Conclusion
There appears a developing recognition by the international community that there are certain basic human needs that it is in the interests of the international community to ensure the protection of those needs and an international obligation placed upon states to ensure that the dignity of the human person is respected. Where a government is unwilling or unable to ensure such respect, then the international community may act, by forceful means if necessary, to give effect to those requirements.
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References
Island of Palmas Case, Permanent Court of Arbitration, 2 R.I.A.A. 829.
L. Oppenheim,International Law, 8th ed. Longmans, 1955, Vol.1, para. 134.
Declaration on the Inadmissibility of Intervention in Domestic Affairs of States, A/Res/2131(XX), Dec. 21, 1965. General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, A/Res/2625(XXV), Oct. 24, 1970.
I. Brownlie,Principles of Public International Law, Clarendon Press, 1990, 553.
Nicaragua Case (Merits)Nicaragua v.United States I.C.J. Reports 1986, p.14 at para. 205, “The principle forbids all states ... to intervene directly or indirectly in internal or external affairs of another state.”
S.V. Chernichenko, “Subjective boundaries of International Law and Domestic Jurisdiction of the State”,Soviet Yearbook of International Law, Moscow, (1985), 122–124.
The International Court of Justice in the Nicaragua case,supra n.7 at para. 205. It is, “... the element of coercion which defines and indeed forms the very essence of prohibited interventions...”, para. 205.
Cf. the view expressed in the Friendly Relations Declaration: No state or group of States has the right to intervene, directly or indirectly, for any reason whatsoever, in the international or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law. Principle 3, General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Res. 2625(XXV), Oct. 24, 1970.
L. Henkin, “Human Rights and Domestic Jurisdiction”, inHuman Rights, International Law and the Helsinki Accord (ed. T. Buergenthal), Allanheld Publishers, 1977, 22.
Nationality Decrees Issued in Tunis and Morocco Case, PCIJ Rep., series B, No. 4 (1923).
The relevant principles being:Principle VI Non-intervention in internal affairs The participating states will refrain from any intervention...in the internal affairs falling within the domestic jurisdiction of another participating State, regardless of their mutual relations.Principle VII Respect for human rights and fundamental freedoms The participating parties recognise the universal significance of human rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and well-being necessary to ensure the development of friendly relations and co-operation among all States. They will constantly respect those rights and freedoms in their mutual relations and will endeavour jointly and separately, to promote universal and effective respect for them.
ICJ rejected South African claim that the issue did not amount to a dispute under article 7 as it did not effect ‘any material interest of the applicant States or their nationals.’ S.W. Africa Cases (Preliminary Objections) (Ethiopia and Liberia v.South Africa), 1962, ICJ Reports, 319, 343
‘... the manifest scope and purport of the provisions of ... Article [7] indicate that the Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations both towards the inhabitants of the Mandatory Territory and towards the League of Nations and it's Members’.Ibid.
In the second phase of the South Africa cases the ICJ rejected the notion of ‘actio popularis’, i.e. the right to bring an action under international law in the public interest. The court asserted that the state would have to demonstrate a legal interest in the case. South West Africa Cases (Second Phase) (Ethiopia and Liberia v.South Africa), 1966 ICJ Rep. at 34.
106,Hague Recueil (1962, II) 188–9.
Brownlie,supra n.5 at 554.
E.g. res 721(VIII) 8 Dec. 1953, 8 GAOR Supp. No. 17 (a/2630) at 67(1953), see also advisory opinion ICJ [1971] 16, para. 131, in which the court noted: Under the Charter of the United Nations ... [South Africa] had pledged itself to observe...human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, decent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.
ECOSOC Res. 1235(XLII) 6 June 1967, 42 ESCOR, Supp. No. 1 (E/4393) at 17–18.
ECOSOC Res. 1503 (XLVIII), 27 May 1970, 48 ESCOR, Supp. No. 1 A (E/4832/Add.1) at 8–9.
Article 19(3)b, ILC Draft Articles on State Responsibility, Y.B.I.L.C., 1979, II (PART II) AT p90.
Ibid., article 19(2).
“... essential distinction should be drawn between the obligation of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concerns of all states. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection”. Barcelona Case, I.C.J. Reports [1970] at p.3, para. 33.
Ibid., para. 34.
Nicaragua case,supra n.6 at para. 218.
See, for example, the 1992 Conference on Security and Co-operation in Europe, Helsinki document which stated: We will exert every effort to ensure that they [the basic human needs] are met and that humanitarian commitments are respected. We will strive to relieve human suffering...and to facilitate the delivery of assistance under international supervision, including safe passage” (para. 14).
General Assembly Resolution 46/182 (Humanitarian Assistance), “The sovereignty, territorial integrity and national unity of states must be fully respected in accordance with the Charter of the United Nations. In this context, hurnanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country.”
India's action in dropping relief supplies to the Tamils in northern Sri Lanka was carried out without the consent of the Sri Lankan government (although that government subsequently consented to the deployment of Indian ground troops); see A.D. Arulpragasam, 29Harvard International Law Journal (1988), 178.
Para. 242, Nicaragua case,supra n.6.
Ibid., para. 243.
Article 51.
“The Court can only regard the alleged right of intervention as a manifestation of a policy of force, such as has in the past given rise to the most serious abuses and such as cannot, whatever the present defects in international organisations, find a place in international law...it would be observed by the most powerful states and might lead to perverting the administration of justice itself”.Corfu Channel Case (Merits), ICJ Rep. 1949.
“[Where] ... human rights are protected by international covenants; that protection takes the form of such arrangements as are provided by the covenants themselves”. Nicaragua,supra n.6, para. 267.
See article 44 International Covenant on Civil and Political Rights [1966], 61American Journal of International Law (1967), 870.
Nicaragua case, at para. 268,supra n.6.
Ibid.
See resolutions on Panama and Grenada, A/38/7, No. 2 1983 (“flagrant violation of international law of the independence, sovereignty and territorial integrity of the State”).
GA Res. 38/7 (Nov. 2, 1983).
Ibid.
A/Res./2793(XXVI), Dec. 9, 1971 passed by 104 votes to 11, with 10 abstentions.
Ibid.
See SC. Res. 770 (Yugoslavia), SCRes 794 (Somalia) on the provision of humanitarian assistance by force.
SC. Res. 688.
GA res. 34/22 (Nov.14, 1979), cf. with lack of condemnation of Tanzania's intervention in Uganda.
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Wheatley, S. The non-intervention doctrine and the protection of the basic needs of the human person in contemporary international law. Liverpool Law Rev 15, 189–199 (1993). https://doi.org/10.1007/BF01079919
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DOI: https://doi.org/10.1007/BF01079919