INTRODUCTION
At the end of the Second World War, the International community unanimously decided that it shall no longer take actions that will put into jeopardy the newly acquired peace and security achieved in the world. At the signing of the United Nations Charter, it was concluded and agreed that if individual member nations desire to settle international disputes, there shall be some limitations. One of these limitations was the intervention of other nations in the internal affairs (domestic affairs) of other sovereign State or nations. The principle of non-intervention is of great importance in the international legal system.
The principle of Non-intervention is that Sovereign States shall not intervene in each other’s internal affairs.[1] This is a policy characterized by the absence of “interference by a State or States in the external affairs of another State without its consent, or in its internal affairs with or without its consent.”[2] It is a general principle of international law that the non-intervention in each other’s internal affairs is based on the respect for States’ sovereignty and territorial integration, which governs the relations between States regarding their rights and obligations.
Furthermore, it has been established as the general principle of international law or customary law in compliance with the purposes and principles of the UN Charter. The application of the principle depends on the determination of the matter within the domestic jurisdiction and of the applicable international laws accordingly. The principle of non-intervention remains one established in contemporary international law according to the International Court of Justice.[3]
Before the principle of Non-Intervention became a recognized international principle, the intervention of States was a common topic of discussion globally.
1.1 TYPES OF INTERVENTION IN INTERNATIONAL LAW
Before the introduction of the principle of Non-intervention, intervention of Sates occurred in several forms amongst Nations which could either be direct or indirect[4]. The direct intervention occurred through the military intervention and other forcible means.
A. MILITARY INTERVENTION
This intervention usually occurred in the form of military occupation of territories, embargos, demonstration, blockade, seizure of assets of another State or its nationals, arrest, and detention of foreigners, or expulsion of foreign diplomats
B. SUBVERSIVE INTERVENTION
It was also possible for Nations or States to indirectly interfere in the affairs of other States without the use of force. This was possible through subversive intervention. This refers to any activity by one State with the intention of affecting the situation in another sovereign State. Such activity was conducted through several mediums such as the use of radio or television shows, aiming to encourage revolt or civil strife in other States or aid illegal activities that most times evolve into violence.[5]
C. ECONOMIC INTERVENTION
Intervention could be indirect through economic intervention which involves the imposition of sanctions, embargoes, and boycott by interfering with the trade and shipping, and by denial of access by land and water. Furthermore, banning export and import or external economic policy impositions (interventions) by International Financial Institutions (IFIs), while acting under Article 4112 of the UN Charter, is another form of economic intervention especially when a wrongful act is done by that State.[6] Economic intervention is a slightly grey area because it is sometimes difficult to distinguish between a legitimate economic sanction and illegal pressure put upon another State.
However, to determine whether an economic intervention is legitimate under international law, two tests are of utmost importance:
- identifying the relationship between the means and the object and
- following the procedure laid down under Chapter VII of the UN Charter (Resolution by United Nations Security Council [UNSC].[7]
The International Court of Justice in the Military and Paramilitary Activities in and against Nicaragua Case stated that “the mere refusal or termination of aid to developing countries or the breach of an economic treaty do not constitute a breach of the non-intervention principle as States are free to decide which other States, they want to give economic support to”.[8]
D. DIPLOMATIC INTERVENTION.
This generally does not amount to illegal intervention but may be forbidden, if it involves communications with threatening tone, use of military force or other coercive measures. To prevent future instances of unsanctioned Statesinterventions in the affairs of others, it was important for the international community to declare Articles and Treaties that represent the international community’s acceptance of the principle of non-intervention.
