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Civil War and Intervention in International Law

Published online by Cambridge University Press:  21 May 2009

J.H. Leurdijk
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Extract

Intervention is an almost daily phenomenon of international politics. Both for practitioners of international law and for students of international relations it is a challenging theoretical problem, since the occurrence of intervention is contrary to a number of hypotheses assumed in the theoretical analysis of international problems. In its broadest sense the concept of intervention refers to any act that invades the theoretical sphere of action of States which — in so far as a spatial conception of things can have any relevance in this context — is confined to relations between States and in no way affects the intra-state territory of other States. The traditional model or paradigm which practitioners of both sciences have long adopted as the starting point of their analysis is derived from an image of international politics as relations between States, whereby each individual State has exclusive competence for the political process within its frontiers. Intervention means externally initiated acts which imply an infringement of that exclusive competence and which are therefore inadmissible from a normative and legal point of view. So interpreted, however, the intervention concept covers a whole range of activities which form a substantial part of the day-to-day practice of international politics and, consequently, also constitute an intellectual challenge for theoreticians. If non-intervention was the norm, interventions would be presumed to be the exception:

“The weight of opinion was that they constituted exceptions to the principle of non-intervention, that they did not preponderate to the extent of converting that principle from the rule to the exception”.

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Articles
Information
Netherlands International Law Review , Volume 24 , Issue 1-2 , May 1977 , pp. 143 - 159
Copyright
Copyright © T.M.C. Asser Press 1977

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References

1. Vincent, R.J., Non-intervention and International Order (Princeton, N.J.: Princeton University Press, 1974), p. 293.Google Scholar

2. Kaiser, Karl, “The Political Aspects of Intervention in Present day International Politics”, Internationale Spectator (8 01 1971), pp. 76–87, at p. 76.Google Scholar

3. Thomas, Ann van Wynen & Thomas, A.J. Jr, Non-intervention. The Law and Its Import in the Americas (Dallas: Southern Methodist University Press, 1956), p. 67.Google Scholar

4. Falk, Richard A., “Introduction”, in The International Law of Civil War, ed. Falk, Richard A. (Baltimore and London: The Johns Hopkins Press, 1971), pp. 1–29, at p. 7.Google Scholar

5. Falk, Richard A., Legal Order in a Violent World (Princeton, N.J.: Princeton University Press, 1968), pp. 117–127Google Scholar; Higgins, Rosalyn, “Internal War and International Law”, in The future of the International Legal Order, Volume III Conflict Management, ed. Black, Cyril E. and Falk, Richard A. (Princeton, N.J.: Princeton University Press, 1971), pp. 81–121.Google Scholar

6. Young, Oran R., “Systemic Bases of Intervention” in Law and Civil War in the Modern World, ed. Moore, John Norton (Baltimore: Johns Hopkins Press, 1974), pp. 111–126Google Scholar, which analyses the structural basis of the intervention phenomenon, and Kaplan, Morton A., “Intervention in Internal War: Some Systemic Sources”, in International Aspects of Civil Strife, ed. Rosenau, James N. (Princeton, N.J.: Princeton University Press, 1964), pp. 92–121Google Scholar, which analyses especially the various manifestations of intervention behaviour in various types of systems (bipolar, balance of power).

7. Falk, , The International Law of Civil War, p. 13.Google Scholar

8. Wright, Quincy, “The American Civil War, 1861–65”, in The International Law of Civil War, pp. 30–109, at pp. 103–106.Google Scholar

9. Kaplan, , op. cit., p. 121.Google Scholar

10. Compare, however, the discussion on this question between Lillich and Brownlie, the latter being unwilling to accept humanitarian intervention as an exception to the general principle of non-intervention: Brownlie, Ian, “Humanitarian Intervention”Google Scholar and Lillich, Richard B., “Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives”, in Law and Civil War in the Modern World, pp. 217–228 and 229–251Google Scholar, respectively. Bowett takes the view that an exception of this kind can exist only as regards the nationals of the intervening State, since that action may then be based on the right of self-defence, but not as regards nationals of other countries, Bowett, Derek W., “The Interrelation of Theories of Intervention and Self-Defense”, in Law and Civil War in the Modern World, pp. 38–50.Google Scholar

11. Compare, however, the discussions on this question between Röling and Bos, in which Bos rejects the contention that international law gives States the right to assist insurgents against colonial and racist regimes, although he does recognize here a “tendens tot rechtsvorming” (tendency towards the formation of law) (p. 730). B.V.A. Röling, “Volkenrechtelijke aspecten van hulp aan bevrijdingsbewegingen” (International law aspects of assistance to liberation movements) and Bos, M., “Staatssteun aan buitenlandse opstandelingen volkenrechtelijk en politiek beoordeeld”Google Scholar (State assistance to foreign insurgents judged from an international law point of view and from a political point of view), both in XXVII Internationale Spectator (22 11 1973), pp. 717–721 and 722–731.Google Scholar

