Professional Documents
Culture Documents
net/publication/274509604
CITATIONS READS
0 339
1 author:
SEE PROFILE
All content following this page was uploaded by Dr. Christian Wigwe on 05 April 2015.
*
C. Wigwe" Middle:"
was CC':-,~'
Abstract author.r c
Empire .:.'
One of the key principles underlying the concept of State sovereignty wi[hl':',i~I~
context of international law is the doctrine of non intervention by States in the affa: '-;'
another State, States are entitled to their independence and to freedom from intr:.3i.i11ln! the 'Jus:
from other sovereign States, As a corollary to this doctrine is the prohibition on the l,.-~ I,:,r( resort t ;
force by States against the territorial integrity or political independence of other 5:.::,!,\" need tc :.: 0:
Both the doctrine of non- intervention and the prohibitory rules against the use of::r·'CIU' League: :
walk hand- in- hand to lend credence to the concept of State sovereignty. In pract.:e IIf! to war,'
has been shown that neither of these principles is watertight; circumstances exist '", ;lli'r!!' prohib:": -
intervention has become the norm rather than the exception and the use of /or:,::,\, had bee-
permissible. This article shall address the general principles and the except.isai inadeq ...:-'
circumstances where the rules may be derogated from as well as the interrelatio-.. .' "Ii/;IUI'
between the principles.
needed ~
Introduction doctrir;e
The development of the present international community may be premised c - 'Jll1C: througr :.
. rise of modern nation States between the fifteenth and seventeenth centuries.' Prior L:: ::"1/1$ provisi: :"'
time, States in the modern sense did not exist. What existed then were irnperfectr- as wel. .:-
integrated empires that were engaged primarily in conquering new lands and pee :'I~:$" norms ::.
According to lR Strayer, what differentiated the modern State from the empires of ole ]1l'"1!:
the following characteristics:
232
......... ; ..... ......................
It was the Peace Treaty of Westphalia in 1648 when Europe moved from the
Middle Ages to the regime of sovereign States, that the importance of State sovereignty
3
was consolidated. After this time, States sought to be independent of any superior
authority and in fact, the authority of States was no longer being challenged by the Roman
Empire as States began to respect the principles of non-interference in another State."
In the early days of international law, the use of force by States was governed by
.',',I~II!~'';lIt~',';I','mi:wml 5
the 'Just War doctrine'. Thereafter, the governing doctrine was the sovereign right to
.-I,/[~) 'iUi:J,'Nff' ,,::11f'
resort to war and since States could therefore resort to war for any reason, there was no
111(":'" __~(7...:;zIIl!e:"~'I'.
need to establish express rights to use force for any specific purposes. With the birth of the
.", ..·".,1r.:)I"":.:'::W League of Nations in 1919, a limited restriction was placed on the sovereign right to resort
to war." It was at this time that self-defence began to emerge as an exception to the
prohibitory rules against the use of force even though at the time no express prohibition
had been made. An attempt was made in 1928 to outlaw war completely? but proved
inadequate as it did not provide for situations where the force used was 'short of war' .
It was in 1945 with the establishment of the United Nations that some much
needed clarity was introduced in the norms of State sovereignty encapsulated in the
doctrine of non-intervention and the prohibition on the use of force. This was achieved
V,ISI::::': ~)''' :,,,~!IC
through the instrumentality of the United Nations Charter of 1945 which made express
Ii",,, II:' 'II'" ~'.: .: ,~
provisions prohibiting attacks on the political independence and integrity of another State
1;1~ ,:IIe-'~:·;;~C ~"; -"
as well as sharply restricting acts of intervention in the affairs of another State. These
norms enshrined in Article 2(4) and 2(7) ofthe UN Charter are reproduced hereunder.
- -. : -.: ..:.::--.,~
2 Strayer J.R, On the Medieval Origins of the Modern State (Princeton, N.J. Princeton University
Press,1979), at 9-10
3 Kantorowics, E.; A Study in Medieval Political Theology(l959) p.10
4 Philpot,D; Revolutions in Sovereignty; How it Shaped Modern International Relations(2001) p.23
5 Dixon, M. International Law, Oxford University Press 2000 p.310; The Doctrine stipulated that unless
there is a 'Just Cause' for engaging in war, such a war is illegal. The drawback of this doctrine was that a
State could be said to be acting legally where it 'believed' it had a just cause and there was no real objective
test for the legality of the use offorce.
6 Articles 10-16 of the Covenant of the League of Nations set out procedural safeguards which would render
any war lawful when complied with.
7 Under the General Treaty for the Renunciation of War I928 (Kellogg-Briand Pact)
233
Ife Juris Review C. Wigwe Ife J:.
