I. | Substantive International Law - First Part |
6. | USE OF FORCE AND RELATED PROBLEMS |
6.3. | Intervention |
¤
Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[pp. 106-108] The principle of non-intervention involves the right
of every sovereign State to conduct its affairs without outside interference;
though examples of trespass against this principle are not infrequent, the Court
considers that it is part and parcel of customary international law. As the
Court has observed: "Between independent States, respect for territorial
sovereignty is an essential foundation of international relations" (I.C.J.
Reports 1949, p. 35), and international law requires political integrity
also to be respected. Expressions of an opinio juris regarding the
existence of the principle of non-intervention in customary international law
are numerous and not difficult to find. Of course, statements whereby States
avow their recognition of the principles of international law set forth in the
United Nations Charter cannot strictly be interpreted as applying to the
principle of non-intervention by States in the internal and external affairs of
other States, since this principle is not, as such, spelt out in the Charter.
But it was never intended that the Charter should embody written confirmation of
every essential principle of international law in force. The existence in the
opinio juris of States of the principle of non-intervention is backed by
established and substantial practice. It has moreover been presented as a
corollary of the principle of the sovereign equality of States. A particular
instance of this is General Assembly resolution 2625 (XXV), the Declaration on
the Principles of International Law concerning Friendly Relations and
Co-operation among States. In the Corfu Channel case, when a State
claimed a right of intervention in order to secure evidence in the territory of
another State for submission to an international tribunal (I.C.J. Reports
1949, p. 34), the Court observed that:
"the alleged right of intervention as the manifestation of a policy of
force, such as has, in the past, given rise to most serious abuses and such as
cannot, whatever be the present defects in international organization, find a
place in international law. Intervention is perhaps still less admissible in the
particular form it would take here; for, from the nature of things, it would be
reserved for the most powerful States, and might easily lead to perverting the
administration of international justice itself." (I.C.J. Reports 1949,
p. 35.)
The principle has since been reflected in numerous declarations adopted by
international organizations and conferences in which the United States and
Nicaragua have participated, e.g., General Assembly resolution 2131 (XX), the
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of
States and the Protection of their Independence and Sovereignty. It is true that
the United States, while it voted in favour of General Assembly resolution 2131
(XX), also declared at the time of its adoption in the First Committee that it
considered the declaration in that resolution to be "only a statement of
political intention and not a formulation of law" (Official Records of
the General Assembly, Twentieth Session, First Committee, A/C.1/SR. 1423, p.
436). However, the essentials of resolution 2131 (XX) are repeated in the
Declaration approved by resolution 2625 (XXV), which set out principles which
the General Assembly declared to the "basic principles" of
international law, and on the adoption of which no analogous statement was made
by the United States representative.
As regards inter-American relations, attention may be drawn to, for example,
the United States reservation to the Montevideo Convention on Rights and Duties
of States (26 December 1933), declaring the opposition of the United States
Government to "interference with the freedom, the sovereignty or other
internal affairs, or processes of the Governments of other nations"; or the
ratification by the United States of the Additional Protocol relative to
Non-Intervention (23 December 1936). Among more recent texts, mention may be
made of resolutions AG/RES.78 and AG/RES. 128 of the General Assembly of the
Organization of American States. In a different context, the United States
expressly accepted the principles set forth in the declaration, to which
reference has already been made, appearing in the Final Act of the Conference on
Security and Co-operation in Europe (Helsinki, 1 August 1975), including an
elaborate statement of the principle of non-intervention; while these principles
were presented as applying to the mutual relations among the participating
States, it can be inferred that the text testifies to the existence, and the
acceptance by the United States, of a customary principle which has universal
application.
Notwithstanding the multiplicity of declarations by States accepting the
principle of non-intervention, there remain two questions: first, what is the
exact content of the principle so accepted, and secondly, is the practice
sufficiently in conformity with it for this to be a rule of customary
international law? As regards the first problem - that of the content of the
principle of non-intervention - the Court will define only those aspects of the
principle which appear to be relevant to the resolution of the dispute. In this
respect it notes that, in view of the generally accepted formulations, the
principle forbids all States or groups 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 of a 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, either in the direct form of military action, or in the indirect form of
support for subversive or terrorist armed activities within another State. As
noted above (paragraph 191), General Assembly resolution 2625 (XXV) equates
assistance of this kind with the use of force by the assisting State when the
acts committed in another State "involve a threat or use of force".
These forms of action are therefore wrongful in the light of both the principle
of non-use of force, and that of non-intervention. In view of the nature of
Nicaragua's complaints against the United States, and those expressed by the
United States in regard to Nicaragua's conduct towards El Salvador, it is
primarily acts of intervention of this kind with which the Court is concerned in
the present case.
However, before reaching a conclusion on the nature of prohibited
intervention, the Court must be satisfied that State practice justifies it.
There have been in recent years a number of instances of foreign intervention
for the benefit of forces opposed to the government of another State. The Court
is not here concerned with the process of decolonization; this question is not
in issue in the present case. It has to consider whether there might be
indications of a practice illustrative of belief in a kind of general right for
States to intervene, directly or indirectly, with or without armed force, in
support of an internal opposition in another State, whose cause appeared
particularly worthy by reason of the political and moral values with which it
was identified. For such a general right to come into existence would involve a
fundamental modification of the customary law principle of non-intervention.
