the legal validity of militaryintervention by invitation of the government

8/11/2019 THE LEGAL VALIDITY OF MILITARYINTERVENTION BY INVITATION OF THE GOVERNMENT

1/64

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

OF

THE

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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4/64

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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BY

INVITATION

OF

THE

GOVERNMENT

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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BY INVITATION

OF

TH E

GOVERNMENT

195

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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BY INVITATION

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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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10/64

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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BY INVITATION

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THE GOVERNMENT

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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200

MILITARY

INTERVENTION

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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202

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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BY

INVITATION OF THE GOVERNMENT

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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20 4

MILITARY

INTERVENTION

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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BY

INVITATION

OF

THE GOVERNMENT

25

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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the legal validity of militaryintervention by invitation of the government

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