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THE DOCTRINE OF NON-INTERVENTION AND THE USE Of


FORCE IN INTERNATIONAL LAW

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Ife Juris Review C. Wigvve Ife Juris .::

THE DOCTRINE OF NON-INTERVENTION AND THE USE Of


FORCE IN INTERNATIONAL LAW

*
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:

The appearance of political units persisting in time and


fixed in space, the development of permanent, impersonal 2 Stra- c'
institutions, agreement on the need for an authority which Press.I C - :
) Kantc: .
can give final judgments, and acceptance of the idea that
", 4 Phil!y =
5 Dixo:-.
there is ~
State cc ,
test for .:.. :
• Chris Wigwe, Ph.D BL, Lecturer Faculty of Law, Rivers State University of Science and Tec:~~' ::11[:"
6 Artie:",
Port Harcourt- Nigeria Email: ccwigwe!Zi;vahoo.co.uk; mobile: 07034004321
any war
I Cassese A; International Law, 2001, p.20
7 Unde,:'

232
......... ; ..... ......................

Ife Juris Review C. Wigwe

this authority should receive the basic loyalty of its


su bi
ijects. 2

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:.

2(4)All members shall refrain in their international


relations from the threat or use of force against the
territorial integrity and political independence of any
State, or in any other manner inconsistent with the
purposes ofthe United Nations.

2(7)Nothing contained in the present Charter shall


authorize the UN to intervene in matters which are
essentially within the domestic jurisdiction of any State
or shall require the members to submit such matters to
settlement under the present Charter but this principle
shall not prejudice the application of enforcement
measures under Chapter Vll.

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.

The Essence and Legal Significance of Non- Intervention


Commentators have stated that the essence and legal significance of :::'CI-
intervention institutionalized the principles of sovereignty and the right of PO::~'2::llllt
communities to self-determination. The State is the supreme power within the territor. :if
a political entity and all other States or international organizations are precluded ~"':-JIr.mJ
intervening in the political affairs ofthe State.
of arc
It appears that it was the norm of non-intervention that motivated the US in ::-,e:lI1r the co:-
initial non-intervention in World War I and II9 as well as the non-intervention D:- :hnf: social.
liberal powers in the Spanish civil war despite the intervention of Italy and Germany, " 8')' has ur.
Article 2(1), the UN is established on the basis of the principle of sovereign equalityc : Ji.lil! having
its members, which is further confirmation of the norm of non-intervention. encorr:
have 2-
The Declaration on Principles of International Law Concerning Friendly Rel.?::lll:$ agains:
and cooperation amongst States in accordance with the Charter of the United Naticr, ::$ regu12.:
predicated on international peace and security of the world, to be achieved by:

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: ~., ..

Ife Juris Review C. Wigwe

a. Promoting the unity and solidarity of member


States;
b. That States shall refrain from the threat or use of
force against the territorial integrity and
political independence of another State that is
inconsistent with the UN Charter.
c. That States should settle their differences in
such a manner that it will not endanger
international peace and security;
d. To eradicate all forms of colonialism and
imperialism
e. To encourage political and diplomatic
cooperation among member States
II::::: r",:: mUIII"1:::J1II11Ul, f To protect the cultural and religious beliefs of
.'::::III~::,~;III.:lJe:I:' :rlilliU:'
members in accordance with the UN Charter
and Universal Declaration ofHuman Rights;
g. The principles of equal rights and self-
determination ofpeoples;
:';; 'nlll::llnJi' h. The principles ofsovereign equality;
:rllcl,i:im::II:::;:JlJ11 I. The principles not to intervene in matters within
';l~:n"""l1li:)'P ;:wl' the domestic jurisdiction ofmember States. 11
;1,11"I,Jel:.:! t'":"II'IIIl:
The concept underlying the doctrine of non-intervention is not limited to instances
of armed int-rvention alone. Non- intervention presupposes the equality of states within
r . '5:1111 :::nm::JIInr the context of international law. Every state has the right to determine how affairs whether
I!IJIlUClIr :,(ttlnlle' social, economic, political etc, are conducted within its territory. It is not only when a state
lr::r.::'ilIlii:I1'" "II E1111\' has unlawfully intervened in another state through the use of force that the argument of
l'IW::~,:Ir:"" :;rillii/il having breached the doctrine of non intervention can be raised. Non intervention is all
encompassing and wider in scope than the use of force alone. Any actions of a state which
have an undermining effect on another State serve as an erosion of state sovereignty
W',' ';<t:'IHiIIlrc:i1Cllnll~ against the latter state and will rightly be considered to be a violation of the principles
iii '""Jl,ILihi::Ir.lI:~ IiH, regulating non intervention.

