Magisterarbeit, 2021
48 Seiten, Note: Cum Laude
Jura - Europarecht, Völkerrecht, Internationales Privatrecht
Introduction
1. THE CONCEPT OF INTERVENTION AND THE PRINCIPLE OF NON-INTERVENTION UNDER INTERNATIONAL LAW
1.1 The evolution of the principle of Non-Intervention under the UN Charter.
1.2 The interpretation of Article 2(4) of the U.N. Charter.
1.3 The Principle of Non-Intervention in the context of the African Union and ECOWAS regional and sub-regional organizations.
2. THE LEGALITY OF AFRICAN REGIONAL INTERVENTION IN THE GAMBIA AND THE CONCURRENT POSITION OF THE U.N. CHARTER ON SUCH DEVELOPMENTS
2.1 The mandate of regional arrangements and their role in dispute settlement under the U.N. Charter and Multi-lateral Treaties.
2.2 The legal status of the Gambia on the ECOWAS’ Protocol on Democracy and Good Governance (A/SP1/12/01).
2.3 The question of legitimacy under domestic laws of The Gambia.
2.4 The position of the U.N. Security Council with regards to the regional intervention in the Gambia Post-election Crisis.
2.5. The threat of the Use of Force in The Gambia by the ECOWAS & AU regional organization.
3. PRO-DEMOCRATIC INTERVENTION IN CURRENT INTERNATIONAL LAW: GOOD OR BAD?
3.1 Legal Justification of Political Intervention under International law
3.2 Intervention by consent and the question of “who is in control to give consent” in a dilemma of legitimacy?
3.3 Opinion on Pro-democratic Intervention: Good or Bad?
Conclusion
List of Abbreviations
Bibliography
List of Documents
This thesis aims to study the legality of unilateral and regional intervention by States through the influence of regional and or sub-regional organizations in the context of the international law principle of non-intervention focused on the Gambia Post-election crisis 2016/17 as a case study.
This paper will give a legal descriptive analysis of the International law principle of non-intervention as this area is one of the most controversial concepts of international law. In the process of discussing this research area, I will be analysing the legality and legitimacy of International interventions in the Gambia post-election crisis 2016/17 and in the process, assess the legitimacy of contemporary interventions in their determining factors.
In Chapter 1, this thesis contains a general assessment of whether humanitarian intervention is consistent with the purposes of the United Nations which is highly debatable in the academic field of International law. In assessing this question, an evaluation is made on the interpretation of Article 2(4) of the UN Charter.
Chapter 2 of this thesis contains an elaborate discussion on The Gambia Post-election crisis and seeks to answer whether the threat to use of force by ECOWAS and AU was actually authorised by the Security Council in Resolution 2337(?). Other Forms of intervention are as well revisited in the discussion to assess whether the Use of Force and intervention by African regional organization ECOWAS was consistent with the UN Charter. This Chapter also gives a bird’s eye view on the mandate of regional organizations and an evaluation of their legal instrument in relation to The Gambia as a member of such African organizations. This includes a discussion on Gambia’s status on the ECOWAS Protocols.
Finally, Chapter 3 focussed on the new trend of Pro-democratic Intervention in Africa, and how the Gambia’s case study is of good or bad precedence.
The old concept of intervention in international law must be well understood before one can appreciate the principle of non-intervention which remains a very controversial topic in contemporary International Law.
Intervention can be defined as an International Law concept where international actors such as individual States use force or threaten to use force in the domestic affairs of another sovereign State either directly or indirectly, to change or influence an undesired status quo or in other words, to submit another State to its will. The use of the word “force” makes the definition quite subjective leading to the many controversies regarding what constitute intervention. Generally, intervention is considered unlawful and against International Law but some Interventions may be lawful and acceptable under International Law as will be discussed in the later part of this research work.
Intervention as a concept of International Law does not have a universally accepted definition for the term is “imprecise” given the fact that there are various forms of intervention such as diplomatic, economic, humanitarian, protection of Nationals, etc, depending on the reason for intervention. However, it is undisputable that intervention is generally a breach of a State’s sovereignty, and whether such breach is justifiable in International law determines its legality.
German jurist, Lassa Francis Lawrence Oppenheim is of the opinion that interference, for it to be so, must be forcible or dictatorial and have the effect of depriving the State that is intervened against, the control over its affairs of the subject matter that caused the intervention by the intervening State. According to him, non-intervention is essential for ensuring the Sovereignty, territorial integrity and political independence of every independent State.1
Unlike in classical International Law where intervention was quite very common and regular, intervention in another State is generally prohibited by the UN Charter, ICJ jurisprudence and numerous international instruments resulting to the principle of non-intervention in contemporary international law.
