Part 1 The subjects of international law, Ch.3 Position of the states in international law, Intervention
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Aggression — Humanitarian intervention — Use of force, prohibition — Use of force, threat — Armed attack — Military assistance — National liberation movements — United Nations (UN)
Cavaglieri, Nuovi studi sull’ intervento (1928) Schoenborn, Die Besetzung von Veracruz (1914) Hodges, The Doctrine of Intervention (1915) Stowell, Intervention in International Law (1921) Redslob, Histoire des grands principes du droit gens (1923), passim Brown, International Society (1923), pp 90–100 Redslob, Les Principes du droit des gens moderne (1937), pp 113–48 Mosler, Die Intervention im Völkerrecht (1937) Zannini, Dell’ intervento (1950) Dupuis, Hag R (1924), i, pp 369–406 Strisower in Strupp, Wört, i, pp 581–91 Winfield, BY (1922–23), pp 130–49, and ibid (1924), pp 149–62 Hettlage, ZI, 37 (1927), pp 11–88 Guerrero, RG, 36 (1929), pp 40–51 Potter, Hag R, 32 (1930), pp 611–85 Séfériadès, ibid, 34 (1930), iv, pp 386–400 Yepes, ibid, 47 (1934), i, pp 51–90 Strupp, ibid, pp 513–21 Kaufmann, ibid, 55 (1935), iv, pp 589–607 Ellis, AS Proceedings (1933), pp 78–88 Fenwick, AJ, 39 (1945), pp 645–63 Preuss, Hag R, 74 (1949), i, pp 605–19 Fabela, Intervention (1961) Fawcett, Hag R, 103 (1961), ii, pp 347–421 Higgins, BY, 39 (1961), pp 269–319; The Development of International Law through the Political Organs of the United Nations (1963), pp 167–239; and in Intervention in World Politics (ed Bull, 1984), pp 29–44 McDougal and Feliciano, Law and Minimum World Public Order (1961), pp 207–58 Brownlie, International Law and the Use of Force by States (1963), pp 281–301, 317–27, 333–49 Henkin, AS Proceedings (1963), pp 147–62 Stanger (ed), Essays on Intervention (1964) Lucchini, Clunet, 93 (1966), pp 451–464 Coste, RG, 71 (1967), pp 369–81 Gerlach, Die Intervention (1967) Schwebel, Hag R, 136 (1972), ii, pp 413–97, especially pp 452–5 Vincent, Non-Intervention and International Order (1974) Ouchakov, Hag R, 141 (1974), i, pp 1–86 Arangio-Ruiz, Hag R, 157 (1977), iv, pp 199, 252–304 Singh, The Use of Force Under International Law (1984) Bull (ed), Intervention in World Politics (1984) Foreign and Commonwealth Office Paper, Is Intervention ever Justified? also in BY, 57 (1986), pp 614–20 Levitin, Harv ILJ, 27 (1986), pp 621–57 Henkin, Hag R, 216 (1989), iv, pp 142–54, 163–81.
That intervention is, as a rule, forbidden by international law there is no doubt. Its prohibition is the corollary of every state’s right to sovereignty, territorial integrity and political independence.1 Where intervention involves the use of armed force it is likely additionally,2 to violate Article 2(4) of the Charter of the United Nations,3 which prohibits the (p. 429) threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the principles of the United Nations. This prohibition is also, and separately, reflected in customary international law.4 If the use of armed force is of sufficient gravity, it may also constitute aggression.5
While the customary rules of international law relating to intervention have now to a considerable extent to be considered alongside the more general prohibition of the use or threat of force, intervention is still a distinct concept. Its prohibition is embodied in several treaties.6 Article 3 of the International Law Commission’s Draft Declaration on Rights and Duties of States categorically provides that ‘every State has the duty to refrain from intervention in the internal or external affairs of any other State’.7 In 1965 the General Assembly adopted a References(p. 430) Declaration on the Inadmissibility of Intervention8 in which it declared that no state has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state and that, consequently, armed intervention and all other forms of interference or attempted threats against the personality of the state are condemned; that no state may use or encourage the use of economic, political or any other type of measures to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind; and that the strict observance of these obligations was essential to international peace, since any form of intervention not only violates the spirit and letter of the Charter but leads to threatening situations. Similar provisions are repeated in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, particularly the first and third principles;9 and in Principle VI of the Declaration on Principles Guiding Relations between Participating States, forming part of the Final Act of the Conference on Security and Cooperation in Europe 1975.10 For the United Nations and its member states acting through its organs, non-intervention in essentially domestic matters is a principle set out in Article 2(7) of the Charter.11
Although states often use the term ‘intervention’ loosely to cover such matters as criticism of another state’s conduct, in international law it has a stricter meaning, according to which intervention is forcible or dictatorial interference by a state in the affairs of another state, calculated to impose certain conduct or consequences on that other state.
Intervention is thus a form of interference by one state in the affairs, internal or external, of another; and intervention may affect those affairs either directly or indirectly. Since every state has the right, as an attribute of its sovereignty and insofar as it is not qualified by treaty obligations,1 to decide for itself such matters References(p. 431) as its political, economic, social and cultural systems, and its foreign policy, interference in those matters can infringe its sovereignty. Thus, however much one state may dislike the particular ideology or political system adopted by another, that does not legally permit it to intervene so as to bring about changes:2 support for an opposition within another state is perhaps one of the clearest examples of unlawful intervention in the affairs of that state3 (provided that support has the other characteristics necessary to constitute intervention). This was the central issue in the Military and Paramilitary Activities Case,4 in which the International Court of Justice held that support given by the United States of America to opposition forces in Nicaragua was unlawful. In the light of the Court’s judgment in that case it seems that action in support of opposition forces within another state may constitute intervention, even if the support itself is of a non-military kind;5 if it has a military character but is limited to such indirect support as the supply of weapons or logistic support, it may constitute not only intervention but also an unlawful threat or use of force, but would not amount to an armed attack;6 and if it involves direct military action by the supporting state (whether on the part of its regular forces or through the despatch of armed bands References(p. 432) on a significant scale)7 it is in addition likely to constitute an armed attack (so giving rise to the right of self-defence8 on the part of the attacked state) and may well also constitute aggression.9
It must be emphasised that to constitute intervention the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question. Interference pure and simple is not intervention.10 There are many acts which a state performs which touch the affairs of another state, for example granting or withholding recognition of its government,11 good offices, various forms of cooperation, making representations, or lodging a protest against an allegedly wrongful act: but these do not constitute intervention, because they are not forcible or dictatorial. Similarly, a state may, without thereby committing an act of intervention (although it might be in breach of some other international obligation, for example under treaties such as the General Agreement on Tariffs and Trade which promote freedom of trade),12 sever diplomatic relations with another state, discontinue exports13 to it or a programme of aid, or organise a boycott14 References(p. 433) References(p. 434) of its products. Such measures are often in response to actions or policies of which the state taking the measures disapproves15 or regards as unlawful, and may be presented by it as a form of ‘sanctions’.16 Although such measures may, at least indirectly and in part, be intended not only as a mark of displeasure but also to persuade the other state to pursue, or discontinue, a particular course of conduct, such pressure falls short of being dictatorial and does not amount to intervention.17
Interference which is sufficiently coercive to constitute intervention may take a variety of forms. It may involve the use of armed force in the direct form of military action, or in a more indirect form as where support is given to subversive or terrorist armed activities in another state.18 Other forms of coercion, involving economic or political measures rather than resort to military action, may also constitute intervention, where they have the necessary coercive effect.19
References(p. 435) § 130 Assistance on request
The requirement that interference be dictatorial if it is to amount to intervention excludes from intervention assistance rendered by one state to another at the latter’s request and with its consent,1 which may be given ad hoc or in advance by treaty.2 Requests for assistance, often in the form of detachments of armed forces or the supply of military equipment, are often made and acceded to. Accordingly, no unlawful intervention was involved when British forces went to the aid of Muscat and Oman in 1957 at the request of the Sultan;3 when British and American forces landed in (respectively) Jordan and Lebanon in 1958 at the request of those states;4 when British forces assisted Uganda, Kenya and Tanganyika in 1964,5 and Zambia in 1965,6 at their request; when, during the Vietnam conflict, American forces assisted the Republic of Vietnam at its request;7 when, in 1968 and 1969,8 and again in 1983,9 French References(p. 436) forces responded to requests for assistance from Chad, and also in 1978 in response to a request from Zaire;10 when, in 1977, military units from the Federal Republic of Germany took action at Mogadishu Airport with the consent of the Somali authorities in order to free a hijacked aircraft;11 when, in 1982, American, French and Italian forces landed in Beirut, following an agreement with Lebanon;11a when in 1987 Sri Lanka agreed to the presence of Indian forces in Sri Lanka in order to assist in the restoration of order there;12 or when in 1988 Indian troops assisted the Maldives to restore order after an attempted coup.13
The possibility of abuse, by the fabrication of requests for assistance or by a request being made by an alleged government having only limited, temporary and precarious authority, is real. Whether a request is to be regarded as genuine can only be determined in the light of the particular circumstances.14
(p. 437) In any event, while the established and internationally recognised government of a state is entitled to seek assistance from other states in preserving internal law and order15 or to defend its borders from outside attack, and those other states may lawfully provide assistance, there are limits to the lawfulness of doing so in circumstances of civil war.16 So long as the government is in overall control of the References(p. 438) state and internal disturbances are essentially limited to matters of local law and order or isolated guerrilla or terrorist activities, it may seek assistance from other states which are entitled to provide it. But when there exists a civil war and control of a state is divided between warring factions, any form of interference or assistance (except probably of a humanitarian character) to any party amounts to intervention contrary to international law.17 In such a case the authority of any party to the conflict to be the government entitled to speak (and to seek assistance) on behalf of the state will be doubtful;18 and assistance to any party will prejudice the right of the state to decide for itself its form of government and political system. It is, however, widely accepted that if there is outside interference in favour of one party to the struggle, other states may assist the other party.19
A further limit upon the right of states to assist another state at the request of its government is sometimes said to arise where the requesting government is exercising authority over a colonial territory and seeks assistance in suppressing an armed struggle by the peoples of that territory in exercise of their right of self-determination.20 The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States stipulates that ‘every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle on equal rights and self-determination of their right to self-determination and freedom and independence’.21 However, the reference to ‘every State’ has not been taken by states with sovereignty or similar authority over dependent territories as requiring References(p. 439) them to abdicate their responsibilities or as prohibiting them from resisting, by armed force if necessary, armed rebellion by those seeking self-determination for the territory. Nor have such states refrained from seeking, and sometimes receiving, aid from other states in resisting such rebellions, although the General Assembly has on occasion called for outside states to refrain from assisting the colonial authority in suppressing those seeking self-determination.22
Exceptionally, a state may be justified in intervening in the affairs of another state. In such cases the intervening state is nevertheless subject to certain limitations as to the manner and circumstances of its intervention: in particular, it must act consistently with the prohibition against the use or threat of force laid down in the United Nations Charter, its actions must be proportional to the circumstances occasioning the intervention, and other means of remedying the situation (such as diplomatic representations) must be shown to have failed or to be so unlikely to succeed as to make recourse to them unnecessary. Furthermore, any justification for intervention, being an exception to a fundamental rule of international law, has to be applied strictly. Notwithstanding the somewhat general language used by the International Court of Justice in the Corfu Channel case,1 and its decision in the Military and Paramilitary Activities case2 that the particular conduct there in issue constituted unlawful intervention, the practice of states does not yet permit the conclusion that intervention in strictly limited cases and in a manner not inconsistent with the Charter of the United Nations is necessarily excluded. It is a practice which is open to abuse, and it is important that the use of force by way of intervention raises issues which are justiciable before an international tribunal.3
Reasons which have been said to give a state justification for intervening in the affairs of another state include the following.4
References(p. 440) (1) A state’s right to protect its citizens abroad,5 where they are being wrongfully treated, may justifiably lead it to intervene in order to secure their proper treatment. Although intervention for that reason may be open to abuse and lead to unjustifiably extensive intervention in another state’s affairs, there has been little disposition on the part of states to deny that intervention properly restricted to the protection of nationals is, in emergencies, justified. States have on many occasions invoked that reason as, at least in part, the justification for taking forcible action in another state. Such occasions have included the action by the United Kingdom (with France) in landing forces in Egypt in 1956 to protect British nationals endangered by the consequences of Israel’s attack on Egypt;6 the landing of United States forces in Lebanon in 1958 at a time of internal conflict there;7 the landing of Belgian forces in the Congo in 1960 to protect mainly Belgian nationals when law and order had broken down at a time of civil disturbances;8 the landing of United States and Belgian forces at Stanleyville in the Congo in 1964, to rescue persons being held by rebels as hostages;9 the landing of United States forces in the Dominican Republic in 1965 at a time of internal upheavals in that country;10 the References(p. 441) landing of Israeli commandos at Entebbe Airport, Uganda in 1976 to free the passengers (mostly Israeli nationals) of a hijacked aircraft;11 the landing of Egyptian forces at Lanarka Airport, Cyprus in 1978 to rescue Egyptian and other hostages held by terrorists in a hijacked aircraft;12 the landing of French and Belgian forces, with medical support facilities provided by the United Kingdom and air transport provided by the United States, in Shaba Province of Zaire in 1978, to protect Belgian and other European nationals endangered by rebel activities in the Province;13 and the landing of United States forces in Grenada in 1983.14
Although it was formerly said that intervention was justified in order to ensure the safety of the property of a state’s citizens abroad,15 it is probably now only in situations where they are in immediate danger of losing their lives or suffering serious injury that intervention could be References(p. 442) considered lawful. Even then it must also be shown that the territorial authorities are unable or unwilling to protect those at risk, and that other means of securing their proper protection have been tried and failed or would, certainly, be ineffective, as where there is a breakdown of local order. Where action has been taken by a state to protect its citizens in another country from such imminent dangers, it is not unusual for the state to include in its operations measures which may also benefit nationals of other foreign states who are subject to the same threat.
