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THE LEGAL VALIDITY OF
MILITARY
INTERVENTION BY
INVITATION OF
THE
GOVERNMENT*
LOUISE DOSWALD-BECK
I INTRODUCTION
Since
the Second World
War,
there
have
been numerous
instances
of
troops being sent
to another State allegedly
upon
invitation
of
its
govern
ment. Many
texts
would
support a pri nciple unequivocall y in favour of
the legality of such intervention, and there is certainly no
doubt
that a
State can legally send
troops
to another
State
upon invitation for certain
limited operations.
The
validity of t hi s is recognized, albeit negatively,
in
General
Assembly Resolution
3314 XXIX)
where one instance of
aggression is stated to be:
The
use of armed forces
which
are within
the territory
of
another State
with
the
agreement of
the
receiving State, in contravention of
the
conditions
provided
for in
the
agreement.
2
Examples
of
such
limited operations
would
include
the
use of peace
keeping forces which do not become involved with internal affairs, certain
rescue operations
and
help
with minor
disturbances
not aimed
at
the
political organization
of
the
country.
However, certain recent texts ex
press doubts as to the validity of intervention by invitation
where
foreign
troops
are
to be used to quell an insurrection.
The
reasons given for
such
doubts
are variously
stated
to be
the
inability of a shaky regime to
represent the State as its
government,
a conflict
with the principle of
self-determination or a violation of the
duty
of non-intervention in the
internal
affairs
of
another State.
The
purpose of
this paper
is to assess
the
position of
modern
inter
national customary law in t hi s r espect by
studying
the meaning and inter
relationship
of
basic theoretical principles
of
international law, together
with an empirical study
of
relevant interventions undertaken in the last
thirty
years
and
State reaction to them. Attention will focus on those
Louise
Doswald-Beck, 1986.
1 LLB Bristol),
LLM London),
Lecturer in Law at University College
London.
2 1974 R es ol ut io n on the De fi ni ti on of A gg re ss io n No. 3314
XXIX ,
Article 3 e). See also GA
Res.
36/103 1981).
3 e.g, German
help
g iv en to the S om al ia n Government in connection
with
the highjacked airliner
at
Mogadishu Airport
on 18
October
1977: Keesing s Contemporary Archives henceforth Keesing s ,
P.
289
9
e.g. Bri ti sh h elp to the Tanganyikan, Ugandan and Kenyan Governments in January 1964 to
quell
disturbances
and
disorder
in the armed forces who were
demanding
better conditions and pay:
Keesing s, pp . 199
63 5
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MILITARY
INTERVENTION
situations where outside help was given to a government which was
either
in
danger
of losing its control over the c ountry or had lost such control,
and will include instances where peace-keeping forces influenced events
in a
country.
S TA TE R EP RE SE N T AT IO N
The basic principle of State representation in international law is that
the
government
speaks for the State and acts on its behalf. As the
Permanent Court of International Justice stated in
1923,
States
can act
only by an d
through their
agents
and
representatives .
6
This
principle is
manifest in
normal State
practice: governments conclude agreements on
behalf of the State, the government represents the State in international
fora
and
any representation on
behalf
of a State is done by its government.
Revolutionaries, on the o ther hand, have traditionally been treated as
enemies
7
of the State in both internal an d international law, with the
result that any military aid given to rebels in another State has
been
unequivocally declared illegal.
8 With
the possible exception of aid to
groups
exercising their right of self-determination,
9
the
meaning
of which
will be
examined
later,
10
there has been no dissent from this view either
in case lawll or in
literature.P The
principle has further been vigorously
reaffirmed by th e
General
Assembly on several occasions, including in
particular Resolution
2 I
3
I
xx
which states that:
No State shall organize, assist,
foment,
finance, incite or tolerate subver-
5 See generally
Cheng,
General Principles of Law as applied by International Courts and Tribunals
(1953), pp. 180 ff.
6
German Settlers in Poland
advisory opinion, P IJ Series
H,
No.6, p. 22 (1923).
7 Although recognition of
insurgency
gives a limited status for certain purposes. See Oppenheim,
International Law,
vol. I
8t h
edn., 1955), pp. 140-1 , para. 75 (a).
For
the effect of recognition of
belligerency, see below, p. 196.
8 On a discussion as to the
meaning
of Article 7 of Res. 3314 (XXIX) (above, p. 189 n. 2), see
Stone, Hopes andLoopholes
in the 1974 Definition ofAggression ,
AmericanJournal of International
Law,
71 (1977), p. 224 at pp. 233-7.
9 GA Res. 3314 (XXIX) (1974),2625 (xxv) (1970) and 2621 (xxv) (1970) state that peoples exercis
ing their right to self-determination have th e
right
to receive support. There is basic disagreement
as to whether this means mili tary support: see previous note. Res. 2621 (xxv), which states that
member
States
shall r en de r m or al a nd material assistance , was adopted with a high negative an d
abstention vote.
10 Below, pp. 200-7.
11 e.g. Great Venezualan Railroad case German-Venezuelan Mixed Claims Commission, 1903),
Ralston (ed.),
Venezuelan Arbitrations of I903,
p. 632 at pp.
635-6,
and by implication
th e IC ]
order
with regard to th e request for th e indication of provisional measures in the Case Concerning Military
and Paramilitary Activities in and against Nicaragua Nicaragua
v.
United States ,
I ]
Reports, 1984,
p.
4. at
p.
22.
12
Brownlie,
International Law and the Use of Force by States
(1963),
pp .
