The Liverpool Law Review Vol. XV(2) [1993]

THE NON-INTERVENTION DOCTRINE AND THE PROTECTION OF THE BASIC NEEDS OF THE H U M A N PERSON IN CONTEMPORARY INTERNATIONAL LAW Steven Wheafley °

As the international community develops its 'new world order', the greatest threats appear to come, not from inter-state conflict but events that occur, within a state's borders. Violent civil wars, widespread humanitarian suffering and the clamour of world public opinion, fuelled b y television pictures, that something must be done. Examples are numerous: (i) the break up of the Federal Republic of Yugoslavia and the internecine conflict that followed: (ii) the destructive civil war in Liberia, famine in Somalia, caused largely b y activities of bands of young armed militiai and (iii) the brutal suppression of the Kurdish minority in Iraq by Saddam Hussein. What marks the approach of the international community to these events has been its willingness to become involved. Traditionally international law has concerned itself with disputes between states and considered most matters within that state's territory the concern of that state and that state alone. Herein lies the essence of sovereignty. As noted b y Judge Huber, sovereignty over territory involved the right of a state to make laws to the exclusion of all other states, 1 and provides a corollary duty for others states not to interfere in those internal affairs. The non-intervention doctrine The doctrine of non-intervention requires a state to refrain in their actions from the ~dictatorial interference by a state in the affairs of another for the purpose of maintaining or altering the actual conditions of things. '2 The principle of non-intervention is well recognised under customary international law and has been reasserted in numerous * 1 2

Lecturer in Law, University of Central Lancashire. Island of Palmas Case, Permanent Court of Arbitration, 2 R.I.A.A. 829. L. Oppenheim, International Law, 8th ed. Longmans, 1955, Vol.1, para. 134.

190 The Liverpool Law Review VoL XV(2) [1993] declarations and resolutions, 3 and is t h o u g h t to be e n c a p s u l a t e d in article 2(7) 4 of the United Nations Charter, which is "in substance a restatement of the classical rule. "s The c o u n t e r p a r t of non-intervention, d o m e s t i c jurisdiction, is those issues that a state m a y freely choose for i t s e l f - - essentially the "choice of a political, economic social or cultural system and the formation of foreign policy. ''6 Domestic jurisdiction and intervention have a h a r d core of meanings and despite a seeming interchangeability of language, t h e y d o not enjoy a corollary relationship. Domestic jurisdiction is "the activity of a State o n the w o r l d a r e n a w h i c h it d e c i d e s o n its o w n account. "7 Intervention requires an actual attempt to alter things within the State, with the threat or use of force, s As Henkin notes, "strictly ... intervention m e a n s dictatorial interference b y force or threat of force. Lesser forms m a y be bad (diplomatic) m a n n e r s 9 and some m a y spoil 3

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Declaration on the Inadmissibility of Intervention in Domestic Affairs of States, A/Res/2131(XX), Dec. 21, 1965. General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, A/Res/2625(XXV), Oct. 24, 1970. Article 2(7) reads "Nothing contained in the present Charter shall authorise the United Nations to intervene in matters that are essentially within the domestic jurisdiction of any State..." I. Brownlie, Principles of Public International Law, Clarendon Press, 1990, 553. Nicaragua Case (Merits) Nicaragua v. United States I.C.J. Reports 1986, p.14 at para. 205, "The principle forbids all states ... to intervene directly or indirectly in internal or external affairs of another state." S.V. Chernichenko, '~3ubjective boundaries of International Law and Domestic Jurisdiction of the State", Soviet Yearbook of International Law, Moscow, (1985), 122-124. The International Court of Justice in the Nicaragua case, supra n.7 at para. 205. It is, "... the element of coercion which defines and indeed forms the very essence of prohibited interventions...", para. 205. Cf. the view expressed in the Friendly Relations Declaration: No state or group of States has the right to intervene, directly or indirectly, for any reason whatsoever, in the international or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law. Principle 3, General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Res. 2625(XXV), Oct.