Under the international humanitarian law, intervention by States in the civil


conflict of other States is generally prohibited. The rules prohibiting such forcible
intervention have been developed through resolutions of the UN General Assembly. These

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 (~-:

UNITS 70) Article 3


13 General Assembly Resolution 2131(1965) On the Inadmissibility oflntervention
17 Gra. :
14 S/PRSTIl997/47
IS Lj]\'S:~
15 Nicaragua's Case Para 205
19 Ul\ C c:'
16 Gray C; International Law and the Usc of Force, Oxford University Press 2000 p.57
20 Gra. -
236
Ife Juris Review C. Wigwe

invite a third State to use force within its territory which is an apparent contravention of
:n~i:> ::~,:S;;::"'·.•n:7:lI~mlll!l~\

rr .: .ssX~, "~'II :::)11'


the rule against non-intervention and the use offorce.

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:

17 Gray c, op cit p.64


18 UN Security Council Resolution 360
19 UN General Assembly Resolution 3213

20 Gray C., op. cit, p. 54

237
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Ife Juris Review C. Wigwe

The principle forbids all states or group of states to


intervene directly or indirectly in internal or external
affairs of other states. 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. One of these is the choice ofa political,
economic, social and cultural system, and the
formulation of foreign policy. Intervention is wrongful
when it uses methods of coercion in regard to such
choices which must remain free ones. The element of
coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly
obvious in the case of an intervention which uses force,
whether in the direct form of military action, or in the
indirect form of support for subversive or terrorist
armed activities within another state/"

The US military action in Iraq was also contrary to the doctrine of n: ~


intervention. While the Bush led administration cited the presence of Weapons of ~f2;,
Destruction (WMD's) in Iraqi territory, it became obvious much later that the interventri
was aimed primarily at removing then President Saddam Hussein from office. T-:
argument presented by the US as its basis for intervention was not substantiated as :':
WMD's were discovered. This was after 2 years of the Iraqi invasion when top C.':.
weapons inspectors reported that they could not locate any WMD's in Iraq?2 There was n :
legal justification for the intervention and by invading Iraq the US violated the doctrine: :
non-intervention yet again.

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

21Nicaragua case, para 205


22 MSNBC, (2005) CIA's final report: No WMD found in Iraq, http://www.msnbc.msn.com/idI76~.::
(accessed on 10 October, 2009)

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.

Whether the intervention is by invitation for the purposes of quelling domestic


unrest or for the protection of nationals or where there has been a prior foreign
intervention, States must take care to respect the concept of sovereign equality of States
before they intervene with military strength in any country. Apart from the usual
condemnations by the UN where a States' sovereignty has been violated by intervention, it
remains to be seen what sanctions would be imposed on a State for violating the norm of
non- intervention.

An Insight into the Circumstances Surrounding the Armed Conflict in Syria


The ongoing conflict in Syria is one that deserves special consideration as it relates
to the doctrine of non-intervention. It is necessary to give a brief background here of the
circumstances surrounding the conflict as well as the legal implications under the
international law. Flowing from the Arab spring uprising in the Middle East which has
t:""l1rll~"" tt1111:lIttil
seen the ousting of rulers in Tunisia, Libya, Egypt and Yemen, Syria has been subjected to
n-)I,:III::~::r 1I"nUUilliiS civil uprisings which started on 15 March 2011 with public demonstrations. Amongst
te,lliIEe::~"\rle~!!~m~IU;:)mli
other demands, calls are being made by the opposition rebels for an end to the Ba'ath
:: ;".'(Il~::::' 'T"inltc' Party rule which for about 50 years has been the sole authority in Syria.
1I"'IIIW J~I':: ]:~\ 11I11:: The current Syrian President Bashar al-Assad succeeded his father Hafez ai-Assad
in the year 2000. Worthy of mention is the fact that the aI-Assad family comes from the
minority Alawite sect which makes up about 12% of the Syrian population. This fact in
itself presupposes that the al-Assad led gov-rnrnent is most likely to enjoy sentiments
from minority sects in Syria, who fear the possible consequences of a shift in power to the
majority' sects in Syria. It has been alleged that the ai-Assad led government has
bn"1 ,ill"''''lIe::,''i:: illlUl strategically positioned members of the Alawite sect, loyal to the government of the day,
1U::::rr.Ilt:':r:t :" ::nl~ in top military positions that have proved vital to the quelling of the uprising in Syria. For
If:~:: !:~ :Jt 4!'.:'!I::III(l instance, Maher ai-Assad, the President's younger brother commands the Army's Fourth
IiJIL:::r:::g :,",;::uc:e- JlttI Armoured Division. These facts militate against the success of the revolution in Syria
~n .:::::5,:::s:t.5 ':~II~::lIr unlike in neighbouring Arab countries.