193, 279
an d
370-I;
Cheng, op . cit. above (n. 5); Garner, Questions of
International
La w in th e Spanish Civil War ,
American Journal of International Law,
31 (1937), p. 66; Borchard , Neutrality and Civil Wars ,
ibid., pp . 305-6; Oppenheim,
International Law,
vol. 2 (7th edn., 1952), para. 298; Higgins, Inter
national L aw a nd Civil Conflict , in Luard (ed.),
The International Regulation of Civil Wars 1972 ,
p.17
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BY
INVITATION
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GOVERNMENT
sive, terrorist or
armed
activities directed at the violent overthrow of
the
regime
of
another State
13
There
are in
addition
numerous statements to
this
effect by State
representatives, including tho se of delegates dur ing the recent General
Assembly
and
Security Council debates concerning
the
interventions
of
the
Soviet
Union
in Afghanistan 1979)14 and
the United
States in
Grenada
1983).15
The apparent exclusiveness of government representation of a State
would logically lead to the conclusion
that
a
State
could
not
violate Article
2
4)
of the United Nations Charter (or
previously
the Kellogg-Briand
Pact
1928)
if the government invited such intervention, for the interests
and affairs of that State
would
be synonymous with those of the govern
ment. The
traditional law was thus clearly stated
by Garner
in his edi
torial
comment
on the Spanish Civil War as follows:
The out brea k of insurrec ti on in a state has no effect on its j uridic al stat us as a
member
of
the
international community. t does not alter the
duty
of
non
intervention in its affairs which
other
states are
under
16
[There
is a]
sound
distinction between
the
rights and dutie s of a state vis a vis
the recognized legitimate government of
another
state
and
rebel forces engaged in
the
effort to ove rt hrow it.
There
is no rule of international law which forbids
the
government of one state from rendering assistance to
the
established legiti
mate government
of
another
state with a view of enabling it to suppress an
insurrection against its authority
assistance is rendered to
the
legitimate
government
it is
not
a case of unlawful intervention as is the giving of assistance
to rebels who are arrayed against its
authority.
Oppenheim
states that intervention which is in principle forbidden i s
always dictatorial interference, not interference
pure
and simple .1 8
He then
illustrates
the
latter
type
of interference, by implication
not
forbidden, by quoting
t wo ins tanc es of military
help
given to a foreign
government to quell an insurrection.l
If
we
were
to as sume, at
this
juncture, that
these
statements
still
repre
sent the law,
then the
essential test to establish the legality of an inter
vention would be the valid consent of a legitimate
government.
The
13
Declaration
on the Inadmissibility
of Intervention
in the
Domestic
Affairs of
States
and the
Protection
of
their Independence and
S ov er ei gn ty 1965), p ar a. 2. See also GA Res. 380 v) 1950),
2625 xxv) 1970) and 36/103 1981).
14
Security
Council debates, 5
January
1980,
UN
D oc. SfPV.2185, SfPV.2186; 6
January
1980, S /P V. 21 87 , S fP V. 21 88 , S/ PV .2 19 0;
General
Assembly
6th Emergency
Spe cial Session,
10-14 January
1980.
15 Security Council debates, 25 October 1983, UN Doc. SfPV.2487; 26 October 1983, S/pV. 2489;
27 October 1983, S/PV.2491; General Assem bly debate, 2 November 1983,
UN
Doc. A/38/PV-43.
16 American Journal of International Law 31 1937), at p. 67. 17 Ibid., p. 68.
18 Oppenheim,
International Law
vol. I
(8th
edn., 1955), p. 305 emphasis added).
19 Several other authors
assume
t hi s to be the law, e.g. B or ch ar d,
AmericanJournal of International
Law
31 1937), pp. 305 and 306; Woolsey,
Introduction to the
tu y
of International Law (5th
edn.,
1877), p ar a. 42. H ig gi ns , quoting Hyde, states this to be the traditional law, in Luard (ed.), The
International Regulation of Civil Wars
1972), chapter 9, p. 170. See also R on zi tt i,
Italian Yearbook
of International Law
1975), p. 192.
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M IL IT AR Y I NT ER VE NT IO N
identification of
the government
of a
State
as that State s
valid
represen
tative
in
international
law would thus be the primary task. There is,
unfortunately
a lack
of
modern judicial authority in
this
respect.
How
ever, there
ar e
a number of old
arbitral decisions which
are pertinent
and
it is
necessary
to examine
recent
and present-day
practice.
a) Early rbitral Decisions
The case law of
past international arbitrations ha s consistently attested
th at the
group
which is in fact
the
master of
the nation
is
th e
legitimate
government of the State. In th e Dreyfus case of 1901 the arbitrator stated
that:
According to a principle of international law today universally admitted,
the capacity of a government to represent the State in its international relations
does not depend in any degree upon the legitimacy of its origin, so that
the
usurper who in fact holds power with the consent express or tacit of the nation
acts validly in the name of the State
20
Further in
the Garrison
case of
1885 t he t ri bu na l
stated that . . .
every
government properly so called, is a government de facto . With
regard
to what constituted a de facto
government
the tribunal stated that it was
a
government which
commands
the habitual
respect and obedience
of
the
bulk of
the
people .2 1
The Commission in th e Hopkins case of 1926,
which
considered
the
validity
of
certain postal
orders
issued
under
th e
revolutionary government
of Huerta
stated
as follows:
The
binding force of such acts of the Huerta administration as partook of [a]
personal character will depend upon its real control and paramountcy
over a major portion of the territory and a majority of the people . . . Once it
had lost this control, it would not be more than one among two or more factions
wrestling for power as between themselves.
22
Recognition
on
the
other
hand is treated in these cases as r el at ively
unimportant.
The
Cuculla
case
of
1868
concerned
a
military
insurrection
in Mexico
le d
by
M r
Zuloaga
who t oo k o ve r the
capital
f ro m whi ch the
constitutional President
fled. Major
European
governments
recognized
th e Zuloagan g ov er nmen t a nd
it appeared
that th e
American
Minister
had also done so. S ome t ime afterwards the
previous
President
who
had
not lost control
of
the rest of the country retook the capital. T he tribunal
in
finding that
the
Zuloagan regime
was not a
government
in international
law, stated:
Where then is the evidence of a de facto government? The possession of the
capital will not be sufficient, nor recognition by the American Minister .