1.2 PROVISIONS FOR NON-INTERVENTION
In safeguarding the sovereignty of Nations, Article 2.4 of the UN Charter, regarded widely as the most important bedrock of the principle of non-intervention, was declared.[9] It frowns on the use of threat and force in international relations. Threats to use force contravenes the principle even where it is unclear that if the threat were carried out, it would necessarily be unlawful. Article 2.7 of the Charter of the United Nations provides against United Nations intervention in matters which are within the domestic jurisdiction of any State[10] although it provides for an exception to this rule in the Charter. The Friendly Relations Declaration[11] included under the principle of Non-intervention that “no State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State”. Therefore, all other forms of intervention or attempted threats including armed intervention against a State, or its regional elements violate international law.[12]
It is well-established that diplomats should not interfere in the internal affairs of the State to which they are accredited. Article 41 of the Vienna Convention makes it clear that State officials serving as diplomats are not to interfere in the internal affairs of the receiving State. It is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. [13]
The International Court further expounded on the principle of Non-intervention in its 1986 judgment in the Nicaragua case,[14] setting a precedent for future claims on the subject. According to the court, “the principle of Non-intervention requires every sovereign State to conduct its affairs without outside intervention; though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of customary international law”. The Court went on to say that “the principle forbids all States or groups of States to intervene directly or indirectly in the internal or external affairs of other States.” Intervention is wrongful when it uses methods of coercion regarding such choices, which must remain free ones. In this instance, the plea of Nicaragua was that the United States had violated its treaty obligations to Nicaragua under Article 2(4) of the UN Charter by involving in training, recruiting, equipping, arming, financing, supplying, and supporting, and aiding and directing military and paramilitary actions in and against Nicaragua. This decision served as the guiding principle in the Democratic Republic of Congo v Uganda on 19 December 2005, when it concluded “that Uganda had violated the sovereignty and also the territorial integrity of the DRC since it had not consented to the presence of Ugandan troops on its territory as well as actively extending military, logistic, economic and financial support to irregular forces operating on the territory of the DRC”.[15]
The widely upheld character of the principle of Non-intervention by governments has made it jus cogens.[16] The General Assembly, in its Declaration on 9th December 1981, espoused that the Non-intervention principle embodies the requirement that States refrain from entering into agreements with other States to intervene or interfere in the internal or external affairs of other States.[17] However, though this declaration, like many others, is not in itself law-making, it nevertheless restates the law, and at least reflects, to a large extent, the general legal conviction of States in this regard.
1.3 EXCEPTIONS TO THE PRINCIPLE OF NON-INTERVENTION
The principle of Non-intervention has its exceptions. Under the UN Charter, only two entities have permission to intervene. This is the United Nations and a State. No other entity can violate the principle of Non-intervention through their behavior or activity as international law provides under the Responsibility of States for Internationally Wrongful Acts, 2001, “that State responsibility becomes operative for the acts of private entities if its organs have cooperated with these entities and thereby contributed to the breach of an international state obligation.”[18]
2.1 THE INTERVENTION BY THE UNITED NATIONS (UN)
Under Chapter VII of the Charter, collective intervention is stated as an exception to the general principle of Non-intervention provided under Article 2(7) of the Charter. The United Nations intervention may come in the form of collective intervention. In this instance, the UNSC is empowered to take collective actions where there is a threat to the peace, a breach of the peace, or that an act of aggression has taken place. For a collective intervention to commence, the UNSC determines under Article 39 of Chapter VII of the UN Charter whether there exists a threat to peace or breach of the peace or whether any act of aggression has taken place and then makes recommendations or decides as to what measures are to be taken to maintain or restore international peace and security.[19]
Flowing from the above, it means that UNSC will not immediately resort to force or military aggression in cases of suspected threat to international peace and order. If the UNSC is satisfied with the existence of such threat or breach, then it is required to use provisional measures, provided it is sanctioned by an agreement involving all its permanent members. However, where such measures prove to be inadequate, it can take such action by air, sea, or land forces of the member state as are essential for maintaining international peace and security.[20]
To sanction collective intervention, it must be on humanitarian grounds. Presently, human rights law has become an important part of international law. Humanitarian intervention has become a debatable issue though. Humanitarian intervention in a strict sense means an international intervention using force for the protection of the inhabitants of another State who are subjected to human rights violations. When it has been adjudged that there are aggravated violations where the national authorities either are unwilling or unable to protect its nationals and the situation affects international peace and security, provisions of Chapter VII will be invoked and applicable. An example of intervention by the UN is in Iraq on behalf of the Kurdish people in 1991.[21]
Also, a Civil war is also one of the grounds permitting collective intervention. Although a Civil war is an internal affair of the State, which under Article 2(7),[22] the United Nations cannot intervene, however, if such a civil war threatens to affect international peace and security, the provisions of Chapter VII will be applicable. According to provisions ofArticle 39, the Security Council must initially determine whether such a civil war in a State will pose a threat to the peace or breach of the peace or amount to an act of aggression.[23] In conclusion, if it has been revealed to lead to possible grave consequences for the entire globe, environmental catastrophes may be considered a threat to peace, and hence, legitimate collective action by the UNSC may be taken. Although the UNSC has not taken any collective action on an environmental matter, some jurists believe that environmental catastrophes may lead to collective interventions in the future as the practice has shown that the definition of a threat to peace is widening with time.
