When discussing intervention and the use of force, some attention must be given to the shifting perception in the understanding of the norm of non-intervention. Indeed, while the norm is not challenged per se in existing international law, it certainly is not viewed as rigid or absolute.43 The norm of non-intervention is limited by various legal frameworks that may allow different types of interventions – sometimes justified, at least
42
Some choose different definitions. In some works “multilateral” action is simply that which is conducted under auspices of international organizations or alliances, like the OAS or NATO – and not necessarily those which relate to Chapter VII. See, e.g., REGAN, supra note 3, at 105; others use the term “collective intervention.” See ENFORCING RESTRAINT,supra note 30, at 2.
43
Leurdijk argues that the non-absolute character of the norm of non-intervention is a frequent feature of the norm throughout history. See LEURDIJK,supra note 31, at 19.
in the context of non-forcible intervention – by reference to the intervening party’s own right to conduct its policy without external intervention.44
This ambiguous framework is a result of the many dilemmas the norm of non- intervention presents, especially – but not only – to liberal thinkers.45 The “liberal dilemma” regarding the norm arises from its dual and seemingly contradicting meanings, when explained and justified in liberal discourse. On one hand, liberal thought condones the norm of non-intervention, since it solidifies peoples’ right to freely determine their path, as part of the basic right to self-determination; this right can only be secured in political structures that are free from external interference.46 On the other hand, the same liberal principles can be invoked to justify intervention when the people of the target state are denied this choice.47 According to Doyle, the liberal dilemma can be reconciled if we agree that “[s]ometimes the national self-determination that non-intervention is designed to protect is so clearly undermined by the domestic oppression and suffering that the principle should simply be disregarded.”48 In such situations, the realization of the same principles that uphold the norm of non-intervention, may – themselves – call for
44
One explanation for the fluid nature of the norm of non-intervention is the fact that due to its wide application, states are often behind of a “veil of ignorance” as to their interests regarding the scope of the norm. Most states might find themselves on both ends of the norm in different times, and thus their interests are not clear. See Politics Across Borders, supra note 31, at 13.
45
The norm has also challenged socialist thinkers. In the context of the Brezhnev doctrine, see Chapter 8 sec. II.
46
This view is radically different, for instance, than the 19th century perception of non-intervention as solidifying the concept of legitimacy of authoritarian rulers, as promoted by the Holy Alliance. See HERSCH
LAUTERPACHT,RECOGNITION IN INTERNATIONAL LAW 103(1947). 47
See Michael W. Doyle, A Few Words on Mill, Walzer, and Non-intervention 23 ETHICS &INT’L AFF.349 (2009) (addressing this dilemma and comparing the principles underlying non-intervention and intervention in the works of John Stuart Mill and Michael Walzer); see also DOYLE, supra note 8, at 394–402 (providing an overview of traditional liberal approaches towards intervention and non-intervention.) 48
intervention. Consequentially, the intervener’s actions will not be considered a violation of the norm to begin with.
Much of the contemporary legal understanding regarding the scope of the norm of non-intervention is traced to the 1986 International Court of Justice landmark ruling in the Nicaragua case.49 However, and as detailed later,50 while that ruling reaffirmed the classical – and broad – perception of the norm, the doctrine set forth in Nicaragua was too thin to be considered exhaustive. The Nicaragua ruling was a product of the last days of the cold war. The world has changed dramatically since, reflecting constant shifts in the perception of sovereignty and non-intervention.51 The human rights discourse has become a dominant voice in international law, supplemented by arguments for the recognition of an international “democratic entitlement.”52 The Responsibility to Protect (RtoP) concept has emerged, suggesting that the concept of sovereignty – the very intrinsic value non-intervention traditionally sought to guard – has arguably transformed from the de facto ability to exercise effective control over territory, to the ability to fulfill the responsibility to protect its population.53 In general, thus, the norm of non-
49
Nicaragua, supra note 31; see also Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 168 (December 19) ¶164.
