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To find a legal exception in terms of contemporary international law itself to these comprehensive and detailed prohibitions against intervention, especially in the context of civil strife, the converse of the situation where the intervention of outside states is threatened-that is, the rights of those struggling for selfdetermination, should be examined.
In its elaboration of the principle of self-determination, the Friendly Relations Declaration recognizes the right of peoples exercising their right to self-determination "to seek and receive support." This right, however, is qualified in two respects: first, the support must be "in accordance with the purposes and principles of the Charter"; secondly, the people exercising the right of selfdetermination must be doing so "against and in resistance to forcible action" that is depriving them of their rights to selfdetermination. From the negotiating history of this text, there is strong evidence that the verb "deprive" was intended to refer to the colonial power, or the administering authority of a trust territory or the "power" in the legal position of authority to deprive. At the same time, however, it is also clear that the Western European and Other States Group was successful in broadening the text to ensure the application of the self-determination principle universally and not to any one classification of people. Given the fact that a universal application is intended, it remains unclear whether the word "deprive" refers to a controlling authority or could cover a set of circumstances such as foreign control over the warring factions involved in civil strife to the extent where the factions are no longer free to resolve the conflict in their pursuit of self-determination. Even if, with reference to this ambiguity, the greatest latitude in interpretation were conceded, the other qualification-that the support must be "in accordance with the purposes and principles of the Charter," narrows the scope of such support. Whatever the support, it could not disrupt international peace and security by provoking foreign power competition in an internal conflict.
The position of the United States that emerges from its participation in the development and refinement of the nonintervention principle in contemporary international law is as follows: (1) The broad language prohibiting all forms of intervention was fully acknowledged as no greater a prohibition than had already been accepted by the United States in its treaty relations with Latin America, but that it did not affect the right to intervene in other states for purposes that were sanctioned under customary international law, i.e., protection of a state's own nationals; protection of the lives of other nationals or humanitarian intervention; and for legitimate collective self-defense; (2) the specific, wide-ranging language prohibiting intervention involving the use of force was particularly welcomed by the United States as the result of its successful efforts to bring international law to bear specifically on forms of indirect aggression, and covert acts of intervention; (3) the United States specifically reserved, in the context of prohibiting intervention involving the threat or use of force, its right to assist a friendly government upon its request when beset by civil violence. This position is in accord with the classical doctrine concerning foreign intervention in civil strife: that during the stages of rebellion and then of insurgency, that
characterizes the stage during which the conflict is on a more sustained level and is organized and conducted by responsible leaders, foreign assistance may be given to the legitimate government for purposes of quelling the disorder; but when the level of conflict reaches the stage of belligerency, foreign states must become neutral unless they enter either side as a cobelligerent.
The memorandum has a brief summary of the opinions of legal writers on the nonintervention principle and concludes with a section on state practice of contemporary international law regarding nonintervention. It reviews that practice with emphasis on the recent practice of the United States in the context of civil strife. The state practice section includes actions at meetings of consultation convoked under either the Inter-American Treaty of Reciprocal Assistance or the Charter of the Organization of American States during the 1950's and 1960's; U.S. noninterference in the civil conflict in Indonesia in 1958; a U.S. policy statement with reference to the start of a revolution in Laos in 1960; the dispatch of U.S. forces to Lebanon in 1958; U.S. military involvement in Viet-Nam; U.S. intervention in the Dominican Republic crisis of 1965; U.S. intervention for humanitarian reasons in civil strife in the Congo in 1964; the U.S. refusal to sell or supply arms and ammunition to either side in the attempted secession of Biafra from Nigeria in 1967; and the U.S. embargo policy in respect of the India-Pakistan war of 1971. Based on her review, Ms. Willis concluded:
This review of United States policy shows that the United States Government considers lawful the following acts of foreign state intervention in situations of internal conflict:
(1) where the legally established government is threatened by outside intervention (infiltration of personnel, supply of arms and ammunition) (Lebanon, 1958, and Viet-Nam), and the legally established government requests the sending of troops and supply of arms; (2) where the lives of our nationals are threatened whether any government exists to request our intervention or not (Congo in 1964 (where our intervention was requested) and the Dominican Republic in 1965 (where our intervention was not requested) ); (3) where the lives of our nationals and those of other nationals are threatened and the government appears incapable of rendering the required protection whether such intervention is requested by an established government or not (the Congo in 1964 where our intervention was requested, and the Dominican Republic in 1965 where no established government existed to request our intervention). In both instances, the United States coupled its intervention for the protection of its own nationals with the protection of other nationals, thus leaving unanswered the question whether the United States would intervene to protect the lives of other nationals in the absence of its own nationals if requested by an established government; (4) where there is a total collapse of governmental authority and nonpartisan military intervention helps in an
anarchical situation to preserve order so that free elections can be held (Dominican Republic in 1965).
In situations of civil strife where there has been no foreign intervention (Indonesia in 1958; Laos in 1960; and Pakistan in 1970), and even in situations of civil strife where there has been illegal foreign assistance in the form of the supply of arms, the United States has not intervened where the legally established government has not been threatened and has not requested our assistance (Nigeria in 1967).
Where there has been assistance by other foreign states by supplying arms in situations of civil strife, the United States has distinguished between a nontraditional supplier of arms which it condemned, and a traditional supplier of arms as the former metropole which it condoned (Nigeria in 1967). The practice of the United States in this regard is consistent. As a nontraditional supplier of arms to Pakistan in 1971, the United States ceased its resumption of arms supply during the internal conflict with East Pakistan.
