Issue respondent 2

Military and Paramilitary Activities

(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[pp. 106-108]
The principle of non-intervention involves the right of every sovereign State to conduct its
affairs without outside interference; though examples of trespass against this principle are not
infrequent, the Court considers that it is part and parcel of customary international law. As
the Court has observed: "Between independent States, respect for territorial sovereignty
is an essential foundation of international relations" (I.C.J. Reports 1949, p. 35), and
international law requires political integrity also to be respected. Expressions of an opinio
juris regarding the existence of the principle of non-intervention in customary international
law are numerous and not difficult to find. Of course, statements whereby States avow their
recognition of the principles of international law set forth in the United Nations Charter
cannot strictly be interpreted as applying to the principle of non-intervention by States in the
internal and external affairs of other States, since this principle is not, as such, spelt out in the
Charter. But it was never intended that the Charter should embody written confirmation of
every essential principle of international law in force. The existence in the opinio juris of
States of the principle of non-intervention is backed by established and substantial practice. It
has moreover been presented as a corollary of the principle of the sovereign equality of
States. A particular instance of this is General Assembly resolution 2625 (XXV), the
Declaration on the Principles of International Law concerning Friendly Relations and Co-
operation among States. In the Corfu Channel case, when a State claimed a right of
intervention in order to secure evidence in the territory of another State for submission to an
international tribunal (I.C.J. Reports 1949, p. 34), the Court observed that:

"the alleged right of intervention as the manifestation of a policy of force, such as has, in the
past, given rise to most serious abuses and such as cannot, whatever be the present defects in
international organization, find a place in international law. Intervention is perhaps still less
admissible in the particular form it would take here; for, from the nature of things, it would
be reserved for the most powerful States, and might easily lead to perverting the
administration of international justice itself." (I.C.J. Reports 1949, p. 35.)
Notwithstanding the multiplicity of declarations by States accepting the principle of non-
intervention, there remain two questions: first, what is the exact content of the principle so
accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of
customary international law? As regards the first problem - that of the content of the principle
of non-intervention - the Court will define only those aspects of the principle which appear to
be relevant to the resolution of the dispute. In this respect it notes that, in view of the
generally accepted formulations, the principle forbids all States or groups of States to
intervene directly or indirectly in internal or external affairs of other States. A prohibited
intervention must accordingly be one bearing on matters in which each State is
permitted, by the principle of State sovereignty, to decide freely. One of these is the
choice of a political, economic, social and cultural system, and the formulation of foreign
policy. Intervention is wrongful when it uses methods of coercion in regard to such choices,
which must remain free ones. The element of coercion, which defines, and indeed forms
the very essence of, prohibited intervention, is particularly obvious in the case of an
intervention which uses force, either in the direct form of military action, or in the
indirect form of support for subversive or terrorist armed activities within another
State.

However, before reaching a conclusion on the nature of prohibited intervention, the Court
must be satisfied that State practice justifies it. There have been in recent years a number of
instances of foreign intervention for the benefit of forces opposed to the government of
another State. The Court is not here concerned with the process of decolonization; this
question is not in issue in the present case. It has to consider whether there might be
indications of a practice illustrative of belief in a kind of general right for States to intervene,
directly or indirectly, with or without armed force, in support of an internal opposition in
another State, whose cause appeared particularly worthy by reason of the political and moral
values with which it was identified. For such a general right to come into existence would
involve a fundamental modification of the customary law principle of non-intervention.

[p. 124] The Court considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State whose purpose
is to overthrow the government of that State, that amounts to an intervention by the one
State in the internal affairs of the other, whether or not the political objective of the
State giving such support and assistance is equally far-reaching.
[p. 126] As the Court has stated, the principle of non-intervention derives from customary
international law. It would certainly lose its effectiveness as a principle of law if intervention
were to be justified by a mere request for assistance made by an opposition group in another
State - supposing such a request to have actually been made by an opposition to the régime in
Nicaragua in this instance. Indeed, it is difficult to see what would remain of the principle of
non-intervention in international law if intervention, which is already allowable at the request
of the government of a State, were also to be allowed at the request of the opposition. This
would permit any State to intervene at any moment in the internal affairs of another
State, whether at the request of the government or at the request of its opposition. Such
a situation does not in the Court's view correspond to the present state of international
law.

[p. 128] The effects of the principle of respect for territorial sovereignty inevitably overlap
with those of the principles of the prohibition of the use of force and of non-intervention.

These violations cannot be justified either by collective self-defence, for which, as the Court
has recognized, the necessary circumstances are lacking, nor by any right of the United States
to take counter-measures involving the use of force in the event of intervention by Nicaragua
in El Salvador, since no such right exists under the applicable international law. They cannot
be justified by the activities in El Salvador attributed to the Government of Nicaragua. The
latter activities, assuming that they did in fact occur, do not bring into effect any right
belonging to the United States which would justify the actions in question. Accordingly, such
actions constitute violations of Nicaragua's sovereignty under customary international law.

