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APPENDIX I

HUMANITARIAN INTERVENTION⭑

Ved P. Nanda *

I.

INTRODUCTION

The

Any attempt at creating a new world order, with emphasis on peace, security, freedom, and justice, among other goals, must address the ambiguous norm of "humanitarian intervention."1 recent poignant situation of the Iraqi Kurds2 has again challenged the traditional rules of international law under which Iraq invoked sovereignty and territorial integrity, claiming that the world community was not entitled to intervene in its internal affairs.3 Is there an emerging right, and perhaps even a duty,

on the part of the world community to intervene in the internal affairs of a state when egregious violations of basic human rights occur there?

This essay examines the pertinent issues involved in a determination of the validity, under international law, of claims to humanitarian intervention. The recent foreign intervention in

Iraq the presence of U.S. and allied forces to establish safe

havens, and the stationing of the United Nations guards in

northern Iraq to protect the Kurds from the forces of Saddam occurred pursuant to the U.N. Security Council action under Chapter VII."

Hussein

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I will argue, however, that a right to intervene exists even in those situations where Chapter VII is not invoked, suggesting that the doctrine of nonintervention should be interpreted in light of the equally strong and complementary norms of

of human rights occur including those situations in which a government might wish to prevent foreign humanitarian aid from reaching starving people in rebel areas, the world community need not helplessly watch, for the right to provide humanitarian assistance must be balanced against the duty of nonintervention. The choice between these complementary norms, the former reflecting developments in international human rights law, and the latter reflecting state sovereignty with its attributes of territorial integrity and political independence, must be based on specific criteria which I will enunciate.

First, this essay discusses the doctrine of nonintervention. Next, it analyzes humanitarian intervention as an exception to nonintervention. The next section applies the doctrine to the Finally, the paper concludes with a section

Kurdish situation.

on appraisal and recommendations.

II.

LAW

NONINTERVENTION AS A PRINCIPLE OF CUSTOMARY INTERNATIONAL

Normative ambiguity is inherent in intervention, for the concept may refer to events, legal consequences of assumed, asserted or ascertained facts, responses of the decision-makers to the claims made, or a combination of these. Any determination of the permissibility or impermissibility of an "interventionary" coercive activity must be based on a contextual analysis, which involves an examination of the nature and intensity of the coercive measures involved, the participants undertaking these

measures, their motives, the strategies they use, and the outcomes of these measures.

States have, however, widely accepted nonintervention as a governing principle of International Law. The principle is premised on respect for sovereignty, territorial integrity, and political independence, and is an adjunct to the principle of the nonuse of force embodied in Article 2 (4) of the U.N. Charter." Numerous resolutions, declarations, and conventions adopted by international organizations and conferences reflect state acceptance of the principle of nonintervention as customary international law. To illustrate, the 1928 Convention on the Duties and Rights of States in the Event of Civil Strife prohibited intervention even by nationals of one state in the affairs of another state." In 1933, the Montevideo Convention on Rights and Duties of States' explicitly stated that no state "has the right to intervene in the internal or external affairs of another."8 Three years later, the Buenos Aires Additional Protocol Relative to Non-Intervention affirmed that the parties "declare inadmissible the intervention of any one of them, directly or indirectly, and for whatever reason in the internal or external affairs of any of the contracting parties."

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Following the Second World War, the 1947 Inter-American Treaty of Reciprocal Assistance (Rio Treaty) reaffirmed the inviolability of the territorial integrity, sovereignty, and political independence of each member state. The following year, the Charter of the Organization of American States (OAS) 12

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stated in article 18:

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against

the personality of the State or against its political,

economic, and cultural elements.

Article 20 of the 0.A.S. Charter is unequivocal in its prohibition on intervention as it states:

The Territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever.

Charters of other regional organizations

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the Organization of

African Unity, Pact of the League of Arab States, 14 and Treaty of Friendship, Co-operation and Mutual Assistance (the now defunct Warsaw Pact), also contain similar prohibitions.

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The pertinent United Nations declarations include the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty which stated that "no State may use or encourage the use of economic, political, or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign right or to secure from it advantages of any kind." Five years later, the

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General Assembly adopted a Declaration on Principles of Law Concerning Friendly Relations and Cooperation Among States, which approved the principles enunciated in the 1965 Declaration as the "basic principles" of international law. 18

As to the content of the principle of nonintervention, the International Court of Justice noted in its decision on the merits in the case of Nicaragua v. U.S.19:

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.

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Earlier, in the 1949 Corfu Channel case, the International
Court of Justice stated:

[T]he alleged right of intervention has the manifestation of
the policy of force, such as has, in the past, given rise to
most serious abuses and such as cannot

find a place in international law, [especially when] it will be reserved for

the most powerful States, and might easily lead to

perverting the administration of international justice
itself.2 22

This is not to say that states have faithfully complied with the principle of nonintervention, for history is replete with instances of state interventions. In the post-U.N. era, superpowers have often used coercive measures, directly or indirectly, against other states in flagrant violation of this principle. Examples abound: The U.S. interventions in the