Non-intervention is a principle of International Law that prohibits States from interfering either directly or indirectly in the domestic affairs and political independence of another sovereign State2.
This principle could be linked to the doctrine of State Sovereignty3 which is not a recent phenomenon. However, the principle of non-intervention did not develop concurrently with the concept of State Sovereignty because, for centuries, the international community was largely unsophisticated like and consisted in its large part powerful European States. The Monarchical system of Government in some European countries played a role in the evolution and development of the principle of Non-intervention. These European States were mainly concerned with two things. Firstly, to preserve their colonized territories, and secondly, and the maintenance of their power status quo as monarchs in their countries. This resulted to the idea of forming alliances to protect their interests against external interventions. An example of such alliances is the Quadruple Alliance, formed by the monarchist Great Powers of Austria, Prussia, Russia and Great Britain in the Congress of Vienna of 1815 where they agreed on uniting to take the necessary “measures” in case their respective governments were threatened.4 This among other alliances were founded on the principle of legitimacy of the monarchy and the principle of intervention.
The control on external intervention could also be sourced from the Just War theory. This theory constituted norms governing the use of force prior to the Covenant of the League of Nations. In those early times, use of force was deemed morally permissible only if there was a Just cause.5
The 18th century Swiss legal philosopher, Emer de Vattel is credited with being arguably, the first to formulate the principle of non-intervention in his treatise, The Law of Nations6, but whether the principle was reflected in State practice remained doubtful well into the 19th century.
In the 19th century, former American President, James Monroe, made a declaration before Congress on 2nd December 1823 in the wake of European Colonization and dominance in the Americas and other parts of the world. The following declaration by the US President at the time later came to be known as the Monroe Doctrine:
“The American Continents ... are henceforth not to be considered as subjects for future colonization by any European powers We should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety.
With the existing colonies or dependencies of any European power we have not interfered and shall not interfere. But with the Governments who have declared their independence and maintained it and whose independence we have acknowledged we could not view any interposition for the purpose of oppressing them, or controlling in any other manner their destiny, by any European power in any other light than as the manifestation of an unfriendly disposition towards the United States”. 7
The Monroe declaration quoted above, prohibited that intervention, in whatever form, by which a State or group of States, specifically European States, sought to impose on newly Independent and yet to be colonised American States. This declaration by the United States though not internationally binding for it was a unilateral political declaration, it was a partial doctrine of non-intervention and have paved the way for further development of the principle of non-intervention.
Before the Charter of the United Nations, the principle was formulated under Article 15(8) of the Covenant of the League of Nations, which prohibits the interference in the internal affairs of the Governments of other Nations.8
Also in the Soviet Union, outside intervention was adamantly opposed to maintain the political and economic order in the newly formed Soviet republics. This stance was evident by the erection of the Berlin Wall.
Similarly, post-World War II colonial powers relied on the principle to guard against outside interference to restrict colonial liberation movements while pro-liberation groups argued that intervention was justified.
In the era of the United Nations Charter, the non-intervention principle received official United Nations recognition by virtue of the adoption of the Declaration on the inadmissibility of intervention and interference in the Domestic Affairs of States and the protection of their independence and sovereignty9, in 1965, and revised in 198110 by the United Nations General Assembly. It was further established by the International Court of Justice in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 198411 where the court gave it a judicial interpretation extending the scope of the prohibition of non-interference to include indirect interference through other means such as economic and political pressure.
The key provision in the Charter of the United Nations that deals with the principle of non-intervention and prohibition of the Use of Force is Article 2(4) of the UN Charter. This provision is complemented by Article 2(7) of the UN Charter which prohibits even the United Nations from intervening in matters of other States which are within their domestic competence.
With the evolution and development of International Human Rights Law and the Right to self-determination as well as Pro-democratic interventions, responsibility to protect Nationals, among other contemporary forms of interventions particularly by regional organizations, the absolute nature of the principle has greatly diminished.
The non-use of force clause of the Charter is one of the most critical provisions in international law. In its text, Article 2(4) states that all members of the United Nations should refrain in their international relations with other States from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations (emphasis added).