(2) There is general agreement that, by virtue of its personal and territorial authority, a state can treat its own nationals16 according to discretion. But a substantial body of opinion17 and of practice has supported the view that there are limits to that discretion and that when a state commits cruelties against and persecution of its nationals in such a way as to deny their fundamental human rights and to shock the conscience of mankind, the matter ceases to be of sole concern to that state and even intervention in the interest of humanity might be legally permissible.18 However, the fact (p. 443) that, when resorted to by individual states, it may be — and has been — abused for selfish purposes tended to weaken its standing as a lawful practice.19 That objection does not apply to collective intervention,20 and the growing involvement of the international community on both a global and a regional basis, with the protection of human rights diminishes any need for states to retain or exercise an individual right of humanitarian (p. 444) intervention.21 The Charter of the United Nations in recognising the promotion of respect for fundamental human rights and freedoms as one of the principal objects of the Organisation,22 marks a further step in the direction of elevating the principle of humanitarian intervention to a basic rule of organised international society. This is so although the degree of enforceability of fundamental rights is still rudimentary23 and nothing in the Charter itself authorises intervention in matters which are essentially within the domestic jurisdiction of the state.24 Equally, the objection to humanitarian intervention does not apply to humanitarian assistance to those in need in another state; even in a situation of conflict within a state, humanitarian assistance will not constitute intervention, so long as it is given (or perhaps is at least available) without discrimination between the parties to the conflict.25
(3) If permissible action taken in exercise of the right of individual or collective self-defence involves also a degree of intervention, that intervention is itself justified on grounds of self-defence.26 Thus, the International Court of Justice accepted, in the Military and Paramilitary Activities case,27 that the argument based on collective self-defence advanced by the United States of America could justify action which would otherwise constitute unlawful intervention, but found on the facts of the case that the argument of collective self-defence could not be upheld.
The question whether an act amounts to action in self-defence is not to be confused with self-help, or even necessity. In the Corfu Channel case (1949), between the United Kingdom and Albania, the International Court of Justice held that the sending of British naval ships into Albanian waters (forming part of an international channel) to sweep a minefield, after efforts to secure Albanian cooperation in attempts to deal with it had failed, constituted a violation of Albanian sovereignty, in violation of international law. The minefield had previously caused damage to two British destroyers and loss of life of some of the crews and the Court held Albania responsible.28 However, the Court rejected the contention of the United Kingdom that its action was justified as necessary both in the References(p. 445) interests of safety of navigation and in order to secure evidence which otherwise might be lost or destroyed,29 for the purpose of future proceedings before an international tribunal against Albania.
(4) States are sometimes said to have the right to intervene in the affairs of another state in order to assist the peoples of a territory of that state to exercise, by armed force if necessary, their right of self-determination.30 Numerous resolutions of the General Assembly of the United Nations have requested states to give assistance, including measures of a military character, to ‘national liberation movements’ seeking to assert their right of self-determination.31
The General Assembly’s definition of aggression was expressly without prejudice to the right of peoples forcibly deprived of the right to self-determination, freedom and independence to struggle to achieve it, and to seek and receive support, in accordance with the principles of the Charter and in accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States.32
Nevertheless, the lawfulness of such intervention is open to considerable doubt. While the principle of self-determination of peoples is generally accepted,33 until independence has been attained the parent state retains References(p. 446) its sovereignty over the territory in question. It thus also retains the rights and responsibilities which go with the possession of sovereignty, which include the right and duty to maintain law and order and to benefit from Article 2(4) of the Charter.34 It is the lawful authority in the territory, and at least so long as it is in good faith applying the principle of self-determination to the extent that circumstances permit, it is entitled to regard armed efforts by factions in the territory to assert an alternative authority there as an unlawful rebellion, and may regard such assistance by other states to the rebels as is calculated directly to assist the success of the rebellion as intervention in its internal affairs. Some degree of assistance by outside states to the rebels is probably permissible if it is humanitarian assistance35 and perhaps also if it is of an economic character not directly associated with the military effort of the rebels.36
(5) A right of intervention may arise as a result of a treaty by which one state, expressly or by implication, consents to intervention for certain purposes by another state. In addition to a treaty by which one state expressly grants to another a right to intervene in certain circumstances,37 such a right of intervention may arise from a treaty of protection to the extent to which the treaty places responsibility for the affairs of the protected state in the hands of the protecting state,38 or from a treaty of guarantee, since a state that has formally undertaken to guarantee a certain state of affairs in another state, such as its independence, form of government or constitutional structure, may39 intervene if that state of affairs is jeopardised. Thus, Great Britain, France and Russia, the guarantors of the independence of Greece, intervened in Greece during the First World War in 1916 and 1917 for the purpose of re-establishing constitutional government in conformity with Article 3 of the Treaty of London of 1863;40 King Constantine References(p. 447) had to abdicate, and his second son, Alexander, was installed as King of the Hellenes. Similarly, by the Treaty of Guarantee of 1960 relating to Cyprus41 the three guarantor states, Greece, Turkey and the United Kingdom, guarantee the state of affairs established by the Basic Articles of the Constitution of Cyprus (Article II), undertake in the event of a breach of the provisions of the Treaty to consult together as to what action to take, and ‘insofar as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty’ (Article IV).
As a matter both of history and of principle the prohibition of intervention must be regarded primarily as a restriction which international law imposes upon states for the protection of the independence of other members of the international community. For this reason the notion and the prohibition of intervention cannot accurately extend to collective action undertaken in the general interest of states or for the collective enforcement of international law.1 This means that while prohibition of intervention is a limitation upon states acting in their individual capacity, it does not properly apply to remedial or preventive action undertaken by or on behalf of the organs of international society.2 Thus, even if trading References(p. 448) restrictions would constitute intervention,3 restrictions imposed pursuant to a mandatory United Nations resolution would not do so.4
Indeed, apart from the principle of non-intervention with regard to matters of domestic jurisdiction, the system of the United Nations Charter is based on collective intervention, in matters affecting international peace and security, in relation not only to members of the United Nations, but also to non-members, in respect of whom the Charter imposes upon the Organisation the duty of ensuring that they act in accordance with its principles so far as may be necessary for the maintenance of international peace and security.5
Although Article 2(7) of the Charter provides that it does not authorise the United Nations to intervene with regard to matters which are essentially within the domestic jurisdiction of states,6 that provision does not exclude action, short of References(p. 449) dictatorial interference, undertaken with the view to implementing the purposes of the Charter. Thus with regard to the protection of human rights and freedoms — a prominent feature of the Charter — the prohibition of intervention does not preclude study, discussion, investigation and recommendation on the part of the various organs of the United Nations.7 The principle stated in Article 2(7) does not prejudice the application of enforcement measures under Chapter VII of the Charter.
Collective action which might otherwise have constituted intervention may also be taken by other organs of international society, acting within their areas of competence. Examples of action taken under the auspices of regional organisations include the military force established by the Organisation of African Unity which undertook certain peace-keeping functions in Chad in 1981;8 and the action taken primarily by military forces of the United States in Grenada in 1983,9 but also in conjunction with contingents from Barbados and Jamaica, as part of a collective action at the request of the Organisation of Eastern Caribbean States.
Much of the subject of intervention has a political character. This is clearly apparent in, for example, the so-called Monroe Doctrine1 of the United States of America, which originated in President Monroe’s celebrated Message to Congress on 2 December 1823. In it he declared, inter alia, that the United States, while disclaiming any intervention in wars in Europe, could not, on the other hand, in the interest of their own peace and happiness, allow European states to extend their political system to any part of America, and try to intervene in the independence of the South American republics. Accordingly, whenever a conflict occurs between such an American state and a European state, at any rate if it is likely to have territorial consequences on the American continent, the United States has been ready to intervene.
