Guest Post: Looking at Maidan through the Nicaragua Standard: Did the EU and the US violate the Non-Intervention Principle?
Ralph R.A. Janik, researcher at the University of Vienna, Faculty of Law, Section for International Law and International Relations.
Ever since Russian troops took control of Crimea, the law-related Blogosphere has – understandably – gone wild. After all, this is the time to shine for every international lawyer as the current events in the Crimea include a vast amount of legal aspects that warrant close scrutiny. At the same time, however, the discussion this far seems to have focused almost exclusively on the behaviour of Russia and, partly, Ukraine (see e.g. here, here, here, and here). Playing the devil’s advocate, I would like to raise another question, namely whether there has been a prior violation of international law – the non-intervention-principle – by other actors, specifically the EU/its member states and the US.
At the outset, it is clear that the non-intervention principle ranks among the least-clearly defined principles international law has to offer. The UN Charter provisions lack precision, the resolutions on this topic (such as the resolution on ‘The Essentials of Peace’, the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, the Friendly Relations Declaration, or the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations) stem from different times as they go back to the Cold War and the de-colonization era – a period during which states were probably even more keen on shielding themselves from undue outside interference than today. Furthermore, the sparse case-law on this issue is equally difficult to apply as it deals with the most severe forms of intervention, i.e. the use of force (Corfu Channel) and/or the involvement of other states in civil wars (Nicaragua). Thus, discussing whether any state or an international organization has violated the non-intervention principle is prone to abuse as it sometimes seems that almost every kind of claim, no matter how absurd, can be made – a perfect environment for playing advocatus diaboli.
The Nicaragua standard
“The principle of non-intervention”, the ICJ held in the Nicaragua case (para. 202), “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 parce1 of customary international law.” The Court went on to state that “[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” (para. 205).
Applying these observations to the general and nowadays common practise of supporting democratic voices in countries all over the world, we may wonder whether there is an infringement of the non-intervention principle. After all, it is undisputed that the EU and the US have long financed and supported various groups that are likely to have subsequently been involved in the Euromaidan.
Notwithstanding that this practice seemingly has become accepted to some extent by the international community (but keep in mind Russia’s “Foreign Agents” law!), this support might be questioned once a revolution starts breaking out. As the Court also clarified, “no such general right of intervention, in support of an opposition within another State, exists in contemporary international law” and qualified the “mere supply of funds to the contras” as “an act of intervention in the internal affairs of Nicaragua.” Strictly speaking, financial or other – for instance vocal – support to members of the Ukrainian civil society could, if they can be expected to engage in a violent overthrow (while it is difficult to assess what extent of violence would be required, as the level of violence discussed in the Nicaragua case the Euromaidan is extremely far from being on the same level) thus falls under this provision. Taking the advocatus diaboli-act to the extreme, one is further tempted to awaken some ghosts of the Cold War and go as far as arguing that this kind of support might even touch on the prohibition of “subversive intervention”, which Quincy Wright has defined as the “obligation not to engage in propaganda, official utterances or legislative action with the intent or likelihood of inciting sedition or revolt against the governments of other states” when commenting on the “Captive Nations Week” in the July 1960 issue of the American Journal of International Law.
Obviously, the Nicaragua case involved a form of intervention that went far beyond that of the EU and the US in Ukraine. Moreover, there is a fine line between outside support and engaging in revolutions. Quincy Wright himself made it clear that, since “[s]uccessful revolutions have usually depended to some extent upon such outside contacts and assistance”, such a subversive intervention needs to be distinguished “from permissible international communication, trade, travel and financial assistance.” In addition, one may also assert that the strict notion of the non-intervention principle has been weakened ever since the end of the Cold War, Franck’s assertion regarding an emerging right to democracy, or the new understanding of sovereignty as responsibility. It has thus become easier to judge the legality of outside support as the principle of non-intervention is reserved for grave and severe forms of intervention, such as the one in Nicaragua, or open and official calls upon the population to overthrow their government, such as when then US President HW Bush called on Iraqis to topple Saddam Hussein after the Second Gulf War. However, the non-intervention principle may nevertheless not be swept aside entirely with regard to the role of the EU and the US in Ukraine. It seems certainly arguable that strong vocal support for opposition groups, such as the statement by US President Barack Obama from early February where he said that “[t]here has to be a way to restructure the Ukrainian government in a way that allows the voices of the opposition, and those folks on the streets, to be heard in preparation for some sort of democratic process that creates a government with greater legitimacy and unity” might be interpreted as coming close to an open call for regime change. In the same vein, financial support before and during a revolution, in particular if it turns violent, is – at the very least – problematic from the standpoint of the principle of non-intervention. In this regard, one must not forget the recently leaked phone call between the Estonian Foreign Minister Urmas and EU foreign affairs chief Catherine Ashton, during which Paet told Ashton that “[t]here is now stronger and stronger understanding that behind the snipers, it was not Yanukovych, but it was somebody from the new coalition” has at least made it clear that money sent to opposition groups might be used for more than posters, websites, or other non-violent means of protest. Obviously, the Russian TV channel Russia Today (RT) jumped onto the story and issued the headline “Kiev snipers hired by Maidan leaders – leaked EU’s Ashton phone tape”. Acknowledging that this is not the place to assess the validity of this claim and certainly not trying to spin a new conspiracy theory, there is at least a due diligence obligation upon outside donors to ensure that their money is spent for peaceful actions only. If I worked for Russia’s legal department, that would be the route I’d take. Obviously, I don’t (and this is not an application!). I’m just playing the devil’s advocate.
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