The importance of this clause is emphasized by the then Secretary General of the United Nations, Kofi Annan, at the time of the 2003 Iraq conflict. He has written that; “No principle of the Charter is more important than the principle of the non-use of force as embodied in Article 2, paragraph 4 … Secretaries-General confront many challenges in the course of their tenures, but the challenge that tests them and defines them inevitably involves the use of force”12. Article 2(4) of the Charter of the United Nations is now a principle of customary international law and as such it is binding on all States in the world.13
What is the extent to which Article 2(4) prohibit intervention in its various forms? In order to answer this question, we must seek to interpret whether “force” mentioned in Article 2(4) refers to the use and threat of military force or whether it also includes non-forcible pressure. No reference is given on the interpretation of “force” under the Charter. As it is clear from the text that the prohibition of the use of force between States undoubtedly includes the use of military force or threat of it by a State against another State, the question remains as to whether the prohibition under Article 2(4) on “force” includes non-physical force. Writers have divided opinions regarding this issue, some giving it a broad interpretation to include all use of force both armed and non-armed pressure whilst others gave it a narrow interpretation by limiting it to the unilateral use of physical force by States.
On the one hand, writers like Kelsen posits that “use of force” includes both armed intervention and interventions without the use of arms which influence the manner in which States conduct their domestic affairs14 such as the imposition of political and economic measures like sanctions. Brownlie agrees with Kelsen in giving the prohibition a broad interpretation, that Article 2(4) should not be limited to forcible measures. According to him, the type of force used may be merely psychological which would be a violation of the Article in the same way had physical force been used.15
On the other hand, Dinstein indicates that Article 2(4) refers to the prohibition against the use of armed forces and consequently, any other type of force or pressure used would fall outside the purview of this Article16, thereby giving it a narrow interpretation.
Force in my opinion means physical use of force. This is based on the fact that the Charter was written and passed during the times of Armed Conflict among Nations or soon thereafter, which prompted the inclusion of this clause to limit or control the use of military force, hence making it illegal even if it is not aimed at disrupting other Nation’s territorial integrity or political independence. Aside from the drafting history, this position could be complemented by textual analysis of the Charter such as the fact that, Article 2(4), gives rise to the right of self-defence under Article 51 of the UN Charter, and as such, the act of Self-defence is not logical in response to non-armed pressure such as economic pressure but typically in response to an armed attack.
The question of what constitute “force” nonetheless remains open to interpretation.
In interpreting “territorial integrity or political independence”, those that give the provision a narrow interpretation believes that, the reason behind the Use of force, or threat of it, is irrelevant based on case laws such as the ICJ decision in the Corfu Channel case17 where a British War ship entered Albanian waters without approval to remove mines that blocked international navigation after been responsible for the destruction of passing British ships. The United Kingdom denied any breach of the Charter because it only meant to remove the mines and it believed such action had no impact on Albania’s territorial integrity or political independence. The court disagreed with the United Kingdom on this position and held that a violation of Albanian territorial integrity took place, even if the action was temporary, and had limited objectives. This may mean that military actions not authorised by the Security Council that are aimed at restoring democracy or changing a political regime, are illegal under the Charter. This argument is also supported by the Friendly Relations Declaration18 which was adopted by the United Nations (UN) General Assembly to prohibit all kinds of external intervention in other Member States’ domestic affairs. Thus, from their perspective, intervention in a Member State is illegal regardless of the aim as per Article 2(4) and case law jurisprudence.
With all the controversies on the interpretation of the use of force, there is no contention that Article 2(4) prohibits the use of unilateral or collective use of force. Not falling within the prohibition is the use of force perpetrated in self-defence from an armed attack as stipulated under Article 51 of the Charter of the United Nations, and where the Security Council authorised such intervention, usually in a situation where world peace and security is threatened and attempt on the use of other pacific methods have proven futile.
Overall, the meaning of Article 2(4) is the prohibition of all forms of intervention by threat or use of force against the territorial or political sovereignty of any State or in any other manner inconsistent with the objective of the United Nations. This results to the question, whether unilateral humanitarian intervention falls on the prohibition by the UN Charter under Article 2(4)? The answer to this question, in my humble opinion lies on whether humanitarian intervention is consistent with the purposes of the United Nations.
The principle of non-intervention or non-interference was subsequently adopted by International regional and subregional organizations with an interpretation suiting to their particular situation. Under this section, I will focus only on the African Union19 perspective on non-interference, and the ECOWAS sub-regional body as relating to this thesis.