To some extent the Monroe Doctrine has been reflected in principles adopted by all the American republics. Thus the parties to the Declaration of the Principles of Solidarity of America adopted at the Pan-American Conference at Lima on 24 December 1938 affirmed their determination to maintain these principles ‘against all foreign intervention or activity that may threaten them’.2 In a declaration References(p. 450) of the Ministers of Foreign Affairs of the American Republics adopted at Habana in July 1940 it was stated that any attempt on the part of a non-American state against the integrity or inviolability of the territory, the sovereignty, or the political independence of an American state shall be considered as an act of aggression against all the American states signatories to the declaration.3 At the same time, in the Convention on the Provisional Administration of European Colonies and Possessions in America, the various American states declared, in language both strikingly approximating to and going beyond the Monroe Doctrine, that any transfer or attempted transfer of the sovereignty, possession, or any interest in or control over colonies of non-American states located in the Western Hemisphere ‘would be regarded by the American Republics as being against American sentiments and principles and the rights of American States to maintain their security and political independence’.4 This attitude was reaffirmed, in the form of a declaration on assistance and American solidarity, in the Act of Chapultepec of 3 March 1945, adopted by the Inter-American Conference on War and Peace.5
The prohibition of intervention in the American continent by extra-continental states has developed to meet the growing significance of political, as opposed to military, intervention. In the Declaration of Solidarity adopted at Caracas in 1954 the Tenth Inter-American Conference declared that ‘the domination or control of the political institutions of any American State by the international communist movement, extending to this hemisphere the political system of an extra-continental power, would constitute a threat to the sovereignty and political independence of the American States, endangering the peace of America, and would call for a Meeting of Consultation to consider the adoption of appropriate action in accordance with existing treaties‘.6 The Declaration went on to state that it was designed to protect and not to impair the inalienable right of each American state freely to choose its own form of government7 and economic system and to live its own social and cultural life. There have been several occasions when action in conformity with the Declaration has been taken, notably the exclusion of the Government of Cuba from the Organisation of American States in 1962,8 and the action taken in 1965 to forestall the establishment in the Dominican Republic of a Communist regime.9
References(p. 451) A further example of the political character of much of the subject of intervention is afforded by the so-called ‘Brezhnev Doctrine’, named after the leader of the Soviet Union who propounded it in justification of intervention in Czechoslovakia in 1968.10 Czechoslovakia, one of the communist states of Eastern Europe closely associated with the Soviet Union, embarked in 1968 upon policies envisaging the democratisation of political life and greater guarantees of fundamental liberties. The Soviet Union saw this as posing a threat to the communist system in Czechoslovakia and as having serious implications for the communist regimes in other East European states. Accordingly, the Soviet Union and certain of its East European allies intervened with military force in Czechoslovakia in August 1968, in order to restore the former state of affairs. The Brezhnev Doctrine was to the effect that if the socialist and communist structure of a socialist country is threatened (even by a popular movement within it), other socialist countries are entitled to intervene to preserve the socialist and communist structure of the state.11
1 Military and Paramilitary Activities Case, ICJ Rep (1986), pp 106–7.
2 Ibid, pp 108, 109–10.
3 See generally vol II of this work (7th ed), § 52a. See also Stone, Legal Controls of Armed Conflict (1954); Waldock, Hag R, 81 (1952), ii, pp 455, 487–514; Bowett, Self-Defence in International Law (1958), pp 145–55; Brownlie, International Law and the Use of Force by States (1963), especially pp 264–70, 361–8, and in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 491–504; Giraud, RG, 67 (1963), pp 501–44; Higgins, The Development of International Law through the Political Organs of the United Nations (1963), pp 167–222, and in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 435–52; Derpa, Das Gewaltverbot der Satzung der Vereinten Nationen und die Anwendung Nichtmilitärischer Gewalt (1970); Franck, AJ, 64 (1970), pp 809–37; Henkin, AJ, 65 (1971), pp 544–8; Zourek, L’Interdiction de l’emploi de la force en droit international (1974); Neuhold, Internationale Konflikte — verbotene und erlaubte Mittel ihrer Austragung (1977); Röling, Neth IL Rev, 24 (1977), pp 242–59, and in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 3–8; Lachs, Hag R, 169 (1980), iv, pp 153–69; papers by Acevedo, Reisman and Gordon, AS Proceedings (1984), pp 69–92; Cot and Pellet, La Charte des Nations Unies (1985), pp 113–25; Bokor-Szego in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 453–77; Sahovic, ibid, pp 479–88; Asrat, Prohibition of Force under the UN Charter (1991); Simma (ed), Charta der Vereinten Nationen (1991), pp 67–90. As to the significance of threats of force, see Sadurska, AJ, 82 (1988), pp 239–68.
A question of particular controversy is whether the prohibition of ‘force’ in An 2(4) of the UN Charter is limited to armed force. This is essentially a matter of treaty interpretation; the better view is probably that that provision is limited to armed force. The matter was much discussed in the preparatory work for the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States, in the context of the first principle. For statements of the view of the UK (to the effect that Art 2(4) is concerned only with armed force), see BPIL (1966), p 191, and ibid (1967), p 186. The Declaration as finally adopted (GA Res 2625 (XXV) (1970)) did not, in the first principle, offer any definition of the ‘force’ referred to in Art 2(4), in contrast to the third principle, which, in the context of intervention, expressly covered forms of coercion other than armed force. See generally on the Declaration, § 105. In the Military and Paramilitary Activities case the ICJ suggested that at least as regards the customary principle prohibiting the use of force, ‘force’ was not limited to armed attacks or aggression (ICJ Rep (1986), at p 101); but this could still leave less grave uses of force as having to involve armed force if they are to come within the scope of the principle. The Court held the arming and training by the USA of opposition forces in Nicaragua, but not the supply of funds, as involving a threat or use of force: ibid, pp 118–19.
See also Stone, Aggression and the World Order (1958), pp 58–60, 66–8; Higgins, The Development of International Law through the Political Organs of the United Nations (1963), pp 175–8; Bowett, Self-Defence in International Law (1958), pp 106–16; Farer, AJ, 79 (1985), pp 405–13. As to the meaning of that particular form of armed force which constitutes an ‘armed attack’, see § 127, n 5.
The abuse of economic power in international relations has been much discussed in connection with the attempts to define aggression (see § 30, n 37), but without clear conclusions being reached. The definition of aggression finally adopted by the General Assembly in 1974 was limited to various acts involving the use of armed force: GA Res 3314 (XXIX). See also § 129, nn 13–16, as to economic coercion.
4 Military and Paramilitary Activities Case, ICJ Rep (1986), pp 99–101. See also ibid, p 100 and § 2, n 3, as to the status of this obligation as ius cogens.
5 GA Res 3314 (XXIX), (1974); see also § 30, n 37.
6 Thus the principle of non-intervention is embodied in Art 8 of the Montevideo Convention on the Rights and Duties of States 1933 (LNTS, 165, p 19) and Art 15 of the Charter of the Organisation of American States 1948 (UNTS, 119, p 49), on which see also § 132, n 2; Art 8 of the Charter of the League of Arab States 1945 (UNTS, 70, p 237); and Art 3 of the Charter of the Organisation of African Unity 1963 (Peaselee, International Governmental Organisations (3rd ed revised, 1974), p 1165), on which see Akinyemi, BY, 46 (1972–73), pp 393–400; Art 32 of the Charter of Economic Rights and Duties of States 1974 declares that no state may use or encourage the use of economic, political or any other type of measures to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights: GA Res 3281 (XXIX) (1974), and see § 106. See also Art 1(1) of the Inter-American Convention on the Rights and Duties of States in the Event of Civil Strife 1928 (BFSP, 128 (1928), p 514). A non-intervention obligation may also be provided in a bilateral treaty: see eg Art 4 of the Libya-Chad Agreement of 31 August 1989, ILM, 29 (1990), p 15. See also agreements cited in § 122, n 26.
7 YBILC (1949), p 286.
In its Draft Code of Offences against the Peace and Security of Mankind (YBILC (1954), pt 2, pp 151–2) the ILC regarded the employment by the authorities of the state of armed force against another state for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the UN as an act of aggression, and as, consequently, not merely contrary to international law but constituting a crime under international law (Art 2(1)); also regarded as such a crime was ‘intervention by the authorities of a State in the internal or external affairs of another State, by means of coercive measures of an economic or political character in order to force its will and thereby obtain advantages of any kind’ (Art 2(9)); and note the ILC’s commentary (at p 150) that the provision does not cover every kind of political or economic pressure, but only those ‘where the coercive measures constitute a real intervention in the internal or external affairs of another State’. For further consideration of intervention by the ILC, in the course of its resumed consideration of the Draft Code following GA Res 36/106 (1981), see ILC Report (40th Session, 1988), paras 232–45, and draft Art 14 (with commentary) provisionally adopted at its 41st Session, 1989 (Report, para 217): that draft Article is limited to fomenting or aiding subversive or terrorist activities in another state, but must be read with draft Art 12(4)(a) which treats the invasion or attack by the armed forces of a state of the territory of another state as aggression. As to the concept of international crime, see § 157.
8 Res 2131 (XX), adopted by 109 votes in favour, none against, and one abstention. See also eg Res 380 (V) (1950).
In 1981 the Assembly adopted a further declaration, the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States: GA Res 36/103. This resolution, unlike Res 2131 (XX), met with opposition from a significant body of states, and although 120 states voted in favour, 22 voted against and 6 abstained.
9 GA Res 2625 (XXV) (1970). See generally on the Declaration § 105. On the first principle in particular, see Tanca in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 397–412. See also paras 7 and 8 of the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations: GA Res 42/22 (1987).
10 Cmnd 9066; ILM, 14 (1975), pp 1292, 1294. See generally § 105, n 3.
11 See § 132.
1 See § 118. In the Military and Paramilitary Activities Case, the ICJ stated the applicable principle in the following terms: ‘A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely’ (ICJ Rep (1986), p 108). Note also intervention which takes the form of dictatorial insistence by State A, acquiesced in by State B by treaty, that certain treaties between states B and C shall be abrogated by State B; see Art 292 of the Treaty of Peace with Germany of 1919.
2 ICJ Rep (1986), p 133.
3 It matters not that the aims of the state giving support may be less extensive than the aims of those being supported: ‘The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far-reaching’ (ICJ Rep (1986), p 124).
4 ICJ Rep (1986), p 14. See generally on the judgment, Eisemann, AFDI, 32 (1986), pp 153–91; Akehurst, Indian JIL, 27 (1987), pp 357–84; Highet, AJ, 81 (1987), pp 1–56; Briggs, ibid, pp 78–86; Boyle, ibid, 86–93; Christenson, ibid, pp 93–101; D’Amato, ibid, pp 101–5; Falk, ibid, pp 106–12; Farer, ibid, pp 112–16; Franck, ibid, pp 116–21; Glennon, ibid, 121–9; Gordon, ibid, pp 129–35; Hargrove, ibid, pp 135–43; Janis, ibid, pp 144–6; Kirgis, ibid, pp 146–51; Moore, ibid, pp 151–9; Morrison, ibid, pp 160–66; Reisman, ibid, pp 166–73; Tesón, ibid, pp 173–83. See also § 127, n 37, as to the justification of self-defence advanced by the USA (but rejected by the Court). See also § 130, as to civil wars.