[pp. 109-110] The Court therefore finds that no such general right
of intervention, in support of an opposition within another State, exists in
contemporary international law. The Court concludes that acts constituting a
breach of the customary principle of non-intervention will also, if they
directly or indirectly involve the use of force, constitute a breach of the
principle of non-use of force in international relations.
[p. 119] In the view of the Court, while the arming and training of
the contras, can certainly be said to involve the threat or use of force
against Nicaragua, this is not necessarily so in respect of all the assistance
given by the United States Government. In particular, the Court considers that
the mere supply of funds to the contras while undoubtedly an act of
intervention in the internal affairs of Nicaragua, as will be explained below,
does not in itself amount to a use of force.
[p. 124] The Court considers that in international law, if one
State, with a view to the coercion of another State, supports and assists armed
bands in that State whose purpose is to overthrow the government of that State,
that amounts to an intervention by the one State in the internal affairs of the
other, whether or not the political objective of the State giving such support
and assistance is equally far-reaching.
[pp. 124-125] There can be no doubt that the provision of strictly
humanitarian aid to persons or forces in another country, whatever their
political affiliations or objectives, cannot be regarded as unlawful
intervention, or as in any other way contrary to international law. The
characteristics of such aid were indicated in the first and second of the
fundamental principles declared by the Twentieth International Conference of the
Red Cross, that
"The Red Cross, born of a desire to bring assistance without
discrimination to the wounded on the battlefield, endeavours - in its
international and national capacity - to prevent and alleviate human suffering
wherever it may be found. Its purpose is to protect life and health and to
ensure respect for the human being. It promotes mutual understanding,
friendship, cooperation and lasting peace amongst all peoples"
and that
"It makes no discrimination as to nationality, race, religious beliefs,
class or political opinions. It endeavours only to relieve suffering, giving
priority to the most urgent cases of distress".
[p. 125] An essential feature of truly humanitarian aid is that it
is given "without discrimination" of any kind. In the view of the
Court, if the provision of "humanitarian assistance" is to escape
condemnation as an intervention in the internal affairs of Nicaragua, not only
must it be limited to the purposes hallowed in the practice of the Red Cross,
namely "to prevent and alleviate human suffering", and "to
protect life and health and to ensure respect for the human being"; it must
also, and above all, be given without discrimination to all in need in
Nicaragua, not merely to the contras and their dependents.
[pp. 125-126] As already noted, Nicaragua has also asserted that the
United States is responsible for an "indirect" form of intervention in
its internal affairs inasmuch as it has taken, to Nicaragua's disadvantage,
certain action of an economic nature. The Court's attention has been drawn in
particular to the cessation of economic aid in April 1981; the 90 per cent
reduction in the sugar quota for United States imports from Nicaragua in April
1981; and the trade embargo adopted on 1 May 1985. While admitting in principle
that some of these actions were not unlawful in themselves, counsel for
Nicaragua argued that these measures of economic constraint add up to a
systematic violation of the principle of non-intervention.
The Court does not here have to concern itself with possible breaches of
such international economic instruments as the General Agreement on Tariffs and
Trade, referred to in passing by counsel for Nicaragua; any such breaches would
appear to fall outside the Court's jurisdiction, particularly in view of the
effect of the multilateral treaty reservation, nor has Nicaragua seised the
Court of any complaint of such breaches. The question of the compatibility of
the actions complained of with the 1956 Treaty of Friendship, Commerce and
Navigation will be examined below, in the context of the Court's examination of
the provisions of that Treaty. At this point, the Court has merely to say that
it is unable to regard such action on the economic plane as is here complained
of as a breach of the customary-law principle of non-intervention.
[p. 126] As the Court has stated, the principle of non-intervention
derives from customary international law. It would certainly lose its
effectiveness as a principle of law if intervention were to be justified by a
mere request for assistance made by an opposition group in another State -
supposing such a request to have actually been made by an opposition to the régime
in Nicaragua in this instance. Indeed, it is difficult to see what would remain
of the principle of non-intervention in international law if intervention, which
is already allowable at the request of the government of a State, were also to
be allowed at the request of the opposition. This would permit any State to
intervene at any moment in the internal affairs of another State, whether at the
request of the government or at the request of its opposition. Such a situation
does not in the Court's view correspond to the present state of international
law.
[p. 128] The effects of the principle of respect for territorial
sovereignty inevitably overlap with those of the principles of the prohibition
of the use of force and of non-intervention. Thus the assistance to the contras,
as well as the direct attacks on Nicaraguan ports, oil installations, etc.,
referred to in paragraphs 81 to 86 above, not only amount to an unlawful use of
force, but also constitute infringements of the territorial sovereignty of
Nicaragua, and incursions into its territorial and internal waters. Similarly,
the mining operations in the Nicaraguan ports not only constitute breaches of
the principle of the non-use of force, but also affect Nicaragua's sovereignty
over certain maritime expanses. The Court has in fact found that these
operations were carried on in Nicaragua's territorial or internal waters or both
(paragraph 80), and accordingly they constitute a violation of Nicaragua's
sovereignty. The principle of respect for territorial sovereignty is also
directly infringed by the unauthorized overflight of a State's territory by
aircraft belonging to or under the control of the government of another State.
