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B.B.A., LL.B. (Hons.)
PROPOSAL SUBMITTED TO: Ms. Sugandha Sinha Faculty of Public International Law
Statement of Problem Studying in detail the concept of intervention in public international law. Aims and Objectives The primary objective of this project report is to do a detailed study of intervention by countries in internal and external matters of other countries.
Hypothesis In this report, the researcher presumes that intervention by invitation countries in the matters of other countries is legal as per the rules of international law.
In this project Doctrinal Method of Research is used. Doctrinal Methods refer to Library research, research or processes done upon some texts writings or Documents, legal propositions and Doctrines, Articles, Books as well as Online Research and Journals relating to the subject. This project is an intensive one so this method is sufficient to address the findings and to arrive at concrete conclusion
i. A state must not coerce another by orginizing hostile expeditions upon its territory, ii. Acts not involving force but which are calculated to impair the authority of another sovereign must equally be condemned by international law e.g. the undertaking or encouragement of the authorities of a state of activities calculated to foment civil strife in another state, or the toleration by the authorities of a state of organized activities calculated to foment civil strife in another state. In connection with this formulation there is a resolution of the General Assembly on the Essentials of Peace, calling upon every nation "to refrain from any threats or acts, direct or indirect, aimed at impairing the freedom, independence or integrity of any state, or at fomenting civil strife and subverting the will of the people in any state”. iii. A state also offends international law by allowing seditious elements from other states or its own residents to organize rebellion in friendly states. In 1934, the Council of the League of Nations resolved "that it is the duty of every state neither to encourage nor tolerate on its territory any terrorist activity with a political purpose; that every state must do all in its power to prevent and repress acts of this nature and must for this purpose lend its assistance to government which requests it".
Article 2 under 7 of the Charter of the United Nations is clear in case a recognized state is subject to an intervention: " Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state ". This article contains a codification of the territorial integrity of a State principle. Under the Responsibility to Protect doctrine, rather than having a right to intervene in the conduct of other states, states are said to have a responsibility to intervene and protect the citizens of another state where that other state has failed in its obligation to protect its own citizens against international crimes or natural disasters.
Interven�on is dictatorial interference by a state in the affairs of another • state for the purpose of maintaining or altering the actual condi�on of things1. Interven�on can take place in the external as well as in the internal affairs of a state. It concerns, in the first place, the external independence, and in the second, either the territorial or the personal supremacy. But it must be emphasized that interven�on proper is always dictatorial interference, not interference pure and simple. Therefore, interven�on must neither be confused with good offices, nor with
1 L. Oppenheim; Int. Law - A Trea�se (8th ed.), 1955, p.305.
media�on, nor with intercession, nor with co-opera�on, because none of these imply dictatorial interference. Main Forms of Interven�on There are different ways of possible interference in the inner affairs of another State. Interven�ons may take place through military, subversive, economic, or even diploma�c means.
2 Prohibi�on of Interven�on, Philip Kunig, Oxford Law Centre, h�ps://opil.ouplaw.com/view/ 10.1093/law:epil/9780199231690/law-9780199231690-e1434#law-9780199231690-e1434- div1-
be regarded as unfriendly acts, as they are clearly legal according to the Convention for the Pacific Settlement of International Disputes.