For the Order of the Court indicating provisional measures see ICJ Rep (1984), p 169, on which see Rucz, RG, 89 (1985), pp 83–111; Deatherage, Harv ILJ, 26 (1985), pp 280–86. For the judgment of the Court on its jurisdiction to hear the case, see ICJ Rep (1984), p 392, on which see Martinez, Harv ILJ, 26 (1985), pp 622–9. For the consequential withdrawal by the USA from further participation in the proceedings, see ILM, 24 (1985), p 246. Subsequently the USA withdrew its declaration under Art 36 (2) of the Court’s Statute accepting the Court’s compulsory jurisdiction: see ILM, 24 (1985), p 1742: for comment see Chimni, ICLQ, 35 (1986), pp 960–70. The failure of the USA to comply with the Court’s judgment was the subject of debates in the Security Council (which adopted no resolution: see ILM, 25 (1986), pp 1337–65) and in the General Assembly (which adopted Res 41/31).
US actions in support of the so-called ‘contra’ forces in Nicaragua had been the subject of much comment separately from the ICJ’s judgment in the Military and Paramilitary Activities case: see eg D’Amato, AJ, 79 (1985), pp 657–64; Moore, AJ, 80 (1986), pp 43–127; Rowles, ibid, pp 568–86.
5 Eg financial support: ICJ Rep (1986), p 124. See generally n 19.
6 ICJ Rep (1986), pp 103–4, 124.
7 Ibid, pp 103–4.
8 See § 127.
9 See § 30, n 37.
10 It may be noted that the elaboration of the third principle in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (§ 105) appears to prescribe a less rigorous standard, in referring, as a consequence of the impermissibility of intervention, to the illegality of ‘armed intervention and all other forms of interference or attempted threats’ (italics added).
It also seems desirable to exclude from the category of intervention the toleration by a state upon its territory of the acts of private persons which endanger the safety of other states, though some writers do not make this distinction and it is often not observed in state practice; see RedslobRedslob, op cit. in bibliography preceding § 128, at p 511, and Hettlage, op cit. in bibliography preceding § 128, at p 25. See also Gemma, Hag R (1924), iii, p 365, and Fauchille, § 300 (3). See § 122 as to subversive action in fomenting civil strife in another state.
11 But as to premature recognition, see § 41. Excessive delay in according recognition may in certain circumstances amount to overt encouragement to the former regime to reassert its control, but is unlikely in itself to constitute intervention. Mexico never recognised the government established by General Franco after the success of the Nationalists in the Spanish Civil War: see Thomas and Thomas in International Law of Civil War (ed Falk, 1971), pp 161–3, and also p 157.
12 But note that Art XXI of the GATT permits unilateral trade restraints if a state believes its national security threatened.
13 Relations between the USA and Cuba have involved, on both sides, extensive measures involving the restriction of trade between the two states, and the seizure or freezing of assets. Many of the cases cited below in relation to the recognition of foreign confiscations (§ 142), and above in relation to acts of state (§ 112), and the literature in relation to both, have concerned the consequences of these measures. See also Mathy, Rev Belge, 18 (1984–85), pp 183–94.
In the Military and Paramilitary Activities case the ICJ held that the various economic measures taken by the USA against Nicaragua (such as cessation of economic aid, reduction in import quotas for Nicaraguan sugar, and a trade embargo) did not violate the principle of non-intervention: ICJ Rep (1986) p 126. For the reference, at Nicaragua’s request, of the US measures to an investigatory panel under the GATT, see Whitt, Law and Policy in International Business, 19 (1987), pp 603–31.
On the embargo by several Arab states of supplies of oil to certain other states in 1973, see Shihata, AJ, 68 (1974), pp 591–627; Paust and Blaustein, AJ, 68 (1974), pp 410–39, and (as eds), The Arab Oil Weapon (1977).
In 1978, the USA imposed a trade embargo on Uganda, in response to Uganda’s conduct in gross violation of human rights. See Talkington, Harv ILJ, 20 (1979), pp 206–13, and Grove, ibid, pp 704–8.
In 1980 the USA imposed certain trade and other restrictions on transactions with Iran, following Iran’s continued detention as hostages of US diplomatic and consular staff in Iran. See SC Res 461 (1979); Reisman, AJ, 74 (1980), pp 904–7; RG, 84 (1980), pp 876–81. See also Narenji v Civiletti, AJ, 74 (1980), p 433 (concerning restrictive regulations applied to Iranian nationals in the USA), and Islamic Republic of Iran v United States, AJ, 83 (1989), p 103 (holding export controls to have been tantamount to expropriation). See, for action taken by the UK, the Iran (Temporary Powers) Act 1980; and, for action taken by EC States, and some others, RG, 84 (1980), pp 881–9. The trade restrictions had been preceded, near the end of the previous year, by the blocking of Iranian assets in the USA: see ILM, 18 (1979), p 1549; ILM, 19 (1980), p 514; Fearon, Harv ILJ, 21 (1980), pp 523–8; and § 111, n 11, and § 139, n 4. For the USA-Iran Agreement providing for the unblocking of Iranian assets, see ILM, 20 (1981), p 230.
In the course of the USA’s attempts to secure the overthrow, and arrest on drugs charges, of General Noriega, the military leader and effective ruler of Panama, the USA initiated various economic measures against Panama: see AJ, 82 (1988), pp 566–9, 571–7, 704. As to the military action eventually taken to secure the General’s overthrow and arrest, see § 130, n 14.
On US export controls generally, as a contribution to foreign policy, see the Export Administration Act 1979 (ILM, 18 (1979), p 1508); and Murphy and Downey, ICLQ, 30 (1981), pp 791–834; Carter, International Economic Sanctions (1989).
On the embargo on trade with South Africa, pursuant at least in part to action by UN organs, see § 132, n 4.
On the control of exports of products having a potential strategic value, operated by a number of western industrialised states through the Coordinating Committee on Export Controls (COCOM) established in 1949, see the Export Administration Act 1979 enacted in the USA (ILM, 18 (1979), p 1508), as amended by s 2401ff of the omnibus Trade and Competitiveness Act 1988 (ILM, 28 (1989), pp 399, 421), and Davis, Harv ILJ, 29 (1988), pp 547–51.
Developing countries may be particularly susceptible to economic forms of pressure: see GA Res 38/197 (1983) on economic measures as a means of political and economic coercion against developing countries, and successive resolutions in following years (eg GA Res 44/215 (1989)). These resolutions followed reports on the subject by the UN Secretary-General containing much useful material.
See generally on non-forcible, economic coercion and influence, Lillich (ed), Economic Coercion and the New International Economic Order (1976); Neff, Columbia Journal of Transnational Law, 20 (1981), pp 411–37; Nincic and Wallensteen, Dilemmas of Economic Coercion (1983); Dupuy, RG, 87 (1983), pp 505–43; various papers present ed at a Colloquium on ‘Economic Pressure and International Law’, Rev Belge (18 (1984–85), pp 5–245; Farer in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 121–31; de Guttry, Ital YBIL, 7 (1986–7), pp 169–89; Elagab, The Legality of Non-Forable Counter-Measures in International Law (1988); Damrosch, AJ, 83 (1989), pp 1–50; Carter, International Economic Sanctions (1989); and n 14 of this section.
14 On the question of responsibility for the boycotting of goods from a foreign country, see Walz, Nationalboykott und Völkerrecht (1939); H Lauterpacht, BY, 14 (1933), pp 125–40; Hyde and Wehle, AJ, 27 (1933), pp 1–10; Preuss, ibid, 28 (1934), pp 667, 668; Bouvé, ibid, pp 19–42; Friedmann, BY, 19 (1938), pp 142–45, and in AJ, 50 (1956), at pp 495–8; Rousseau, RG, 62 (1958), pp 5–25; papers by Maw, Moore, Reisman and Archer in AS Proceedings (1977), pp 170–92; Mersky (ed), Conference on Transnational Economic Boycotts and Coercion (1978). See also Remer, A Study of Chinese Boycotts (1933), and Willoughby, The Sino-Japanese Controversy and the League of Nations (1935), pp 604–22.
One of the most important recent boycotts has been that organised by certain Arab states against Israel: see generally Chill, The Arab Boycott of Israel (1976); Friedman, Harv ILJ, 19 (1978), pp 443–533. In 1946 the Council of the Arab League established a permanent boycott committee to implement its decision to boycott ‘Zionist’ goods and products. In 1951 the scope of the boycott was broadened to include a secondary boycott by Arab states of goods from non-Israeli industrial enterprises who were regarded as having given assistance to Israel: those firms were black-listed by the Central Boycott Office, and their products excluded from the Arab countries participating in the boycott. Either by law or by contract foreign firms trading with those countries were required to observe the boycott, not only in their activities in those countries but sometimes also in their dealings with blacklisted firms in third countries, including even their own. Such effects of the boycott within the territory of other states has been regarded by them as infringing their sovereignty (a reaction similar to that of many states to the extra-territorial effects of anti-trust laws, as to which see § 139). Some states have accordingly taken steps to prevent the application of the boycott within their own territories. Thus in the USA legislation was enacted in 1977 having the general effect of prohibiting US persons from complying with specified foreign boycott requirements: see Public Law 95-52 (ILM, 16 (1977), p 917), later incorporated into the relevant part of the Export Administration Act 1979 (ILM, 18 (1979), pp 1508,1517); see also implementing regulations and interpretations at ILM 17 (1978), pp 169, 198, 1136, 1141; ILM, 21 (1982), p 1121; and ILM, 22 (1983), pp 353, 359, 879; and see papers and discussion in AS Proceedings (1977), pp 170–96, and ibid (1978), pp 80–96; AJ, 72 (1978), pp 898–906; Pfeifer, Harv ILJ, 19 (1978), pp 349–72. See also ILM, 15 (1976), p 662 for similar legislation by the State of Maryland. See also US v Bechtel Corpn, ILM, 16 (1977), p 95; Briggs and Stratton Corpn v Baldridge, AJ, 77 (1983), p 310.
As to the British Government’s policy towards the Arab boycott of Israel (broadly to the effect that it is ‘against the introduction into commercial documents and transactions, of clauses and undertakings which are intended to restrict the commercial freedom of British firms to trade with all countries in the Middle East’), see Parliamentary Debates (Lords), vol 398, cols 1685–6 (19 February 1979); see also ibid, cols 422–34 (1 February 1979). As to the decision of the House of Lords not to proceed with a Foreign Boycotts Bill introduced in 1977, see Snyder, ICLQ, 29 (1980), pp 518–21. See also § 139, n 32.