The Court has found above that such overflights were in fact made (paragraph 91
above).
These violations cannot be justified either by collective self-defence, for
which, as the Court has recognized, the necessary circumstances are lacking, nor
by any right of the United States to take counter-measures involving the use of
force in the event of intervention by Nicaragua in El Salvador, since no such
right exists under the applicable international law. They cannot be justified by
the activities in El Salvador attributed to the Government of Nicaragua. The
latter activities, assuming that they did in fact occur, do not bring into
effect any right belonging to the United States which would justify the actions
in question. Accordingly, such actions constitute violations of Nicaragua's
sovereignty under customary international law.
[p. 133] Nicaragua's domestic policy options, even assuming that
they correspond to the description given of them by the Congress finding, cannot
justify on the legal plane the various actions of the Respondent complained of.
The Court cannot contemplate the creation of a new rule opening up a right of
intervention by one State against another on the ground that the latter has
opted for some particular ideology or political system.
[p. 133] Whatever the impact of individual alliances on regional or
international political-military balances, the Court is only competent to
consider such questions from the standpoint of international law. From that
aspect, it is sufficient to say that State sovereignty evidently extends to the
area of its foreign policy, and that there is no rule of customary international
law to prevent a State from choosing and conducting a foreign policy in
co-ordination with that of another State.
[p. 156 S.O. Singh] I cannot conclude this opinion without
emphasizing the key importance of the doctrine of non-intervention in the
affairs of States which is so vital for the peace and progress of the
international community. To ignore this doctrine is to undermine international
order and to promote violence and bloodshed which may prove catastrophic in the
end. The significant contribution which the Latin American treaty system along
with the United Nations Charter make to the essentials of sound public order
embraces the clear, unequivocal expression given to the principle of
non-intervention, to be treated as a sanctified absolute rule of law whose
non-observance could lead to disastrous consequences causing untold misery to
humanity.
[pp. 199-200 S.O. Sette-Camara] I fully concur with the rest of the
Judgment, as I firmly believe that the non-use of force as well as
non-intervention - the latter as a corollary of equality of States and
self-determination - are not only cardinal principles of customary international
law but could in addition be recognized as peremptory rules of customary
international law which impose obligations on all States.
With regard to the non-use of force, the International Law Commission in its
commentaries on the final articles on the Law of Treaties said:
"the law of the Charter concerning the prohibition of the use of force
in itself constitutes a conspicuous example of a rule in international law
having the character of jus cogens" (International Law
Commission Yearbook, 1966, Vol. II, p. 247).
As far as non-intervention is concerned, in spite of the uncertainties which
still prevail in the matter of identifying norms of jus cogens, I submit
that the prohibition of intervention would certainly qualify as such, if the
test of Article 53 of the Vienna Convention on the Law of Treaties is applied. A
treaty containing provisions by which States agree to intervene, directly or
indirectly, in the internal or external affairs of any other State would
certainly fall within the purview of Article 53, and should consequently be
considered void as conflicting with a peremptory norm of general international
law.
[pp. 534-535 D.O. Jennings] There can be no doubt that the principle
of non-intervention is an autonomous principle of customary law; indeed it is
very much older than any of the multilateral treaty regimes in question. It is,
moreover, a principle of law which in the inter-American System has its own
peculiar development, interpretation and importance.
[p. 273 D.O. Schwebel] Moreover, the Court has in my view further
compromised its Judgment by its inference that there may be double standard in
the law governing the use of force in international relations: intervention is
debarred, except, it appears, in "the process of decolonization". I
deeply regret to be obliged to say that, in my submission, far from the Court,
in pursuance of the requirements of its Statute, satisfying itself as to the
facts and the law, it has stultified itself.
[pp. 305-306 D.O. Schwebel] But it may be argued to the contrary
that, where, as here, the United States and Nicaragua (and the "affected"
States) are bound by the terms of the OAS Charter, and where the provisions of
that Charter embrace not only dictatorial interference but much more pervasive
proscription of intervention, the greater includes the lesser; that, since the
OAS Charter sets out between the Parties, and as among them and the States
affected, the specific and governing legal standards, and since the multilateral
treaty reservation debars the Court from application of those standards, it
withholds from the Court jurisdiction to pass upon complaints of intervention in
this case, all of which must fall within the capacious terms of the OAS Charter.
In my view, the latter argument, while open to challenge, is the stronger.
Moreover, the complaints of intervention in this case are so intimately involved
with the complaints of the unlawful use of force - the facts that underlie both
causes of action correspond so closely - that the artificiality of treating the
Court as having jurisdiction to deal with charges of intervention and not having
jurisdiction to deal with charges of the unlawful use of force reinforces this
conclusion.