Condi�ons during which Interven�on is Jus�fied :
The fact that certain varie�es of interven�on have been jus�fied by outstanding jurists reflects the growing perturba�on on the part of writers in interna�onal law who would like to perpetuate a theore�cal doctrine of absolute prohibi�on of interven�on, yet who are drawn in the direc�on of approving some form of interven�on because it strikes them as desirable from humanitarian considera�ons, from a poli�cal point of view, or, some�mes, because logic appears to dictate the correctness of a par�cular employment of interven�on, despite the overall legal prohibi�on extant. According to Prof. Brierly, the strictly legal occasions of an interven�on may be brought under three heads, viz., self-defence, reprisals and the exercise of a treaty right. Such interven�ons as take place by right must be dis�nguished from others. Wherever there is no right of interven�on, an interven�on violates either the external independence or the territorial or personal supremacy. According to Oppenheim and Starke, it is claimed that following are, broadly expressed, condi�ons in which a state has at Interna�onal Law a legi�mate right of interven�on:
Evolution of Intervention in International law
Before the 19th century, intervention was an ordinary policy matter within the foreign affairs of a state. In ancient period, it was adopted as a method of settlement of dispute by the Roman Empire. In the middle ages, it was frequently used to enforce impartial and just rules (Preiser, 2008). Vattel deserves credit to be the pioneer of formulating nonintervention principle in 1758 (Droit des gens ou principes de la loi naturelle), but it remained doubtful till the 19th century, whether the states adopted and followed it. The first country that adopted this idea was France, and it incorporated the nonintervention principle in Article 4 of its Constitutional Act (Sur le droit de paix et de guerre of May 22, 1790). However, a declaration issued in November 1792 by the French government in which it claimed its right to intervene in certain cases (where interference proved necessary to assist in other people’s struggle for liberty) showed that the French codification of the principle did not restrict its own right to interfere in the inner affairs of other states (Kunig, 2008). At the end of the 18th century, Jurist Kant in his work Zum ewigen Frieden also laid emphasis on nonintervention principle. Despite the nonintervention principle, some states continued to formulate law or adopted treaties mentioning the grounds for invention. In Europe, the Holy Alliance was created, which claimed the right to intervene in cases of European revolutionary governments for reasons of legitimacy. An example of treaty mentioning the right of intervention was a treaty between Austria-Hungary, France, Germany, Great Britain, Italy, Russia, and Turkey for the Settlement of Affairs in the East, allowing European Powers to interfere in the internal affairs of Turkey and Africa.2 Significantly, we had examples also where states intervened in the affairs of others like Austria intervened in Naples (1821) and France in Spain (1823). Subsequently, in the late 19th century, military intervention like situation in Latin America by some European Powers and the United States led to the adoption of various doctrines by the European states, such as Monroe Doctrine,3 Hallstein Doctrine,4 Brezhnev Doctrine,5 Stimson Doctrine,6 and Calvo Doctrine/Calvo Clause7 where one or the other state had declared that a particular subject matter was a state interest or that a particular action would be taken in response to a defined situation (intervention) if it arose in the future. After World War I, the United States expressly declared that any change in state borders achieved by forcible means would not be recognized by it. During that time, various efforts were made to formulate law of nonintervention. For example, Article 15(8) of the Covenant of the League of Nations and Article 11 of the “Montevideo Convention on Rights and Duties of States” of 1933 prohibited
Intervention by Invitation
States have frequently justified interventions in internal armed conflicts by claiming they were invited to assist one of the belligerent parties. In most cases the invitation is said to come from the government. Much less frequently states rely on an invitation from a rebel group fighting against the government. As a general matter, invitations from governments provide a lawful basis for intervention. If a target state holds rights against foreign intervention and that state, through its government, waives those rights by consenting to the presence of foreign troops on its territory, no claim remains that a right against intervention has been violated. Such mitigation through consent is consistent with principles of state responsibility, which provide that consent to an otherwise unlawful act precludes the wrongfulness of that act. Conversely, because the state holds the right against foreign intervention, consent issued by a rebel group does not mitigate the wrongfulness of intervention against the representative of the state: its government. The primary value at stake in this rather straight-forward conception of intervention by invitation, in other words, is the territorial integrity of the state as defined and invoked by its incumbent government.
States have long accepted intervention by invitation in international relations 3 and the doctrine appears uncontroversial in theory. State sovereignty entitles a government exercising legal authority to defend themselves against armed opposition within their territory. The consent of the inviting state justifies action that would, in the absence thereof, amount to a prohibited use of force by one state in the territory of another. 4 Unless a question of coercion arises, the introduction of foreign troops does not damage the recipient state’s sovereignty. However, in practice, the parameters of intervention at the request of a government remain highly disputed, and international law does not provide clear rules governing such activities. This section first addresses the legal basis for the notion of intervention by invitation and subsequently outlines the main limitations of the concept.