Chapter VII of the UN Charter deals extensively on action with respect to tr.~::3:r.,
to the peace, breaches of the peace and acts of aggression. We shall now cons ide, =:~lie'
essence and legal significance of the doctrine of Non- intervention.
conflic
interve
8 Held, D; Democracy and Global Order, Cambridge University Press (1995) p.88
9 Hazard, J.N and Wenceslas J.W,58 American Journal of International Law (1964) p.952
10 Ramsbothan.O, and Woodhouse T, : Humanitarian intervention contemporary conflict (1996) p.3S II Brow:
234
.•.•.• ;.;; ;;;~;iitFif~~i;;~iiftfrrr- ~.".' ."!:: r t t I if r, Ari:; iiir~,if: ~., ..
I ;::,,,:':
II Brownlie, I., The Basic Documents in International Law, Fifth Edition(200 1) pp.31-3
235
Ife Juris Review C. Wigwe Ife JUl'.
resolutions have been framed to elaborate on the UN Charter rules relating to the L:,::lri' invite 2.
force and to further supplement the rules of non-intervention in the consistent instrurr ;mr:~ the ru.e ,
of major regional crganizations.l/ One of such resolutions on the inadmissibilicof
intervention provides that:
third S:::
No State has the right to intervene, directly or indirectly, the rec_;
for any reason whatever, in the internal or external 'prote; :
affairs of any other State. Consequently, armed by Fr2:-~
intervention and all other forms of interference or in Chz ;
attempted threats against the personality of the State or the pr.: -:-'
against its political, economic, and cultural elements, interve:':
are condemned. 13
protecc:
had bee-
The prohibition against intervention was shown during the civil war in CC'-2::
(Brazzaville) in 1997. Angola sent troops to Congo to support the opposition forces. I::-l
Presidential Statement, the UN Security Council condemned the intervention for being .r
to civ:
violation of the UN Charter and called for the immediate withdrawal of foreign forces :':"r
This e'l.:
the territory of Conge." In the Nicaragua case, the UN invoked the Corfu Channel's ccu
(1965 ::
General Assembly Resolutions and Inter-American practice as authority for the princ.r.e
some -.
of non- intervention. The court stated that intervention is wrongful when it uses means .:
justifica:
coercion with regard to matters in which each State is permitted by the principles of 5:2:: the l'< .
sovereignty to decide freely. [5 for a.:.,;:,;
A government may have the right to invite a third State to use force within ,:,: further =
its 0\\:-
territory, Where for instance, there has been an attempt to overthrow a gcvernment, tf::,.
help to the government becomes possible, whether or not there is a pre-existing trear Turke:-
provision for this. 16 Intervention will also be permissible where the conflict is limited as:
I,
!1 will be characterized as domestic unrest and not a civil war. The classification of confli;.;
"
1
which :;
II however may not prove to be so straightforward as States are often quiek to descr ::";
The lS
I conflicts that arise within their territories as being merely domestic unrests and not L
I In the '.
I scale civil wars. This is in order to enable the State where the conflict is taking place .:
doctrir.e
i activi..e
non iI',::
12 Arab League Pact (70 UNITS 237)Article 8;OAS Charter (119 UNITS 48) Article 15;OAU Charter (~-:
invite a third State to use force within its territory which is an apparent contravention of
:n~i:> ::~,:S;;::"'·.•n:7:lI~mlll!l~\
Due to the controversies that arise where there is intervention by a third State, the
third States are often reluctant to admit that they have been using force to quell unrest at
the request of the government. Instead, they justify their intervention with the argument of
'protection of their nationals' in the State where conflict is taking place. The intervention
by France of Chad in 1992 was claimed to have been for the protection of French nationals
in Chadian territory even though in actual fact, it appeared that their intervention was for
the purpose of protecting the government. In similar fashion, France, Belgium and Zaire
intervened in Rwanda in 1990. While it was claimed that the intervention was aimed at
protecting their nationals, their actual purpose was to protect the Hutu government who
1\IAI''':[]'':- ,':ll":@!f:;: had been threatened by a Tutsi invasion.f
,III:, :'::'~':.:C"~ .. r:: ,II
III" ( j :J,t '" g II'n
Another ground for the justification of foreign intervention especially as it relates
~:; ,,;r' :~: it:,.::.:~~ .;' (:m"
to civil wars is that there has been a prior foreign intervention against the government.
.:i"'III;;I.'''':/'~lJi' ,. " ,.",,,;;,·Su(~
This exception has been utilized and abused over time. The USSR in Czechoslovakia
(1965) and Afghanistan (1979); Turkey in Cyprus (1974); the UK in Jordan (1958) are
some instances where the intervening State relied on a prior foreign intervention as
justification for violating the rule on non-intervention. In the Turkish invasion of Cyprus,
the UN rejected the justification of prior foreign intervention. The Security Council called
for a cease fire and an immediate end to the foreign military invasion by turkey. They
~J)f":":'~
II" .. ... .~. . . .
