UNILATERAL MILITARY (FORCIBLE) INTERVENTION

Humanitarian Intervention v Humanitarian assistance

Unilateral humanitarian intervention means military intervention undertaken by a state or group of
states outside the framework of the UN in order to secure human rights in another country;
Originally practiced by states to protect its own nationals aboard;
Unilateral humanitarian intervention is a fact (de facto). Some scholars have argued to make it de jure on
various found such as predictability, deterrence, legitimacy, etc

NOTE: DBL
it is the forcible intervention that is considered as the prohibited form of intervention. Not all forms of
intervention/interference are prohibited. In international law, we permit intervention that are non forcible.
Caroline test in self-defense, anticipatory chorva has not reached the . Of CIL.
Caroline test of propriety of self-defense aka Webster fomula
o Attack must be swift, over whelming, leave no choice of either the use of weapons and even the
modality of the defense. instant, overwhelming, leaving no choice of means, and no moment of
deliberation. (Webster)
o Caroline: pre-emptive self defense not accepted in CIL
o Lotus principle: in the absence of clear, CIL, restriction to a states sovereignty should not be
presumed.
NATO unilateral intervention in Kosovo.
o Unilateral military intervention is being practiced. some scholars considers to put a stop to the
legitimacy of the practice and provide guidelines on how to invoke. Reasons given:
Predictability: rule of law. Predictability of the law is an inherent characteristic. There is no rule
of law if there is no predictability. Predictability of the law is essential to the . Rule of law.
The law must be able to predict the outcome of the chorva. law is nothing but a system of
prediction. oliver wendell holmes.
Deterrence: misbehaving states would understand that the violation of the human rights of
their own citizens would merit unilateral intervention in the event that the council cannot..
this would add legitimacy (acceptable) of the practice.

Use of Force
Art 2(4) of the UN Charter prohibits use of force and threat to use force; CIL (Nicaragua v US) take
note of the kind of force in 2(4). Must be an eye level use of force. Analyze the scope of force.
Any use of force/threat to use force may only be lawful if done with the collective decision of the UN in cases
of threats to peace, breaches or peace, or acts of aggression (chap v-vii un charter) (including against
international terrorism, threats posed by weapons of mass destruction and on humanitarian grounds.
States can only justify use of force in case of self-defense as recognized in Art 51 of the UN charter
(individual or collective self-defense see art 52-53) until the Security Council has taken measures; the State
exercising right of self-defense must report the measure taken to the SC; self-defense must comply with
the requirements of (1) presence of armed attack and (2) observance of principles of proportionality and
military necessity

Lex Laxa Norm

Principle of non-intervention is CIL; it is based upon the Westphalian concept of sovereignty (territorial
sovereignty);
What is intervention? The forcible or dictatorial interference by the State in the affairs of another
State calculated to impose certain conduct or consequences on that other state. (Oppenheim)
2 ELEMENTS:
1) That there must be intervention by one state in the affairs of another
2) The intervention must bear on matters in which each state is permitted, by the principle of state
sovereignty, to decide freely.

Relevant UN Docs
Art 2(4) UN Charter
Principle 3 par 1 UN Gen Assemby reso No. 2625 (1970 Declaration on Friendly Relations)
Declaration on the inadmissibility of intervention and interference in the internal affairs UN Gen Assembly,
principle 2 (ii) (f) 9 Dec 1981

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o To refrain also recognizes the duty of every state to refrain from the promotion, encouragement or
support, direct or indirect of rebellion or secessionist activities within other states, under any pretext
whatsoever or any actions which seeks to disrupt the unity or to undermine or subvert the political
order of other states.

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Some Factors to Consider:
The UN Charter neither expressly allows nor prohibits unilateral intervention for humanitarian reasons;
But int. law recognizes right to self-determination as part of human rights that States are mandated to protect or
promote, rather than violate;
It is not intervention if the 3 rd State merely protects its own nationals abroad who are victims of injustice
(Extraterritorial Protective Jurisdiction)
It is not intervention in armed conflict if the support by third State is granted in favor of the Govt in the armed
conflict and against the rebels of other belligerents;

Note: DBL
The right to is interfere springs from the sovereignty of the state.
o If it is to assist the state, it is not intervention. If the interfering is in favor of the state, there is no
intervention. (2nd bullet)

Are these Lex Ferenda Norms?