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friendly relations but generally do not violate any principle of universal international law. "~° Clearly, certain matters will be the concern of the international community, but others will only become so where the state concern breaches an international legal obligation or when an international organisation acts within its mandate to investigate the issue. Those issues which are the concern of the international community are not fixed the relationship between those issues the concern of international law and those properly the exclusive realm of the domestic jurisdiction will vary from time to time, it "is essentially a relative question; it depends upon the development of international relations. "H It is clear, however, that a claim of absolute domestic jurisdiction with respect to human rights is indefensible. States have international legal obligations with respect to human rights under the United Nations system, international treaties on human rights and customary principles. The doctrine of non-intervention and human rights A principle of the post-war development of international law, the concept of non-intervention, was used by states to prevent the effective implementation and enforcement of the developing human rights provisions. The Helsinki Final Accord signed in 1975, however, indicates that the protection of human rights and the principle of non-intervention should be "equally and unreservedly applied, each to be interpreted taking into account the others. ''~2 24, 1970. 10 L. Henkin, "Human Rights and Domestic Jurisdiction", in Human Rights, International Law and the Helsinki Accord (ed. T. Buergenthal), Allanheld Publishers, 1977, 22. 11 Nationality Decrees Issued in Tunis and Morocco Case, PCIJ Rep., series B, No. 4 (1923). 12 The relevant principles being: Principle VI Non-intervention in internal affairs The participating states will refrain from any intervention...in the internal affairs falling within the domestic jurisdiction of another participating State, regardless of their mutual relations. Principle VII Respect for human rights and fundamental freedoms The participating parties recognise the universal significance of hu-

192 The Liverpool Law Review Vol. XV(2) [1993] H u m a n rights treaties, although aimed specifically at protecting the rights of third parties do create international obligations for those party to them, that obligation being owed to the other parties to the convention 13, but not to other states 14 who must demonstrate a legal interest in the claim before they can pursue a legitimate interest under international law. 15 That claim must be pursued by the state in the manner provided by the convention. H u m a n rights obligations under the United Nations Charter are binding upon all Members of the organisation, who may not plead domestic jurisdiction to avoid the United Nations involvement. Waldock has argued that under article 2(7) that the United Nations is precluded from interfering in issues within the territory of Member states unless the action is one of enforcement for the maintenance of international peace and security, Is leaving the United Nations with only a role of legitimate criticism in respect of human rights abuses a role "without teeth".17 The United Nations has, however, undertaken a more proactive role. General Assembly resolutions have repeatedly declared apartheid to be contrary to the UN Charter and a violation of

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man rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and well-being necessary to ensure the development of friendly relations and co-operation among all States. They will constantly respect those rights and freedoms in their mutual relations and will endeavour jointly and separately, to promote universal and effective respect for them. ICJ rejected South African claim that the issue did not amount to a dispute under article 7 as it did not effect 'any material interest of the applicant States or their nationals.' S.W. Africa Cases (Preliminary Objections) (Ethiopia and Liberia v. South Africa), 1962, ICJ Reports, 319, 343 '... the manifest scope and purport of the provisions of ... Article [7] indicate that the Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations both towards the inhabitants of the Mandatory Territory and towards the League of Nations and it's Members'. Ib/d. In the second phase of the South Africa cases the ICJ rejected the notion of "actio popularis', i.e. the right to bring an action under international law in the public interest. The court asserted that the state would have to demonstrate a legal interest in the case. South West Africa Cases (Second Phase) (Ethiopia and Liberia v. South Africa), 1966 ICJ Rep. at 34. 106, ttague Recueil(1962, If) 188-9~ Brownlie, supra n.5 at 554.

