Font Size: a A A

Study On The Principle Of Non-Intervention In The Internal Or External Affairs Of Sovereign States

Posted on:2006-07-15Degree:DoctorType:Dissertation
Country:ChinaCandidate:B J LiFull Text:PDF
GTID:1116360182967641Subject:International Law
Abstract/Summary:PDF Full Text Request
The equality principle of national sovereignty is the most important fundamental principle of international law. One of its inevitable logical consequences is that the subjects of international law must hold the nonintervention principle. As one of the basic principles of international law, the nonintervention principle has experienced a process of being put forward, established, strengthened and developed. The nonintervention principle and the equality principle of national sovereignty together constitute the most important base of the total international law system. It is of great theoretical and practical significance to study and explore the nonintervention principle from the academic perspective. The nonintervention principle has characteristics of both law and politics and ethnics. Therefore, the author's study takes an interdisciplinary perspective from international law and international relations. The purpose is to reveal and understand how the nonintervention principle develops and changes in the practice of international law and international relations viewed mainly from the mutual interaction of law and politics. The basic presupposition of the author's dissertation is that the international society exists in the form of anarchy. Therefore, in this kind of "special" society, if we want to vindicate peace and security, it seems particular important to maintain a healthy, just, reasonable and stable international law order. No matter in the past, present or future, as a dominant law system, the international is indispensable to the international society. At the same time, the international relations is mainly governed by international law, which is an irreversible process. Thereafter, however the world changes, in this anarchy international society, the equality principle of national sovereignty and the nonintervention principle in international law will always be the two most important fundamental principles which will maintain the international order.The general structure of my dissertation is: an introduction, six chapters and a conclusion.In the part of introduction, the author mainly focus on the sources, significances, status quo of domestic and overseas studies, thinking way of the author's study, methodology, innovation points, emphasis and difficulties of my dissertation.In the first chapter, after a careful review on the theoretical origin and nations'relative practices of the nonintervention principle of international law, the author think, the basic logical presupposition of the nonintervention principle of international law is national sovereignty principle. Besides this, the other two theoretical origins are the doctrine of natural law earlier and the theory of fundamental rights and duties in a nation later. These two theories consider the national sovereignty theory is a connatural basic right for nations; nonintervention is the basic duty that nations must bear on one side and the natural right for nations not being interrupted by any outside interventions. Based on careful examine on the relative practices of nonintervention principle, the author come to a conclusion: the nonintervention principle in international law is built up step by step in the historical process of intervention and anti-intervention. Then, some basic conceptions of nonintervention principle have been explored, such as what on earth the problem of intervention in international law is. By combining some prescripts of international law in existence and various thoughts related, the author think that the so-called intervention is the illegal behavior of the subjects of international law, which, through compelling or non-compelling, direct or indirect means, for the purpose of realizing some intention, deprives other nations' right of dealing with things freely within their power range. After a detailed analysis on the domestic affairs in the Covenant of the League of Nations (article 15(8)) and the Charter of the UN (article 2(7)), and the theory of state jurisdiction, the author think that the internal affairs of a state is not a pure geographical conception. It consists both a nation's matter within domestic jurisdiction and foreign affairs. Internal affairs can be viewed as all the affairs within the sovereignty of a nation. Finally, the author has a discussion on nonintervention principle's characteristics. In the author's view, this principle has both the characteristics of law and politics and ethnics. At the time, an international relations' point of view on nonintervention principle is presented.In the second chapter, the author put his emphasis on the issue of nonintervention's status in modern international law. After the discussion on the prescriptions of nonintervention by the Charter of U.N, the resolutions of General Assembly, the consititutions of the regional organizations and other pertinent international treaties, the author come to the conclusion that this principle has in fact been strengthened in modern international law. The following will see a detailed treatise on the status of nonintervention in international law. At the same time, acomparison on the relationship between this principle and other fundamental principles of international law has been conducted, such as the principle of sovereign equality of states, the principle of fulfilling international obligations in good faith, the principle of peaceful settlement of international disputes, the principle of non-use of force or threat of force, the principle of intemationalcooperation, the principle of self-determination of nations and peoples, etc. To detect whether this principle belongs to the category of international customary law and jus cogens or not, the author saw about the pertinent practices from three different layers: Firstly, the diplomatic relationships between nations in the form of diplomatic letters, policy declarations and treaties, etc; Secondly, the domestic behavior within a nation, such as law and statute, justice verdict, administrative orders, etc; Finally, the relevant practices of nations, international organizations and the International Court of Justice. In the end the author find out that all the practices stated above are the realization of nonintervention principle in international society on one hand and constitute the important evidences of nonintervention's belonging to the international customary law and jus cogens, on the other hand. In addition, the author think that since nonintervention principle and national