1\,11:1~1:''':: :~.',~-'." 11l1::11~


Another factor militating against the success of a revolution in Syria is that there
!t:' ., ';I _~;~Jjiiile~,'S are only two major cities- Damascus and Aleppo- in the country and unlike Libya for
instance, their population is considerably smaller. Pro-government demonstrations have
been held in both with supporters numbering in thousands occupying the city squares." It
is true that there have been large protests in Aleppo against the al-Assad government

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:

J) commit to work with the Envoy in an inclusive Syrian-


led political process to address the legitimate
aspirations and concerns of the Syrian people, and, to
this end, commit to appoint an empowered interlocutor
when invited to do so by the Envoy;

2) commit to stop the fighting and achieve urgently an


effective United Nations supervised cessation of armed
violence in all its forms by all parties to protect civilians
and stabilize the country.

To this end, the Syrian Government should immediately


cease troop movements towards, and end the use of
heavy weapons in, population centres, and begin

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

Retrieved 20 January 2012


26 "Medvedev warns of Full Blown Wars" RIA Novosti, 17 May 2012

240
Jfe Juris Review C. Wigwe

~:::JJJI,"enm[ S:\lIir!JlUllIIII pullback of military concentrations in and around


·'tli

.;;1lI!i";::IIi' .i:;ilITJlII:::~~" .•. population centres.


111:::il'''~:~'iln::~II~::r 1lI11J111111i
As these actions are being taken on the ground, the
1"" .;;ill.::ilt.::: ~;:iiiIIIJl1lI..
Syrian Government should work with the Envoy to bring
n,.,:: ::hl~' ;;; .'::~$iIIlIUlIlIl
about a sustained cessation of armed violence in all its
forms by all parties with an effective United Nations
supervision mechanism.

Similar commitments would be sought by the Envoy


from the opposition and all relevant elements to stop the
fighting and work with him to bring about a sustained
cessation ofarmed violence in all its forms by all parties
with 1 this end, as immediate steps, to accept and
implement a daily two-hour humanitarian pause and to
coordinate exact time and modalities of the daily pause
through an efficient mechanism, including at local level.

4) intensify the pace and scale of release of arbitrarily


detained persons, including especially vulnerable
categories ofpersons, and persons involved in peaceful
political activities, provide without delay through
appropriate channels a list of all places in which such
persons are being detained, immediately begin
organizing access to such locations and through
appropriate channels respond promptly to all written
requests for information, access or release regarding
such persons;

5) ensure freedom of movement throughout the country


for journalists and a non-discriminatory visa policy for
them;

6) respect freedom of association and the right to


demonstrate peacefully as legally guaranteed.

Following the massacre of Houla village in Syria on May 25 2012 allegedly


committed by Syrian armed forces, there has been an international outcry for justice. To

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

28 Article 39 of the UN Charter 1945


I
29 The only known instances where the UN has made such a finding are with Israel, Rhodesia (now
Zimbabwe) and South Africa
i 30 Gray C, op cit p. 146
31 Sarooshi, The United Nations and the Development of Collective Security (1999)
I 32 Bailey and Daws, The Procedure of the UN Security Council (3'd edn, 1998) at 271
j 33 UN Security Council Resolution 232
34 Liberia, Libya, Cambodia, Afghanistan, Sierra Leone, Sudan, Rwanda, Angola etc

~
243
JI
:IPiiiiiiiiiiiiiiiiiiiiiiiiiii-iliiii-iliiiiiiiiii----------------------------__
Ii
11

Ife Juris Review C. Wigwe

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

CIll""II:TII~: J' '::rli~:::II"


Worthy of mention is the division of powers between the UN Security Council and
the General Assembly which have been blurred over time despite the express provisions of
the UN Charter. Article 11 (2) of the Charter permits the General Assembly to discuss any
questions relating to the maintenance of international peace and security brought before it
and except as provided in Article 12, make recommendations with regard to such
questions. On its part, Article 12 provides that once the Security Council is exercising its
functions with respect to any dispute, the General Assembly 'shall not make any
recommendation with regard to that dispute or situation unless the Security Council so
requests.' In practice, these clear distinctions have gradually been blurred and the General
Assembly in 1950 passed a resolution allowing it to call emergency meetings where there
is a threat to the peace, breach of pace or act of aggression and the Security Council has
itself failed to act due to disagreements within their membership.l'' As regards Article 12,
the General Assembly has been known to make recommendations without express the
express request of the Security Council and while the Security Council was still dealing
actively with the issue."