,;0, . '11'...". further expressed their disapproval of the unilateral military actions against Cyprus.i'' On
its own part, the UN General Assembly equally condemned the foreign intervention by
1e;;g.",::s:rI:""1,€- -=r"~;aurr~'1
Turkey. 19
! il:~ .::J"7z..: J!:$ III:
~lIrl :."1' :,,='Ir . ..,';'Cll;:
Worthy of mention in this discourse on non intervention are the activities of the US
t:1I: "" Jlc"c,,::"':ii"lt:
which has constituted itself into the unofficial police force of the international community.
The US has on more than one occasion violated the principles regulating non intervention.
In the US military intervention of Nicaragua, the ICJ held that the US breached the
doctrine of non intervention by lendin~ its support to the military and paramilitary
activities of the opposition contra forces. 0 The court considered the principles governing
non intervention thus:
237
~~zlluuilUiiiiiiJijjiiiji#iiiiiir.ll'Hmm'iii@'
~ I!!!!I_ _ I!!!!!!!!~~!!!!!':!!!!!!!!i!I!!II II!!!!I!!!! .~~~~~
The principles of non intervention would also cover a situation where : .,-:--
international organization interferes in the affairs of a state. The involvement of :l-:
International Atomic Energy Agency (IAEA) in the affairs of Iran serves as a gc,:<:
example. The IAEA is of the view that the uranium enrichment exercises taking place -
Iran are targeted at making nuclear weapons while the Iranian government insists It e:..
nuclear program is peaceful in nature. It is submitted here that the IAEA's insistence :~,J:
Iran is not entitled to develop its nuclear capacity is an erosion of state sovereignty ::.~.c
constitutes unlawful intervention. The reasoning behind this assertion is that if all s:::.:c
238
lie Juris Review C. Wigwe
are equal in the eyes of the law and are entitled to equal privileges, then Iran is entitled to
develop its nuclear program without intervention from the IAEA.
2) "Syria: What motivates an Assad supporter?" Global Post. 24 June 2011. Retrieved 22 February 2012
239
Ife Juris Review C. Wigwe
(labeled the "Aleppo volcano'Y" but as analysts have suggested, the current S:,~::UI~I
government will survive without mass anti-government protests in the two major cities."
The support given to Syria by Russia and China does not help matters either ::'~I~
makes the possibility of any authorization of military intervention by the UN quite s:.---:
On its part, Russia is against any form of military intervention. According to the RUSS:ll"
Prime Minister Dmitry Medvedev, actions that undermine state sovereignty could lead :~ 2
full blown regional war in the Middle East that could involve the use of nuc.ear
weapons." This support by Russia of the Syrian government is arguably motivated by :.:-,(;
strong political ties between both countries. For China, it appears their stance in relaticr. tr
the Syrian conflict is largely influenced by their ties with Russia.
In a bid to nip the conflict in the bud, the UN appointed its former Secretzr'
General Kofi Annan as a special envoy to Syria. A ceasefire agreement was entered i:-.t:
but it has been violated by both sides i.e. the lawful Syrian government and the opposit: ~ r
forces. The Kofi Annan peace plan for Syria, fully supported by the UN Security Coun: i ,
com prises of a 6 point proposal to:
24 "Syria Unrest: Protests in Aleppo as troops comb border". BBC News 30 June 2011. Retrieved 20 Jar.~.::.:,
2012
25 Queenann, G., (16 November 2011). "70+ killed as Syria Violence Escalates". Israel National Ne
240
Jfe Juris Review C. Wigwe
241
Ife Juris Review C. Wigwe
IfeI,"
this end, different states have expelled Syrian foreign diplomats from within the"
territories.f An incisive look at the doctrine of non intervention will reveal that these al
actions are arguably erosive of state sovereignty and technically constitute unlawr,
intervention. The conflict in Syria is between the lawful Syrian government and the rebe
c-
peace
forces. By expelling Syrian diplomats, the expelling states have shown their support f:'
Artic.:
the rebel forces. Any support, whether direct or indirect, which is not for the benefit of tr.e
authc -
lawful government that invites such support, is an erosion of state sovereignty and violates
Seer:
the principles of non intervention. To lend further support to this line of argument, unce:
three:
the international humanitarian law, a state does not need to participate directly in tre
reluc,
armed conflict before it will be regarded as a party to the conflict. By sacking Syria-
Ratre-
diplomats, these states have chosen sides in the conflict in Syria. A breach of the doctri-e
breac :"
of non intervention happens where there is a foreign intervention in one state for [:.c
benefit of forces opposed to the government of that state. In the Nicaragua case f=-
instance, the US support of the contra forces was a breach of the rules regulating upor.