Where a lawfully constituted government exists, and there is aggression from an external source in an internal conflict, international law recognizes the legitimacy of foreign assistance to that government on the ground of collective self-defense. Where a state intervenes in a situation of internal disorder for the protection of its own nationals, international law recognizes the legitimacy of such intervention arguably as an extension of the right of selfdefense. The legitimacy of foreign state intervention in situations of civil disorder for the rescue of the lives of nationals as well as nonnationals where the legitimate government is incapable of rendering the required protection is also upheld by traditional international law under the separate doctrine of humanitarian intervention. Foreign state intervention in a situation of anarchy produced by civil strife where there is a total collapse of government authority, for nonpartisan purposes, to enforce a cease-fire or preserve order for the carrying out of free elections is, arguably, not intervention in the accepted sense of interference. The United States defended its intervention in the Dominican Republic in 1965 on this ground, and invoked the activity and authority of the regional organization for additional defense. Neither traditional nor contemporary international law specifically addresses this type of intervention. Through the precedent established by the United States, the legal rationale of the nonintervention principle which seeks to prohibit prejudicial interference in a situation of civil strife may have received sharper definition rendering such nonpartisan, nonprejudicial acts of intervention permissible.
Dept. of State File No. P77 0016-2901.
Ambassador Robert J. McCloskey, Assistant Secretary of State for Congressional Relations, in a letter dated June 2, 1976, responded to an inquiry from Senator Dick Clark relating to Cuban intervention in Angola and possible U.S. responses to it. The following are excerpts from Ambassador McCloskey's letter:
Organization of American States (OAS)
Article 18 of the OAS Charter (nonintervention) states-it may indeed overstate-a general principle of international law. The same concept is reflected in a number of other documents such as the United Nations Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States. Insofar as its appearance in the OAS Charter is concerned, it is binding only on the states which are parties to the Charter.
Article 21 (use of force) makes an express exception from proscriptions on resort to force for self-defense in accordance with existing treaties. The purpose of this exception is presumably to allow the parties to the OAS to act consistently with article 51 of the United Nations Charter (individual or collective self-defense). . . Under chapter V of the OAS Charter (pacific settlement of disputes), an initial question arises of what constitutes an international dispute. Historically, questions of armed attack or threats to the peace of the hemisphere have been dealt with primarily under the Rio Treaty rather than under chapter V of the OAS Charter. Moreover, chapter V, despite the fact that it speaks of disputes among "American States," appears intended to apply only between member states. While the focus of chapter V appears to be on disputes occurring within the hemisphere, the chapter contains no inherent limitation of that nature. . . . the "Special Treaty" referred to in article 26-the Pact of Bogota-has not been adhered to by either Cuba or the United States.
Under Resolution VI of the 8th Meeting of Ministers of Foreign Affairs (1962), Cuba is excluded from participation in the InterAmerican System, including meetings under the Rio Treaty and the Organization of American States. However, despite such suspension, we believe that Cuba remains an OAS member under the Charter.
Inter-American Treaty of Reciprocal Assistance
The Rio Treaty generally provides a framework for joint action in the face of threats to the peace. It establishes no specific responsibility to coordinate action; on the other hand, it and the U.N. Charter in effect prohibit certain types of action absent multilateral sanction.
In our view, article 3 does not forbid unilateral action. Such an interpretation of article 3 would unduly restrict the principle of self-defense found in article 51 of the U.N. Charter and incorporated by general reference in article 1 of the Rio Treaty. Nor do we interpret article 6 as restricting the right of self-defense. The United States purposely has not officially interpreted the right of self-defense under article 51 in circumstances where another party has already undertaken an armed attack. Reliance on article 51 to justify the right of collective self-defense does require the request for such assistance by the state entitled to exercise the right of selfdefense.
United Nations Charter
Article 51 of the Charter would not, by itself, justify unilateral
use of force by the United States against Cuba except on grounds of individual self-defense, a ground which is not likely to arise from Cuban activities in Africa. However, it is not inconceivable that a situation would arise whereby certain actions involving the use of force would be justified on grounds of collective self-defense, e.g., if the Cubans were to take action against a nation friendly to the United States, and that nation were to request U.S. assistance.
The relevant decisions of the U.N. Security Council and General Assembly on Rhodesia and Namibia have not authorized or justified Cuban armed intervention in Angola. Security Council Resolution 385 (1976) condemned any utilization of Namibia by South Africa as a base for attacks on neighboring countries, but neither called for nor authorized any use of force in Angola or elsewhere. In any case, the Cuban intervention occurred well before the date of this resolution.
United States-Soviet Relations
provisions . . . from both from both the "Basic Principles of Relations" of May 1972, and the Agreement on the Prevention of Nuclear War of 1973 have been specifically invoked in our discussions with the Soviets on many occasions, including the problem arising out of Cuban intervention in Angola.
Ambassador McCloskey declined to comment on possible U.S. responses to Cuban activity in Angola except to state:
... the United States is mindful of its obligations under international law, especially those provided in the United Nations and OAS Charters and the Inter-American Treaty of Reciprocal Assistance, and . . . any actions it may take with respect to Cuban threats will be consistent with those obligations.
Dept. of State File No. P76 0085-247.
The United States abstained on U.N. Security Council Resolution 387 (1976) concerning South African forces in Angola, adopted on March 31, 1976, by a vote of 9 to 0, with 5 abstentions. The resolution condemned "South Africa's aggression" against Angola but did not mention Soviet-Cuban intervention there. Ambassador William W. Scranton, U.S. Representative to the United Nations, in a statement to the Council emphasized U.S. support for African independence as well as for the principles of nonintervention, territorial integrity, and nonuse of force in Africa. The following is an excerpt from his statement:
The United States strongly supports the motivations inherent in this resolution that is before us for African independence but shall abstain from the vote on this draft resolution because of its failure to apply to other, continuing foreign interventions.
The resolution purports to reflect a conclusion by the Council on the situation in Angola and asks for responsive action by South Africa. It says nothing whatsoever