Recognition is based on the pre-existing fact; it does not create the fact.
20
Quoted in Cheng op. cit. above p. 190 n. 5), p. 188.
21
Moore International rbitrations
vol. 4, p. 3548 at p. 3553.
22 US-Mexico
General
Claims Commission 1926), merican ournal of International Law
1927), p. 160 at pp . 164-5.
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193
Habitual obedience of th e members of a political society of the
bulk
of them)
must, in fact, exist to constitute a government.
A
widely
quoted
judgment
is that of
the
Tinoco Concessions arbitration
of 1923 where
t he a rb it ra to r assessed the relativ e v alue
of
recognition
and
defacto
control:
The non-recognition by other nations of a government
is usually appropri
ate evidence that it has not attained the independence and control entitl ing it by
international law to be classed as such. But when recognition
vel non
of a govern
ment
is by such nations determined by inquiry, not into its de facto sovereignty
and complete governmental control, but
into its illegitimacy or irregularity of
origin, their non-recognition loses something of evidential weight on the issue
with which those applying the rules of international law are alone concerned
S uch non-recognition for any reason, however, cannot outweigh the evidence
disclosed by this record before me as to the
de facto
character of T in oc o s
government, according to the standard set by international law.
4
I t is
clear
f ro m t he se
cases
that
de facto
control over the nation
was
the
principal criterion
in
assessing the
existence
of
a
government.
In
addition
to this
however
some
cases speak
of
evidence
that the government
reflects
the
will of the
people
as being important.
In the above mentioned
Cuculla case, i n p ar ti cu la r much
stress wa s placed
on
the
fact
that the
Zuloagan government represented the spasm of
a
dying
power
5
and
that
the
ousted
President
e m bo di ed t he
true popular
choice:
It will be seen how absurd it is to claim that on the 27th day of January 1858
the habitual obedience of the bulk of th e people of the United Mexican States
had been shown to the
armed pretension of the Zuloaga brigade. Sufficient
time had not elapsed to acertain the sentiments of the people of the numerous
and widely extended Mexican states. As soon as they could act they came with
arms in their hands to suppress the revolutionary attempt odious to them)
no ma n can
doubt
that the vast majority of the Mexican people refused obedience
to Zuloaga and adhered to the constitutional government making good their
rights by force of arms.
6
In the olivar ailway case of 1903, the
tribunal
sa w
changes
i n g ov er n
ment
as
expressions of
a
change of national will . 27
Might
one infer from such statements
that
a
regime
with de facto
control could not be
a government in
international la w if
it
did not have
the approval of the majority of the people? is s ub m it te d t ha t such a
postulate
however worthy is untenable.
These cases were
decided at a
time
when notions of democracy were
at
best embryonic and
certainly
not
widespread.
It
is
significant
that
the
Cuculla
case
referred
to
the
s en ti me nt s o f t he people being realized by force
of
arms.
T h e
national
will would thus
b e m ore accurately
expressed as the strongest
group
in a
23
Moore
International rbitrations vol. 3, p. 2873 at
pp .
2876-7.
25 Loc. cit. above n. 23), at p. 2876.
27 Quoted
in
Cheng
op . cit.
above
p. 1 9 0 n. 5), at p. 1 9 0 .
4 Ibid. vol.a ,
P.369.
26
Ibid.
at p. 2877.
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194 MILITARY INTERVENTION
country. Nevertheless, it would appear f rom the Jansen case
of
1868 that
a
regime
would
only
be
considered
a
valid government
if it
had
control
of
the
country without
the aid
of a foreign
power,
and thus truly rep
resented the
strongest
and most
influential body of
nationals
of
that State.
This case concerned
the
validity of
the
acts of the Emperor
Maximilian,
an Austrian archduke, who
had
been installed
by
the French after their
invasion
of
Mexico
in 1863. The
tribunal
stated that a change in govern
ment
must
be done either through a secure and permanent conquest,
or
through a
revolution
within
the State.
the words of
the
decision:
the latter must be supported by the mass of the people and rest
upon
their
consent Should foreign intervention aid this change we can never
regard
the fact as accomplished or as resulting upon the favour of
the
people unless the
new
government
is
strong enough
to maintain itself after
the
foreign aid shall be
withdrawn.
The
acts of
Maximilian s regime were thus
found not to be
the
acts of a
government
and
were
consequently void.
b t te
Practice
As
there are
no
recent
international cases
dealing with the validity
of
governments, it is proposed to assess the law on the
subject
in the
light
of
present
State
practice with
regard to
recognition and quasi-recognition
of
governments. Although
it is
appreciated
that political
motives
rather
than legal
criteria
influence
some
decisions
on the recognition
of
any
particular regime, a general State practice with regard to which group is
taken
to
represent the
State
must be prima
facie
very strong evidence
of
the customary law as
to
the existence of a government .
A
review
of
modern practice
reveals
that State practice conforms
to a
significant
degree to
the
criteria
enunciated in
the
arbitrations summa
rized
above.
particular, the existence of de facto
control
is
generally
the
most important criterion in
dealing with
a
regime
as representing the
state.P The recent
move
towards
dispensing
with formal recognition in
favour
of a
policy
of
dealing
with
regimes according
to whether
they have
control of the country further strengthens
the
criterion of
defacto control.
Thus in 1980 the British Foreign Secretary stated the following policy:
We shall continue to decide the nature of
our
dealings with regimes
which
come
to power unconstitutionally in the light of
our
assessment of whether
they
are able to exercise effective control of the
territory
of the State concerned,
and
seem likely to
continue
to do SO.30
28 Moore,
International rbitrations
vol. 3, p. 2902 at p. 2927.
29 See in particularBundu, Recognition ofRevolutionaryAuthorities: Law and Practice of States ,
International and Comparative Law Quarterly 27 (1978), p. 18. Also, note Dr Mendelson s letter in
The Times 10 November 1983, in connection with the US intervent ion in Grenada, in which he
stressed the criterion of effective control in identifying the
incumbent
government.