Legal Basis Of Interven�on by Invita�on Ar�cle 2(4) of the U.N. Charter prohibits states from intervening militarily in the territory of 3 Gerhard Hafner, Present Problems of the Use of Force in International Law, 2009 INST. DE DROIT INT’L Y.B. 299, 302; Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 1986 BRIT. Y.B. INT’L L. 189, 189 4 Christopher J. Le Mon, Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested, 35 N.Y.U. J. INT’L. L. & POL. 741, 742 (2003).
other states. There are limited excep�ons to this rule of customary interna�onal law expressly provided for in the Charter, namely, individual or collec�ve self-defense under Ar�cle 51, and interven�on sanc�oned by the Security Council under Chapter VII. Interven�on by invita�on is not an excep�on to the prohibi�on on the use of force as the prohibi�on specifically covers the use of force without consent5. By virtue of consent, the use of force by an invited military is not at odds with the host state’s territorial integrity and is not, therefore, an infringement of Ar�cle 2(4). Two principal sources confirm the existence of the doctrine of interven�on by invita�on:
5 Jean d’Aspremont, Mapping the Concepts Behind the Contemporary Liberaliza�on of the Use of Force in Interna�onal Law, 31 U. PA. J. INT’L L. 1089, 1131 (2010)
The government seeking assistance must consent to the action to validate the doctrine of intervention. In order for state consent to have a legalizing effect on an intervention, scholars suggest that the consenting government should be:
i. legitimate; ii. Effective; and iii. That the intervention consented to must not violate the right of self-determination.
While these factors are necessarily interlinked, external legitimacy is both the common thread and the key determinant of legality of intervention by invitation. Only when the inviting party is recognized externally as the legitimate government—i.e. expressing the state’s authority —is intervention by invitation considered a lawful interaction between sovereign states. The question of legitimacy inherently relies on rules governing the recognition of a state. As noted by Doswald-Beck, “representation of a regime on behalf of a state” at the U.N. confers legitimacy “which mere individual State recognition would not”. Significantly for the purposes of the doctrine of intervention by invitation, “recognition will rarely be withdrawn from an established regime, even once it has lost control, if there is no new single regime in control to take its place.”
Traditionally, a government’s legitimacy as representative of a state was determined by reference to its “ de facto control over the state’s territory ”. A government with effec�ve control over its territory was thereby en�tled to invite outside assistance—irrespec�ve of how the government came to power, wielded its authority, or the makeup of the opposi�on. Greater regard for human rights in recent decades precipitated the rise of the theory of democra�c legi�macy, raising ques�ons as to whether illiberal democracies should be empowered to request interven�on by third states. The decreasingly determina�ve role of the no�on of effec�ve control over territory since the end of the Cold War, with increased considera�on of the democra�c legi�macy of a government and par�cularly the existence of free and fair elec�ons, arguably supports the theory of limi�ng the right to request interven�on. Examples of interven�on requested by governments with debatable founda�ons are far from conclusive. Governments led by Jean-Bertrand Aris�de in Hai� in 1991, Ahmad Tejan Kabbah in Sierra Leone in 1997, and Alassane Oua�ara in Cote d’Ivoire in 2010—each of which had interna�onally verified electoral mandates but held no actual power or territory—requested external assistance and were restored to power. However, each instance could equally be explained through the lens of specific geopoli�cal considera�ons. More recently, northern Mali
was under the control of an�government forces prior to French interven�on at the request of the central government in 2013. Territorial control is not, therefore, disposi�ve of a government’s ability to invite outside interven�on. Some may perceive a government’s democra�c legi�macy as theore�cally capable of offse�ng a lack of affec�vity in certain circumstances, but as a concept, even democra�cally elected government systems remain open to poten�al abuse and may cause division where, for example, electoral mandates are secured by a very small margin or in controversial circumstances.
The ques�on of governmental legi�macy is par�cularly acute in �mes of civil war due to the nature of what such internal conflict implies, namely a challenge to the domes�c order and the embodiment of the legi�mate representa�ve of the people. It follows that the most controversial aspect of interven�on by invita�on is its permissibility in �mes of civil war. The opera�ve ra�onale is that where a society is divided as to its poli�cal future, an incumbent government cannot claim to represent the popula�on of the state. External interven�on at the invita�on of this unrepresenta�ve government would interfere with the people’s right to self- determina�on.
There are two major cases rela�ng to interven�on by invita�on, they are:
Background The Military and Paramilitary Activities in and against Nicaragua, Nicaragua v United States of America (‘ Nicaragua ’) case, being as it was one of the most complex filed in the International Court of Justice (ICJ), touches upon numerous questions with respect to the
development of international law. These issues include the contribution of international organizations to the formation of international law. The latter is analyzed by the ICJ, having reference to resolutions of the United Nations (UN) General Assembly (GA), resolutions of the Organization of American States (OAS), and to the Final Act of the Conference on Security and Co-operation in Europe (‘CSCE Final Act’).
