DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2015- 16

Public International Law

Final Project
The validity of military intervention by invitation of the
Government.
SUBMITTED TO: SUBMITTED BY:-Dr. AP Singh
SHALINI DWIVEDI Associate Prof. (Law)
ROLL NO:-121
DR.RMLNLU

4th SEMESTER
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1. INTRODUCTION
Since the Second World War, there have been numerous instances of troops being sent to another
State allegedly upon invitation of its government. Many texts would support a principle
unequivocally in favor of the legality of such intervention, and there is certainly no doubt that a
State can legally send troops to another State upon invitation for certain limited operations. The
validity of this is recognized, albeit negatively, in General Assembly Resolution 3314 (XXIX)
where one instance of aggression is stated to be: The use of armed forces which are within the
territory of another State with the agreement of the receiving State, in contravention of the
conditions provided for in the agreement.
Examples of such limited operations would include the use of peacekeeping forces which do not
become involved with internal affairs, certain rescue operations'' and help with minor
disturbances not aimed at the political organization of the country.' However, certain recent texts
express doubts as to the validity of intervention by invitation where foreign troops are to be used
to quell an insurrection. The reasons given for such doubts are variously stated to be the inability
of a shaky regime to represent the State as its government, a conflict with the principle of selfdetermination or a violation of the duty of non-intervention in the internal affairs of another
State. The purpose of this paper is to assess the position of modern international customary law
in this respect by studying the meaning and interrelationship of basic theoretical principles of
international law, together with an empirical study of relevant interventions undertaken in the last
thirty years and State reaction to them. Attention will focus on those situations where outside
help was given to a government which was either in danger of losing its control over the country
or had lost such control, and will include instances where peace-keeping forces influenced events
in a country.

2. STATE REPRESENTATION
The basic principle of State representation in international law is that the government speaks for
the State and acts on its behalf." As the Permanent Court of International Justice stated in 1923,
'States can act only by and through their agents and representatives'. This principle is manifest in
normal State practice: governments conclude agreements on behalf of the State, the government

represents the State in international fora and any representation on behalf of a State is done by its
government.
Revolutionaries, on the other hand, have traditionally been treated as Enemies of the State in
both internal and international law, with the result that any military aid given to rebels in another
State has been unequivocally declared illegal. With the possible exception of aid to groups
exercising their right of self-determination, the meaning of which will be examined later, there
has been no dissent from this view either in case law or in literature.

3. SELF-DETERMINATION
Self-determination may be defined as the right of a people to choose its own economic, social
and political system. A number of eminent authorities have based their theory of the inability of a
third State to aid the existing government in a civil war on this principle: Professors Brownlie'"
and Bowetr" have both stated that apart from policy considerations making such intervention
undesirable, it would conflict with the principle of self-determination. Friedman has stated that
such an intervention 'becomes an instrument to prevent social change which is a vital aspect of
national self-determinations'" Quincy Wright has based his theory on the invalidity of such
intervention not only on the basis of the non-existence of government, but also on the basis of
self-determination: Armed intervention ... is not permissible by invitation of either the
recognized or the rebelling faction in the case of civil strife. If it were, the 'right of revolution'
implicit in the concepts of state sovereignty and self-determination would be denied. In a
situation of civil strife, the state is temporarily inhibited from acting. A government beset by civil
strife is not in a position to invite assistance in the name of the state.
States which criticized the intervention on the grounds of self-determination stressed outside
interference as being the factor which led to a denial of self-determination. The following
statements serve as an illustration of this approach:
Mexico- It is a manifest denial of the right of peoples to self-determination ... The people of
Grenada alone is allowed freely to decide its own government, without foreign interference.
Zimbabwe -The choosing of a government and of leadership is the sovereign prerogative of the
people of each country and must be exercised without external interference and influence.

4. THE INADMISSIBILITY OF INTERFERENCE IN THE

INTERNAL AFFAIRS OF STATES
An immediate logical problem arises when considering the principle of non-interference in the
internal affairs of States. There is certainly sufficient evidence that such a principle exists as a
rule of international customary law, but if the State is said to be exclusively represented by the
government, then an invitation by the government to quell an insurrection would not interfere
with the affairs of that State. It is submitted that the principle of self-determination does not
really vest the legal right of the representation of a State in the people as that principle protects
the State from external interference rather than vesting any right in the people as such. It is
proposed therefore to study the factual content of the principle of non-intervention in the internal
affairs of a State by analysing State practice and then extracting from that material a theoretical
conclusion.
Certain General Assembly resolutions deal directly with the principle of non-intervention, the
most relevant of which is the Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States and the Protection of their Independence and Sovereignty of 1965.The
pertinent part of this Declaration reads as follows:
No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal
and external affairs of any State. Consequently, armed intervention and all other forms of
interference or attempted threats against the personality of the State or against its political,
economic and cultural elements, are condemned.
. . . 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.