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international law. TM In 1967, ECOSOC authorised an extension of the m a n d a t e of the H u m a n Rights Commission to "situations that reveal a consistent pattern of violations of h u m a n rights, "19 and latter the examination of private complaints to the Commission was permitted in circumstances that, "reveal a consistent pattern of gross and reliably attested violations of h u m a n rights and fundamental freedoms ...-2o G i v e n that h u m a n right obligations, w h e t h e r created b y treaty, c u s t o m o r other m e a n s create international legal obligations then the usual rules o n state responsibility apply. There also exists a good deal of evidence to suggest that a "serious breach o n a w i d e s p r e a d scale of an international obligation of essential i m p o r t for s a f e g u a r d i n g the h u m a n being, "21 will involve the state in international criminal responsibility. 22 There is g o o d e v i d e n c e to hold that certain h u m a n rights violations are so serious in character that responsibility for t h e m is o w e d not to the individual states b u t to the international c o m m u n i t y as a whole, that is obligations erga omnes. 23 T h e ICJ noted in the Barcelona Traction Case that, international legal obligations c o n c e r n i n g the, 18 E.g. res 721(VIil) 8 Dec. 1953, 8 GAOR Supp. No. 17 (a/2630) at 67(1953), see also advisory opinion ICJ [1971] 16, para. 131, in which the court noted: Under the Charter of the United Nations... [South Africa] had pledged itself to observe...human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, decent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter. 19 ECOSOC Res. 1235(XLII) 6 June 1967, 42 ESCOR, Supp. No. 1 (E/4393) at 17-18. 20 ECOSOC Res. 1503 (XLVIII), 27 May 1970, 48 ESCOR, Supp. No. 1 A (E/4832/Add.l) at 8-9. 21 Article 19(3)b, ILC Draft Articles on State Responsibility, Y.B.I.L.C., 1979, II (PART II) AT p90. 22 Ibid., article 19(2). 23 "... essential distinction should be drawn between the obligation of a State towards the international community as a whole, and those arising vis-avis another State in the field of diplomatic protection. By their very nature the former are the concerns of all states. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection". Barcelona Case, I.C.J. Reports [1970] at p.3, para. 33.

194 The Liverpool Law Review Vol. XV(2) [1993] "basic rights of the h u m a n person," were obligations of such a character. 24 Such obligations, therefore, are so basic that they r u n equally to all other states, and all states have a legal interest in the protection of the "basic rights of the h u m a n person." It is suggested that these basic rights are essentially reflected in c o m m o n article 3 of the four Geneva Conventions of 1949, which provides for m i n i m u m h u m a n i t a r i a n guarantees d u r i n g conflicts not of an international character. 25 In the Nicaragua case these m i n i m u m standards were described as providing a m i n i m u m yardstick...they are rules which in the Courts opinion, reflect w h a t the court in 1949 called "elementary considerations of humanity. "26

Humanitarian assistance Given the recognition by the international c o m m u n i t y that at times of conflict the fulfilment of the basic h u m a n needs is m o s t at risk, the international c o m m u n i t y has moved to ensure the protection of these needs, 27 although it has continued to emphasise the importance of the 'receiving' state's consent and the territorial sovereignty should be respected .28 The International Court of Justice indicated in 24 /b/d., para. 34, 25 Common article 3 reads, In the case of armed conflict not of an international character ... each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the conflict ... shall in all circumstances be treated humanely ... To this end, the following acts remain prohibited at any time and in any place...(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment... 26 Nicaragua case, supra n.6 at para. 218. 27 See, for example, the 1992 Conference on Security and Co-operation in Europe, Helsinki document which stated: "We will exert every effort to ensure that they [the basic human needs] are met and that humanitarian commitments are respected. We will strive to relieve human suffering_.and to facilitate the delivery of assistance under international supervision, including safe passage" (para. 14). 28 General Assembly Resolution 46/182 (Humanitarian Assistance), "The sovereignty, territorial integrity and national unity of states must be fully