15 Thus a number of states imposed various measures as a mark of disapproval of the Polish Government’s treatment of a Polish workers’ movement: see eg AJ, 76 (1982), pp 379–84 (as to US action); UKMIL, BY, 53 (1982), p 508 (as to UK action).
Similarly, various economic measures were taken by a number of countries against Argentina as a result of that state’s invasion of the Falkland Islands in 1982: see § 111, n 10.
Widespread measures were also taken by various states in response to Libyan acts of, or support for, international terrorism. See eg measures taken by the USA, at ILM, 25 (1986), pp 173–221; AJ, 80 (1986), pp 629–31, 948–51; Caras, Harv ILJ, 27 (1986), pp 672–9; RG, 90 (1986), pp 1005–7. For an unsuccessful attempt to uphold the operation in the UK of a US order freezing assets held abroad by US banks, see Libyan Arab Foreign Bank v Bankers Trust Co  3 All ER 252.
16 Eg various ‘sanctions’ imposed on Southern Rhodesia, South Africa and Iraq: see § 132, n 4.
17 But note that such action may be open to objection for other reasons. Thus in 1976 the Security Council, in Res 402, unanimously condemned any action by South Africa (such as the closure of border posts) designed to coerce Lesotho into recognising the independence of the Transkei, an independence earlier declared by the General Assembly to be ‘invalid’ and not to be recognised (see § 55, n 21).
18 Military and Paramilitary Activities Case, ICJ Rep (1986), p 108. In that case the ICJ held that support given by the USA to forces in Nicaragua fighting against the established government constituted unlawful intervention, that support consisting of financial support, training, supply of weapons, intelligence and logistic support: ibid, p 124. Humanitarian assistance does not constitute unlawful intervention, nor is it in any other way contrary to international law, if given without discrimination to all in need in the state in question and not merely to one side in the conflict: ibid, pp 124–5.
19 In the Military and Paramilitary Activities case the ICJ held that the supply of funds to opposition forces in another state, while not amounting to a threat or use of force, was ‘undoubtedly an act of intervention in the internal affairs of’ that state: ICJ Rep (1986), p 119. On non-military intervention generally, see Wright in The Relevance of International Law (eds) Deutsch and Hoffman, 1968). See also nn 13–16, as to various forms of economic and other pressure not amounting to intervention.
Note on Financial Intervention and Control: Intervention, or something very like it, has sometimes taken place for the purpose of rehabilitating the financial situation of a state which is insolvent or suffering from serious embarrassment. For some examples (and bibliography) from the period before 1939, see 8th ed of this vol, p 312, n 1.
The League of Nations, through its Financial Committee, did important work in assisting the financial reconstruction and rehabilitation of states whose finances had been plunged into chaos as the result of the First World War, or who for other reasons would have been unable to raise loans upon satisfactory conditions without the support of a powerful external authority. For details and literature on the subject, see the 7th ed of this vol, p 279, n.
Since the Second World War much of the task of assisting the financial reconstruction of states facing severe financial and economic troubles has been carried out through the IBRD and IMF, and other inter-governmental financial institutions established on a regional basis. The grant of assistance has often been made conditional on undertakings by the state assisted as to the future management of its economy, often severely limiting its freedom of action in that respect. On intervention in the form of conditions attached to the grant of aid, see Cardozo in Essays on Intervention (ed Stanger, 1964).
1 The Security Council has accepted that it is ‘the inherent and lawful right of every State, in the exercise of its sovereignty, to request assistance from any other state or group of states’: SC Res 387 (1976). See § n 16. The ICJ has accepted that ‘intervention … is already allowable at the request of the government of a State’: Military and Paramilitary Activities case, ICJ Rep (1986), p 126. See generally Doswald-Beck, BY, 56 (1985), pp 189–252; Ronzitti in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 147–66; Higgins, ibid, pp 446–7; Bokor-Szego, ibid, pp 469–70.
2 See § 131(5).
3 UK Contemporary Practice, V, pp 99–102 (ICLQ, 7 (1958)). The question of Oman was discussed in several subsequent years by the UN General Assembly, in the context of the principle of self-determination and the alleged unlawfulness of UK assistance to the Sultan. The UK consistently maintained that the Sultanate of Muscat and Oman was an independent state, entitled to request assistance from the UK which in turn was entitled in international law to provide it. See eg BPIL (1962), pp 146–50; UNYB (1962), p 146.
4 See UNYB (1958), pp 36–49; UK Contemporary Practice, VII, pp 148–56 (ICLQ, 8 (1959)); Potter, AJ, 52 (1958), pp 727–30; Wright, AJ, 53 (1959), pp 112–25.
5 See BPIL (1964), pp 22–3.
6 See ibid (1965), p 189.
7 See generally the literature cited at § 40, n 48, and § 127, nn 31 and 33, much of which considers the Vietnam conflict from the point of view of intervention. See also BPIL (1964), pp 20–21, and ibid (1965), pp 9–11.
8 See Mitchell, YB of World Affairs (1972), pp 152–86, especially pp 168ff. For a statement of the French Government’s principles in this context, see RG, 83 (1979), pp 1036, 1047–8.
9 See AFDI, 30 (1984), pp 1023–7; Alibert, RG, 90 (1986), pp 345, 374ff. See generally as to the situation in Chad, involving also intervention by Libya, RG, 85 (1981), pp 586–8, 88 (1984), pp 288–92, and 89 (1985), pp 477–82; Alibert, loc cit, pp 345–406; Cot in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 167–78).
10 See RG, 83 (1979), pp 202–8, and § 131, n 13. As to the policy of France to intervene in a foreign state only at the request of its recognised government, see RG, 83 (1979), p 171.
11 See RG, 82 (1978), p 627.
12 See the India-Sri Lanka Agreement of 29 July 1987, ILM, 26 (1987), p 1175, at p 1181; Lewin, AFDI, 33 (1987), pp 95–105; Arulpragasam, Harv ILJ, 29 (1988), pp 178–84.
13 See statement by the Indian Prime Minister in the Indian Parliament on 4 November 1988.
14 Such questions arose for example when the Soviet Union sent its forces into Hungary in 1956 (see Wright, AJ, 51 (1957), pp 257–76; International Commission of Jurists, The Hungarian Situation and the Rule of Law (1957); GA Res 1004, 1005 and 1006 (ES-II) (1956), 1131 (XI) (1956), and 1133 (XI) (1957); Report of the UN Special Committee on the Problem of Hungary (1957), UN Doc A/3592 — and see also § 127, n 23; Fawcett, Hag R, 103 (1961), ii, pp 383–91; SzikszÓy, The Legal Aspects of the Hungarian Question (1963); Whiteman, Digest, 2, pp 398–400); and when Soviet forces entered Czechoslovakia in 1968 (see § 133, n 10).
Similarly the entry of Soviet forces into Afghanistan in 1979 was allegedly preceded by a request from Afghanistan, in circumstances involving the virtually contemporaneous deposition and execution of the previous President and his replacement by a new President who was at the time not even in Afghanistan. See GA Res ES-6/2 of 14 January 1980; RG, 84 (1980), pp 826–46; AFDI, 26 (1980), pp 870–4; UNYB (1980), pp 296–309; Reisman, AJ, 81 (1987), pp 906–9; Reisman and Silk, AJ, 82 (1988), pp 459–86. Soviet forces finally withdrew from Afghanistan in February 1989, pursuant to agreements concluded the previous year: see ILM, 27 (1988), pp 577–95; RG, 92 (1988), pp 673–6; Ghebali and L’Homme, AFDI, 34 (1988), pp 91–107.
As to the landing of US forces in Grenada in 1983, see Audéoud, AFDI, 29 (1983), pp 217–28; Gilmore, The Grenada Intervention (1984); Joyner, AJ, 78 (1984), pp 131–44; Moore, ibid, pp 145–68; Vagts, ibid, pp 169–72; statements on behalf of the US Government at ibid, pp 200–204, 661–5; statements in the British Parliament, UKMIL, BY, 54 (1983), pp 528–9; Doswald-Beck, Neth ILR, 31 (1984), pp 355–77; RG, 88 (1984), pp 484–90; Levitin, Harv ILJ, 27 (1986), pp 621, 642–51; Weiler in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 241–68; Davidson, Grenada (1987).
The landing of US forces in Panama in December 1989, aimed at securing the arrest of General Noriega, the military leader and effective ruler of Panama, was in part justified on the basis of US action having been taken with the consent of the constitutional authority in Panama (other grounds advanced in justification of the US action included self-defence, the need to restore democracy in Panama in the face of arbitrary refusal to honour election results, the need to defend the Panama Canal, and the need to protect US military and other personnel). General Noriega had set aside the results of elections in Panama which had resulted in the election of Guillermo Endara as President; US forces acted with the tacit consent of Endara, whose swearing in as President was arranged within hours of the landing of US forces. See generally RG, 94 (1990), pp 493–6, 786–7; AJ, 84 (1990), pp 545–9, for official statements by the US Government; Nanda, ibid, pp 494–503; Farer, ibid, pp 503–15; D’Amato, ibid, pp 516–24; Quigly, Yale JIL, 15 (1990), pp 276–315. Although a Security Council resolution condemning the US action as a ‘flagrant violation of international law’ was not adopted because of the veto cast by three states (SC debates, 23–24 December 1989), an equivalent resolution was subsequently adopted by the General Assembly on 29 December by 75 votes to 20, with 40 abstentions (GA Res 44/240). For the background to these events, involving the taking of various economic measures against Panama, see § 129, n 13, para 6; and for other aspects of the matter, concerning failure to respect the status of diplomatic premises, see § 495, n 8.
15 See AJ, Suppl 22 (1928), pp 118–24, on the request, in May 1927, by the Government of Nicaragua to the US Government for assistance and good offices in order to ensure free and impartial elections in Nicaragua.
16 On intervention by invitation in general, see E Lauterpacht, ICLQ, 7 (1958), pp 102–8; Brownlie, International Law and the Use of Force by States (1963), pp 321–7. See also Higgins in The Future of the International Legal Order, vol 3 (eds Black and Falk, 1971), pp 93–106. See on the principle of non-intervention in civil wars generally, Schindler, Annuaire, 55 (1973), pp 416–573, and ibid, 56 (1975), pp 119–33, followed in each case by comments by various members of the Institute of International Law; Chimni, Indian JIL, 20 (1980), pp 243–64; Akehurst, ibid, 27 (1987), pp 357, 365–74; Art 1(1) of the Inter-American Convention on the Rights and Duties of States in the Event of Civil Strife 1928 (BFSP, 128 (1928), p 514), and Res 78 adopted by the General Assembly of the OAS in 1972 (cited by the ICJ in the Military and Paramilitary Activities Case, ICJ Rep (1986), p 102).
For a legal history of US involvement in civil wars in Latin America, much of which probably constituted intervention, see Kane, Civil Strife in Latin America (1972); and see RG, 88 (1984), pp 657–74. See generally on civil war, § 49, n 2.
