83 A.J.I.L. 1
Lori Fisler Damrosch Excerpt of
Most of the scholarly literature on intervention in internal affairs has focused on forcible forms of influence. 7 Indeed, the prevailing viewpoint until well into the 20th century was that the international legal concept of intervention concerned itself only with the use or threat of force against another state and not with lesser techniques. 8 Debate continues to swirl [*4] around the legality of outside assistance to armed insurgencies, 9 and the recent decision of the International Court of Justice condemning the United States for aiding the contra forces in their armed opposition to the Nicaraguan Government has stirred, rather than stilled, the controversy. 10 By comparison, nonforcible political influence merits far more scholarly attention than it has heretofore received. 11 As traditional methods of forcible intervention wane in their attractiveness (because of increased dangers as well as legal condemnation), states will find it expedient to resort to nonforcible methods for promoting political change in other states where they believe they have interests at stake. Since the use of nonforcible techniques of influence is likely to grow rather than diminish, it becomes all the more important to examine their legality.
The dividing line between forcible influence and the nonforcible influence that is the subject of this article is not always clear. 12 In many recent instances, the two have gone hand in hand, as covert paramilitary operations have supplemented the influencing state's political programs, or vice versa. U.S. covert assistance to the Nicaraguan opposition and to forces in Angola and elsewhere has had both paramilitary and political components. 13 In the Dominican Republic and Grenada, an overt military operation was followed by intensive attention to fostering political institutions modeled on those of the influencing state. Furthermore, even where the influencing state's principal involvement is political rather than military or paramilitary, the recipient might itself be engaged in armed insurgency, terrorism or preparations for a violent coup (or if the recipient is a government, it might be relying on its military forces to repress political opposition). In such cases, funds intended for political purposes might be diverted to the recipient's own military or paramilitary programs, or at least might enable the recipient to allocate more of its own resources to such programs. 14 Moreover, regardless [*5] of the initial or ultimate objectives of the influencing state, its nonmilitary support might wittingly or unwittingly increase the likelihood that an indigenous insurgency or military coup will succeed (or fail). For example, despite the Nixon administration's denials of direct involvement in the Chilean coup that overthrew President Salvador Allende and installed General Augusto Pinochet, the admitted long-term involvement of the United States in anti-Allende political programs undoubtedly contributed to the climate in which the coup could succeed. 15
Notwithstanding these difficulties of definition and line drawing, forcible and nonforcible forms of influence are sufficiently different to warrant separate legal treatment. Forcible activities, of course, must be judged against Article 2(4) of the United Nations Charter, which enjoins states to "refrain in their international relations from the threat or use of force against the . . . political independence" of other states. In contrast, nonforcible actions are not directly regulated by Article 2(4), although its concept of "political independence" is relevant to the nonintervention norm. From time to time in the pages below, analogies will be drawn to legal principles involving the use of force, in order to illuminate issues of nonforcible political influence. In each such instance, it is important not to lose sight of the significant differences between force and nonforce and to bear in mind that our focus is on the latter.
This article contends that there is a legally binding norm of nonintervention that reaches certain kinds of nonforcible political influence, but that the conduct it regulates is not as broad as is often assumed. Because states have tolerated and, indeed, encouraged certain transboundary political activity, international law cannot be said to prohibit all the kinds of external involvement in internal political affairs that are the subject of this article. On the other hand, the position that interference in internal affairs is unlawful only if it entails the use or threat of force is too narrowly framed since the international community does treat certain nonforcible forms of intervention as legally impermissible. The traditional formulation of intervention as "dictatorial interference" resulting in the "subordination of the will" of one sovereign to that of another is also unsatisfactory, 16 because some subtle techniques of political influence may be as effective as cruder forms of domination and because the metaphoric abstraction of the "sovereign will" of the target state tends to confuse rather than assist analysis.
n7 See, e.g., L. HENKIN, supra note 5, at 18 n. *, 153-62; M. WALZER, JUST AND UNJUST WARS (1977); INTERVENTION IN WORLD POLITICS (H. Bull ed. 1984); F. TESON, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (1988) (with detailed bibliography); and other authorities cited in note 5 supra and note 9 infra.
n8 Tomislav Mitrovic, in his essay Non-Intervention in the Internal Affairs of States, in PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND COOPERATION 219 (M. Sahovic ed. 1972), traces the evolution of two different conceptions of intervention in international law. Under the narrow view, which began to crystallize with Vattel's first usage of the term in 1758, "intervention" consisted of dictatorial interference involving elements of force. Among the scholars espousing such a conception were Bluntschli, von Martens, Rivier, Oppenheim, Brierly, Hyde, Siebert, Rousseau, Dupuy, Delbez, Mosler, Menzel and Verdross. A broader view took hold in the 20th century and extended the concept of intervention to nonforcible techniques, including (depending on the context) refusal of recognition, economic and financial pressure, propaganda and infiltration. Mitrovic identifies Jessup, Friedmann, von Glahn, Cavare, Berber, Wengler and Dahm with the broader conception of intervention. Id. at 223-36.
n9 See, e.g., Reisman, Coercion and Self-Determination: Construing Charter Article 2(4), 78 AJIL 642 (1984); Schachter, The Legality of Pro-Democratic Intervention, 78 AJIL 645 (1984); Cutler, The Right to Intervene, 64 FOREIGN AFF. 96 (1985); and other articles cited in notes 5 and 7 supra.
n10 For conflicting views on the Court's decision, see generally Appraisals of the ICJ's Decision: Nicaragua v. United States (Merits), 81 AJIL 77 (1987).
n11 As to covert action, this article is concerned with what the U.S. intelligence community calls "political action programs" or "political operations" rather than paramilitary activities. Experts estimate that about one-third of all covert actions in the postwar period have been political operations. See G. TREVERTON, COVERT ACTION: THE LIMITS OF INTERVENTION IN THE POSTWAR WORLD 13, 265 n.3 (1987).
n12 For a discussion of the difficulties in distinguishing between nonforcible and forcible forms of influence, see generally id. at 9, 17, 136-43, 175.
n13 See generally SENATE SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, FINAL REPORT [hereinafter CHURCH COMM. REPORT], S. REP. NO. 755, 94th Cong., 2d Sess., BK. 1, FOREIGN AND MILITARY INTELLIGENCE 151-52 (1976); G. TREVERTON, supra note 11, at 17-25; CIA Gave Political Aid to Contras, Wash. Post, Apr. 14, 1986, at A20, col. 1.
n14 Some revolutionary or insurgent movements have both military and political arms (for example, the Irish Republican Army and its political counterpart, Sinn Fein). It has been estimated that the African National Congress's annual budget of about $ 100 million is divided about equally between military and political operations and that most of the ANC's funds come from foreign governments, including the Soviet Union, East Germany, Czechoslovakia, Sweden and Norway. See South Africa's Curbs Harden Rebels, N.Y. Times, June 7, 1988, at A8, col. 1.
n15 See generally G. TREVERTON, supra note 11, at 124-43.
n16 The "dictatorial interference" formulation comes from Oppenheim. See 1 L. OPPENHEIM, INTERNATIONAL LAW § 134 (H. Lauterpacht 8th ed. 1955). It has also been used by various other scholars. See, e.g., authorities cited in A. THOMAS & A. J. THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICAS 67-68 (1956); see also E. STOWELL, INTERVENTION IN INTERNATIONAL LAW (1921); Bull (ed.), supra note 7. In the Nicaragua case, Judge Schwebel's dissent took the position that the Court had erred in applying a nonintervention rule broader than the "dictatorial interference" standard. 1986 ICJ REP. at 305.