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the Nicaragua case, that the provision of humanitarian aid simpliciter would not amount to an unlawful intervention. 29 Such intervention, "cannot be regarded as unlawful intervention, or in any w a y contrary to international law, "3° provided that it is granted, without discrimination for the limited purpose to prevent and alleviate human suffering and to protect life and health and to ensure respect for the human being. 31 Humanitarian intervention

Under the Charter of the United Nations, the security Council may use its powers to determine a particular situation to international peace and security, as may any regional security organisation under Chapter VIII of the UN Charter. However, the position of unilateral or collective intervention, traditional 'humanitarian interventions', has always proved contentious in the era of the Charter, with its emphasis on collective security and non-intervention. It was generally thought that article 2(4) of the Charter outlawed the use of force for any reason, whatever the claimed humanitarian motives. Certainly in the oft-quoted e x a m p l e s - Bangladesh, Cambodia, and Uganda the states intervening claimed no such right and relied on the provided exception under the Charter of self-defence32 to justify their actions. There appears however, to be a subtext to this debate as criticisms, when made were of a distinctly more muted nature that those f o r ' aggressive interventions'.

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respected in accordance with the Charter of the United Nations. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country." India's action in dropping relief supplies to the Tamils in northern Sri Lanka was carried out without the consent of the Sri Lankan government (although that government subsequently consented to the deployment of Indian ground troops); see A.D. Arulpragasam, 29 Harvard International Law Journal (1988), 178. Para. 242. Nicaragua case, supra n.6. Ibid., para. 243. Article 51.

196 The Liverpool Law Review Vol. XV(2) [1993] The traditional approach in the period of the Charter The non-interventionist doctrine and a lack of desire on the part of the international community to allow states to assert or expand their influence by force lead many jurists to conclude that any use of force even for humanitarian motives was illegal per se under the Charter. 33 The International Court of Justice in the Nicaragua case noted that in respect of the protection of h u m a n rights guarantees protection should be undertaken as specified in the relevant covenant, 34 although that covenant may provide for other modes of protection.35

Interventions in the period of the Charter It would appear clear that whatever issues of state responsibility arise, that in respect of the use of military force arise, that for the protection of human rights guarantees, "the use of force could never be the appropriate method to monitor or ensure such respect". 36 In the Nicaragua case the ICJ explicitly rejected and claim of legal justification by the United States for the preservation of human rights by the use of force.37 The approach of the ICJ would appear to be in line with the legal thinking of most states as evidenced by General Assembly resolutions. 38 The United States' intervention in Grenada, defended vari33 "The Court can only regard the alleged right of intervention as a manifestation of a policy of force, such as has in the past given rise to the most serious abuses and such as cannot, whatever the present defects in international organisations, find a place in international law...it would be observed by the most powerful states and might lead to perverting the administration of justice itself". Corfu Channel Case (Merits), ICJ Rep. 1949. 34 "[Where] ... human rights are protected by international covenants; that protection takes the form of such arrangements as are provided by the covenants themselves". Nicaragua, supra n.6, para. 267. 35 See article 44 International Covenant on Civil and Political Rights [1966], 61 American Journal of International Law (1967), 870. 36 Nicaragua case, at para. 268, supra n.6. 37 Ibid. 38 See resolutions on Panama and Grenada, A/38/7, No. 2 t983 ("flagrant violation of international law of the independence, sovereignty and territorial integrity of the State").

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ously as protecting US nationals and human rights in Grenada provoked the General Assembly of the United Nations to condemn the "armed intervention in Grenada", and called the action a "flagrant breach of international law and of the independence, sovereignty and territorial integrity of Grenada'. 39 The resolution went on to reaffirm Grenada's inalienable right to determine its own political system without outside interference.4° Similarly, the General Assembly resolution 279341 passed following the Indian invasion of East Pakistan in response to widespread human rights violations implicitly condemned the Indian action by calling for a withdrawal of forces, "on the territory of the other to their own side of the ...border". 42 It appears clear, whatever the provisions of the Helsinki Final Act, with respect to the equal importance of human rights and non-intervention, that the most blatant form of intervention by a state, i.e. military intervention, will not be accepted by the international community even if its intention to protect the most fundamental of h u m a n rights. This was the clear and well-established position throughout the period of the cold war, a period characterised by the perceived dangers of nuclear war and an insistence by recently de-colonised states on the greatest degree of independence from interference from the previous colonial powers. Recent developments