intervention. State sovereignty is sacrosanct and is the basis for the inter-relationsh.r Rel:.::-
between states in the international arena. The best approach to this situation is tha: actic::
contained in the proposals by the UN special envoy to Syria for negotiations leading tc :;:
of t~::
complete cessation of hostilities.
bein ;
Prohibitions on the Usc of Force and Exceptions
B:,
Article 2 (4) of the UN Charter was unequivocally clear when it made express
provisions prohibiting the use of force by one State against another. The employrnen: .: invc "
the term 'Use of Force' as opposed to the term 'war' is a deliberate attempt by the t,,: :: beer. '
part.;
broaden the scope of application of international humanitarian law and also avoids ::-111::
debate that would no doubt ensue as to whether a particular conflict can rightl. :111:: othe:
described as war. Regardless, Article 2 (4) will apply once there is use of force by c:'1"e: the S
State against another. This shall be without prejudice to internal armed conflicts within :11'11:: imp: ~
State. Article 2 (4) has acquired the status of customary international law and ought :::- :Ie place
eve:"
applied in both internal and international armed conflicts.
the sc
There are circumstances under which the use of force may be permissible. These are to \:,,0
rneas
a. When there is authorization by the UN Security Council;
28 \
b. Where the right of self defence exists; and .~
_e'
,
29 -r--;
c. Humanitarian intervention.
Zir,::
30 c-'~
31 Sc.:'
32 Be
27 Abdulmajid A., Syrian Diplomats Expelled Over Houla Massacre, 02/06/2012. Retrieved on 0.. :,,':i 33 L',
34 L.:
242
Ife Juris Review C. Wigwe
!"""I1:ltlillllnl :1111IIt::Jllllr
~:::ll .. l r.ltlillWI1 ~im~~,m' a) Authorization by the UN Security Council
'1r.:"III\~ 1UI1M.il"Il"!\!\'' iiilllll:
;Ullnll~ ;jilil~ "~lmllll:l:1
Chapter VII of the UN Charter deals extensively on action with respect to threats to the
:1I11"S:lJII;:JIJ::II:Jlr'" ii(::II" peace, breaches of the peace and acts of aggression. By the collective provisions of
~llI~::IJIle"i:;!1; '::;;fIlC' Articles 39-43 of the Charter, the UN Security Council in the exercise of its powers may
authorize the use of force and such application of force will be deemed legitimate. The
Security Council is empowered under the UN Charter to determine the existence of any
threat to the peace, breach of the peace or act of aggression." In practice, the UN is often
t:;;U;..::r.::g 50 (,'""'ii;llilln
reluctant to declare that there has been an act of aggression" as provided under Article 39.
if'" :::!~I~ ':1(IIC~:~"'.Jrlll~ Rather, the Council has over the years shown a greater readiness to determine that a
;:lll~:rlt .:':II" ::~II~ breach of the peace exists and has to that effect, passed several resolutions.i"
The UN does not usually state the precise article of the UN Charter that it has relied
upon with respect to measures taken where there has been a breach of the peace."
Reliance is placed generally on Chapter VII of the UN Charter as the legal basis of the
actions of the Security Council. From the practice of the Council, it is apparent that the use
of the language of Article 39 without making a formal pronouncement that Article 39 is
being relied upon is sufficient. 32
By Article 41 of the UN Charter, the Security Council may decide what measures not
involving the use of armed force may be taken once it has been determined that there has
been a breach of the peace under Article 39. These measures may include 'complete or
partial interruption of economic relations and of rail, sea, air, postal, telegraph, radio and
other means of commmication, and the severance of diplomatic relations.' For instance,
the Security Council took economic measures against Rhodesia (now Zimbabwe) by
33
imposing an embargo on raw materials, oil and arms. The UN Security Council also
placed an arms embargo on South Africa. No specific mention was made of Article 41
even though the Council generally referred to the provisions of Chapter VII as its basis for
the sanctions. The Security Council has taken measures against several countries pursuant
to its powers under Article 41. 34 It has also acted against non-state actors such as its
measures against UNITA in Angola for its non-compliance with Security Council
~
243
JI
:IPiiiiiiiiiiiiiiiiiiiiiiiiiii-iliiii-iliiiiiiiiii----------------------------__
Ii
11
Resolutions." In acting under Article 41, the UN has been known to authorize the use humar :.