12. Burton, J.W., Systems, States, Diplomacy and Rules (Cambridge, University Press, 1968), pp. 40–57Google Scholar; Falk, , Legal Order in a Violent World, pp. 142–145Google Scholar; Moore, John Norton, Law and the Indo China War (Princeton, N.J.: Princeton University Press, 1972), pp. 163–169.Google Scholar

13. Compare the critical reaction of Farer, Tom J., “Harnessing Rogue Elephants: a Short Discourse on Intervention in Civil Strife”, in The Vietnam War and International Law, vol. 2, ed. Falk, Richard A. (Princeton, N.J.: Princeton University Press, 1969), pp. 1089–1116, at pp. 1095–1100.Google Scholar

14. On this question in general see Modelski, George, Principles of World Politics (New York: The Free Press, 1972)Google Scholar and Burton, John W., World Society (Cambridge at the University Press, 1972).CrossRefGoogle Scholar

15. Rosenau, James N., “Internal War as an International Event”, in International Aspects of Civil Strife, pp. 45–91.Google Scholar

16. Moore, John Norton, “The Lawfulness of Military Assistance to the Republic of Vietnam”, in The Vietnam War and International Law, vol. 1, ed. Falk, Richard A. (Princeton, N.J.: Princeton University Press, 1968), pp. 237–270, at p. 267.Google Scholar

17. Firmage, Edwin Brown, “The ‘War of National Liberation’ and the Third World”, in Law and Civil War in the Modern World, pp. 304–347.Google Scholar

18. Hall, W., A Treatise on International Law, 8th ed. 1924, p. 34.Google Scholar

19. Wright, Quincy, inter alia in “United States Intervention in the Lebanon”, 53 American Journal of International Law (A.J.I.L.) (1959), pp. 112–125CrossRefGoogle Scholar and “Subversive Intervention”, 54 A.J.I.L. (1960), pp. 521–535Google Scholar; Friedman, Wolfgang, inter alia in “U.S. Policy and the Crisis of International Law”, 59 A.J.I.L. (1965), pp. 857–871Google Scholar and “Intervention and international law”, XXV Internationale Spectator (8 01 1971), pp. 40–68Google Scholar; Brownlie, Ian, op. cit.Google Scholar

20. Compare, inter alia, Moore, John Norton, “International Law and the United States Role in Vietnam: A Reply”, in The Vietnam War and International Law, vol. 1, pp. 401–444, at p. 431.Google Scholar

21. Compare Farer's criticism of the “contextual approach” of Moore and others in “Harnessing Rogue Elephants”, pp. 1105–07.Google Scholar

22. Farer, Tom, “Intervention in Civil Wars: A Modest Proposal”, in The Vietnam War and International Law, vol. 1, pp. 509–522 (at p. 518).Google Scholar

23. Farer, , “Harnessing Rogue Elephants”, pp. 1111–1112.Google Scholar

24. Moore, , Law and the Indo-China War, p. 280.Google Scholar

25. Falk, , Legal Order in a Violent World, pp. 167–168Google Scholar; compare also Falk, Richard A., “Zone II as a World Order Construct”, in The Analysis of International Politics, ed. Rosenau, James N., Davis, Vincent, East, Maurice A. (New York: The Free Press, 1972), pp. 187–206.Google Scholar

26. Falk, Richard A., “Comment 1”, in Law and Civil War in the Modern World”, pp. 539–548, at p. 540.Google Scholar

27. Falk, , Legal Order in a Violent World, p. 145.Google Scholar

28. Falk, , “Comment 1”, p. 539.Google Scholar

29. The term comes from Georg Schwarzenberger, “Hegemonial Intervention”, 13 Yearbook of World Affairs (1959), pp. 237–265.Google Scholar

30. Compare the discussion of this question between Moore, who describes Farer's recommendation of a symmetrical norm of intervention for both factions in a regime-conflict as a Darwinian interpretation of the right of self-determination (Law and the Indo-China War, pp. 258–267Google Scholar) and Farer, in whose opinion Moore's criteria for establishing fair self-determination show a disheartening naivety in regard to the recalcitrant world in which they are to be applied (Harnessing Rogue Elephants, pp. 1098–1100).

31. Vincent, R.J., op. cit., p. 293.Google Scholar