However, since the ending of the cold war, the approach of the international community has altered with respect to interventions to protect fundamental human rights. Although it still remains the case that unilateral interventions will not be tolerated, it would appear that collective interventions supported by the international community will be considered legitimate. The issues here is whether there exists a developing rule under contemporary international law that violations of minimum humani39 GA Res. 38/7 (Nov. 2, 1983). 40 Ibid. 41 A/Res./2793(XXVI), Dec. 9, 1971 passed by 104 votes to 11, with 10 abstentions. 42 Ib/d.

198 The Liverpool Law Review Vol. XV(2) [1993] tarian standards, as well as involving the state in international responsibility, also give other states the legitimate right to grant aid, without violating the doctrine of non-intervention, and also to do so by force where necessary. Security Council resolutions in respect of the authorisation of force to enable the effective supply of humanitarian aid demonstrate a new recognition by the international community of the importance of the need for practical assistance that is required to prevent large scale human tragedy in times of conflict.43 Under the Charter of the United Nations the determination by the Security Council of a breach of threat to international peace and security would preclude any claim of domestic jurisdiction in respect of the violation of human rights or humanitarian standards by that state. Whatever powers the United Nations possesses, any intervention by an individual state, or group of states acting together, would appear prima facie to be illegal under the UN Charter. The establishment by the allies of safe havens for the minority Kurdish population in northern Iraq, followed a Security Council resolution that, although condemning the Iraqi repression of its civilian population, did not authorise the use of force.44 The resolution condemns the repression of the Iraqi civilian population, 'the consequence of which threatens international peace and security,' and insisted that lraq 'allows immediate access by international humanitarian organisations'. The intervention in northern Iraq, was in the immediacy limited to a strictly humanitarian objective unlike the intervention by West African states in Liberia which attempted a wider 'political' solution to the humanitarian crisis. This kind of intervention has in the past had provoked international condemnation. Notable amongst these is the intervention by Vietnam to end Pol Pot's m u r d e r o u s rule in Cambodia that was c o n d e m n e d by the United Nations General Assembly as an aggressive act and called upon all states to "refrain from any interference in the internal affairs of Kampuchea in order to enable its people to freely determine their own future and destiny". 45 Although, the number of civilian casualties in the Liberian conflict were not great in absolute terms by twentieth century standards, the 43 See SC. Res. 770 (Yugoslavia), SCRes 794 (Somalia) on the provision of humanitarian assistance by force. 44 SC. Res. 688. 45 GA res. 34/22 (Nov.14, 1979), cf. with lack of condemnation of Tanzania's intervention in Uganda.

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sheer terror felt the civilian population led the great majority of Liberians to either flee the country or to be displaced within Liberia. The United Nations High Commissioner for Refugees estimated that some 500,000 Liberians had fled abroad, causing great strain to the economies and stability of those states, and a further 1,000,000 displaced within the country. This out of a total population of just two and a half million. The ECOWAS intervention was given tacit approval by the security council in resolution 788, which determined the situation in the country to be a threat to international peace and security and imposed a m a n d a t o r y arms embargo on the country, with the exception of those to be used by the ECOWAS forces. Conclusion

There appears a developing recognition by the international community that there are certain basic human needs that it is in the interests of the international community to ensure the protection of those needs and an international obligation placed upon states to ensure that the dignity of the human person is respected. Where a government is unwilling or unable to ensure such respect, then the international community m a y act~ by forceful means if necessary, to give effect to those requirements.