forcer" This however is not within the contemplation of Article 41. In such a scenario. '~';Ie partners
UN Security Council habitually justifies its actions by relying generally on Chapter \: recorr~- ,
To some commentators, such resolutions authorizing force to secure the implementation =f sancti: -
economic measures are made pursuant to 'Article 41 and a half .37 sancti: -
mini:r ::
In the imposition of sanctions, the UN Security Council must be wary of the poss.c.e vulnerz.r
negative effects of such an imposition. In his Supplement to an Agenda for Peace, the L'. dama ;e
th
Secretary General at the 50 Anniversary of the Organization, expressed his concern =r
the objectives of sanctions imposed pursuant to Article 41, the monitoring of :r:::;i~
application and impact, and their unintended effects. In his words: the G::;-:
the L~~
The objectives for which specific sanction regimes were quest: =-
imposed have not always been clearly defined. Indeed they
and e"'"~
always seem to change over time. This combination of
quest: =-
imprecision and mutability makes it difficult for the funct.: -
Security Council to agree on when the objectives can be
recorr"
considered to have been achieved and sanctions can be request-
lifted. While recognizing that the Council is a political body Asserr :
ruther than a judicial organ, it is of great importance that
is a ri"~
when it decided to impose sanctions, it should at the same
itse If ='::.
time define objective criteria for determining that their the C::;-
purpose has been achieved. If general support for the use expre 33
of sanctions as an effective instrument is to be maintained, active
care shoula be taken to avoid giving the impression that the
purpose of imposing sanctions is punishment rather than
the modification of political behavior or that criteria are Sect; ~. =,
.~
, being changed in order to serve purposes other than those mayr e
which motivated the original decision to impose acticr .
sanctions. 38 Secur:;
neceS3,::'
The Secretary General went further to describe sanctions as blunt instrurne: > a ser:e)
which may have different unintended/unwanted effects such as complicating the work .:
39 i L;.=
3S SC Resolutions 864, 1127, 1173, 1176, 1295 40 E.""
36 For instance, SC Resolution 221 authorized the UK to use force to intercept ships carrying oil intende.; :":'11'
Cour.•
Southern Rhodesia. circu:r ..;
37 Sarooshi, op cit, p. 194 41 G~2" "
38 Supplement to Agenda for Peace SI1995/l, Paragraph 68, 42 A~.·: :
244
II!."' ~fI",!~IIIIWli'
Ife Juris Review C. Wigwe
U:lllr:::~I:llllnllc' :1IJ:,~1Jt ,illli
humanitarian agencies or having a severe effect on neighboring states or major economic
, iUi,~II::lIlCJl11lllllJlr"111t:::" 1!11111lU:
partners of the target country. He concluded on the issue of sanctions by making
IIIILCIInIlIllIPIhU:::lr Ii''111,
recommendations for the establishment of a mechanism to assess the potential impact of
JIIIICJII1mIlIeJ11I111'JIlIIT:IIIC 111111 ::III!
sanctions on the target country and on third countries; monitor the application of
sanctions, measure their effects with a view to maximizing their political impact and
minimizing collateral damage; ensure the delivery of humanitarian assistance to
vulnerable groups; and explore ways of assisting Member States suffering collateral
damage and evaluate claims submitted by such statesr"
1111iI1I:~; ~:IC:Jlrlll:::e::I~: ::11I11
Where the measures adopted pursuant to Article.d I are shown to be inadequate, the
42
Security Council may authorize such action by air, land or sea forces. Such actions as
may be carried out are to be aimed at maintaining international peace and security. Where
action has been authorized under Article 42, member states are to make available to the
Security Council 'armed forces, assistance, and facilities, including rights of passage,
necessary for the purpose of maintaining peace and security'. This is usually facilitated by
a series of agreements between the UN and contributing member states.
39 ibid, Paragraph 75
40 The Uniting For Peace Resolution 1950. In the Certain Expenses Case, the ICJ held that the Security
Council does not have exclusive responsibility for the maintenance of international peace and security. In the
circumstance, it was proper for the General Assembly to act.
4\ Gray C, op cit, p. 150
245
;.;;;;;t· ~~;_4' •. " £iiliiiimwrrirgw;ttEil!ijiiif/..
---::.':~:.,:,::;-======:;;,;-~-.:..:.;;'
The enforcement powers of the UN have evolved over time. The UN now er:,;;3.,I2'~~S; interr; :
in Peacekeeping Operations (PKOs) which were not contemplated as at the tir.,~ ch,~' interri:
Charter was being signed in 1945. The institution has evolved through the practice c.:' :"I~' being ~
UN and its legality is no longer challenged by any state." defence
The collective provisions of Articles 39-43 play an important role and permit tl:e '_'~~
to authorize the use of force where necessary. The UN has on several occasions ar:-"c:d cove: :.
these rules to justify the use of armed force between states in certain circumstances, ~'hl:S does r.:
authority was utilized in the Korean conflict in 1950. The UN Security Council invoked It", its sc::;
powers and authorized US Forces to use force to restrain North Korea from anr:;:\.:n:g right: :'
South Korea. The power was also invoked to ensure that Iraq withdrew her troops ::-:m
44
Kuwait in 1990. In effect, once the requirements under Articles 39-43 are complied w.tr,
the UN may authorize the use of force. contrc.
as fa:', -
b) The Right to Self Defence the use
The right to self defence exists by virtue of Article 51 of the UN Charter which prov :.:c:s
that: necess.i,
argue: :
Nothing in the present Charter shall impair the inherent defer.;e
right of individual or collective self defence if an armed rejectec
attack occurs against a member of the United Nations until shoulc .
the Security Council has taken measures necessary to does r.:
maintain international peace and security. accorc.:
exam.r.
