The second requirement: The extent of the idea of coercion in an intervention

The analysis of the former requirement seems to clearly stipulate when an element of coercion makes an intervention in a country’s internal affairs unlawful. This element is permitted when incorporated into the existing framework of international laws and agreements but is deemed illegal when the intervening party, whether a country or organisation, disregards all aspects of the targeted country’s sovereignty. An examination of the various standards governing the legality of previous interventions reveals that the legitimacy of the action seems to be determined based on what entity conducts the

intervention. This standard might stem from the different legal bases used to govern interventions by the UN and by individual countries.710

Article 2(7) of the UN Charter states that

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state ... but this principle shall not prejudice the application of enforcement measures under Chapter VII.711

This article set out the legal framework governing UN interventions in affairs falling within nations’ domestic jurisdiction. A literal interpretation of this text suggests that intervention by the UN is permitted in only one scenario: to arrest the internal jurisdiction of the state targeted for intervention. In such a case, interference is not required to include or exclude an element of coercion, but when the state divests the target country of all internal competences and authority, the intervention becomes illegitimate. Consequently, with the exception of the Security Council, no UN organs can issue a decision pertinent to the internal, sovereign rights of countries, as this would constitute an illegal intervention in the affairs of that country. This interpretation seems confirmed by the preparatory work for the conclusion of the UN Charter. Specifically, the Secretary-General’s request for the Australian delegate to include the exception for measures of repression in Article 2(7)712_{seems to indicated a desire to prevent}

the Security Council from taking any repressive measures in the sovereign affairs of states.

However, it would be illogical to state that the principle of non-interference applies to all legal acts issued by UN organs, with the exception of repressive measures permitted to the Security Council by Chapter VII of the Charter. This restriction would limit the Security Council’s ability to deal with matters relating to the internal jurisdiction of member countries.713To the contrary, the Security Council has attempted to ensure international peace

710_{Ved Nanda, Tragedies in Somalia, Yugoslavia, Haiti, Rwanda and Liberia - Revisiting the Validity of}

Humanitarian Intervention under International Law, Denver Journal of International Law and Policy (1998) Vol. 26, No. 3-4.

711_{United Nations Charter (1945) Article 2.}

712_{Benedetto Conforti, Law And Practice Of The United Nations, Kluwer Law International, 2000, pp 136-140.} 713_{J. L. Holzgrefe, Robert O. Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas,}

and security in accordance with the provisions of Article 24 of the UN Charter.714 The council also has freedom in issues involving repressive regimes, because these fall within the exceptions provided in Article 2(7), although this discretion in the steps taken to combat repression is subject to different interpretations.715In addition, the Council does not have the authority to initiate discussion of issues falling within member states’ jurisdiction because this conduct is not subject to the provisions of Article 2(7). Undertaking military action thus is more difficult as it must be discussed and voted upon before commencing.

This opinion gives all dictatorial rulers freedom to abuse and persecute their people without regard for the rights accorded to them under international law.716Thus, curbing the powers of the UN runs contrary to the modern trend in international law to protect human rights. To interpret the principle of non-interference so broadly as to include all acts of the Security Council and thereby narrow its work would increase the power of tyrants and create an environment in which international regulations do not encourage the protection of human rights.717

Article 42 of the UN Charter gives the Security Council a crucial means to grade the actions of the Board according to the severity of the damage likely to occur from the non-military approaches permitted in Article 41 and the military means allowed by Article 42.718 These permissions, therefore, could expand the scope of legitimate actions by the council on the basis of the main objective, set out in Article 24, to achieve international peace and security.719_{The council’s work is dominated by this broad objective, regardless of the misuse}

of veto power by the permanent members. In addition, international practices to protect human rights have weakened this principle, which has become more flexible. This has been accomplished by various interventions by the UN and international community to protect and support human rights.

714_{UN Charter (1945) Chapter V.}

715_{David Malone,U.N. Security Council: From the Cold War to the 21st Century, Lynne Rienner, 2004,p 598} 716_{Samantha Power, Graham Allison Realizing Human Rights: Moving from Inspiration to Impact, Palgrave,}

Macmillan, 2006, p26; also see Heike Krieger, The Kosovo Conflict and International Law: An Analytical

Documentation 1974-1999, Cambridge University Press, 2001, p472.

717_{Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental} Ethical Principles in International Law and World Religions, Pennsylvania State University Press, 2002,p273. 718 _{UN Charter (1945) Chapter VII.}

These developments have allowed the element of coercion to be influenced by the shift in international perceptions and the ideology concerning the principle of non-interference.720 Therefore, it has become acceptable for an element of coercion to be introduced when the humanitarian situation in any country calls for international intervention.721 This change has occurred in accordance with contemporary international law, as formulated in conventions, instruments and customary rules, calling for the support and promotion of basic human rights, including the right to political self-determination. Arguably, it therefore is appropriate to place less emphasis on the traditional view in which coercion serves as an essential element in determining the legality of an action. Increasingly, the importance of human rights supersedes all other considerations.722 Consequently, the international community more frequently accepts interventions, especially in cases in which gross violations of human rights are either occurring or impending. In those cases where international human-rights laws are invoked to stop the violations of these laws, contemporary international customary laws do not prevent international intervention. Under certain conditions then, interventions to stop any actions that degrade human dignity and restrict freedoms may be justified.723

Thus, countries’ internal competences regarding human rights and freedoms seem restricted. These developments give rise to the fundamental question of whether freedoms and political rights have transcended the domestic jurisdiction of states. This question is discussed in the next section in order to determine the importance of those rights and freedoms, including the right to political self-determination.