The Changing Meaning of Non-intervention in Contemporary International Law

By: Paridhi Poddar

The principle of non-intervention has been one the fundamental principles of international law informed by the doctrine of state sovereignty. Of late, the advent of interventionist era in international politics has been criticized on account of the threat it poses to international order. However, an absolute principle of non-intervention is also feared as it would subject the victims of human rights abuse to the whims and fancies of autocratic states. This article identifies the existing trends in state intervention and proposes some of the strategies that can be adopted by the United Nations and individual states to effectively employ it as a means to securing global justice.

Scope of the Principle of Non-intervention

The principle of non-intervention, in essence, prohibits use of coercive measures in international relations in order to protect weak states against the dominion of the powerful ones. The principle was implicitly affirmed through the recognition of sovereign equality under Article 2.1 and sovereign immunity under Article 2.7 of the Charter of the United Nations, 1945 (hereinafter ‘UN Charter’), and explicitly recognized in the Declaration on the Principles of International Law, 1970.[1] The rule of strict observation of this principle is however subject to certain limitations as discussed below.

Peace-keeping Measures under the UN Charter

The right of states to interfere in order to avert an overwhelming humanitarian catastrophe is envisaged under Article 39 of the UN Charter, which allows the Security Council to take measures against “any threat to the peace, breach of the peace, or act of aggression”. While it is not denied that the interventionist measures taken in Somalia, Liberia, and Sierra Leone during the 1990s alleviated human suffering to a large extent,[2] of late, peace-keeping has started to get labelled as inimical to the very humanitarian objects that propel it. This is because such interventions not only add to the existing violence and loss of life but also lead to an increase in defence spending and proliferation of nuclear weapons.

At the same time, powerful member states have argued for a right to intervene through military action as a response to humanitarian crises, even in the absence of Security Council authorization. While it is questionable whether there is sufficient state practice to crystallize unilateral humanitarian intervention as customary international law, opinio juris has shown that such interventions are often met with sharp criticism when they are sponsored to serve political motives.[3] Nonetheless, failure of the Security Council to take action against humanitarian crises has been seen as a justified ground for launching a unilateral intervention.

Intervention by Invitation

Intervention by invitation is another exception to non-intervention under customary law, which allows foreign troops to interfere in an internal armed conflict in favour and at the request of a government.[4] From the 1990s,[5] such an intervention is considered to be legitimate if consent is demonstrated by the highest available governmental authority, which itself displays certain level of legitimacy and effectiveness.[6]

However, this form of intervention is also criticized as consent of the state is seen as manufactured through a consensual domination by the powerful states,[7] and emanates from the unwillingness of these states to have adverse relations with developed states.[8]  For instance, Russian invasions in Hungary in 1956, Czechoslovakia in 1968 and Afghanistan in 1979 were criticized as the consent offered was not voluntary. Even when consent is free, intervention does not find acceptance when it is acted on requests issued by illegitimate governments-in-power keen on securing their position within the state.

Debunking the Trends in Humanitarian Intervention

While the UN Charter allows humanitarian interventions sanctioned by the international community, such a measure is seldom invoked on account of conflicting political interests of member states. Even when an intervention is sanctioned, the United Nations is faced with the lack of will on part of most states to expend their troops and financial resources. As a consequence, United States often assumes the charge of the attack, creating the hegemony of a single military power in the world. This is the trend in international politics what many scholars have dubbed as ‘humanitarian imperialism’.

In other cases, intervention is a consequence of selfish political interests, such as obtaining access to resources and market or for furtherance of endorsed ideologies, as opposed to benevolence or pursuit of global justice. For this reason, interventions on the pretext of restoring democracy as was done by the United States in Grenada and Panama have been criticized,[9] as such interventions lead to a loss of identity of the developing states in face of increasing external aggression.