30 Hansard,
House of Lords Debates
vol. 408, cols. 1121-2 (28 April 1980).
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This policy
which
originated as
the
so-called
Estrada
doctrine of
Mexico, has
n ow b ee n
followed by several
other
States including France,
Spain and the US. This
pragmatic
approach
avoids
the p ro blem s
of a
State officially recognizing an
unpopular
regime an d being perceived by
some as
thereby denoting
approval of
that
regime.
With
regard to regimes imposed by a foreign power, there is some
evidence
that the
line taken in th e Jansen case has been followed to
some
extent this century strengthened by the Stimson doctrine of non
recognition following
th e
illegality of
the
acquisition of
territory
by con
quest. The latter was
th e
natural consequence of the principle
ex injuria
jus non oritur following the Kellogg-Briand Pact 1928, although the legal
basis of
th e
decision taken in
the Jansen
case itself is less certain.
Although
the principle of non-recognition of a situation, including a government,
arising
out
of
the
illegal use of force was frequently applied by States in
th e
1930S an d
I
940s,
th e
last
thirty
years have seen a considerable
diminution of instances where governments imposed by a foreign power
have been left unrecognized. Thus the governments of Eastern Europe
although at first unrecognized after
the
Second WorId War were all
eventually accorded recognition. The same is
true
of the government led
by
M r Kadar
in
Hungary
which was unrepresented in the
U N
between
1957 and 1963 but was subsequently recognized. Although
there
have
been quite a few instances of governments installed as a result of foreign
intervention.P
the
non-recognition of
t he H eng Samrin
regime in Kam
puchea.i and in particular the non-recognition of this regime in the UN
stands
'out
as
the
sole recent example of a general policy by States of
withholding recognition from a government as such. Other instances of
widespread non-recognition, in particular
with
regard to
the
govern
ments
of Rhodesia after 1965, SouthWest Africa, the Bantustans and, more
recently,
Northern
Cyprus have
t urne d on
th e status of those territories
and
thus concern State recognition r ather than government recognition
only.
The apparent trend
in the last two decades towards acceptance of
governments in power as the representatives of a State despite foreign
control
ma y
well be
further
reinforced by
the
adoption of
the Estrada
doctrine and the dropping of the formal act of recognition. Time will
tell whether this trend will be reversed by further instances of non
recognition of
the
type following Vietnam s invasion of Kampuchea.
The analysis of law undertaken thus far would support the proposition
that
a regime ma y only be legally entitled to invite outside mili tary help
if it is a government within the meaning of international law, an d must
31
T he
US
e.g.,
has frequently
in th e
past
withheld recognition in
order
to voice disapproval of a
regime.
Se e Brownlie, nternational
w
and the Use of orce
by
States (1963), pp. 410-18.
33 Recent
examples
being th e Soviet invasion of Afghanistan in 1979
an d
th e
US
invasion of
Grenada in 1983, both of which were condemned as illegal by th e vast majority of States.
34 Vietnamese troops
invaded Kampuchea
on 25
December
1978, overthrowing
th e
government
of
Po l
Po t
an d
installing on 7
January
1979 th e
leader
of
the Popular
Liberation
Front
Heng Samrin.
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196 MILITARY INTERVENTION
therefore be in de f to control. If, on
the
other hand, it needs to request
assistance to quell an insurrection, i.e. a rebellion of some magnitude, it
is by definition
not
in
def to
control
and thus
cannot speak for
the
State.
This
conclusion has been articulated by several writers. Hall stated that
the
fact
that
it has
been
necessary to call in foreign
help
is
enough
to
show
that
the
issue of
the
conflict would
without
it be uncertain,
and
consequently
that
there is a doubt as to
which
side
would ultimately
establish itself as
the
legal
representative of
the
state.
Thomas and Thomas in
their
book on intervention
and
civil war have
adopted the same view:
A consent by a government in time of civil conflict to an intervention on the
part
of another
state
to establish
and
maintain that government
could
hardly be
called
the consent
of
the
state, for
the very
fact of civil
war would show
that
the
identity of the legal representative of the
state
was in doubt.:
A
more
detailed consideration of
the problem
has been
undertaken
by Quincy
Wright
in his editorial
comment
on the US intervention in
Lebanon in
1958,37
and it is interesting to see
that
this argument fol
lows exactly the type of reasoning articulated above in analysing the role
and
capability of a government:
The
state is an abstract entity
and
cannot speak except through its govern-
ment
It is
presumed
that a government in firm possession of the territory of
a state,
even
if
not
generally recognized
can speak
for
the state
There
is a
presumption, on the other hand, that a government, even if generally recognized,
cannot speak for
the
state if it is not in firm possession of
the
state s territory.
In
international
law,
the
de f to situation is
presumed
to
overrule the
de jure
situation
38
In support
of this statement, Quincy
Wright
quotes several authors of
the
same opinion, including Hall,
and
concludes
that
this is
the predominant
opinion. is doubtful, however, whether this last assertion is correct, at
least as far as traditional international law writers are concerned, for, as
has already been seen.P there is a widespread view
that
the traditional
law favours intervention by invitation of
the
government but
not
by
invitation of the rebels. The only situation where traditional texts require
neutrality on
the
part
of
third
States is on recognition of belligerency,
which can in theory be done if
the
civil war fulfils four conditions:
i) Existence of civil war and general hostilities;
35 A Treatise on International Law
(8th
edn.,
19
24),
p. 347.
Non Intervention: the Law and its Impact in the Americas 195
6),
p. 94.
37
United
States
Intervention
in the
Lebanon ,
American Journal of International Law
53 1959),
p. 112.
38
Ibid.,
p. 120.
See above, p. 191
nn.
16-19.