In 1979 the Sandinista movement (FSLN) rose to power in Nicaragua. Opposed to the FSLN’s socialist aspirations, the US increasingly provided support to rebels against the new regime. Nicaragua alleged that this support—claimed to include the organization of armed groups and the use of force by the US itself—was contrary to both the agreements in force between the two states and international law.
On 9 April 1984 Nicaragua brought the matter before the ICJ. Initially, the US argued that the ICJ had no jurisdiction over the case brought before it. However, in Nicaragua, Judgment on jurisdiction and admissibility (1984), the ICJ upheld the Nicaraguan claims and ruled that it had jurisdiction. At this stage, the US government refused to participate in the case and withdrew its acceptance of the ICJ’s optional clause. Nevertheless the ICJ went on to hear and decide on the merits of the application.
Summary
Nicaragua addressed numerous legal questions. Most broadly, the ICJ upheld Nicaragua’s claim and found the US to be in violation of international law. It first concluded that the aid provided by Nicaragua to rebel forces in El Salvador did not constitute an ‘armed attack’ in El Salvador. Therefore the US claim that it was acting in self-defense on behalf of El Salvador was considered ill founded.
By contrast the ICJ found that the US was responsible for assisting with the ‘planning, direction and support’ of contra actions. The ICJ went on to add that ‘there is no clear evidence of the United States having actually exercised such a degree of control in all fields so as to justify treating the contras as acting on its behalf’. It concluded ‘[f]or this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that the State had effective control of the’ operations in question. [paras 86, 109, 115]
The Friendly Rela�ons Declara�on (UN GeneralAssembly, 1970), included under the principle of non-interven�on thefollowing paragraph: “ 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. Consequently, armed interven�on and all other forms of interference or a�empted threats against the personality of the State or against its poli�cal, economic and cultural elements, are in viola�on of interna�onal law.”
The more common term for the legal principle is “non-interven�on”, though “non- interference” is also used. In many contexts the two terms seem to be interchangeable, but “non-interference” suggests a wider prohibi�on, par�cularly when used in addi�on to interven�on. Yet “the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the ma�er in ques�on. Interference pure and simple is not interven�on”
The principle of non-interven�on is the mirror image of the sovereignty of States. The the prohibi�on of interven�on “is a corollary of every state’s right to sovereignty, territorial integrity and poli�cal independence”. It is closely linked to the concept of domes�c affairs, what the French tend to call domaine réservé; and also to the interna�onal legal limits on a State’s jurisdic�on to prescribe and to enforce.
What is prohibited is dictatorial interference in what the Interna�onal Court of Jus�ce referred to in Nicaragua as “ma�ers which each State is permi�ed, by the principle of State sovereignty, to decide freely. One of these is the choice of a poli�cal, economic, social and cultural system, and the formula�on of foreign policy.” Since the reach of interna�onal law is constantly changing, so too is the line between what is, and what is not, covered by the principle of non-interven�on.
The general principle includes the prohibi�on on the use of force, as set forth in the Charter. But the principle of non-interven�on in the internal affairs of States also requires that a State not intervene in the internal affairs of other States in dictatorial ways not involving the use of force, for example making payments to poli�cal par�es and other forms of interference in the internal poli�cal processes of the State.
It should be noted at the outset that interven�on (even military interven�on) with the consent, duly given, of the Government of a State is not precluded. ‘Interven�on by invita�on’ is notoriously open to abuse. Does the reques�ng Government have to be in effec�ve control of the territory of the State at the �me it makes the request, when it may just have been evicted from the capital or even have departed the country? It is some�mes suggested that interven�on in a civil war on the side of the Government and at its request is unlawful, but there is li�le support for this in prac�ce. Interven�on on the side of those opposing the Government, on the other hand, is clearly prohibited. Whether there is an excep�on to the principle of non-interven�on in the case of assistance to peoples seeking to exercise the right of self-determina�on remains controversial. Another ques�on could be interven�on in a State which has no government capable of issuing an invita�on. (‘Failed