On the regulation of exports of munitions, in particular in connection with foreign civil wars, see Atwater, American Regulation of Arms Exports (1941). See also AJ, 25 (1931), p 125, for the pronouncement by the US Secretary of State on 23 October 1930, in connection with the revolution in Brazil.
As to the so-called Non-intervention Agreement of August 1936, between various European states in connection with the Civil War in Spain, see Lapradelle, New Commonwealth Quarterly, ii (1936), pp 295–308, and RI (Paris), 18 (1936), pp 153 et seq; Dean, Geneva Special Studies, vii, No 8 (1936); Jessup, Foreign Affairs (USA), January 1937; Garner, AJ, 31 (1937), pp 66–73; Smith, BY, 18 (1937), pp 17–31; Scelle, Friedenswarte, 37 (1937), pp 65–70; McNair, LQR, 53 (1937), pp 471–500; Padelford, AJ, 31 (1937), pp 226–43. That Agreement, and the subsequent arrangements and agreements, while of importance as instances of the possibilities and limitations of ad hoc international cooperation in political matters affecting the peace of the world, cannot be easily brought within the then accepted principles of international law in the matter of intervention. Inasmuch as Italy and Germany undertook not to supply the rebellious forces with munitions of war, these agreements consisted in an undertaking on the part of certain powers to refrain from committing an international illegality in consideration of the promise of other powers to refrain from acting in a manner in which they were entitled — and, according to some, legally bound — to act. See, on intervention in the Spanish Civil War generally, Toynbee, Survey (1937), ii; Vedovato, Il non intervento in Spagna (1938); Padelford, International Law and Diplomacy in the Spanish Civil Strife (1939); Rousseau, RI, 3rd series, 19 (1938), pp 217–93, 473–549, 700–75, and 20 (1939), pp 114–49; Scelle, RG, 45 (1938), pp 265–74, 473–549, and 46 (1939), pp 197–228; Raestad, ibid, pp 613–37, 809–26; Thomas and Thomas in The International Law of Civil War (ed Falk, 1971), pp 113–20.
17 Outside states will in particular be under obligations to abstain from interference if the rebels have been granted recognition of insurgency or belligerency, as to which see § 49. See also § 122, as to obligations resting upon states to refrain from action encouraging activities calculated to foment civil strife in another state, which have obvious application to aid to rebels in another state.
18 In any case, a request to intervene made by the opposition within a state is insufficient to make the intervention lawful: Military and Paramilitary Activities Case, ICJ Rep (1986), p 126.
See generally Brownlie, International Law and the Use of Force by States (1963), pp 321–7; Rosenau (ed), International Aspects of Civil Strife (1964); Pinto, Hag R, 114 (1965), i, pp 476–99; Hyde, i, p 253; Higgins, The Development of International Law through the Political Organs of the United Nations (1963), pp 210–13; Leurdijk, Neth ILR, 24 (1977), pp 143–59; and literature cited at § 49, n 2, as to civil war generally.
19 Thus in Angola in 1975–76 two liberation movements, each having by armed force struggled to oust the Portuguese colonial administration, then fought each other for eventual supremacy in the country. Armed forces from Cuba, and military equipment from the Soviet Union, supported one side (the MPLA), while the other (a combination of two previously separate liberation movements, the FNLA and UNITA) was supported by mercenaries from other countries; and there was also occasional involvement by South African forces (on which see SC Res 387 (1976)). See generally on the events in Angola, RG, 80 (1976), pp 554–74; Bothe, ZöV, 37 (1977), pp 572–602; UNYB (1976), pp 171–8. The withdrawal of Cuban forces from Angola was eventually agreed in 1988, to be completed by 1 July 1991 (ILM, 28 (1989), p 944; UN Doc S/20345 of 22 December 1988). On foreign intervention in Africa generally, see Legum, YB of World Affairs, 34 (1980), pp 76–94, and 35 (1981), pp 23–36.
20 See also § 85. Associated aspects of the same issue include (1) the right of a liberation movement to use force to achieve its aims (see § 85, n 26 and § 217, n 10); (2) its right to seek assistance from third states (see § 85, n 27 and § 131 (4)) and (3) their right to respond positively to such a request (ibid); (4) the right of the parent state to use force to resist the liberation movement (see § 127, n 10 and § 130, nn 20–22); and (5) the international status of the liberation movement, and die question of recognition (see § 49).
21 GA Res 2625 (XXV) (1970), para 7 of the elaboration of the first principle.
22 See § 85, n 27, as to assistance to Portugal. On aid to France against the Algerian rebel movement, and unsuccessful attempts to argue that other states must not aid states resisting self-determination, see McNemar in International Law of Civil War (ed Falk, 1971), pp 215–18.
See also, generally, Ronzitti in Current Problems of International Law (ed Cassese, 1975), pp 319–54; Falk in Intervention in World Politics (ed Bull, 1984), pp 119–33; Rubino in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 133–45; Higgins in ibid, pp 448–50.
1 The Court said: ‘The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organisation, find a place in International Law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice.’ (ICJ Rep (1949), p 35). It is not clear whether the ‘alleged right of intervention’ refers to intervention generally or to intervention ‘in the particular form’ adopted by the UK. The Court recognised that the attitude of Albania constituted an extenuating factor in the case. See also Brownlie, International Law and the Use of Force by States (1963), pp 288–9; and below, at nn 28, 29.
2 ICJ Rep (1986), p 14.
3 Ibid, pp 26–8. See also the judgment on jurisdiction in this case, ICJ Rep (1984), pp 431–6.
4 Formerly it was asserted that states had certain rights of intervention in order to secure the observance by other states of universally accepted rules of international law, or of their treaty obligations (see eg the 8th ed of this vol, pp 307–8). Such intervention was said to be in the interest of the whole international community, it being the right of states (particularly leading states) to act in support of that interest. Such action, accordingly, had something of the character of ‘police’ action: that term was in fact used in, for example, the so-called Roosevelt Corollary of 1904 (for text see AJ, 69 (1975), p 383, n 2). Whatever may have been the justification for such intervention in the past, it can no longer be justified, the responsibility for such ‘police’ action now resting with those organs which, within the framework of the UN, can be authorised to act in the collective interest (see § 132). As to whether, in the event of an unlawful intervention by State A in the affairs of State B, State C may take counter-measures against State A which would otherwise constitute an unlawful intervention in its affairs, see Military and Paramilitary Activities Case, ICJ Rep (1986), pp 110–11, 127.
5 See § 410.
As to the limits upon the use of force for the protection of nationals abroad, see Bowett, Self-Defence in International Law (1958), pp 87–105, and Grotius Society, 43 (1957), pp 111–26; Brownlie, International Law and the Use of Force by States (1963), pp 289–301; Hyde, i, pp 646–9; Akehurst, International Relations (May 1977), pp 3–23; Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity (1985); Bowett in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 39–55. Note also the possibility that in certain circumstances the situation in which a state’s nationals abroad may be placed may be such as to constitute an armed attack on that state, so giving rise to a right for it to take action in self-defence (see § 127, and note particularly n 16). There may also be justification for action to protect nationals abroad on the basis of humanitarian intervention (see n 17).
In November 1964 a British minister stated in Parliament that ‘we take the view that under international law a State has the right to land troops in foreign territory to protect its nationals in an emergency if necessary’: Parliamentary Debates (Commons), vol 702, col 911.
For the landing of British troops in China in 1927 for the protection of British subjects, see LN Monthly Summary (7 March 1927), p 48.
As to the possibility of extending the right to intervene for the protection of nationals so as to apply also to ‘kith and kin’, see Dugard, ICLQ, 16 (1967), pp 177–87, and (in connection with the Soviet invasion of Poland in 1939) Ginsburgs, AJ, 52 (1958), pp 76–8.
6 See ICLQ, 6 (1957), pp 325–30; and see generally § 132, n 2.
7 See § 130, n 4.
8 See UNYB (1960), p 52ff; McNemar in The International Law of Civil War (ed Falk, 1971), pp 272–3.
9 See UNYB (1964), pp 95–100; BPIL (1964), pp 130–33.
10 See § 133, n 9.
11 See UNYB (1976), pp 315–20; ILM, 15 (1976), pp 1224–34; Margo, South African LJ, 94 (1978), p 306; Murphy in Legal Aspects of International Terrorism (eds Evans and Murphy, 1978), p 554ff; Digest of US Practice 1976, pp 149–54; AJ, 73 (1979), pp 122–4; Boyle, Neth ILR, 29 (1982), pp 37–71.
13 See Parliamentary Debates (Commons), vol 951, cols 336–7 (written answers, 12 June 1978); AJ, 72 (1978), pp 917–20; RG, 83 (1979), pp 202–8; Manin, AFDI, 24 (1978), pp 159–88; ibid, pp 1087–90. Assistance had been requested by the Government of Zaire.
14 See § 130, n 14, para 3.
15 Occasionally the need to protect property has been advanced in justification of action taken, eg by the UK in landing armed forces in Egypt in 1956 (see n 6), and by South Africa in 1976 when sending forces into Angola to protect the Calueque Dam and construction site which were vital to the economy of part of Namibia (then under South African control) (see Bothe, ZöV, 37 (1977), at pp 578–80; RG, 80 (1976), at p 565; UNYB (1976), pp 172, 175.
As to debts owed by a state to foreign states and their nationals, intervention is no longer permissible to secure the payment of such debts. This was not formerly so. The matter assumed some importance at the beginning of the 20th century in the context of the so-called Drago Doctrine, which asserted that intervention was not allowed for the purpose of making a state pay its public debts. The rule did not at the time receive general recognition, although Argentina and some other South American states tried to establish it at the second Hague Peace Conference of 1907. But this Conference adopted, on the initiative of the USA, a ‘Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts’. According to Art 1 of this Convention, the contracting powers agreed not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its nationals. This undertaking was, however, not applicable when the debtor state refused or neglected to reply to an order of arbitration or, after accepting the offer, rendered the settlement of the compromis impossible, or, after the arbitration, failed to submit to the award. It must be emphasised that the stipulations of this Convention concerned the recovery of all contract debts, whether or not they arose from public loans. Louis M Drago was sometime Foreign Secretary of the Republic of Argentina. See Drago, Cobro coercitivo de deudas publicas (1906); Barclay, Problems of International Practice, etc (1907), pp 115–22; Moulin, La Doctrine de Drago (1908); Vivot, La Doctrina Drago (1911); Borchard, §§ 119–26, 371–78, and pp 861–64, and State Insolvency and Foreign Bondholders, 2 vols (1951); Higgins, The Hague Peace Conference, etc (1909), pp 184–97; Scott, The Hague Peace Conference (1909), i, pp 415–22; and AJ, 2 (1908), pp 78–94; Calvo, RI, 2nd series, 5 (1903), pp 597–623; Drago, RG, 14 (1907), pp 251–87; Moulin, RG, 14 (1907), pp 417–72; Hershey, AJ, 1 (1907), pp 26–45; Drago, AJ, 1 (1907), pp 692–726; Spielhagen, ZI, 25 (1915), pp 509–65; Dupuis, Le Droit des gens et les rapports des grandes puissances (1921), pp 270–82; Fischer Williams in Bibliotheca Visseriana, ii (1924), pp 1–55, and Chapters, pp 257–324; Scelle, ii, pp 121–28. With regard to state responsibility for the non–payment of contract debts and damages, see § 408.