40 Note,
however,
that there
is also a view
that
recognition of belligerency
turns
a civil war
into
a
real war
and thus
a
third
State
can
join
either
side or choose to
remain
neutral:
Oppenheim,
International Law vol. 2 7th edn., 1952), para. 298.
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197
ii
Occupation and
a
measure
of orderly
administration
of a
substan
tial part of
national
territory
by the
insurgents;
iii
Observance
of
the
rules of warfare on
the
part of
insurgent
forces
acting under a responsible authority;
iv A practical necessity for
third
states to define
their
attitude.v
Recognition of belligerency has not however,
been
given since
the
American Civil War
an d
there m us t t hu s be serious doubts whether
th e
notion has not fallen into
desuetude. Textbooks
regularly repeat this
doctrine
as
part
of
the
law,
but the
real
test
is
whether States
seriously
view it as a legal reality in
modern
times,
and
its total
non-use although
not conclusive evidence, must nevertheless be carefully assessed. It is
certainly true that a large number of civil wars will not comply
with
th e
criteria mentioned above; in
particular the
third is regular ly sadly
neglected. The second criterion
will also
frequently
pose
problems
as a
large
n um be r o f
internal conflicts are
characterized
by a
n um b er o f
insur
gent forces fighting separately against th e central government and often
simultaneously against each
other
as, for example,
Lebanon
since 1975,
t he Con go 1960-4, Afghanistan from 1978 and Chad since 1965. There
have, however, been situations which have generally conformed to
the
four
criteria,
notably the
Nigerian-Biafran
War.
may
be that given
the
general disapproval of secession.P belligerency has not been recognized
in
that
situation
and other
similar ones,
particularly
in Africa.
On the
other hand it is
submitted
that a
more
likely explanation is the replace
ment
of
the doctrine
of belligerency in
modern
international law
by the
doctrine of
non-intervention
in the internal affairs of States, the meaning
of which will be examined later.
However
whatever the status of the doctrine of belligerency, t he s it u
ations to be
considered
will in practice be ones
where
belligerency is
not
officially recognized,
an d
thus the question remains whether a State beset
by civil war is capable of
inviting outside help
even
though
its
govern
ment
is
not
in
f to
control
of
the
State.
It
is
submitted that
although
the
case law reviewed above
would
at first sight
support
Quincy Wright s
assertion that
a
government even if generally recognized, cannot speak
for
the
state if it is
not
in firm possession of th e
state s
territory State
practice does not bear this out. It is certainly
the
case that generally
speaking, a new r egime will rarely receive recognition or be treated as a
government
unless it is in
f to control of
the
country. The few
exceptions to this practice, such as
the U N
Council on Namibia or
the
instant recognition of
the
U N -inspired government of
Adoula
in th e
Congo
in 1961, are
based
on obvious policy considerations.
However
it
is also
the
general practice that governments which were once in control
of
the country continue
to be recognized
and o
act on
behalf
of
t he Sta te
well beyond
the
moment they lost control and up
until the time that
4 Ibid.
para. 76.
4
Below, p. 2 1
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19
8
M IL IT AR Y I N TE R VE N TI ON
another identifiable group ha s
gained
control of th e country. Thus in
Lebanon for example,
U N I F I L
was installed in 1978 on the basis of the
consent
of
the government.s and it was also
assumed
that
the
Lebanese
Government
could validly request
the
assistance of
the
Multinational
Forces in 1982.44
During
this period, however, the Lebanese Army only
had precarious
control of a p art of
the
capital city
and
some
other
small
pieces
of
territory in conjunction w ith the Phalange militia. Furthermore
to speak in
terms
of a beleaguered government fighting rebel forces would
be a fiction in the case of Lebanon as
the
warring militias were in the
main
the private armies of the old families whose
members
make up
successive
Lebanese
cabinets. Similarly in
the
Congo, ONUC was dis
patched to that country in 1960 on the basis of th e invitation of the
Congolese leaders
K asav ub u a nd
Lumumba
wh o
were unable to keep
th e ar my or country under
control.
Not
only were
there
several
changes
of government during ONUC s
operation
but also the identity of the
government
was
frequently
difficult to ascertain,
and
even in
th e
rela
tively
quiet periods
large areas of
the country
were
not
under
the govern
ment s
c ontr ol . U nl es s the S ecu ri ty Co un ci l prescribes e nf or ce me nt
measures under Chapter VII
the
practice has b ee n t hat
th e
dispatching
of
U N
peace-keeping forces
requires the consent
of
the State and
for this
p urpo se the
ineffective regimes in
the Congo a nd L eb an on
in 1960
and
1978 were considered to have validly given that
consent. Further
the
Multinational Forces
were
installed in
Beirut
in accordance
with
bilateral
agreements
between the G ov ernm en t of L eb an on a nd each of the four
States. If
on e
wishes to argue that peace-keeping forces are different from
a force invited by a government to quell an insurrection because
they
are
not supporting one side
or
another then one is invoking a different rule
of law, i.e.
the principle
of
non-interference
not
the non-existence
of
government because of lack of
defacto
control.
There are
other
examples of regimes accepted as
the government
of
the
country although they
have
little control over the country.
In
Afghani
stan
th e
People s Democratic
Party
of
Afghanistan
which took over
government
by a
coup d etat
in April 1978, led by
M r
Taraki and his
successor
M r Amin
was accepted
by other States
as
Afghanistan s
government. Yet
according
to a
survey
made
by
e Monde
in
August
1978,
the
internal conflict had made
about
80 per cent of the territory
insecure and the
government at
that
time controlled
only about half
of
UNIFIL was installed following Israel s invasion of southern Lebanon on
15
March and its
withdrawal after Security Council Resolution
425.