Intervention should be permitted for humanitarian reasons. (should it include use of force? If yes, are there
preconditions?
Intervention should be permitted in support of the right to self-determination (should it include support to
secede? If yes, are there preconditions?)

NOTE: DBL
Right to self-determination: Identifiable group of people is exercising its freedom to determine its political
social cultural or economic development.
2 COMPONENTS:
1) Internal self-determination: the people are still within the framework of territorial integrity and
identifiable group of people can actually exercise. Many ways of achieving:
- Autonomous region (particular territory considered autonomous)
- BBL
- Federalism
2) External self-determination: presupposes secession (disintegration of the territory) when permissible?
SC Canada (advisory opinion) there can only be right to external self-determination in situations of
oppression (gross violation) by the state of the human rights. Gross oppression of an identifiable
group of people (this is what happened in Kosovo)

Justifications on Unilateral Intervention

Sovereignty does not only mean state sovereignty. it also includes popular (peoples) sovereignty. hence,
humanitarian intervention does not necessarily violate the principles of sovereignty and territorial integrity it is
instead liberating sovereignty.
o Focus not on the state but on the people constituting the state
Waiver Theory or Moral Forfeiture Theory;
o What is the very purpose of establishing a state? For the people composing the state to achieve its very
purpose in society.
o When the state oppresses the people composing it, it must have waived its right to assert it prerogative as a
sovereign state.
Internationalization of HR (including right to life that limits domestic jurisdiction)
There is a correlation between HR and international peace and security
Modern technology renders ban on humanitarian intervention.
Humanitarian intervention is a necessary stopgap measure contingent upon the failure of the UN to maintain peace
and security. (Lotus case on restriction of sovereignty)
o Veto power of states
Excusable Breach Doctrine (illegal but legitimate act)
o Illegal because it does not conform with UN charter but legitimate 1:15)
There is need to balance justice v peace and human rights v state sovereignty
Unilateral intervention may be erga omnes and ethical obligation, provided it is limited and dome without use of
force.
Humanitarian intervention will continue to exist as the moral exception to art 2(4) of un charter (internal morality
as lex ferenda)
o International law comes from natural law
o law is for the good of society (inner morality of law)

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 Literal interpretation of art 2(4) will not preclude unilateral Humanitarian Intervention; v systematic and
historical interpretation;
o (Literal) Corfu Channel case as advanced by Britain: mine sweeping operation did not result to territorial
disintegration and political independence or in any manner inconsistent with the purposes of UN (this
was forgotten daw by UK?)
o Systematic: dont interpret a provision of charter in isolation but in relation to the other provision of the
treaty.
- Systemic integration principle art 31 par 3(c) Vienna convention: a treaty can be interpreted on the
basis on how other treaties on the same parties are interpreted.
Teleological interpretation of the UN charter (intervention to protect HR is consistent w the purposes of the UN)

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 RIGHT TO PRIVACY AND EXTRATERRITORIAL SURVEILLANCE

Basic Notion
- The right to privacy is traditionally a state-citizen discussion
- The UDHR, ICCPR and the ICESCR primarily serve as guidelines for states, which are parties to these
covenants, on how they treat their own citizens and how they may lawfully permit, regulate and /or restrict
their human rights.
- Compliance of human rights norms, except jus cogens norms, are traditionally enforced through pressures oby
the UN and the international community
- Hence, surveillance (intelligence-gathering) by a State of its own citizens is clearly within the framework of the
UDHR in general and the ICCPR in particular.
- The problem arises in the case of surveillance by a State in the territory of another which, according to scholar,
would trigger the application of other norms such as the Principle of Non-intervention, Sovereignty, and State
Responsibility
o Use the term responsibility instead of liability/liable because in common/civil law, liability is always
associated with the liability to pay compensation. Under the doctrine, the sate may not necessarily be
liable to pay. Scope of order is to cease with the promise or undertaking of non-repetition.
o State responsibility doctrine (element)
1) Presence of an internationally wrongful act
2 reparation- damage has been caused, state responsible restore condition prior to the
controversy
o if cannot restore= liable to pay
2) Attribution
Nexus must first be established that the wrongful act can be attributed to a state.
- However, attribution to a state of an act of surveillance becomes very challenging in view of the complexities
of the cyberspace and technology.
- Generations (First 6 mins)
- These soft laws simply provide for guidelines for the states in the manner they pass regulations or manner
they regulate their citizens. Compliance is enforced from the pressure of the international community.