sovereignty principle constitute the two most important basic international principles in maintaining international orders and the status of nonintervention principle as a basic law in international law has gained its universal recognition in international society, the nonintervention principle is considered as the international customary law and jus congens as well. The Nicaraguan Case in 1986 serves as a affirmation to this.In the third chapter, the author offers a detailed study on the exceptional issues of nonintervention principle in modern international law. Generally, we think that the nonintervention principle plays a very important role in modern international law. However, the author think that just like the countries' sovereignty is not absolute in international law, the nonintervention principle's practice in international law is also not absolute, there are exceptions under some situations. For instance, the article 2(7) of UN prescribes that : "Nothing contained in the present charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Charter VII." Therefore, when we applythis principle's relative exceptions, we must be especially cautious and apply it strictly to avoid the appearance of the contradictory and illegal principle to the nonintervention principle, because too many exceptions will make the nonintervention principle become meaningless. Moreover, there is a general rule relating to explanation in international law, that is, when we are explaining a lega principle, we must explain it strictly and restrictively, otherwise, this will destroy the whole principle itself. Therefore, "intervention" should permanently be "exception". Following that the author thinks there are three exceptions: the enforcement measures under Charter VII and peace-keeping operations, the use of self-defense and collective humanitarian intervention in the system of the United Nations. Finally, a careful study on the illegality of the unilateral intervention theories and theirs practices, such as the so-called intervention to protect the right of their nationals who live outside in a foreign country, the intervention according the so-called "right by treaty", so-called intervention by invitation, the intervention toward the so-called "failed states", the intervention for the purpose to support "self-determination", the so-called humanitarian intervention theory, the anti-terrorism intervention theory, the ideological intervention theory, the intertal conflict intervention theory and the intervention against those who violates or does not follow the international customary law.Chapter IV talked about how the nonintervention principle is applied in international law. Although, this principle takes a strong flavor of politics and ethics, as stated above, being a fundamental law in international law, it has some degree of compulsion at the same time. Therefore, in modern international law, the illegal intervention behavior for the violating of nonintervention principle will definitely result in a series of bad consequences of international law. As far as countries are concerned, if a country implements illegal intervention against another country, it will suffer revenge or self-dependence from the intervened country, or will get punishment from international multi-system, or will bear corresponding responsibilities of international law, etc. Relative to domestic law system, there is not an integrated justice department and execution department which surpass the sovereignty countries to put the nonintervention principle into practice for its "special" status in international society. However, with the pace of systematization of international society being accelerated, the system of League of Nationsoriginated by the two World Wars and the system of the United Unions which appeared later has put the nonintervention principle into practice to some extent. In the system of the league of nations, the author mainly conduct analysis on the Aaland Islands Case (Finland v. Sweden, 192 l)and the Nationality Decrees in Tunis and Morocco Case, 1923. And in the system of the United Nations, the author put his emphasis on the analyzing of the relative four cases, they are: the Case Concerning the Treatment of People of Indian Origin in the Union of South Africa (India v. Union of SouthAfrica, 1946), the Czechoslovak Question (USSR v. Czechoslovak, 1948), Corfu Channel Case (Britain v. Albania, 1949) and the Case Concerning Military and Paramilitary Activities in and against Nicaragua (U.S. v. Nicaragua, 1986). Through specific analysis, the author find out that no matter in the system of the League of Nations or the system of the United Nations, the nonintervention principle has gained ingemination and emphasis to some extent. Particularly, in the adjudge of the International Court of Justice on the famous Nicaraguan Case in 1986, the nonintervention principle's status and function in modern international law gained a special emphasis. The adjudge declares definitely that the nonintervention principle as a fundamental principle in international law, not only is a part of international customary law but also has the quality and status of international jus cogens.Then, in Chapter V the author studied on the challenges that the nonintervention principle meets in the modern time. First, since the end of the Cold War, local hotspot questions have continued all along, therefore, the U.N. has conducted a series of intervention activities. Here, consider the nonintervention principle under the system of the United Nations, specially the impact on the nonintervention principle results from the collective peace-keeping intervention dominated by the U.N..The first is that the scope of the collective peace-keeping intervention dominated by the U.N. is getting larger than ever, which shows that Security Council's power has been increasingly enlarged. The second is that the justice and validity of the intervention under the system of the United Nations lack sufficient evaluating criterion. The third is that since the low efficiency, the United Nations' intervention has the risk of being marginalized. Second, the author has a discussion on the challenge that the nonintervention principle face under the context of regional organizaiton. With the faster and faster development of regionalintegration, many regional organizations start to intervene actively and widely on the countries' domestic affairs within its region, and this is a new challenge to the fundamental principles of international law, such as the nations' equality principle and the nonintervention principle, for this will to some extent intimidate the applicability of the universal effectiveness of nonintervention principle. Here, the author mainly take the typical regional organizations's