Th e
Multinational Forces consisting of French,
US
and Italian troops were first deployed in
Beirut in August 1982 in order to supervise the evacuation of PL O and Syrian troops from Beirut,
following the bombardment of Beirut by Israeli forces after the latter s invasion into Lebanon on
6 June 1982. After the evacuation, the Multinational Forces withdrew, but were recalled in September
1982 at the request of the Lebanese Cabinet after the massacre in the Palestinian refugee camps of
Sabra and Chatila. In February 1983 British troops joined the Multinational Forces, which remained
in Lebanon until March 1984.
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199
the country s people concentrated in populated
areas.
In
the
Security
Council debates following
the
Soviet invasion in December 1979,
most
delegates
discounted
the explanation of
President
Amin s invitation as
untenable as he was subsequently assassinated,
but
it was assumed
that
he
could
have spoken for
the
State as
the
leader of
the
government.
Similarly in other States involved in civil
war
where rebels
hold
large
areas,
such
as
Chad,
Angola, El Salvador and Ethiopia, the
government
is accepted as representing
the State
in all
the
usual ways.
would appear, therefore, that recognition is in practice extremely
important.
A crucial difference between modern times
and the period
when the
arbitrations
earlier referred to were decided is that with the
present,
near universal, membership of the UN, the representation of a
regime on behalf
of
a State in that body gives a legitimacy to
that
regime
which mere
individual
State
recognition
would
not. Practice shows
that
although de facto
control
is generally required of a new regime, recog-
nition will rarely be withdrawn from an established regime, even once it
has lost control, if
there
is no new single regime in control to take its
place;
Indeed, it has been
stated
by
Oppenheim that premature
recog-
nition of a new government is an international wrong against the old
government, and this opinion is shared by other jurists.t On the other
hand, mere withdrawal
of
recognition without recognition of a
new
re
gime
would
leave a country
without
representation,
and although
the
United Kingdom decided
to recognize no government in
Kampuchea
after the invasion of the Vietnamese, the general practice, as indicated
above, is to continue to treat the beleaguered regime as the valid represen
tative. This approach also has the advantage of practicality in a situation
where most
of
the country is controlled by many separate rebel groups,
often
hostile to each
other. Thus,
for example, at least
eight
separate
groups were fighting against the Taraki regime in Afghanistan in
1978
9,
no less
than
eleven rival groups were fighting President Malloum in
Chad
in 1979
and
a similar
number of
different factions were involved in
the Lebanese civil wars.
There
is, however, one exception in recent times,
where
no regime was recognized as
the
government
during
a civil war,
and that was the particularly unusual circumstance which prevailed in
the Dominican Republic in 1965. A three-man civilian junta, which had
overthrown the democratically elected
President
Juan Bosch, had
ruled
the
Dominican
Republic since 1963. On 25 to 26 April 1965
the
junta
was overthrown by a military revolt
headed
by supporters
of
Sefior
Bosch, but
then
almost immediately civil war broke
out
between
45
Keesing s p. 29
8
78.
46
An exception was Hungary between 1956 and 1963, bu t
the
new regime was unrecognized for
a time as it was installed by a foreign power.
47 International Law vol. (8th edn., 1955 , para. 74.
48 e.g. Warbrick,
The
New British
Policy
on Recognition of
Governments ,
nternational and
Comparative aw Quarterly 30 1981 , p. 568 at
P
569, and in same volume Nedjati , Acts of
Unrecognised
Governments , p. 388 at p. 389.
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MILITARY
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supporters
of Bosch on
the
one
hand
and
supporters
of
the
civilian
junta
on
the other.t The
GAS, which subsequently sent a peacekeeping force,
mediated between the two factions treating neither as a government,
50
and
in
the
Security Council debates, which were called following
the
US
intervention in
the
country, neither
faction was enti tled to speak as
the
representative of
that country
as such, but they were at one
point permit
ted to put forward their views qua factions.
51
This situation was unusual
because civil war broke
out
shortly after
the coup d etat
before
the
new
government was able firmly to establish itself but at the same time after
the
old
government had
been ousted. However, as
the normal
practice is
to continue
the
recognition of an old regime until a new recognizable
regime is de facto in control of the country, it is submitted
that
one
cannot argue a
duty
of non-intervention on the basis of non-existence of
government
alone.
If
one argues
that
a
government
whichis
losing control
cannot ask for help, the ground for prohibiting such help must be found
in another norm.
III SELF DETERM INATION
Self-determination may be defined as the right of a people to choose
its own economic, social and political system. A number of eminent
authorities have based their theory of the inability of a third State to
aid
the
existing
government
in a civil war on this principle: Professors
Brownlie
and
Bowetr
have
both
stated
that
apart
from policy considera
tions making such intervention undesirable, it would conflict with the
principle of self-determination.
Friedmann
has stated
that
such an inter
vention becomes an
instrument
to prevent social change which is a vital
aspect of national self-determination v Quincy
Wright
has based his
theory on
the
invalidity of
such
intervention
not
only on
the
basis of
the
non-existence of government, but also on the basis of self-determination:
Armed
intervention is
not
permissible by invitation of either the recognized
or
the
rebelling faction in the case of civil strife.
it were, the
right
of revolution
implicit in
the
concepts of state sovereignty
and
self-determination would be
denied.
In
a situation of civil strife, the state is temporarily inhibited from acting.
A
government
beset by civil strife is
not
in a position to invite assistance in
the
name
of
the
state.
55
It is
not
intended, in this paper, to review
the
evidence relating to
the
existence of
the norm
of self-determination. As Professor Higgins wrote
49
Keesing s
p. 20813.
50 Keesing s
p. 208
13 -17.
51 Security Council Official Records zoth Year, 1212th
meeting
(19 May 1965).
62
Op.
cit. above (p. 195 n. 32), at p. 327. Brownlie also based his
argument
on the principle of
non-intervention
in
internal
affairs: see below, p. 208 n. 90.
53 The
Interrelation
of Theories of Intervention and
Self-Defence
in Moore (ed.), Law and Civil
War in the Modern World (1974), chapter 2.
