AN ASSESSMENT OF THE NON INTERVENTION PRINCIPLE

CHAPTER ONE

INTRODUCTION

1.1 Background of the study
Before the 19th century, intervention was an ordinary policy matter within the foreign affairs of a state. In ancient period, it was adopted as method of settlement of dispute by the Roman Empire. In the Middle Ages, it was frequently used to enforce impartial and just rules . Vattel deserves credit to be the pioneer of formulating non-intervention principle in 1758 , but it remained doubtful till 19th century, whether the states adopted and followed it. The first country that adopted this idea was France, and it incorporated the nonintervention principle in Article 4 of its constitutional Act.
However, a declaration issued in November 1792 but the French government in which it claimed its right to intervene in certain cases where interference proved necessary to assist in other people’s struggle for liberty showed that the French codification of the principle did not restrict its own right to interfere in the inner affairs of other states . At the end of the 18th century, Jurist Kant in his work Zum Ewigen Frieden also laid emphasis on nonintervention principle.

Despite the nonintervention principle, some states continued to formulates law or adopted treaties mentioning the grounds for invention. In Europe, the Holy Alliance was created, which claimed the right to intervene in cases of European revolutionary government for reasons of legitimacy, significantly, we had examples where state intervene in affaires of others like Austria intervened in Naples 1821.
Subsequently, in the late 19th century, military intervention like situation in Latin America by some European Powers and the United States led to the

adoption of various doctrines by the European states, such as Monroe Doctrine, Hallstein Doctrine, Brezhnev Doctrine, Stimson Doctrine and Calvo Doctrine/Calvo Clause where one or the other state had declared that a particular subject matter was a state interest or that a particular action would be taken in response to a defined situation (intervention) if it arose in the future. After World War I, the United States expressly declared that any change in state borders achieved by forcible means would not be recognized by it. During that time, various efforts were made to formulate law of nonintervention. For example, Article 15(8) of the Covenant of the League of Nations and Article 11 of the “Montevideo Convention on Rights and Duties of States” of 1933 prohibited “interference with the freedom, the sovereignty or other internal affairs, or the processes of the Governments of other nations.”

After World War II, the law of intervention developed rapidly. Under traditional international law, the principle of nonintervention was followed, which means a state should not intervene either directly or indirectly in the internal affairs of another state. Oppenheim, while supporting this principle, opined, “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.” He further stated that the nonintervention is essential for ensuring every state’s sovereignty, territorial integrity, and political independence .

Significantly, under modern international law, the principle of nonintervention is an international legal norm under Article 2(4) and Article 2(7) of the United Nations (UN) Charter. The International Court of Justice (ICJ) has also supported the nonintervention principle in the Military and Paramilitary Activities in and against Nicaragua Case . Here, plea of Nicaragua was that the United States had violated its treaty obligations to Nicaragua under Article 2(4) of the UN Charter by involving in training, recruiting, equipping, arming, financing, supplying and supporting, and aiding and directing military and paramilitary actions in and against Nicaragua. In this case, the ICJ also recognizes two
types of interventions, namely direct intervention through military and indirect intervention (any interference) in the domestic affairs of a state. Under

traditional system, various matters were within the jurisdiction of a state. However, globalization has resulted in an international system of cooperation and interdependence, which has decreased the horizon of domestic jurisdiction and increased that of international jurisdiction. Therefore, in the present scenario of changed dimensions of international law, principle of nonintervention is also changing. Practice has shown that on various occasions, states have intervened in the domestic affairs of other states strictly not per law, which raised eyebrows all over the globe. And in such situation, question of legitimacy of intervention arises on who have the right to intervene in such matters.
The UN has introduced the form of intervention that the principle of non- intervention ruled against, this form of intervention is divided into two categories; the direct and indirect intervention

1.1.1 Direct intervention
This will be under dictatorial means or military occupations, under traditional international law, only military intervention or intervention by forcible or dictatorial means may be in the form of military occupation of territory, embargo, demonstration, blockade, seizure of assets of another state or its nationals, arrest and detention of foreigners, or expulsion of foreign diplomats . As per Article 2(4) of the UN Charter, intervention is prohibited to protect sovereignty, territorial integrity, and political independence of a state.
This is the form of intervention that is prohibited as per the article 2 (4) and where the principle of non-intervention applies. On the other hand, we are more concerned on the second form of intervention that is the indirect intervention which is not prohibited by the charter and is applied.