intervention as examples to conduct his analysis, such as the European Union > the Organization of American States, the African Union, the South and East Asian Alliances, the North Atlantic Treaty Organization, etc. Third, the author has discussed that how the American's imperialist unilateral intervention has made a notable impact on the nonintervention principle since the end of the cold war. To this question, the author has mainly analysed the three questions: the first is the illegality and illegitimacy and immorality of the American's imperialist unilateral intervention; the second is the diffusion of the American's imperialist unilateral intervention; the third is legalization of the American's imperialist unilateral intervention. Finally, the author has explored the three challenges by the globalization to the nonintervention principl: the first challenge is to state sovereignty; the second challenge is that the concept of the internal affairs is getting more unclear; the third challenge is that nonforcible intervention will be increased, etc.In Chapter VI, the author re-evaluates the nonintervention principle in modern international law. In this chapter, three issues have been explored, they are: how to reconstruct the nonintervention principle in modern international law; how to reconstruct the nonintervention principle in UN Charter and the challenges that the developing countries meet in viewing the nonintervention principle and their choices on it. For the first issue, specifically, the author clarify five presuppositions to the intervention: first, the intervention of the international society must gain permission from the host countries; second, the intervention of international law does not necessarily restrict within the area of the so-called "coercive" sphere; third, nowadays, the legal subject of intervention in international law can only be the general UN; forth, the domestic state of affairs of the host countries have in effect threatened the peace, security and order of international society; fifth, the contemporary international law must conduct stricter and more reasonable provision on the military intervention in international relations. For the second issue, theauthor think the dilemma is that the prescript of the article 2(7) of the UN Charter says the UN (including the General Assembly and the Security Council, etc.) should not intervene in matters which are essentially within the domestic jurisdiction of any state,but the fact is that the multi-lateral and collective intervention has taken a tendency of increasing since the end of the Cold War, which actually violates the intrinsic connotation of the article 2(7) of the UN Charter to some extent. The reason is that the article 2(7) of the UN Charter has clearly stated out Security Council has great right in intervening, and the Security Council's practices in fact go largely beyond the right range stated in the UN Charter, for instance, arbitrarily enlarging the explanation scope of "the constituting a threat to international peace and security", etc, which in return has belittled the status and meanings of the nonintervention principle. Therefore, to make the UN can legally and reasonably perform its collective intervention, a reformation must be introduced.In the last chapter, the author makes a conclusion of his whole thesis. The intervention practices and the so-called various interventionisms derived thereafter which are overrunning since the end of the Cold War remind us from the verso that we should seriously treat the various challenges that the nonintervention principle meets in the 21st century. As the author see it, although the nations sovereignty equality principle and the nonintervention principle in modern international law now have met challenges from all kinds of directions, that is not necessarily the case that the subject of the international law must use "intervention" to settle the conflicts and clashes. In fact, in international society only "dialogue" and "cooperation" can be the better strategy in resolving the conflicts in international relations in the 21st century. Those ideas of depreciating and discarding the nations' sovereignty principle and the nonintervention principle are not fit for the actual development of the international society. On one side, the international society has far away from reaching the degree of developing and revolutionizing into building a "world government". On the other side, historically speaking, the lessons taught from the destroy done on the international society's peace, security and order by the intervention is also quite serious. Under the contemporary international pattern, to maintain and strengthen the status, to decrease and restrict the unilateral intervention to the minimum degree in international society, we must first have a clearer prescript about the issue of intervention in modern international law. At the same time, withincertain period, there exists great political and ethnic pressure on the international society's choice between intervention and anti-intervention (the battle in principle), intervention or nonintervention (in the constantly changing international circumstances). Because the international law always lacks the capacity to get accustomed to the constantly changing international environment (for instance, the challenges in the process of globalization, such as the international terrorism problem, international environmental problem, international refugee problem and international crime problem, etc.), the intervention does have its reasonability in some cases. The hard choice between the unilateral intervention or collective interventionmust be made by the international society (dominated or authorized by the UN) . With the continuing development of the globalization and the irreversible tendency of the systematization of international society, as far as the international society is concerned, if it wants to avoid the overthrow of modern international law system which is based on the nation's sovereignty equality principle and the nonintervention principle for the overrunning of the various unilateral intervention, the one and only way is through strengthening the efficiency and validity of UN's collective intervention. Therefore, generally, the author think, as a fundamental principle of international law, the nonintervention principle does not go out of time. Additionally, the author think, it is the two fundamental principles of international law - the state sovereignty equality principle and the nonintervention principle - that will ensure the "anarchy" world system to have international orders.
Keywords/Search Tags:Non-intervention, Internal Affairs, State Sovereignty, International Law, International Relations
PDF Full Text Request
Related items