54 United
States
Policy and the Crisis of
International
Law , American Journal of International
Law 59 (1965), p. 857 at p. 866.
55 The Role of International Law in the Elimination of War (1961), p. 61.
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MILITARY INTERVENTION
author would agree
with
Pomerance s assessment of self-determination
as defined by UN policy:
Today potential claimants (Biafrans, Katangans and a host of other se
cessionists) are told
'You are not really under colonial or alien rule at
all; you are part of a non-colonial
self
entitled to its territorial integrity'
.61
The
UN operation in
the
Congo
particularly
illustrates
the
wish to
prevent secession. Although the original mandates of ONUC stressed
that
internal
affairs should not be
interfered with,
a
later
resolution of
the Security Council called for 'All appropriate measures to prevent the
occurrence
of civil
war
in the Congo including . . .
the
use of force, if
necessary, in the
last resort .62
The
Secretary-General s
report
of
29
June
1964 with regard to
the
withdrawal of ONUC stated that
the
difficulties
in
the Congo
were of an
unusual nature, the
main origins being found in
the absence of a genuine and sufficiently widespread sense
of
national
identity. The
report
went on as follows:
The United Nations cannot permanently protect the Congo or any other
country from internal tensions and disturbances created by its own organic
growth towards unity and nationhood.f
The
stress is thus on
the
unity and independence of
the
State, rather
than
on
the
free aspirations of the
people.P would
logically follow that
if a
government
were to ask for external aid to suppress a secessionist
movement, such
aid
would not
necessarily offend against
the
principle
of
self-determination,
unless
that particular unit has been recognized by
the international community
as
entitled
to self-determination. The fact
that the Palestinians in particular have been named
by
the UN as a
group
entitled to
self-determination
indicates that the
principle
of se1f
determination could theoretically apply to other groups, although there
is li tt le evidence to that effect at present.f is, however,
not
inconceiv-
Kurds,
Armenians,
Eritreans,
the
people of the Ogaden,
Southern
Sudanese, Nagas,
Tamils,
East
Timorese, etc.
61
Pomerance,
Self Determination in Law and Practice
(1982), p. IS.
62
Security
Council Resolution 161 of 21 February 1961: UN
Doc.
S/4741.
63 Report of the
Secretary-General
on the withdrawal of the
UN Force
in the Congo and on other
aspects of the UN operation,
UN Doc.
S/5784 (29
June
1964):
Security Council Official Records
roth
Year,
Supplement
for
Jan.-June
1964, p. 259 at p. 293, para. 145 of
the report.
See also a
statement
by U
Thant
in
the context
of the Biafran secession:
The United
Nations
has
never
accepted
and
I do
not
believe it will ever accept the
principle
of secession of a part of its Member
State :
Monthly Chronicle
February
1970, p. 36.
64 Although the principle
of self-determination
might sound dynamic
and conducive to change in
accordance
with
the wishes of peoples, it is in fact
presently interpreted
to be
of such limited
application, i.e.
limited almost
exclusively to decolonization,
that
the
picture
envisaged by
present
international
law is one of
great
rigidity; once decolonization is complete, the rule against secession,
coupled
with the rule against the acquisition of
territory
by conquest,
would
in effect freeze the
political
map
in perpetuity In practice , of course, changes occur , general ly through
the
legally
dubious
use of force
which
is
subsequently
recognized as, for example , in
the
case of Bangladesh
in 1971.
65 Apart from the
majority in South Africa, instances of
other groups being
singled
ou t
by the
UN
as
entitled
to self-determination
outside
the colonial context are rare.
The
election
held
in
West
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23
able for perceptions to change with regard to which groups are entitled
to self-determination, and other non-colonial entities might at some
future time be recognized.
The
right
of a people to self-determination is, generally speaking,
becoming increasingly
the
right belonging to people within a unitary
State,
and
therefore
the
content of the norm for people of
independent
States
must
now be considered. Article I
(I)
of both UN
Human
Rights
Covenants describes self-determination as follows:
All peoples have the
right
of self-determination. By virtue of
that
right they
freely
determine
their
political status
and
freely
pursue
their
economic, social
and
cultural development.
This
norm
would appear to have been interpreted as the right of a
State s people to choose its own form of government without outside
interference.
is submitted, however,
that
given the reality of modern
State representation and
the
attitude of the majority of State representa
tives, this does not necessarily mean a government chosen by free regular
multi-party elections. Although it is
true
that the UN has on a number
of occasions recommended such elections for certain
territories.
and has
organized plebiscites for territories gaining independence.f the people of
a State is not generally considered to be deprived of its right to self
determination by virtue of a government imposed by a coup
t
or
single-party rule, provided that the government consists of persons be
longing to the people perceived as being entitled to self-determination.
Particularly illustrative in this respect are the Security Council debates
following
the
US invasion of
Grenada and
the Soviet Union s invasion
of Afghanistan. because although the discussion was obviously highly
coloured by the overriding question of the use of force, the statements
made by
the
delegates nevertheless highlight the different attitudes
towards the meaning of self-determination.
The US
delegate in her
Irian
in
1969 which
was supervised to some
extent
by the
UN might
be ci ted as one
such
example,
bu t
it has
been stated
by some
commentators
that it was a
spurious
exercise
and
in effect legitimized
the Indonesian annexation: Pomerance, op. cit. above (p. 202 n. 61), pp.
32-3.
For examples of
UN
inactivity in the face of annexation of the terri tories of certain groups by contiguous countries after
decolonization, see Pomerance, ibid., p. 20.
88 See in
particular
Professor Nanda s view that culturally different
groups
which are suffering
grave
human
rights abuses
should
be
entitled
to self-determination:
Nanda, Self-Determination
in
International Law ,
merican Journal of International Law
66 (1972),
p.
321,
and Self-Determi
nation
under
International Law-Validity
of Claims to Secede ,
Case Western Reserve Journal of
International Law 13 (1981),
p.