In the Nicaragua case,45 the US claimed that they were acting in collective 5,:: :
they r.;
defence of EI Salvador which necessitated their attack on Nicaragua. It was held by ::"e
conder:
IC] that the US had been involved in the unlawful use of force.
There are divisions on the scope of the right to self defence as an exception to :'11:-
Secur.r
general prohibition against the use of force in Article 2 (4) of the (IN Charter. On one 5 j t
be or.e
of the academic debate, it is argued that Article 51 envisages a wide right of self deferce
was a.:
which goes beyond the right to respond to an armed attack on another state's territory. T"-c
it is c:':
meaning attached to 'inherent right of individual or collective self defence' by ::-c
render
proponents of this wider interpretation is that Article 51 preserves the earlier customer-
prefer; :
repor;:
43 Gray C, op cit, p. 151 some ,.
44 By UN Security Resolution 678
45 Nicaragua v United States 1984 IC] REP 392 46 Gr3:
246
lie Juris Review C. Wigwe
In practice, States usually try to put forward arguments that will avoid doctrinal
controversy and appeal to the widest possible range of States.l" They justify their actions
as falling within the scope of Article 51 while tactfully avoiding any doctrinal debates on
the use of force.
States have an obligation under Article 51 to report actions of self defence to the
Security Council. In the Nicaragua case, the Court held that 'the absence of a report may
be one of the factors indicating whether the State in question was itself convinced that it
was acting in self defence'. Where a State fails to report that it was acting in self defence,
,if~\~~!,:;e :-': :,'j.,I(~
it is often viewed as a sign of bad faith. Failure to report will not however automatically
~:illl~::w:':~:~~ : ' i-::L~:""
render a claim by a state that it was acting in self defence useless. In practice, it is
preferable for a State to report all its actions to the Security Council at one time and not
reporting individual actions. The obvious repercussion of the latter approach is that while
some individual actions may be justifiable and well within the scope of Article 51, other
46 Gray C, op cit, p. 87
247
Ife Juris Review C. Wig,ve Ife J:.. '
actions may not be so fortunate. A blanket report covering all actions taken by the Sta:e ~. one c:
the exercise of its right to self defence will prove more effective than isolated reports. self ~::
Iraq .:
To qualify as acts self defence, the State relying on the exception must limit itseI"
emp:'
to rejecting the armed attack and take 'measures which are proportional to the arrr.ec
beer:
attack and necessary to respond to it,47 It is submitted that Article 51 will not apply whe-e
attack:
for instance the Victim State prolongs its occupation of the aggressor's territory long a::e'
least
the aggression has been curbed. The Victim State should not also be allowed to relv 2~.
be c.:-;
self defence to carry out retaliatory, punitive or deterrent measures; its actions must :'t
necessary and proportionate to the acts of aggression by the attacking State. In ::-::: c. Hu:
Nicaragua case, the US activities of mining the Nicaraguan ports and attacking v:
installations went beyond acts of self defence and were not proportionate to the 2:': inrer. :
received by the Salvadorian opposition in Nicaragua. one 5:
hurra;
The right of self defence of a State's territory has in practice been relied upon ::- any :
different States in the protection of their nationals or citizens abroad. Numerous example- invas
of this kind of intervention abound.f As mentioned earlier, there is an ensuing debate 2:- the ::.:.
whether Article 51 covers such situations but there has been no clear resolution by tr.e
Security Council accepting or condemning the practice. One major criticism against ti:e
extension of Article 51 to the protection of nationals abroad lies in its use as a facade ~-2~ gene:
intervention by one country against another, thus violating the principles governing State ux .
sovereignty and the doctrine of non-intervention. In some instances, the action of the State sec:
seeking to protect its citizens was not often necessary or proportionate. When the CS c1 e2.' :
invaded Panama, it relied on a right to self defence, arguing that it was going there for the
protection of its nationals. The US forces prolonged their stay in Panama and subsequent}.
were instrumental to the installation of a new government there. This. was clearl; at t::.::
overstretching their initial intentions. Contrast this with the rescue operation by the Israe.: YL:S:::
Defence Forces (IDF) IN Entebbe, Uganda who extracted their nationals that were bein; not 3:
held hostage and left Entebbe less than two hours after their arrival. on.; :
On the concept of anticipatory self defence which it has been argued comes withir
49 Eo, .!
the scope of Article 51, it is submitted that such a right of self defence was never i:-.
