Preventive Action for Refugee Producing Situations

198 Chapter 5
52. Definition of proposed international preventive action
In order to establish that states objections against our proposal are justified we
will first examine principles of intervention or humanitarian intervention to
show that there need not be a clash between the proposed preventive action and
intervention.
5.2.1. Meaning of intervention, and of humanitarian intervention a)
Intervention
What, exactly, constitutes intervention? Lauterpacht established the classical
legal definition of intervention in his International Law and Human Rights:
Intervention is a technical term of, on the whole, unequivocal connotation. It signifies
dictatorial interference in the sense of action amounting to a denial of the
independence of the State. It implies a peremptory demand for positive conduct or
abstention - a demand which, if not complied with, involves a threat of or recourse to
compulsion, though not necessarily physical compulsion, in some form. 459
This definition is now considered too restrictive by many political scientists
and practitioners who have suggested much broader grounds for intervention.
George Modelski, for example, notes that the influence of intervening powers
is readily perceived, but further asserts that strict impartiality on the part of
noninvolved third parties is equally important, partly because neutrality cannot
be legitimately expressed by simple noninvolvement:
459 Lauterpacht points out the concurrence of scholarly opinion in the definition of
the term: "Oppenheim describes intervention as 'dictatorial interference by a State
in the affairs of another State,' and emphasized that 'intervention proper is always
dictatorial interference, not interference pure and simple'. Prof. Verdross speaks
of intervention as taking place when a State threatens another with evil if the latter
refuses to yield in a manner which international law leaves to its exclusive jurisdiction.
Professor Stowell, in the leading monograph on intervention, refers to it
throughout as aiming at enforcement There are few topics in international law in
which the uniformity of definition is so impressive and instructive. In order to
justify the use of the term 'intervention' in its accepted scientific connotation there
must be an attempt 'to impose the will' of one or more States upon another State in
an 'imperative form." As quoted by Laurie Sheila Wiseberg, "The International
Politics of Relief: A Case Study of the Relief Operations Mounted During the Nigerian
Civil War (1967-1970)," diss. University of California, Los Angeles, 1973,
p. 481.
Legal Justification 199
The alternative of nonactivity or nonintervention does not exist because inactivity or
nonintervention must be interpreted as encouragement of the stronger party in internal
war. (Emphasis in the original) 460
Modelski not only criticizes the bystander for remaining silent but also holds
him partly guilty for the crime committed. 461 The principle of nonintervention,
however, serves an important purpose in protecting smaller nations from being
arbitrarily invaded by larger powers. Recognizing some fundamental advantages
to nonintervention, the drafters of the UN Charter included Art. 2(7):
Nothing contained in the present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of any state462
Even though he was a representative of the sponsoring power, then U.S.
Secretary of State John F. Dulles urged that the principle of "domestic jurisdiction"
should be interpreted as a political principle, "allowing it to evolve as
the state of the world, the public opinion of the world, and the factual
interdependence of the world makes it necessary and appropriate that it should
evolve." 463 Dulles' words probably signify that, as early as in 1945, the
increasing interdependence developing among the nations in the years to come
inevitably meant a gradual decrease of domestic jurisdiction.
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460 See Laurie Sheila Wiseberg, p. 482.
461 This, at times, is an accusation made against UN officials (of the UNDP, UNHCR
and other UN organizations) who are serving in countries where the most cruel
atrocities are being committed by governmental, para-governmental, or antigovernmental
forces, without being able due to their restricted mandate to take any
action albeit their motivation. The risk is the choice between being declared
'persona non grata' (considered by many committed international workers to be a
compliment for having done a good job against oppressive regimes) or staying inside
the country and trying to do what is possible to relieve the suffering.
462 The principle of nonintervention can be found in many international instruments,
including in the League of Nations Charter 15(8); the pact of the Ligue Arabe of 22
March 1945, the OAS Charter of Bogota, 30 April 1948, the Warshaw Pact Art.8,4
May 1955; the OAU Charter of 25 May 1963, GA Res 2131, (XX), 21 Dec. 1965,
GA Res 2625 (XXV), 24 Oct. 1970, and the Final Act of Helsinki (v), 1 Aug. 1975.
Helmut Rumpf, Der Internationale Schutz der Menschenrechte und das
Interventionsverbot, pp. 14-15.
463 Rajan.p. 229.