17 See generally, Grotius, ii, 20, 38; Vattel, ii, 4, 56; Westlake, i, pp 319, 320. See also Stowell, pp 51–194 and AJ, 30 (1936), pp 102–6; Fauchille, i, pp 510–12; Martens, ii, pp 109, 110; Bluntschli, p 270; Janovsky and Fagen, International Aspects of German Racial Policies (1937), pp 1–43; Aroneanu, Revue international de droit pénal, 19 (1948), pp 173é244; Whiteman, Digest, 12, pp 204é15; Green, Current Legal Problems, 8 (1955), pp 162, 167–73; Ganji, International Protection of Human Rights (1962); Lillich, Iowa Law Rev, 53 (1967), pp 325–51; ILA Report (54th Conference, 1970), pp 633–41, (55th Conference, 1972), pp 608–24, and (56th Conference, 1974), pp 217–21; Lillich (ed), Humanitarian Intervention and the United Nations (1973); Sohn and Buergenthal, International Protection of Human Rights (1973), ch III; Franck and Rodley, AJ, 67 (1973), pp 275–305; Gerson, Harv ILJ, 18 (1977), pp 525, 550–5; Arangio-Ruiz, Hag R, 157 (1977), iv, pp 199–328 (with particular reference to non-intervention in the context of the human rights provisions of the Helsinki Final Act 1975); Akehurst in Intervention in World Politics (ed Bull, 1984), pp 95–118; Donnelly, Journal of International Affairs, 37 (1984), pp 311–28; Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity (1985); Verwey, Neth ILR, 32 (1985), pp 357–418, and in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 57–78; Tesón, Humanitarian Intervention (1988); Rodley, ICLQ, 38 (1989), pp 321–33. See Brownlie, International Law and the Use of Force by States (1963), pp 338–42, for the conclusion that it is ‘extremely doubtful whether a right of humanitarian intervention still survives’. As to the protection of human rights in general, see §§ 425–44, and see also § 397, n 4.
18 Thus Great Britain, France, and Russia intervened in 1827 in the struggle between revolutionary Greece and Turkey when public opinion reacted with horror to the cruelties committed during the struggle. Intervention was often resorted to in order to put a stop to the persecution of Christians in Turkey. As to the French intervention in Syria in 1860–61, see Pogany, ICLQ, 35 (1986), pp 182–90.
The policy of apartheid exercised by South Africa is widely accepted as raising issues in which other states have, on humanitarian grounds, a lawful interest. But there are wide differences of opinion as regards the action which may lawfully be taken in pursuance of that interest: for the view that the use of force against South Africa in the context of bringing to an end the system of apartheid could be justified as humanitarian intervention, and as such a tacit exception to Art 2(4) of the Charter, see Rao in New Horizons of International Law and Developing Countries (eds Agrawala, Rao and Saxena, 1983), p 24. On apartheid generally, see § 439.
India in part justified its military intervention in Bangladesh in 1971–72 on humanitarian grounds: see Review of the International Commission of Jurists, June 1972, pp 57–62; Franck and Rodley, AJ, 67 (1973), pp 275–305. Tanzanian support for the overthrow of President Amin of Uganda in 1978–79 may also be seen as an example of humanitarian intervention justified by the cruelties of President Amin’s regime: see Chatterjee, ICLQ, 30 (1981), pp 755–68. As to the possible right to overthrow a despotic regime in another country, see the opposing views of Reisman, and Schachter, in AJ, 78 (1984), pp 642–5, 645–50. As to covert civil operations to airlift a large number of Jews from Ethiopia to Israel in 1984–85 see Aaron, Harv ILJ, 26 (1985), pp 585–93.
Elements of humanitarian intervention can be seen in the action, beginnning in April 1991, of certain states (primarily the USA, with units from several other states, including the UK) in certain border areas of northern Iraq in order to provide emergency aid to large numbers of Kurdish refugees, fleeing after a failed insurrection against the government of Iraq. The situation of the refugees, and the pressures on the borders of neighbouring states, prompted the Security Council to condemn the repression by Iraq of the Iraqi civilian population and to insist that Iraq allow immediate humanitarian access: SC Res 668 of 5 April 1991. Overflights by British and US military aircraft delivering supplies were followed by the entry of military units from a number of states into northern Iraq to establish (and if necessary defend) locations where refugees could be offered assistance in safety. Iraq was at the outset told not to use its military forces against the refugees, or to use aircraft or helicopters in Iraq north of the 36th parallel, and was later told to withdraw forces whose deployment in particular areas was threatening to the refugees’ security. The USA and other states emphasised that their actions were solely humanitarian, were temporary, and were not directed against Iraq’s sovereignty or security. Iraq’s attitude was ambivalent, formally protesting at the infringement of its sovereignty (eg UN Doc S/22459 of 8 April, S/22513 of 22 April and S/22531 of 25 April 1991), but not resisting the action taken and in substance acquiescing. The US and other military personnel later withdrew as their relief and protective roles were taken over by UN personnel. These various events need to be seen against the background of the international community’s firm response to Iraq’s aggression against Kuwait in 1990: see § 127, n 44.
If humanitarian intervention is ever to be justified, it will only be in extreme and very particular circumstances. Crucial considerations are likely to include whether there is a compelling and urgent situation of extreme and large-scale humanitarian distress demanding immediate relief; whether the territorial state is itself incapable of meeting the needs of the situation or unwilling to do so (or is perhaps itself the cause of it); whether competent organs of the international community are unable to respond effectively or quickly enough to meet the demands of the situation; whether there is any practicable alternative to the action to be taken; whether there is likely to be any active resistance on the part of the territorial state; and whether the action taken is limited both in time and scope to the needs of the emergency. In short, it would have to be peaceful action (which need not exclude it being carried out by military personnel) in a compelling emergency, where the transgression upon a state’s territory is demonstrably outweighed by overwhelming and immediate considerations of humanity and has the general support of the international community.
The declaration issued at the end of the London Economic Summit 1991 included the following passage: ‘We note that the urgent and overwhelming nature of the humanitarian problem in Iraq caused by violent oppression by the Government required exceptional action by the international community, following UNSCR 688. We urge the UN and its affiliated agencies to be ready to consider similar action in the future if the circumstances require it. The international community cannot stand idly by in cases where widespread human suffering from famine, war, oppression, refugee flows, disease or flood reaches urgent and overwhelming proportions.’
20 See § 132.
21 However, other grounds justifying intervention (eg particularly the protection of nationals) may have a strong humanitarian element. Furthermore, the interest of all states in matters of human rights is accepted as justifying diplomatic representations sometimes made by a state on humanitarian grounds in respect of non-nationals, even though the state acknowledges that formally it may have no locus standi: see § 411, n 10.
22 See § 433.
23 See § 433.
24 See Art 2(7). But it must be noted that, possibly, to the extent to which ‘human rights and fundamental freedoms’ have become a persistent feature, partaking of the character of a legal obligation, of the Charter (see § 433) they may have ceased to be a matter which is essentially within the domestic jurisdiction of states.
25 See § 125, n 18.
28 See § 119, n 8. For comment on the judgment, see Waldock, Hag R, 81 (1952), ii, pp 499–503; Wilhelm, Ann Suisse, 15 (1958), pp 116–30.
29 On the right to seize evidence located within another state, see Nasim Hasan Shah, AJ, 53 (1959), pp 594–612; and on the admissibility of illegally obtained evidence, see § 119, n 16, final para. It may be noted that, since international tribunals do not normally have the power to insist upon the production of evidence or to subpoena a witness, a right for a state itself to take action necessary to collect vital evidence may persuasively be argued.
30 Associated aspects of the same issue include (1) the right of a liberation movement to use force to achieve its aims (see § 85, n 26 and § 127, n 10); (2) its right to seek assistance from third states (see also § 85, n 27); (3) the right of the parent state to use force to resist the liberation movement (see § 127, n 10 and § 130 at nn 20–2); (4) its right to seek assistance from third states (see § 130, nn 20–2), and (5) their right to respond positively to such requests (see ibid); and (6) the international status of the liberation movement, and the question of recognition (see § 49).
Apart from the assistance given to ‘liberation movements’ in colonial territories in Africa, mention should be made of India’s representation of its military action in support of the emerging State of Bangladesh in 1971–72 as assistance to the people of the country in exercising their right of self-determination: see literature cited at § 85, n 31.
Considerations of self-determination did not, however, prevent the Soviet Union intervening in Hungary in 1956 (see § 53, n 14) and in Czechoslovakia in 1968 (see § 133, n 10) in order to reverse the wishes of the lawful government which had popular support for the policies it was adopting. The events in Czechoslovakia led to the formulation by the Soviet Union of the so-called ‘Brezhnev Doctrine’: see § 133, n 11.
Vietnam justified its intervention in Kampuchea in 1978–79 by (in part) relying on the duty to afford support to a national liberation movement (led by Heng Samrin, whose regime eventually established itself in power in Kampuchea) seeking to assert its rights against the Government of Kampuchea led by Pol Pot but under the power of an external state, namely China: see UN Doc A/34/559 of 12 October 1979, and UNYB (1979), pp 271–9; and Isoart, RG, 87 (1983), pp 42–104. Vietnam also invoked the rights of self-defence and humanitarian intervention, and an agreement with the Heng Samrin ‘Government’. See also § 45, n 6 and § 53, n 13.
31 See examples cited, § 85, nn 25–8. See also Gerson, Harv ILJ, 18 (1977), pp 525, 548–50.
32 GA Res 3314 (XXIV) (1974), para 7. If the right of national liberation movements to request assistance provides justification to third states to supply it, the ICJ’s observation as to the inadequacy of requests for assistance from opposition factions within a state (see § 130, n 18) needs qualification. The ICJ, however, made clear generally that it was not concerned with a colonial situation: ICJ Rep (1986), p 108 (para 206).
33 See § 85.
35 See § 129, n 18.
36 But see § 129, n 5.
37 Thus Art 7 of the US-Panama Treaty 1903, provided that ‘the same right and authority are granted to the United States for the maintenance of public order in the cities of Panama and Colon, and the territories and harbours adjacent thereto, in case the Republic of Panama should not be, in the judgment of the United States, able to maintain such order’: see Martens, NRG, 2nd series, 31 (1905), p 599, and Jones, The Caribbean Since 1900 (1936), pp 339–52.
