By: Carolyn A. Dubay, Associate
Editor, International Judicial Monitor and Assistant Professor of Law,
Charlotte Law School
With the crisis in Ukraine continuing, and Russia’s stance that
it has the legal authority to intervene militarily in Ukraine to protect
Russian civilians, it is time to revisit the non-intervention principle. The
non-intervention rule is a principle of international law that restricts the
ability of outside nations to interfere with the internal affairs of another
nation. At its core, the principle is a corollary to the right of territorial
sovereignty possessed by each nation. The exact scope of the non-intervention
principle, however, is often debated. For example, the duty of non-intervention
could be understood to prevent all outside military intervention, yet there are
historical examples of such action that are generally considered “legal”
interventions (such as humanitarian intervention). Similarly, the
understanding of what constitutes “intervention” has many gray areas, including
whether it includes only the threat of military force, or whether economic
sanctions, cyber warfare or other kinds of non-military intervention would fall
within the rule.
Famed Swiss legal philosopher Emmerich de Vattel was arguably
the first jurist to articulate the non-intervention principle in his treatise The
Law of Nations, published in 1758. The willingness of states to abide by
the principle, however, has waxed and waned since that time, depending on the
political agenda and national interests involved. For example, with the rise
of the Iron Curtain and the Cold War, the Soviets adamantly opposed any outside
intervention or influence to destabilize the political and economic order in
the newly formed Soviet republics, a stance that was enforced most visibly by
the erection of the Berlin Wall. At the same time, Soviet takeovers of these
nations and the failure to allow for self-determination directly contravened
the principle of non-intervention. Similarly, post-World War II colonial
powers relied on the duty of non-intervention to prevent outside interference
with efforts to control colonial liberation movements, while pro-liberation
groups argued that intervention was justified.
In contemporary times, the non-intervention principle received
official United Nations recognition when the General Assembly adopted the
Declaration on the Inadmissibility of Intervention and Interference in the
Domestic Affairs of States in 1965. The International Court of Justice also
weighed in on the interpretation of the non-intervention principle in the Nicaragua case brought by Nicaragua against the United States, which arose based on
allegations of American support for contra rebels. As explained in the
summary of the 1986 judgment:
The principle of
non-intervention involves the right of every sovereign State to conduct its
affairs without outside interference . . . . As to the content of the principle
in customary law, the Court defines the constitutive elements which appear
relevant in this case: a prohibited intervention must be one bearing on matters
in which each State is permitted, by the principle of State sovereignty, to
decide freely (for example the choice of a political, economic, social and
cultural system, and formulation of foreign policy). Intervention is wrongful
when it uses, in regard to such choices, methods of coercion, particularly
force, either in the direct form of military action or in the indirect form of
support for subversive activities in another State.
More recently, in 2005, the International Court of Justice
reiterated the principle of non-intervention in its judgment against Uganda for
supporting rebel forces in the Democratic Republic of the Congo. As the Court
stated in paragraph 164 of its judgment, and quoting the Nicaragua case,
“the principle of non-intervention prohibits a State ‘to intervene, directly or
indirectly, with or without armed force, in support of an internal opposition
in another State.’”
International
Judicial Monitor