257
at pp. 275-
80.
87
Note,
for example, the recent
General
Assembly resolution calling for
UN
supervised elections
in Kampuchea (GA Res. 35/6 of 1980), following GA Res. 34/22 (1979) which in para. 10 Resolves
that
the people of Kampuchea should be
enabled
to choose democratically
their
own
government
88 Togoland 1957; Western Samoa 1961; Cameroons 1961. These plebiscites determined whether
the
population
favoured
independence
or
integration with another State
and thus related to the
status
of the
territory rather
than the
type
of
government
as such.
9
25 October 1983
and
25 to 26 December 1979 respectively.
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MILITARY
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address on
27 October 198370
asserted
th at th e US
intervened to restore
self-determination to the people of
Grenada
and
that proof
of
that
would
be a free press, free trade unions and free elections.
will be remembered
t ha t t he
regime which was ousted
by the US
intervention appeared to be
a repressive
and arbitrary
one which was alleged to be responsible for
the murder of the former prime minister, Mr Bishop, various ex-cabinet
ministers
and members
of
the
population
during
a demonstration.
How-
ever, only four States
which
spoke in
the
Security Council debates
equated the right to self-determination
with
voting for a free democratic
government.
The
delegates of those States which participated in
the
intervention72 spoke of th e restoration of democracy in
Grenada
an d
might possibly be considered by implication to be referring to self-deter
mination.
The
majority of delegates, on
t he o the r
hand,
when
referring
to self-determination assumed
that th e Grenadian
people were exercising
their right of self-determination before the intervention.
is, in this
author s
view,
most
significant
that
States represented.
by
dictatorships,
in particular, spoke
most
enthusiastically
ab out t he
r ight of
the
people
of a country to choose their own form of government. This view was
most
clearly expressed by
the
delegate of
th e La o
People's Democratic
Republic:
if the American people prefer its form of democracy,
that
is its business if
the
Grenadian
people has decided to choose a social system
that
seems appropriate to
it,
that
is its business . . .
This
emanates from
th e right
of people to self
determination.
73
Other States which criticized the intervention on the g ro un ds of self
determination stressed outside interference as being the factor which led
to a denial of self-determination. The following statements serve as an
illustration of this approach:
Mexico
It
is a manifest denial of
the right
of peoples to self-determination The
people of
Grenada
alone is allowed freely to decide its own government,
without
foreign interference.7
Zimbabwe
The choosing of a
government and
of leadership is the sovereign prerogative
of the people of each
country and
must be exercised
without
external interference
and influence.76
70
U N
Doc. S/PV.2451.
71
Th e UK
Ecuador, Guatemala, and also Venezuela by implication.
72
The
decision to invade was taken by the States members of th e Organization of East Caribbean
States,
i.e,
Antigua and Barbuda, Dominica, St Kitts, Nevis, St Lucia, St Vincent
an d
the
Grenadines
and Monserrat; and participation was invited and accepted by th e
US
Barbados and Jamaica.
7
Security Council debate, 26
October
1983:
U N
Doc. SWV.2489.
74 See also speeches by the delegations of Poland, Bolivia, Algeria, Cuba Benin, Egypt, Peru
Yugoslavia, Colombia, Mozambique Dominican Republic.
7
Security Council debate, 25 October 1983:
U N
Doc. SWV.2487.
76 Security Council debate, 27
October
1983:
U N
Doc. S/PV.2491.
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India
[The movement of the non-aligned countries] has always re-affirmed the right
of all countries to preserve their independence
and the right of their peoples
to choose their own political, economic and social systems and to pursue their
own development free from any external interference or pressures.
The Netherlands, after
stating
its
concern
that the US action was incom
patible with the
principles of
the
Charter, then stated
The people of Grenada must be able to exercise their fundamental right to
self-determination, free from outside interference.
France
deplored
the intervention, stressed the
right of
the self-determi
nation of peoples
and then
stated
that
Everything must be done to allow [the people of Grenada] to regain the
right to decide their fate independently and in full sovereignty.
A particularly scathing attack was delivered by Syria which stated that
the
US action was a flagrant violation of
the
inalienable right of
the
people
of Grenada to
self-determination and the structuring
of its society
free
from
any
outside intervention , and then
went on as follows
the major problem facing the world today is that the United States is trying
to impose its values on the whole world. It is therefore depriving the peoples of
that world of the right to rebuild their countries in accordance with their local
circumstances based on their cultural values and national priorities;
During
the
General Assembly Debate, Syria
openly
opposed a Belgian
draft amendment
calling for free elections in
Grenada8
to be
added
to
the
resolution condemning
the
intervention; on
the grounds
that it
would
interfere
with Grenada s internal affairs. The draft amendment
was in fact
adopted
by a
narrow
majority.
Basically similar attitudes were
expressed
in the debate following
the
Soviet Union s invasion of
Afghanistan although,
as expected, Eastern
bloc
States
and their
allies
supported the
Soviet
Union s
version of
events. As with the Grenada debate, the main criticism of the invasion was
centred
around
its
being
a violation of
the
principle of
non-intervention
in internal affairs. However,
those
States which additionally referred to
the
principle
of
self-determination
again stressed
the
non-intervention
aspect
as paramount, the UK being the sole State which referred to the
right of the Afghan people
demo r ti lly
to determine
their
own future.t
Afghanistan had
been
governed
by single
party
rule since the overthrow
of
the monarchy
in 1973, first under
President Daud,
who
founded the
sole
National
Revolutionary
Party ,
and subsequently
by
Presidents
Taraki and Amin
in 1978 and 1979 respectively,
who
led
the
People s
77 Loc. cit. above, p. 204 n. 73.
78
General Assembly,
38th
Session, agenda item 145: A/38/L.9 (2 November 1983).
79 GA Res. 3
8/7.
80 71-23-41.
81 Security Council debate, 5 January 1980: UN Doc. S/PV.2186.
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