“There is probably no branch of international law which is so calculated to encourage the skeptic as that mass of contradictory precedents, dogmatic assertions, and vague principles which are collected under the common head of “intervention,” and perhaps there is no more potentially dangerous ground of intervention than that which is variously described as” self-preservation” and “self-defense.””
The famous international law Professor and later President of the International Court of Justice, Sir Robert Jennings, wrote these words in an article for the American Journal of International Law in January, 1938.
1938 was a fateful year. In February Adolf Hitler made a speech demanding self-determination for 10 million Germans in Austria and Czechoslovakia. In March German troops entered Austria and a union of Austria and Germany was proclaimed. In September, the Munich agreement allowing Germany to annex the Sudetenland portion of Czechoslovakia was signed among the French, British, Italians and Germans. On November 9 (Crystal Night), Nazis terrorized and arrested thousands of Jews in Germany and Austria. Later in November the Italians demanded Tunisia, Corsica, Nice, and Savoy from France; France and Germany signed a good neighbor treaty disclaiming territorial designs.
Prohibiting intervention/strengthening state sovereignty
After the Second World War the law of intervention developed rapidly. Article 2 of the United Nations Charter required all members to refrain “… In their international relations from the threat or use of force against the territorial integrity or political independence of any State…”
In 1970 the General Assembly adopted the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, which included among its provisions:
“No State or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state.…
…Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed toward the violent overthrow of the regime of another state, or interfere in civil strife in another state.”
In these and other ways the international law of non-intervention was strengthened to guard against the sort of claims and actions that had precipitated World War II.
Human rights, civil and political rights, group rights
At the same time, however, the Declaration on Friendly Relations recognized that a variety of other legal rights were gaining support of members of the United Nations. Members were encouraged to cooperate with one another in accordance with the Charter, “…In the promotion of universal respect for and observation of Human Rights and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance….” Recognition of such “rights” by the international community obviously raised the question of whether their protection was still exclusively within the domestic jurisdiction of the individuals’ or groups’ own state or whether intervention by other states to protect such rights would be permitted.
A partial answer is provided by the texts of relevant multilateral agreements and declarations setting out obligations among their parties and signatories regarding inter alia human, political and civil rights, the right of self-determination of peoples, and the regulation of the conduct of armed hostilities. Signatories agreed to various types of non-forcible intervention, ranging from monitoring of compliance by specially created international bodies to grants of jurisdiction to international tribunals with power to order remedial action and compensation.
Economic rights and investor’s rights
Also bilateral and multilateral agreements sought to provide non-forcible, consensual intervention for protection of commercial investments by nationals of one state in the territory of other states. International organizations such as the World Bank, the IMF, and many national development banks intervened by consensual agreement into the domestic economic and legal regimes of states that were seeking access to governmental economic assistance and foreign investment capital.
Exceptions to non- intervention defined; are others needed?
The measures described above include international agreements allowing sanctions for breach under defined circumstances. More general declarations and recommendations such as the Articles on State Responsibility, drafted by the UN’s International Law Commission and approved by the General Assembly, are important steps in the continued development of relevant customary international law. Such measures allow intervention into the domestic affairs of sovereign states in carefully defined ways through state-to-state agreements and through development of customary international law, itself a form of agreement among states.
However, apart from these exceptions to state sovereignty sanctioned by law, other developments after World War II have challenged compliance with the rule of non-intervention, as set out in Article 2 of the UN Charter. These include an upsurge in the frequency and magnitude of terrorist incidents, changes and dispersal of certain military technologies and an increase in tensions among major nations. Such developments have inspired some to assert that customary international law provides a right of forcible intervention based upon a “responsibility to protect” individuals and groups experiencing serious violations of individual and group rights. Others assert a concept of “preemptive self-defense” that in some circumstances negates established norms of necessity and proportionality. And recently, the long-standing right of sovereign states to act to protect their nationals and diplomats living abroad has been advanced to justify forcible intervention by both the United States and the Russian Federation. Do these developments indicate that the non—intervention rule and the exceptions currently provided in international law are out of date or insufficiently comprehensive?
A comprehensive body of international law
The post-World War II development of the international law of non-intervention and of the international law defining legal rights of individuals and groups confronted by discrimination and oppression has been extensive and rapid, compared with earlier periods of legal and political history. The result is a rich and comprehensive, albeit complex, body of law and jurisprudence through which to arrive at clearer definitions of the rights and obligations of states, groups, international organizations and individuals. When parties agree to resolve disputes pursuant to international law, a well-developed body of law is available.
Also available are international tribunals with procedural rules and administrative bureaus to efficiently manage cases. Tribunals established by international organizations include the International Court of Justice, an organ of the United Nations; The International Tribunal on the Law of the Sea, established by the UN Law of the Sea Convention; and the World Bank’s International Center for the Settlement of Investment Disputes, to name only a few. Commercial arbitration facilities have also been established by nongovernmental organizations such as the International Chamber of Commerce (the International Court of Arbitration), the American Arbitration Association (the International Center for Dispute Resolution), the Dubai International Financial Center (a special facility of the London Court of International Arbitration), and others.
Will international law be applied?
Is the post-World War II legal structure inadequate or incomplete, or is the problem one of a refusal to comply? In either case, what contribution can law make to resolve current conflicts? Subsequent posts here will explore this question in the context of both the substance of the applicable law and its practical application.