[p. 156 S.O. Singh] I cannot conclude this opinion without emphasizing the key
importance of the doctrine of non-intervention in the affairs of States which is so vital
for the peace and progress of the international community. To ignore this doctrine is to
undermine international order and to promote violence and bloodshed which may
prove catastrophic in the end. The significant contribution which the Latin American treaty
system along with the United Nations Charter make to the essentials of sound public order
embraces the clear, unequivocal expression given to the principle of non-intervention, to be
treated as a sanctified absolute rule of law whose non-observance could lead to disastrous
consequences causing untold misery to humanity.
[pp. 199-200 S.O. Sette-Camara] I fully concur with the rest of the Judgment, as I firmly
believe that the non-use of force as well as non-intervention - the latter as a corollary of
equality of States and self-determination - are not only cardinal principles of customary
international law but could in addition be recognized as peremptory rules of customary
international law which impose obligations on all States.

With regard to the non-use of force, the International Law Commission in its commentaries
on the final articles on the Law of Treaties said:

"the law of the Charter concerning the prohibition of the use of force in itself
constitutes a conspicuous example of a rule in international law having the character
of jus cogens" (International Law Commission Yearbook, 1966, Vol. II, p. 247).

As far as non-intervention is concerned, in spite of the uncertainties which still prevail in the
matter of identifying norms of jus cogens, I submit that the prohibition of intervention would
certainly qualify as such, if the test of Article 53 of the Vienna Convention on the Law of
Treaties is applied. A treaty containing provisions by which States agree to intervene, directly
or indirectly, in the internal or external affairs of any other State would certainly fall within
the purview of Article 53, and should consequently be considered void as conflicting with a
peremptory norm of general international law.

[pp. 534-535 D.O. Jennings] There can be no doubt that the principle of non-intervention is
an autonomous principle of customary law; indeed it is very much older than any of the
multilateral treaty regimes in question.
  In 1928, the arbitrator Max Huber said in the Palmas Island Deal (USA vs.
Netherlands): “Sovereignty in the relations between States signifies
independence; Independence in regard to a portion of the globe is the right to
exercise therein, to the exclusion of any other State, the functions of a State. The
development of the national organization of States during the last few centuries and,
as a corollary, the development of international law, have established this principle
of the exclusive competence of the State in regard to its own territory in such a way
as to make it the point of departure in settling most questions that concern
international relations.”1
 State Sovereignty is the quality of state power “to be supreme in relation to any other
existing social power within its territorial limits and independence compared to the
power of any state or international body, the quality being expressed in the State's
right to determine freely, without any interference from the outside, the purpose of his
activities internally and externally, the fundamental tasks, which it has to fulfill and
the necessary means to achieve them, respecting the sovereignty of other states and
international law provisions.” (Vrabie, 1995, p. 69)
 article 2 § 1 of the UN Charter states that the organization is founded on the principle
of sovereign equality of Member States.
 The UN Charter does not explicitly spell out the principle of non-intervention as a
rule governing relations between member states; it is rather implied in the statement
of Principles of the United Nations (Article 2). For example, Article 2(1) roots the
Organisation on the “principle of the sovereign equality of all its Members.” and
Article 2(3) calls for the peaceful settlement of international disputes, however, the
two most relevant provisions are Article 2(4) and Article 2(7). While the former lays
down the general prohibition of the use of force and in this respect can be said to
govern the proscription military intervention by states, the latter establishes the UN
jurisdiction in relation to the area of the discretion of sovereign states, and thus draws
the boundaries for UN intervention itself.
 The doctrine of non-intervention in domestic affairs is the logical corollary of the
principle of sovereignty. The UN Charter strongly affirms that the norm of non-
intervention as the main governing rule of state relations, and thus demonstrates the
1
Case concerning sovereignty Palmas Island in the Palmas Island Deal, April 4, 1928, RSA, vol. II, p. 838.
http://legal.un.org/riaa/cases/vol_II/829-871.pdf.
 international society's persisting conviction that the norm is the primary safeguard for
the preservation of order and the peaceful coexistence among states.
 The 1945 San Francisco Conference on International Organization understood the
principle of sovereign equality to contain the following elements[20]: 2 1. That states
are juridically equal. 2. That each state enjoys the rights inherent in full sovereignty.
3. That the personality of the state is respected, as well as its territorial integrity and
political independence; and 4. That the state should, under international order, comply
faithfully with its international duties and obligations.
 The Charter is instrumental in providing a framework for prohibiting force and
elevating it to a jus cogens status.3
 The Declaration on the Principles of International Law the prohibition of the use of
indirect force can also be included under the article which states, "Every state has the
duty to refrain from- 1. organizing or encouraging the organization of irregular forces
or armed bands, including mercenaries, for incursion into the territory of another
state. 2. organizing, instigating, assisting or participating in acts of civil strife or
terrorist acts in another state or acquiescing in organized activities within its territory
directed towards the commission of such acts, when these acts involve a threat or use
of force."4
 On a combine reading of the GA Resolution no. 3314 of 1974[27], which puts
forward a broad conception of prohibition of armed intervention and aggression,
which includes not only invasions, but also attacks or military occupations; sending
armed bands or mercenaries to carry out violent acts; shelling another state's territory;
blocking its ports: and attacking the forces of another state, together with the Article
2(4), it can be inferred that the prohibition of force in Article 2(4) does not only refer
to the use of force aimed at termination of a state's territorial existence or the status of
its political independence, rather, it extends protection to the fundamental rights of
states, which implies that the prohibited force in Article 2(4) includes any kind of
trans-border use of armed force, regardless of the intention of depriving that state of
part of its territory.5