1.1.1 Indirect Intervention
Various instruments were adopted in the 20th century to prohibit any kind of interference directly or indirectly, that is, whether through military or through political, economic, and diplomatic means. Even ICJ in Military and

Paramilitary Activities in and against Nicaragua laid emphasis on the new type of intervention and gave broader definition of intervention, which prohibits both direct and indirect interference.
Main forms of indirect intervention. Three main forms of indirect interventions are subversive, economic, or even diplomatic intervention.
1.1.2.1 Subversive intervention.
Subversive intervention means any activity by one state with the intention to affect the situation in another state. Such activity is generally conducted through radio or television shows with the aim of encouraging revolt or civil strife in another state or to provide assistance to illegal and violent activities. In general, it is difficult to prove that state was involved in subversive intervention.

1.1.2.2 Economic intervention/coercion.
Economic intervention involves the imposition of sanctions, embargoes, and boycott by interfering with trade and shipping and by denial of access by land and water. Furthermore, banning export and import or external economic policy impositions by International Financial Institutions , while taking action under Article 4112 of the UN Charter, is another form of economic intervention especially when wrongful act is done by that state whereby all member states are prevented from transfers to the DPRK any technical training, advice, services, or assistance related to the provision, manufacture, maintenance, or use of nuclear related, ballistic-missile- related, or other weapons of mass destruction (WMDs)-related items, materials, equipment, goods, and technology.

Economic intervention (economic coercion) is a debatable issue, as it is very difficult to draw a line between the legitimate economic sanctions and illegal pressure put upon another state. However, to determine whether economic intervention is legitimate under law, two tests are important: identifying the relationship between the means and the object and following the procedure laid down under Chapter VII. Earlier, the ICJ in Military and Paramilitary Activities in and against Nicaragua Case stated

that the mere refusal or termination of aid to developing countries or the
breach of an economic treaty does not constitute a breach of the nonintervention principle as states are free to decide which other states, they want to give economic support to.

1.1.2.3 Diplomatic intervention.
The diplomatic measures generally do not amount to an illegal interference, but may be considered as a forbidden intervention, if they involve communications of threatening tone, use of military or other coercive measures. Generally, the diplomatic measures against other states are declared as unfriendly acts rather than illegal interventions. Therefore, some jurists believe that diplomatic measures, such as good offices, mediation, recall of ambassador, and conciliation, cannot even be regarded as unfriendly acts, as these are permitted under the UN Charter, whereas others consider it as diplomatic intervention. The practice has shown that the maximum number of diplomatic interventions is through mediation by third parties or recalling of ambassador

. The mediators enter into a conflict to amend, modify, change, or influence the result of any situation. The mediator can represent a state or a nonstate actor. The offers to mediate represent an explicit offer from a third party and are recorded on the date of the offer. The recall of an ambassador occurs when the intervening government calls its diplomatic representatives home, either permanently or for consultations, and generally such recall is due to the behavior of the intervened state in its internal conflict. A study has shown that in total there were 403 diplomatic interventions; 332 were mediations and 5 were recalls of diplomatic representation. Each of these observations reflects external efforts to influence the course of the conflict through diplomatic channels.
1.2 Problem Statement
how can we address the issue of double standard in the application of non-intervention by the United Nations, where the United Nation chooses in which states to intervene and in which state it does not intervene.

1.3 Objective of the study