50
Chapter 8 sec. IV.3. 51
See Tom J. Farer, Humanitarian Intervention Before and After 9/11, in HUMANITARIAN INTERVENTION: ETHICAL,LEGAL AND POLITICAL DILEMMAS 53,72(J.L. Holzgrefe & Robert O. Keohane eds., 2003); THE
INDEPENDENT INT’L COMM’N ON KOSOVO,THE KOSOVO REPORT 168–169(2000). 52
Thomas M. Franck, The Emerging Right to Democratic Governance 86 AM.J. OF INT'L L. 46 (1992). 53
See FRANCIS M.DENG ET AL.,SOVEREIGNTY AS RESPONSIBILITY 1–34(1996); ICISSReport, supra note 10, at 8–34(discussing this process).The most dramatic of these challenges may be the interventionist attitude that is reflected in new defense treaties of African regional organizations. These will be addressed infra, Chapter 10 sec. III; see also Oliver Furley & Roy May, Introduction, in AFRICAN INTERVENTIONIST
STATES 1, 4(Oliver Furley & Roy May eds., 2001); Jeremy Levitt, African Interventionist States and International Law, in AFRICAN INTERVENTIONIST STATES, id. at 15. In general, the official attitude of African regional organizations regarding the norm of non-intervention has been described as having shifted to “non-indifference”. See Paul D. Williams, From Non-Intervention to Non-Indifference: the Origins and Development of the African Union's Security Culture,106AFRICAN AFFAIRS 253(2007).
intervention has arguably shifted its focus from seeking to ensure non-intervention in sovereign will, to the protection of other interests.
In this context, two main levels of challenge to the traditional understanding of non-intervention can be identified. The first – perhaps narrow challenge – considers non- intervention as contingent upon the sovereign’s physical protection of its population or civilians under its control. This is very much the approach of RtoP.
A wider challenge posits that non-intervention is set to entrench the substantive democratic will of peoples, meaning, not only their physical protection but also certain political values. The term “substantive” alludes to rights that go beyond the principle of majority rule, and extend also to the protection of human rights that are a precondition for any true democratic process.54 This challenge corresponds with the perception of democracy as a human right in itself – or, as Thomas Franck famously put it, democracy as an “entitlement” that has “trumped the principle of non-interference.”55 Damrosch thus defines this “reformulated” norm of non-intervention as only prohibiting “actions by one state that deny the people of another the opportunity to exercise free political choice.”56
Be it as it may, the mere existence of the principle of non-intervention is not seriously contested. Therefore, a precise way of expressing the relation between the norm of non-intervention and its substantive challenges, would not be that the latter has "trumped" the former, but rather that the former should be interpreted in light of the latter. The practical meaning of such a perception would be that states cannot invoke the norm
54
On “Substantive” democracy see AHARON BARAK, PROPORTIONALITY:CONSTITUTIONAL RIGHTS AND
THEIR LIMITATIONS 218(2012). 55
Thomas M. Franck, Legitimacy and Democratic Entitlement, in DEMOCRATIC GOVERNANCE AND
INTERNATIONAL LAW 25,46(Gregory H. Fox & Brad R. Roth, eds. 2000). 56
of non-intervention when they – themselves – are failing to protect populations under their control, or are otherwise denying basic political rights of their citizens.57
However, it should be stressed that the redefinition of the norm of non- intervention does not always affect the question of forcible intervention. As we shall see later on, when the challenges to the norm are based on a government’s failure to protect civilians, they might affect its sovereign power, and thus result in implications on the issue forcible intervention. Conversely, while the norm of non-intervention might also be considerably weakened when democratic principles are violated, it is doubtful, in general, whether this in itself has bearing over the laws on the use of force. This is because of the fact the non-intervention and the laws on the use of force are two intertwining – but nevertheless distinct – normative frameworks.