As to intervention pursuant to treaty by the USA in Cuba in 1906 and in Panama in 1904, see the 8th ed of this vol, pp 307–8, where certain other treaty provisions of this kind are also referred to. See also Art 6 of the Treaty between the Soviet Union and Persia concluded in 1921 (LNTS, 9, p 400): this Article was denounced by Iran in 1979 (see RG, 84 (1980), p 653; Reisman, AJ, 74 (1980), pp 144–54). As to the ‘primary responsibility’ of the USA for the defence of the Panama Canal see Art IV of the Panama Canal Treaty 1977 (ILM, 16 (1977), p 1022), and § 186. See generally Brownlie, International Law and the Use of Force by States (1963), pp 318–21.
38 See §§ 81–3.
39 But this has not been generally recognised; see, for instance, Hall, § 93, who denied the existence of such a right. It is difficult to see why a state should not be able to undertake the obligation to retain a certain form of government or dynasty. That historical events can justify such state in considering itself no longer bound by such treaty according to the principle rebus sic stantibus (see §§ 651) is another matter. See § 667–8, on treaties of guarantee in general.
40 That Treaty provided that ‘Greece, under the sovereignty of Prince William of Denmark and the guarantee of the three Courts, forms a monarchical, independent, and constitutional State’. See Martens, NRG, 17, pt ii, p 79; and Ion, AJ, 11 (1917), pp 46–73, 327–57, and AJ, 12 (1918), pp 312–37.
41 TS No 5 (1961). Note, however, GA Res 2077 (XX) (1965), and comment by Schwelb, AJ, 61 (1967), at pp 952–3. As to the action of the three guarantor states in December 1963 in providing joint armed forces, under British command, to assist the Government of Cyprus, at its invitation, in restoring order in Cyprus after an outbreak of inter-communal disturbances, see BPIL (1963), pp 3–11.
In July 1974 a coup in Cyprus established for a short period a pro-Greek regime in the island. Turkey, claiming to be acting under the Treaty of Guarantee, thereupon invaded Cyprus and occupied part of the Island, which part subsequently purported to establish itself as the Turkish Federated State of Cyprus: see § 55, n 15. While the circumstances probably justified the guarantor states in taking some action by way of intervention in the affairs of Cyprus, it is doubtful whether the particular action taken by Turkey was in accordance with Art IV of the Treaty of Guarantee.
1 This point was perhaps not sufficiently appreciated by Loewenstein, Political Reconstruction (1946), pp 14–85 — a work otherwise notable for a valuable criticism of the traditional doctrine of non-intervention. See on collective intervention, Luard in Intervention in World Politics (ed Bull, 1984), pp 157–79.
2 Thus it would be wrong to treat as intervention the activities of UN forces in, for example, Korea, Egypt, the Congo and Cyprus, or those of British naval vessels on the Beira patrol pursuant to SC Res 221 (1966) (see § 55, n 8). More controversial, however, was the lawfulness of the claim of the British and French Governments in 1956, at the time of landing forces along the Suez Canal, that they were doing so as a ‘police action’ to protect a canal of vital importance to the international community, for whose protection immediate action was necessary which only they were in a position to take. See generally on the Suez incident UNYB (1956), pp 25–45; Wright, AJ, 51 (1957), pp 257–76; Fawcett, Hag R, 103 (1961), ii, pp 391–409; Henkin, Hag R, 114 (1965), i, pp 236–50.
It will be noted that the successive affirmations, on the part of American states, of the prohibition of intervention refers to intervention by states acting individually. The Convention of 1933 on Rights and Duties of States signed at the Seventh International Conference of American States laid down that ‘no State has the right to intervene in the internal and external affairs of another’ (Art 8): LNTS, 165, p 19. In the Additional Protocol Relative to Non-Intervention, adopted in 1936 at the Inter-American Conference for the Maintenance of Peace, the Parties declared ‘inadmissible the intervention of any of them … in the internal or external affairs of any other of the Parties’ (Art 1): International Conferences of American States, First Suppl 1933–40 (1940), p 191. In the Act of Chapultepec adopted on 3 March 1945, the American states reaffirmed their condemnation of intervention ‘by a State in the internal or external affairs of another’ (AJ, 39 (1945), Suppl, p 108). At the same time the main purpose of the Act was to give expression to the principle and the obligations of collective security in a manner which, but for its collective character, would be tantamount to intervention. See also the suggestive observations by Fenwick in AJ, 39 (1945), pp 645–63, on the decisive difference between individual intervention and collective action; see also Murdock, AJ, 56 (1962), pp 500–503. Article 15 of the Charter of the OAS 1948 prohibited intervention by any ‘State or group of States’, but Art 19 went on to exclude from that prohibition measures adopted for the maintenance of peace and security in accordance with existing treaties, thus still allowing certain measures of collective intervention: UNTS, 119, p 49. On intervention under the Charter of the OAS, see Thomas and Thomas, Non-Intervention: The Law and its Import in the Americas (1956), and Dihigo and Travers in AS Proceedings, 51 (1957), pp 91–100 and 100–110.
3 See § 129, nn 13–19.
4 As to the embargo on sales of arms to South Africa, see SC Res 418 (1977); see also SC Res 558 (1984), and 591 (1986). A Committee to oversee the implementation of the arms embargo was established by SC Res 421 (1977). A more extensive embargo on trade with South Africa has often been recommended by GA resolutions, eg (from many such resolutions) GA Res 1761 (XVII) (1962), 2671 F (XXV) (1970) and 40/64 (1985); see also, for extensive ‘sanctions’ imposed by the USA in the Comprehensive Anti-Apartheid Act 1986, AJ, 81 (1987), pp 201–5; ILM, 26 (1987), p 77; and Walker, Harv ILJ, 28 (1987), pp 117–222. Apart from any sanctions against South Africa which they might have introduced unilaterally, most Commonwealth governments applied certain sanctions pursuant to the Commonwealth Accord agreed at the Nassau meeting of Commonwealth Heads of Government in 1985: Commonwealth YB (1986), p 47. See also Barrie, AJ, 82 (1988), pp 311–14; Szasz, ibid, pp 314–18; RG, 90 (1986), pp 945–51, and 91 (1987), pp 916–17 and 1306; UKMIL, BY, 58 (1987), pp 631–3; Roeser, Germ YBIL, 31 (1988), pp 574–94.
See § 55, n 8, as to trade sanctions imposed pursuant to UN resolutions at the time of Rhodesia’s illegal declaration of independence in 1965.
Upon Iraq’s aggression against Kuwait on 2 August 1990 many other states immediately imposed a ‘freeze’ on Kuwaiti assets in their territories (to protect them from Iraqi control) and on Iraqi assets, without waiting for any authorisation from the Security Council. A few days later such authorisation was forthcoming in SC Res 661, imposing extensive trade sanctions, followed by SC Res 665, providing for the maritime enforcement of those sanctions. See generally above, § 127, n 44.
5 Article 2(6). See § 627.
6 See generally the 8th ed of this vol, § 168f, and vol II (7th ed), § 25gc; and Goodrich, Hambro and Simons, Charte of the United Nations (3rd ed, 1969), pp 60–72; Cot and Pellet, La Charte des Nations Unies (1985), pp 141–60; Trinidade, ICLQ, 25 (1976), pp 715–65; Simma (ed), Charta der Vereinten Nationen (1991), pp 100–14.
7 See § 433. See also Wright, AJ, 50 (1956), pp 102–10, to the effect that discussion of events in the UN does not constitute intervention. See also § 433, at n 12, and n 21, as to discussion in the UN of questions of human rights arising in member states.
8 See § 130, n 9.
9 See § 130, n 14, para 3.
1 For a fuller treatment of the Monroe Doctrine, and an extensive bibliography, see 8th ed of this vol, § 138. In more recent years the US has invoked the Monroe Doctrine in its relations with Cuba: see RG, 66 (1962), pp 769, 772.
2 See Fenwick, AJ, 33 (1939), pp 257–68; Wilcox, American Political Science Review, 36 (1942), pp 434–53. In the Declaration of Lima the American states proclaimed their common concern and their determination to make effective, by consultation and otherwise, their solidarity in case the peace, security or territorial integrity of any American republic should be threatened by foreign intervention or activity. This step in the direction of what may be regarded as an extension of the Monroe Doctrine was tempered by the qualification that the ‘Governments of the American Republics will act independently in their individual capacity, recognising fully their juridical equality as sovereign States’: AJ, 34 (1940), Suppl, p 200.
4 Ibid, p 373.
The Act, in anticipation of the forthcoming Charter of the United Nations, described the declaration in question as a regional arrangement not inconsistent with the purposes and the principles of the general organisation. The Act of Chapultepec was reaffirmed and its provisions rendered more effective in the Treaty of Rio de Janeiro of 2 September 1947 (as to which see § 665).
6 AJ, 48 (1954), Suppl, p 123; see also Fenwick, ibid, pp 451–3.
8 See § 224, n 4. Note also the action taken by the OAS in 1964 against Cuba, including the imposition of certain sanctions, as a result of Cuban intervention in Venezuela: see ILM, 3 (1964), p 977.
9 See the Resolution of 6 May 1965 adopted by the Tenth Meeting of Consultation of Ministers of Foreign Affairs of the OAS (AJ, 59 (1965), pp 987–8); UNYB (1965), pp 140–55; BPIL (1965), pp 11–18, 120–21; Fenwick, AJ, 60 (1966), pp 64–7; Bohan, ibid, pp 809–12; Dupuy, Ann Français, 11 (1965), pp 71–110; RG, 69 (1965), pp 1117–35; McLaren, Can YBIL, 4 (1966), pp 178–93; Akehurst, BY, 42 (1967), pp 175, 203–13; Slater, Intervention and Negotiation (1970).
Similar fears of Communist penetration in Guatemala underlay the reaction of the OAS in 1954 to the invasion of Guatemala by insurgent forces from Honduras (see § 122, n 32).
10 See ILM, 7 (1968), pp 1265–1340; Bergmann, Self-Determination: The Case of Czechoslovakia 1968–69 (1972); Valenta, Soviet Intervention in Czechoslovakia 1968 (1979). In December 1989 leaders of the Soviet Union and other East European states issued a statement condemning the invasion of Czechoslovakia, acknowledging it to be an ‘interference in the internal affairs of sovereign Czechoslovakia’: The Times, 5 December 1989.
11 On the ‘Brezhnev Doctrine’, see Schwebel, AJ, 66 (1972), pp 816–19; Remington, AS Proceedings (1973), at pp 63–4; Russell, AJ, 70 (1976), pp 253–7; Reisman, Yale JIL, 13 (1988), pp 171–98. For the British Government’s view of the unlawfulness of the interventionist aspects of the Brezhnev Doctrine, see Parliamentary Debates (Commons), vol 996, col 13 (written answers, 15 December 1980). The fundamental political changes in eastern Europe in 1989 effectively brought about the demise of the Brezhnev Doctrine.