2.2 INTERVENTION BY STATES
Despite the provisions of Articles 2(3) and 2(4) of the UN Charter making emphasis on the principle of Non-intervention amongst States, Article 51 makes provision for the exception of self-defence. According to the rules of international law, whenever a State intervenes in the internal affairs of another State violating the Non-intervention principle, the affected state can react to such breach with a reprisal, which is permitted under Article 51 of the Charter.[24]
According to Article 51 of the UN Charter, whenever an armed attack occurs against a State, the affected State can use force against the perpetrators State on the ground of self-defence. In the decided case of The Caroline, Mr. Webster, the Secretary of the United States of America, established a very important principle for exercising the right of self-defence stating the necessity of self-defence to be instant, overwhelming, and leaving no choice of means and no moment for deliberation. This principle was affirmed by Nuremberg Tribunal in 1946 and by the ICJ in the Corfu Channel case.[25]
CONCLUSION
In the world today, the principle of Non-intervention has become jus cogens. Neither the United Nations (UN) or a State can intervene in the domestic jurisdiction of another State without reasonable proof and valid intentions. Although, there are various instances of Nations violating this principle amongst one another, States need to adhere to this principle as its the foundation for which the bedrock of international peace and security is rested upon. The existence of the principle remains necessary for the safeguard of the sovereign Nations and for the achievement of global peace and security.
FOOTNOTES:
[1] Zhang Naigen “The Principle of Non-interference and its Application in Practices of Contemporary international law” available at https://link.springer.com/article/10.1007/s40647-016-0126-y#:~:text=The%20principle%20of%20non%2Dinterference%20is%20that%20sovereign%20states%20shall,in%20each%20other’s%20internal%20affairs.&text=It%20has%20been%20established%20as,principles%20of%20the%20UN%20Charter.
[2] Hodges, Henry G, The Doctrine of Intervention, 1915, The Banner press. Princeton.
[3] Chatham House “THE PRINCIPLE OF NON-INTERVENTION IN CONTEMPORARY INTERNATIONAL LAW” available at http://www.aalep.eu/principle-non-intervention-contemporary-international-law
[4] Nicaragua v United States of America; [1986] ICJ Rep 108
[5] Phillip Kunig, LERN- UND ARBEITSBUCH UMWELTPOLITIK, 2003, 2nd updated edition.
[6] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,
[7] Boris Kondoch, International Peacekeeping; The Library of Essays in International Law, 28 Sep 2007, Aldershot, England, United Kingdom.
[8] Nicaragua v United States of America; [1986] ICJ Rep 108
[9] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,
[10] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,
[11] General Assembly: A/RES/2625(XXV), 1970
[12] General Assembly: A/RES/2625(XXV), 1970
[13] United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155
[14] Nicaragua v United States of America; [1986] ICJ Rep 108
[15] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168.
[16] D’Amato, Anthony, “There is No Norm of Intervention or Non-Intervention in International Law” (2010) available at http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/80
[17] UN General Assembly: (A/RES/36/103), December 1961
[18] General Assembly resolution 56/83 of 12 December 2001
[19] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 39
[20] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,
[21] Fernando Teson, The Liberal case for Humanitarian Intervention available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=291,661
[22] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 2 (7)
[23] General Assembly resolution 56/83 of 12 December 2001
[24] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 51
[25] Jyoti Rattan “Changing Dimensions of Intervention Under International Law: A Critical Analysis” available at https://journals.sagepub.com/doi/full/10.1177/2158244019840911
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