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

42 Article 42 of the UN Charter of 1945

245
;.;;;;;t· ~~;_4' •. " £iiliiiimwrrirgw;ttEil!ijiiif/..
---::.':~:.,:,::;-======:;;,;-~-.:..:.;;'

lje Juris Review C. Wig"e' lfe}:,"'"

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

'~llC ";1\) ='~-: ';:J::.;gle:~~:


\j)
international law to self defence. Furthermore, that pursuant to the wide customary
::~H~ ~:,,:~ ': ~:;r!l~
international law right of self defence which was in existence at the time the Charter was
being concluded, there was room for the protection of nationals and anticipatory self
defence.

On the other side of the divide, Article 51 is given a restrictive interpretation to


cover a situation where there has been an armed attack only. To this school, Article 51
does not envisage the protection of nationals or anticipatory self defence as falling within
its scope. Furthermore, this school argues that at the time of the Charter, only a narrow
right of self defence was in existence.

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.

Article 51 imposes an obligation on the Security Council to take 'measures


necessary to maintain international peace and security.' In the Nicaragua case, the US had
argued that it was the duty of the Security Council alone to pronounce on the clams of self
defence and that the International Court of Justice (ICJ) had no right to do so. The Court
rejected this argument, holding that the fact that a matter is before the Security Council
should not prevent it from being dealt with by the Court. In practice, the Security Council
does not often pronounce on the legality of any self defence claim. Each case is dealt with
according to the facts and particular instances of the use of force are condemned. An
examination of the different resolutions passed by the Security Council will reveal that
they have not resolved the doctrinal divide on the scope of Article 51 bu.t instead choose to
condemn particular instances of 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

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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
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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.

Before 1990, States acting on the grounds of humanitarian intervention were


generally frowned upon by the UN Security Council." Such interventions received lesser
UN resistance in the post 1990 era. The ECOWAS intervention of Liberia through
ECOMOG and the intervention of US, Britain and France in Iraq in 1991 and 1992 are
clear examples.

In the Kosovo intervention of 1999, NATO embarked on action in Kosovo aimed


at the protection of the Kosovo Albanians. They carried out a bombing campaign against
Yugoslavia and aimed their assault at strategic locations all over Yugoslavia.Y They 'did
'1i~\,d,.:I"··a ~,~:,...-
.... ... ~ .... L~ .:..

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

49 Bouchet-Saulnier F., The Practical Guide to Humanitarian Law, 2007, pA22


50 Byers M. (2002) Terrorism, the Use of Force and International Law after 11 September, Vol 51, pp 401-
414. Global security organization, Operation Allied Force,
http://www.globalsecurity.org/military/ops/alJiedJorce.htm. (Accessed on 01 October 2009)
51 The Indian intervention of Bangladesh in 1971 and the Vietnamese intervention in Cambodia were
frowned upon by the UN Security Council . However, the overthrow of the Idi Amin government in
~I;ii>, '1 - ", - Uganda in 1979 which was facilitated by a Tanzanian invasion was welcome. This was probably done to
~ ..,,:::":-'=':. widespread violation of human rights under that administration.
52 Moorman, W. (2003) Humanitarian Intervention and International Law in the Case of Kosovo, :\e\\
England Law Review 36 (4).p.778

249
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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

A dwarf is as much a man as a giant; a small republic is no


less a sovereign state than the most powerful kingdom. 56

In order to preserve state sovereignty, the doctrine of non-intervention was put in


place to give effect to the principles of sovereign equality. No state is entitled to intervene
in the affairs of the other without its permission. The failure to comply with this rule is no
doubt a fundamental breach of state sovereignty. The doctrine of non-intervention is not
limited to only situations where the use of force is being considered. States are precluded
from intervening in the economic affairs of other states. Sovereignty is not just an
independent right for states to conduct self government of their choice." but also by virtue
of that right, they freely determine their political status and freely pursue their economic,
social and cultural development.f

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

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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

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