ‘Le nom et les symboles de l'Etat au regard du droit international’, in F. Alabrune, E. Belliard, and E. Broussy (eds.), L'Etat souverain dans le monde d'aujourd'hui: Mélanges en l'honneur de Jean-Pierre Puissochet (2008).

126 For example, the use of Radio Liberty and Radio Free Europe: see O'Malley, supra note 93, at 319. It is important to distinguish government broadcasts from others. Argentina's reported anger (in April 2008) to references to General Peron in the American cartoon series The Simpsons, as a dictator married to the pop star Madonna, is difficult to base in the non-intervention principle. The same applies to the letter of complaint written by Mexico to Australia (in June 2007) after contestants on the Australian version of the television series Big Brother were required to wear droopy moustaches and sombreros and throw slime-filled balloons at the Mexican flag. The producers of Australian Big Brother issued an apology – a response more sympathetic than that from the producers of The Simpsons, who said that they would not be happy till they had upset every country in the world.

127 Annex, para. 2(II)(j).

128 For a detailed examination of the limitations of the right and the genesis of Art. 20, see Michael Kearney, The Prohibition of Propaganda for War in International Law (2007).

129 Verzijl, supra note 1, at 236–7.

130 UN Doc. A/6230 (1966), at 148–50.

131 UN Doc. A/AC.125/SR.114 (1966).

132 See generally Szasz P., ‘The International Legal Aspects of the Human Rights Programme of the United States’, (1979) 12 Cornell International Law Journal 161; Bossuyt M., ‘Human Rights and Non-intervention in Domestic Matters’, (1985) 35 Review of the International Commission of Jurist 2; Rosen A., ‘Canada's Use of Economic Sanctions for Political and Human Rights Purposes’, (1993) 51 University of Toronto Faculty Law Review 1; D. McGoldrick, ‘The Principle of Non-intervention: Human Rights’, in Lowe and Warbrick, supra note 23, at 85; G. Arangio-Ruiz, ‘Human Rights and Non-intervention in the Helsinki Final Act’, (1977-IV) 157 RCADI 195; Arangio-Ruiz G., ‘Droits de l'homme et non-intervention: Helsinki, Belgrade, Madrid’, (1980) 35 La Communità Internazionale 453; Bloed A. and Dijk P. van, ‘The Conference on Security and Cooperation in Europe, Human Rights and Non-Intervention’, (1983) 5 Liverpool Law Review 117; Damrosch, supra note 23; Rosen A., ‘Canada's Use of Economic Sanctions for Political and Human Rights Purposes’, (1993) 51 University of Toronto Faculty Law Review 1; Redmond, supra note 39, O'Malley, supra note 93; D. Tuerk, ‘Reflections on Human Rights: Sovereignty of States and the Principle of Non-intervention’, in M. Bergsmo, Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjom Eide (2003), 753; K. Zemanek, ‘Human Rights Protection vs. Non-intervention’, in L. C. Vorah, Man's Inhumanity to Man: Essays in Honour of Antonio Cassese (2003), 935.

133 1966 Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation among States, 21 UN GAOR Annex III (Agenda Item 87) 93, UN Doc. A/6230 (1966).

134 For example, the 1998 US Iraq Liberation Act, which called on the United States ‘to support efforts to remove the regime headed by Saddam Hussein from power in Iraq and to promote the emergence of a democratic government to replace that regime.’

135 Lord Goldsmith's advice to the Prime Minister, 7 March 2003, para. 4. See ‘Attorney General's Advice on the Iraq War: Resolution 1441’, (2005) 54 ICLQ 767. This was in the context of the use of force.

136 In 1991, the states participating in the Conference on Security and Co-operation in Europe (CSCE) ‘categorically and irrevocably [declared] that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned.’ Document of the Conference on the Human Dimension of the CSCE (Moscow, 3 October 1991).

137 Art. 1 read,

Human rights are a direct expression of the dignity of the human person. The obligation of States to ensure their observance derives from the recognition of this dignity as proclaimed in the Charter of the United Nations and in the Universal Declaration of Human Rights.

This international obligation, as expressed by the International Court of Justice, is erga omnes; it is incumbent upon every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights. The obligation further implies a duty of solidarity among all States to ensure as rapidly as possible the effective protection of human rights throughout the world.

138 The French text is authoritative: see Yearbook of the Institute of International Law, Session of Santiago de Compostela, 1989.

139 World Summit Outcome, A/RES/60/1, paras. 138–9; approved by the Security Council in UN Doc. S/RES/1674.

140 Nicaragua, supra note 4, at paras. 206, 207.

141 See Articles 20 and 22 of the ILC Articles on State Responsibility (2001). For a criticism of the ILC understanding of consent as a circumstance precluding wrongfulness, see T. Christakis, ‘Les “circonstances excluant l'illicéité”: une illusion optique?’, in Droit du pouvoir, pouvoir du droit, Liber Amicorum Jean Salmon (2007), 223–70.

142 It is occasionally suggested that ‘intervention’ by bodies such as the European Union, ‘coalitions of the willing’, or the ‘international community’ are somehow legal when the same acts by individual states would not be. More ‘legitimate’ perhaps, but they cannot be ‘more legal’. It cannot be legal for several states to do together what none of them can do alone.

143 Although Art. 103 refers to ‘obligations under any international agreement’, it is widely accepted that the principle applies equally to obligations under customary international law.

144 UN Doc. S/RES/1132.

145 L. Doswald-Beck, ‘The Legal Validity of Intervention by Request of the Government’, (1985) 56 British Yearbook of International Law 189. Particularly controversial was the use of force in Hungary in 1956, in Czechoslovakia in 1968, in Grenada in 1983, and in Panama and Afghanistan in 1989. See G. Nolte, ‘Secession and External Intervention’, in M. G. Kohen (ed.), Secession: International Law Perspectives (2006).

146 Institut de Droit International, Resolution on The Principle of Non-Intervention in Civil Wars, Session of Wiesbaden, 1975. But see Hafner, supra note 1.

147 See sections 6.3 and 6.4 supra.

148 Nicaragua, supra note 4, at paras. 248, 249.

149 Naulilaa Arbitration 1928, 2 RIAA 1011.

150 S. Olleson, The Impact of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts (2008).

151 See also Air Services Agreement of 27 March 1946 (United States v. France), 18 RIAA 417, at 444; and Gabčikovo-Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep. 7, at 56.

152 See Damrosch, supra note 23; and R. Sadurska, ‘Threats of Force’, (1988) 82 AJIL 239.

* Maziar Jamnejad is a trainee solicitor with Freshfields Bruckhaus Deringer LLP. This article is written in a personal capacity and the views contained herein are not those of Freshfields Bruckhaus Deringer LLP. Michael Wood is a Senior Fellow, Lauterpacht Centre for International Law, University of Cambridge, and a member of the International Law Commission. This article had its origins in an International Law Discussion Group held at the Royal Institute of International Affairs (Chatham House) on 28 February 2007. The authors thank Elizabeth Wilmshurst for her encouragement and assistance.

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Leiden Journal of International Law
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