2
UNCIO, Documents, Vol. VI, p.457
3
Muge Kinacioglu, “The Principle of Non-intervention at the United Nations: The Charter Framework and the
Legal Debate”, Perceptions, (2005), p.17
4
Muge Kinacioglu, “The Principle of Non-intervention at the United Nations: The Charter Framework and the
Legal Debate”, Perceptions, (2005), p.17
5
GA Res. 3314 (XXIX), 14 December 1974.
  The principle of the non-use of force derives from the following instruments which
reflect state practices are Briand-Kellogg Pact, in 1928 the U.S., Germany, and France
signed the Kellogg-Briand Pact, a war-prevention effort that attempted to declare war
illegal.[32]6 Sponsored by France and the United States, the Pact renounced the use of
war, promoted peaceful settlement of disputes, and called for collective force to
prevent aggression. The Pact was initially signed by fifteen nations that included
France, the United States, and Germany. It was eventually signed by 62 nations and
came into effect in July 1929.
 The customary nature can be construed also from numerous un-ratified treaties and
resolutions of different international organizations and groups of States, e.g. from the
resolutions of the Council of the League of Nations of 1925 and 1927, and those of
the PanAmerican Conferences of 1928, 1933 and 1938.[33] 7 The binding force of the
customary principle of the renunciation of force was confirmed by the Military
Tribunals of Nuremberg (1946) and Tokyo (1948).[34]8

 Brose[37] states that an act of ratification of Treaty only constitutes evidence of a will
to be bound by a treaty; on the other hand, lack of ratification does not mean that a
State rejects customary rules corresponding with the respective treaty provisions;
Resolutions can therefore confirm existing customary law or proclaim new rules (de
lege ferenda). The principles adopted in 1945 by San Francisco Conference was
further expanded by 1970 Friendly Relations Declaration whereby the assembly
proclaimed sovereign equality, non-use of force and nonintervention along with four
other principles of Charter to “constitute basic principles of the international Law”.
[38]

 The same view has been expressed by the ICJ in the Nicaragua case[40] in the
following words- “this opinion juris may, though with all due caution, be deduced
from, inter alia, the attitude of the Parties and the attitude of States towards certain
General Assembly resolutions, and particularly resolution 2625…the effect of consent
to the text of such resolution cannot be understood as merely that of a “reiteration or

6
Wladyslaw Czapliński, “Sources Of International Law In The Nicaragua Case”, V.38(1), The International and
Comparative Law Quarterly, (1989), p.158
7
Id.
8
Id.
 elucidation” of the treaty commitment undertaken in the Charter. On the contrary, it
may be understood as an acceptance of the validity of the rule or set of rules declared
by the resolution by themselves.”

 the ICJ expressed for the first time that ‘‘the principle of non-intervention involves the
right of every sovereign State to conduct its affairs without outside interference;
though examples of trespass against this principle are not infrequent, the Court
considers that it is part and parcel of customary international law’’. 9 Therefore, it can
be deduced that in the 1980s the non-interference had the status of established
customary international law (Guenether 2012, pp. 1795–1796).10

 Thus the Declaration on Principles of International Law Concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations
(hereinafter “the Declaration on Friendly Relations”) provides that: “Every State has the duty
to refrain from organizing, instigating, assisting or participating in acts of civil strife or
terrorist acts in another State or acquiescing in organized activities within its territory
directed towards the commission of such acts, when the acts referred to in the present
paragraph involve a threat or use of force.” (General Assembly resolution 2625 (XXV), 24
October 1970.) The Declaration further provides that “no State shall organize, assist, foment,
finance, incite or tolerate subversive, terrorist or armed activities directed towards the
violent overthrow of the regime of another State, or interfere in civil strife in another State”
(ibid.). These provisions are declaratory of customary international law. 11

9
ICJ Report. 1986. Military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of
America). Merits, Judgment, p. 106, para. 202.
10
Guenether, Dahihoff (ed.). 2012. International court of justice, digest of judgments and advisory opinions,
canon and case law 1946–2012. Leiden: Martinus Nijhoff Publishers.
11
Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168.