Preventive Action for Refugee Producing Situations

194 Chapter 5
spring, the objection against international intervention on the basis of domestic
jurisdiction often has a political connotation. Except for natural disasters, when
people flee for nonpolitical reasons, a state tends to react aggressively to
reminders about the fundamental humanitarian principle of respecting their own
nationals' rights, especially in volatile and tense internal situations. States
generally have been wary of signing international treaties, such as the
convention on territorial asylum, that would cut into their domestic
jurisdiction. 446 Also, during the implementation of binding international and
regional human rights instruments, when enforcement of humanitarian minimal
standards would be most urgently required, states often override
constitutionally guaranteed fundamental freedoms by invoking exceptional
decisions, thus derogating from what should be nonderogable principles. States,
especially authoritarian ones, tend to fend off outside intervention under the
rationale of domestic jurisdiction, while "legalizing" actions against their
citizens with arbitrary administrative decrees restricting their rights. 447
5.2. Rebuttal of states'objections
In the past, states have been able to get away with the argument that what they
do within their own borders is their own's business. There was a lingering
power to the concept in international law that a nation's boundaries are
sacrosanct. International acquiescence to this reasoning has, in part, enabled
such horrors to take place as the Armenian genocide under the Turks, the
killing of some 10 million Russians in the early 1930s under Stalin, the
Holocaust under Hitler, the genocide under Pol Pot and Idi Amin, and the
current slaughter of the Ba'hai people in Iran.
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446 "Mention has to be made, however, of the fact that Europe disposes of the very
effective instruments for the judicial enforcement of the obligations arising out of
the European Convention on Human Rights and of treaties establishing the European
Communities." T. Stein, "Regional Enforcement of International
Obligations," Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht,
(ZaoRV), 47 No. l (1987), p. 111.
447 Chile is one such example. By virtue of the transitory Art. 24 of the 1980 Constitution,
in situations of pertubation of the internal peace and security, the President
may expel or prohibit the return of Chilean nationals, detain people for five days,
or send people into internal exile within the territory. See "Informe sobre la situaciön
de los derechos humanos en Chile," Report by the Interamerican Commission
of Human Rights of the Organization of American States, OEA/SER.
L/V/II.66, doc. 17,27 September 1985, pp. 41-42.
Legal Justification 195
In view of the shocking cruelties humanity has witnessed, it is imperative to
reorient priorities, and put "basic human rights above any absolute notion of
border impermeability." 448
To begin with, the domestic jurisdiction argument might be rebutted with
the fundamental question: Are "human rights" and "fundamental freedoms,"
referred to in the UN Charter, matters essentially within domestic juris diction?
The answer must be no.
It is the consensus of judicial opinion that there is no matter which by its very nature is
essentially within the domestic jurisdiction of States or which cannot be regulated by a
general or individual norm of international law. A matter is, therefore, within the domestic
jurisdiction of a State only if there exists no general or individual rule of international
law which governs it. 44 '
Even though the terms "human rights" and "fundamental freedoms" might
mean different things to different people, which might contribute to a
weakening of the legal force of obligation, these concepts are considered by the
United Nations created specific obligations regarding at least minimal
humanitarian standards. If states still object on the grounds of domestic
jurisdiction, then we might recall that member states, by virtue of joining the
world organization have also accepted an obligation to cooperate with the
United Nations in achieving its purpose of maintaining international peace and
security. If international peace and security are threatened in a conflict in which
large numbers of human lives are in danger, states are required to cooperate
with the Secretary-General in his efforts to save human lives. 450 The guiding
thought should
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448 See Fernando R. Teson, Humanitarian Intervention: An Inquiry Into Law And
Morality, p. ix.
449 Morrison, Benni Sue, "International Organizations and Human Rights:
Reconciling the Protection of Human Rights with Contemporary World Order,"
diss. New York University 1981, pp. 51-52.
450 The representative of Algeria, in referring to groups of people being executed in
Ethiopia, stated in the 2301st Plenary meeting of the UN General Assembly that
the General Assembly would wish both the Secretary-General and the President of
the General Assembly to do all they can to save human lives in danger. His interpretation
that in the minds of members of the General Assembly, "collectively and
individually, the action does not in any way represent interference in the domestic
affairs of a Member State" was not objected to. See Ramcharan, Humanitarian
Good Offices in International Law, 1983, pp. 172-173