The Charter of the OAU which preceded the Constitutive Act of the AU, stated that Member States of the OAU affirm and declare adherence to a list of seven principles among which is “Non-interference in the internal affairs of States.”20 This provision is also adopted in the Constitutive Act of the AU where member States are to adhere to the principle of “non-interference by any Member State in the internal affairs of another;”.21 Adherence to this principle by African States was minimal based on the fact that many African countries were still agitating for complete independence at the time of forming the OAU in 1963, hence their main aim was for African Unification against the vestiges of colonialism and racist regimes like the former regime in South Africa. Thus, there was the need for humanitarian and military interventions before the principle of non-intervention can start to apply between Sovereign African States. According to Barongo, "The whole notion of continental jurisdiction embodied in the Charter is a device for keeping African Affairs free from foreign interference...".22
The Constitutive Act of the AU provides for the right of the Union on a case by case basis, to intervene in a member State in respect of grave circumstances such as War Crimes, Genocide, and Crimes against humanity, and the right of a member State to request such intervention from the Union to restore peace and security.23 These provisions are a reflection of the international norm of the Responsibility to Protect, also known as R2P, which was adopted by the United Nations General Assembly at the 2005 World Summit24.
ECOWAS being a subregional political and economic union of West African States is also well known for interventions in Internal Conflicts in West African, as it compliments with the AU in safeguarding peace and security. With the influence of controversies regarding its radical approach against the provisions of the UN Charter on non-intervention, it has institutionalised its approach to subregional interventions in 1999 with the Protocol relating to the Mechanism for Conflict Prevention, management, Resolution, Peace-keeping and Security, and subsequently, the adoption of the Protocol on Democracy and Good Governance in 2001 supplementary to the former.25
Nevertheless, African States still recognise the importance of the principle of non-intervention in their relation with one another. Thus, the right of intervention by ECOWAS and AU are subject to limitations and are likely to take place only where intervention is necessitated by failure to observe the principles, values and standards expressed in the regional Acts, as well as the need to seek authorization from the Security Council in accordance with the UN Charter26.
[...]
1 Oppenheim, Jennings, Watts, Oppenheim’s International Law, Vol. 1 (9th Edition), 430.
2 UN General Assembly, A/RES/20/2131(XX) of 21 December 1965; UN General Assembly, A/RES/36/103 of 9 December 1981.
3 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports, 1986, 111.
4 Van Panhuys, International Law in the Netherlands, Vol 1, 1978, 52.
5 Cicero, On the Commonwealth (G. Sabine and S.Bamey transl., 1976) 217.
6 Vattel, Le droit des gens ou Principes de la loi naturelle appliques a la conduit et aux affaires des nations et des souverains, Switzerland 1758.
7 Thomas, New States, Sovereignty and Intervention, Gower 198, 158 – 160.
8 Article 15(8) of the Covenant of the League of Nations.
9 UN General Assembly, A/RES/20/2131(XX) of 21 December 1965.
10 UN General Assembly, A/RES/36/103 of 9 December 1981
11 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 26 November 1984, ICJ Reports 1984, 392.
12 Zacklin, The United Nations Secretariat and the Use of Force in a Unipolar World: Power v. Principle, (2010), 195 – 207.
13 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 26 November 1984, ICJ Reports 1984, 392.
14 Kelsen, General Theory of Law and State, Mass. 1949, 516.
15 Brownlie, International Law and the Use of Force, Oxford 1963, 362.
16 Dinstein, War, Agression and Self-Defence, 1st ed., Cambridge 1988, 84.
17 ICJ, Corfu Channel Case (United Kingdom v. Albania), Judgment of 9 April 1949, ICJ Reports 1949, 4; General List No. 1.
18 UN General Assembly, A/RES/25/2625(XXV) of 24 October 1970.
19 Formerly Organization of African Union (OAU).
20 Article 3(2) of the Charter of the Organization of African Unity.
21 Article 4(g) of the Constitutive Act of the African Union.
22 Barongo, Neocolonialism and African Politics, 76.
23 Article 4(h)-(j) of the Constitutive Act of the African Union.
24 UN General Assembly, A/RES/60/1 of 24 October 2005.
25 ECOWAS, Protocol A/P.1/12/99 - Protocol relating to the Mechanism for Conflict Prevention, management, Resolution, Peace-keeping and Security; ECOWAS, Protocol A/SP1/12/01 - Protocol on Democracy and Good Governance Supplementary to the Protocol relating to the mechanism for conflict prevention, management, resolution, peacekeeping and security.
26 Article 53(1) of the Charter of the United Nations, 24 October 1945.
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