50 :=:: .
contemplation at the time the Charter was being signed. There is no legal justification f=~
41~
this and without clear parameters,the possibility for abuse is gargantuan. The US has beer httr
s: "-_
fro
47 IC] Reports (1986) para 176
li g.:. - -
48 The Belgian Intervention of Congo (1960), the US in the Dominican Republic (1965), Libya (198~ .
wi; c"
Grenada (1983), Panama (1989), Iran (1980), Baghdad (1993), Afghanistan and Sudan (1999), Germany ::-: 52 :,. ~ :
Mogadishu, Somalia (1977), Israel in Uganda etc.
248
Ife Juris Review C. Wigwe
one of the chief proponents of such a right and has introduced terms such as preventative
self defence and preemptive strikes in its 'global war on terror' .49 In the US invasion of
Iraq for instance, the Bush led administration in the post 9/11 era introduced the term pre-
emptive self defence. This was the basis for the attack on Iraq which was alleged to have
been in possession of WMD's which information turned out to be false." Iraq had never
attacked the US so reliance on Article 51 of the UN Charter was premature to say the
least. Any changes in the international law to reflect the existence of any such right must
be carefully considered in order to checkmate abuses that may likely arise.
c. Humanitarian Intervention
The UN Charter does not have any express provisions dealing with humanitarian
intervention as an exception to the prohibition on the use of force. It usually arises where
one State uses force in the territory of another State with the purpose of protecting against
human rights violations in the latter State. Since humanitarian intervention does not enjoy
any clear legal backing, states do not always raise it as a defence to their actions of
invasion even where it can be inferred from the facts that such states may have performed
the acts on the basis of humanitarian intervention.
not state that they were acting based on humanitarian intervention although this was the
only tenable reason. The Security Council rejected the resolution condemning the use of
249
Ife Juris Review C. Wigwe
force by NATO. 53 The NATO action would ordinarily have been condemned for being ir.
violation of Article 2 (4) of the UN Charter. It however appears that their actions were
well received based on the continuing violence against the people of Kosovo at the time.
This condemnation in the Kosovo scenario is not conclusive that humanitariar: place .
intervention is now a confirmed exception to the prohibition against the use of force. The in tr.e
legitimacy of humanitarian intervention remains debatable and State practice is stir dour:
fragile." States should not be allowed to unilaterally resort to the use of force withou: lim::::.
receiving the' green light' from the Security Councilor in the least, acting in pursuance o:' fro 1-:-
some written law. Humanitarian intervention has no doubt contributed to the maintenance indere
of international peace and security. The truth however remains that there is no express of f-e:.:
right embodied in law to use force against another country in the name of humanitarian soc 12.
intervention. For such a right to be recognized, it ought to be codified in the conventions
and treaties dealing with the use of force and its exceptions. According to one author.
without clear provisions embodied in a treaty, the possibilities for abuse are manifest and be re:
there is no moralistic magic that can manufacture the right simply because it ought to age. I:", 5
exist.55 othe:
by -,:-::
The prohibitions on the use of force embodied in Article 2(4) of the UN Charter eros, :
are put in place to protect State sovereignty and to preserve the equality of States in the perr. :
international arena. States must be properly guided on the legal framework regulating the defe:.:
use of force and should act within the permissible exceptions when the use of armed force
may be authorized.
The Inter Relationship between the Doctrine of Non-Intervention and The Use of exter :
Force self c:
these
The key underlying principle that may be found in discussions on the doctrine c: has ,~,.
non-intervention and the use of force is the principle of state sovereignty. The dcctrinec:
51 t;
, non intervention is aimed at securing the independence of states from exterru
.
carr ~':
: :
intervention. The UN is framed on the principle of the sovereign equality of all ::5
: :
ir prc:e:
members. All states are equal in the eyes of the law and even though differences may ex.s:
i i that ..
between them in terms of natural or material resources or by whatever other distincticr..
exc ...
the fact remains unassailable that all states are equal in law. In the words ofVattel:
abus::
S6 E..
53 SC 3989 th meeting of26 March 1999 by 12 votes to 3 ('Pre
54 The lack of intervention in the Rwandan and Sudanese crises illustrates this point 57 i ~'. -
55 Dixon, M., Textbook on International Law, p. 325
58 \\ ;; ,"
'I!
I~ 250
ii
Ife Juris Review C. Wigwe
The UN Charter provisions recognize that there are circumstances where force may
- _.,..- -- be necessary in order to secure international peace and security. The use of such force
- -~. against another state would ordinarily be a breach of that other states' sovereign status. In
other words, as a general rule, states ought not to intervene in the affairs of another state
by the use of force contrary to Article 2 (4) of the UN Charter as this wiII constitute an
erosion of state sovereignty. The only circumstance where such a breach will be
permissible is where the UN authorizes the use of force or the state is acting in self
defence.