(a) Cases of Intervention since 1956

If State practice were to be assessed on the basis of what States have actually done, one would
find a good number of interventions undertaken either to prop up existing regimes or to reinstate
those just fallen on the basis of either real or alleged invitations from those governments.
Examples of interventions where the existence of an invitation was undisputed are those in
Lebanon and Jordan in 1958, Stanleyville in 1964 and Chad since 1968. In June 1985 the
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Governments of Zimbabwe, Tanzania and Mozambique met in Harare to consider military

intervention to help Mozambique end an armed rebellion.

(b) Theoretical Assessment

The essential theoretical problem facing the acceptance of a norm forbidding aid to a government
is caused by the basic principle that the government acts for the State. However, it is submitted
that there is sufficient evidence that such a prohibitory norm does in fact exist and this must
therefore be rationalized with other basic assumptions of international law. It is, in this author's
opinion, not helpful to base such a norm on a 'right' of revolutionaries to rebel-?" as there is
overwhelming evidence that such rebels, other than recognized national liberation movements,
Have no personality in international law. It is not possible, therefore, for a State to owe a duty in
law to such rebels not to intervene against them. The absolute prohibition against aid to such
rebels is further evidence in this respect.
With regard to self-determination it is conceded that recognized Groups do have a certain
personality in international law and there is a duty not to jeopardize their independence. As
explained earlier, however, the norm of self-determination is essentially negative in its effect, i.e.
it involves the duty not to impose a foreign government on recognized groups. As decolonization
is completed, the norm becomes increasingly synonymous with a duty not to impose a foreign
government on the people of another State. However, despite the fact that the norm is largely
negative in its effect, it can be seen as forming a basis for non-intervention with the recognized
group as the recipient of the legal duty not to intervene. In particular it strengthens and
complements the principle of nonintervention in the internal affairs of States, which, in this
author's opinion, has a sounder theoretical basis, particularly as the identification of the recipient
of the duty does not pose the same problem as with self-determination.

(c) Treaties Authorizing Intervention for the Purpose of Maintaining

a Form of Government
There is very scant consideration of this issue among writers, most discussion being centre
around the existence or otherwise of the doctrine of jus cogens when considering the legality of
treaties authorizing the use of force. There would appear to be agreement that, on the assumption

that jus cogens is a valid category, treaties authorizing an act of aggression would be invalid.
This would beg the question of whether a breach of the rule of non-intervention in internal affairs
amounts to aggression, or is a breach of some other peremptory norm generally recognized as
one from which no derogation is permitted. Writers seem to be divided in their opinions as to the
status of such treaties or of provisions to that effect in treaties: certain writers have expressed the
view that such interventions are legitimate." Whilst Brownlie would appear to express serious
doubt in this respect by linking the question to intervention in civil war in general. Oppenheim,
whilst admitting that there was opinion to the contrary, supports the validity of such treaties:
A State that has guaranteed by treaty the form of government of another State, or the reign of a
certain dynasty over the same, has a right to intervene in case of a change in the form of
government or of the dynasty, provided that the treaty of guarantee was concluded between the
respective States and not between their monarchs personally.

CONCLUSION
It is submitted that there is, at the least, a very serious doubt whether a State may validly aid
another government to suppress a rebellion, particularly if the rebellion is widespread and
seriously aimed at the overthrow of the incumbent regime. The combination of Resolutions 2131
(xx) and 2625 (xxv), taking into account the motivation behind these resolutions, of the fact that
States justify such interventions on the basis of prior outside intervention, and of the number of
statements stressing true independence, self-determination and non-intervention in internal
affairs, provides substantial evidence to support a theory that intervention to prop up a
beleaguered government is illegal. Although it is true that occasions have occurred in which
States have given such aid, the reaction to such interventions indicates the need to show effective
involvement by a third State. An alternative defence to intervention would be the assertion by the
intervening State that aid is limited to arms and/or advice and that it does not involve direct
action against the rebels. In this context, it is to be noted that there appears to be no prohibition
against States providing governments with weapons and other military supplies during a civil
war, and thus the norm of non-intervention does not put governments and rebels on exactly the
same footing. It might be argued that States justify their interventions on the basis of self-defence
in order to provide an extra excuse and thus be more acceptable politically. It is submitted,
however, that the consistency of this practice has by now hardened into a legal requirement and
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the view that self-defence is the only justification for the individual use of force in the Charter is
strengthened by the new customary norm of nonintervention in internal affairs. Another possible
objection could be the view that statements by States are a less secure basis for international
customary law than their actions. This assertion must be viewed in the light of the fact that
events are very differently perceived by different observers. As international law is principally
auto-interpretative, each State will act according to its own perception of the facts, which may be
very different from that of another State. Statements as to the law, however, provide a more
secure basis for an identifiable norm, provided that such statements are made as assertions of lex
lata rather than lex ferenda. The effect of this new customary law is to revolutionize the
traditional law, which held that a State can intervene to help a government suppress a rebellion
unless belligerency is declared. It has already been argued that the doctrine of belligerency may
well have fallen into desuetude and in this author's opinion, the old formulation has been totally
replaced by the new law of non-intervention in internal affairs. It is this that now regulates
intervention in civil war and represents the modern law.