To avoid the catastrophe associated with military interventions, economic sanctions such as withdrawal of loans, aid, trade etc. are used by the international community to voice its non-recognition of abusive regimes.[10] For instance, countries like China endorse use of economic sanctions as this measure not only saves the economic burden associated with military attacks but also help it to pursue its own mercantile interests.[11]

Balancing Non-intervention and Humanitarian Goals

The criticism of the emerging trend of humanitarian intervention is without prejudice to the duty of the states to create an international regime pillared on co-operation and inter-dependency to address egregious violations of human rights. This was recognized by the United Nations when it adopted the principle of ‘responsibility to protect’, which confers on the states the responsibility to use ‘collective’ force in accordance with the UN Charter to protect people from “genocide, war crimes, ethnic cleansing and crimes against humanity” when their native state fails to do so.[12] Nonetheless, intervention cannot be a mere pretext for human rights advocacy by states, as it should be a calculated though normative response to the most serious breaches of international humanitarian law. While selfish political motives of national states in providing military aid cannot be completely ousted, a balance must be sought and humanitarianism should not be reduced to rhetoric.

In order to nip the growing menace of unilateral interventions, there is a need to develop the institutional capacity of the Security Council to initiate early action. Even when the UN Security Council fails to take the requisite action, resort must be made to regional organizations in peace-keeping operations, as permissible under Article 52 read with Article 53(1) of the UN Charter.[13] States should resort to unilateral interventions only in grave situations and only when it possesses sufficient resources at its disposal to conduct the operations successfully. Countries faced with a fragile economic or political order should refrain from participating in such interventions and rather concentrate on their own nation-building.

Most significantly, the right of intervention must also go hand-in-hand with preventive efforts and post-conflict assistance. Before resorting to drastic measures of military intervention, states should use collective soft pressure methods such as sending investigation teams, as was done by the ASEAN (Association of Southeast Asian Nations) to compel Myanmar to release its political detainees.[14]

[1] UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, A/RES/2625(XXV)

[2] Earl Conteh-Morgan, ‘International Intervention: Conflict, Economic Dislocation and the Hegemonic Role of Dominant Actors’ [2001] 6(2) Intl J of Peace Studies.

[3] For instance, interventions by the United States in Iraq, by South Africa in Mozambique and by Indonesia in East Timor etc. were criticized.

[4] Muge Kinacioglu, ‘The Principle of Non-Intervention at the United Nations: The Charter Framework and the Legal Debate (2005) Perceptions 10(2) 15.

[5] UN General Assembly, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, 21 December 1965, A/RES/2131(XX); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, ICJ Reports 2005, 168.

[6] Georg Nolte, ‘Intervention by Invitation’, Max Planck Encyclopedia of Public International Law (2015) 18; Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986

[7] Morgan (n 2).

[8] David Wippman, ‘Pro-democratic Intervention by Invitation’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (2000) 293, 297.

[9] Michael Byers and Simon Chesterman, ‘“You, the People”: Pro-democratic Intervention in International Law’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (Cambridge University Press 2000) 259, 271.

[10] Morgan (n 2); The changing paradigm of “good governance” with globalization has led international organizations like IMO, WTO and World Bank to impose sanctions at the behest of powerful nations. Countries also resort to “covert intervention” which is an intervention not apparent in the public domain, such as industrial espionage, financing of opposition political parties etc. See also Thomas Jackamo, ‘From the Cold War to the New Multilateral World Order: The Evolution of Covert Operations and Customary International Law of Non-Intervention’ (1992) 32 VA J of Intl Law 929.

[11] Mu Ren, ‘China’s Non-intervention Policy in UNSC Sanctions in the 21st Century: The Cases of Libya, North Korea, and Zimbabwe’ (2014) 12 Ritsumeikan Intl Affairs 101.

[12] UN General Assembly, The responsibility to protect : resolution / adopted by the General Assembly, 7 October 2009, A/RES/63/308

[13] UN General Assembly, The Role of Regional and Sub-Regional Arrangements in Implementing the Responsibility to Protect, 28 June 2011, A/RES/65/877.

[14] Mieke Molthof, ‘ASEAN and the Principle of Non-Interference’

(Paridhi is a student in the fourth year of study at West Bengal National University of Juridical Sciences, Kolkata.)