It IS for the reason of preserving state sovereignty that there are justifiable
reservations against the right of self defence under Article 51 of the Charter being
extended to cover situations dealing with the protection of nationals abroad, anticipatorys
self defence and the global war on terror. There are no clear legal parameters for any of
these actions flowing from the express words of Article 51 of the Charter. State practice
has however shown that states do indeed make arguments extending the scope of Article
51 to lend support to their military actions in other states. The fact that these interpretation
can be subject to abuse has been seen over time. Not all states who invade on the basis of
1e::S ~::.:' ex: 5: protection of nationals have that as their sole objective. In practice, they tend to go beyond
r :S~.:-.~:~ =:-.. that function. The endless arguments supporting a restrictive interpretation of Article 51 to
exclude anticipatory self defence show that this specie of self defence is equally subject to
abuse. State sovereignty is sacrosanct. All instances of the use of force by one state against
56 E. de Vattel, Le droit de gens, ou principes de la loi naturalle (Paris: J.-P. Aillaud, 1830), I, at 47
(' Prel im inaires', para. 18)
57 Umozurike, 0., Self Determination in International Law (1972) p. xi
58 Werner, L., Contemporary International Law: A Concise Introduction, Westview Press, (1991) p. 186
251
Jfe Juris Review C. Wigwe
another must be examined in the light of the Charter provisions and customar where
international law rules in existence. at a.' :
: •• , ...... ,cif. effec:
The arguments against humanitarian intervention as an exception to the prohibitior law.
on the use of force are also rooted in the need to preserve state sovereignty. It has beer
argued that the principle of non-intervention cannot be used to prevent a legitimate
international concern for human rights.i" Writers have further argued that the balance twc 5
between the principle of non-intervention and that of international concern for humar SO\c-::
rights should be struck in favour of the latter.i" as the international community has a dur, nati.r
to act for the relief of human rights abuses. 61 History has however shown that of A:--.
humanitarian ends being claimed by states are almost always mixed with other, less absc:-:
laudable motives for intervening.Y Where a humanitarian crisis exists, the best step to be lega
taken ought to be to obtain the approval of the UN Security Council pursuant to Chapter casu;
VII of the Charter. Anything less than such authorization will lack the necessary legal sove-e
foundation and even though a humanitarian disaster may have been averted, it cannot be
said that there has not been a breach of state sovereignty in such a situation.
Conclusion
State sovereignty is sacrosanct and all States must endeavour to act within the
permissible limits as recognized by law. All states are equal within the context of the
international law. No State has the inherent right to cross international frontiers/borders ir:
violation of the doctrine of non- intervention. Each State has the duty to respect the
personality of other States and ensure in the spirit of mutual respect that the territorial
integrity and political independence of States remain inviolable. It is only when invitation
is made by a State for em-bing domestic unrest or the protection of their nationals or after
prior foreign intervention that another State may intervene. Any circumstance outside
these goes beyond the contemplation of internatioriallaw and will be frowned upon.
The prohibitions on use of force are unavoidably intertwined with the doctrine 0:"
non-intervention. The preservation of state sovereignty is one common thread that binds
them together. The authorization of the use of force and the right to self defence constitute
the solid legitimate exceptions to the prohibition. State practice supports humanitarian
intervention but such support has not received widespread approval as circumstances exist
..,
59 Vincent, R.J., Human Rights and International Relations (1986) p. 127
60 Franck, T. and M. Radley, 'After Bangladesh: The Law of Humanitarian Intervention by Military Force.
American Journal of International Law (1973) pp. 67;290
6! Ramcharan, B.G., 'Humanitarian Intervention: A Gulf in the Charter', Peace Magazine Sept/Oct. (199:
p. 10
62 Gray, C., op cit, p. 27
252
Ife Juris Review C. Wigwe
where the intervention has been necessary but not utilized. In all this, States ought to strive
at all times to give the respect to other States under the norm of State equality and give
effect to the rules regulating the use of force and non-intervention under the international
law.
The doctrine of non-intervention and the prohibitions on the use of force are like
two sides of a coin. Both walk hand in hand to protect the inviolability of state
sovereignty. The arguments against anticipatory self defence and the protection of
nationals which have been raised by some countries as being inclusive in the interpretation
of Article 51 only serve as excuses to violate the territorial integrity of other states in the
absence of any legal backing. There is a pressing need now more than ever to clarify the
legal framework surrounding both principles. State sovereignty is not something to be
casually toyed with. Clear legal parameters should be put in place to ensure that state
sovereignty is reserved at all costs.
I
~i: ..;::..:U1:....
['~""'''II
OJ,, I' I" II"'"
I~",. ;,11..
253