Cyberspace and Attribution

Cyberspace as a domain and the use of electronic devices as a medium of state conduct raises difficulties with
respect to ascribing particular acts to states. Thus, identification of individuals controlling certain electronic
materials and their acts in the cyberspace may be attributed to a particular computer whereas the identity of the
person operating it may only be established either by way of assumption or on the basis of inside information
disclosed by government agents of the state perpetrating the internationally wrongful acts in cyberspace.

Principle of Non-Intervention
- The principle of non-intervention is founded upon the respect for the territorial sovereignty of
states. UN charter expressly prohibits intervention.
- One of the most fundamental and widely recognized CIL norms requires all states to respect one anothers
territorial and political integrity; this requirement applies not only to a states physical incursions into
another states territory, but also t o ties interference with another states internal or external affairs.
o Permissible interference is permitted if coercive
- UN general assembly resolution

Sovereignty and Cyberspace

- State practice reveals that states consider sovereignty to extend to information in cyberspace which
belongs to government institutions and to private entities and individuals over which they
exercise jurisdiction. Likewise, state sovereignty and international norms and principles that flow
from sovereignty apply to State conduct of ICT-related activities.
- Even in the absence if intervention in the physical territory of a state, where a sate pursues a
course of action that undermines or compromises the political integrity of another sate, such as
accessing and copying of information in the cyberspace belonging to entities of a sate without
authorization, that conduct is rightly classified as coercive and thus amount to an unlawful intervention.

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Two Kinds of Electronic Surveillance
1) Mass
Entails collection of all data/info of all peoples/entities. Because of the size of the meta-data
(footprints) the user will be forced to use filtering mechanism. It is only after filtering that the user
(govt.) will be able to look into a more detailed way the info pertaining to particular person/entity
2) Specific/Individualized

Right to Privacy
- The ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy
or correspondence, and that everyone has the right to protection of the law against such interference. ICCPR,
art 17
- In ECtHR case law, the mere existence of legislation allowing secret surveillance constitutes an interference
with private life such that the legitimacy and necessity requirements must be met.
- Weber v Germany, Application No 54934/00, Decision(Admissibility), 2006-XI ECtHR 1173; Rotaru v Romania,
Application No. 28341/95, Judgment, 2000-V ECtHR 192
- The ECtHR case law also found that intersection of data by public authorities constitutes interference
with the right to respect for private life, just as the use, sharing and storage of that data do. This
correspondence need not be purely personal: business or professional correspondence may constitute part of
an individuals private life.
- The regime of human rights contemplates to protect another civil and political right which is directly related to
communication- it is the right to privacy. Conducting mass surveillance implies

Legality Test
- Surveillance measure will only be in accordance with the law if those laws are accessible to individuals and if
their consequences are foreseeable; that is, the law must be sufficiently clear in its terms to give citizen an
adequate indication of the condition and circumstances in which the authorities are empowered to engage in
secret surveillance.

Necessity and Proportionality Test

- The secret surveillance is tolerable only in so far as strictly necessary for safeguarding the democratic
institutions. (necessity) The nature of the aim should be weighed against the type and seriousness
of the interference with the individuals private life. (proportionality)
- You have the threshold of the ICCPR, however, it is also recognized that the state has the capability to identify
which right to protect.
- Lex Lata rule on national security and territorial integrity but Lex Ferenda on all others on the basis of
European court case laws.
- In the problem, the FACA, involves not just armed attack on territory or commission of international terrorist
attacks, this also includes illegal importation of drugs.
o Territorial integrity- Lex Lata
o Terrorism- national security Lex Lata
o Drugs-
o And certain other offenses- foreseeability requirement (?)
- Test: WON it is strictly necessary for safeguarding the democratic institution
- Issue: (1:04)

Borderless Right to Privacy

- It is important to be learn that the obligation of sates to respect the right of persons within their jurisdiction is
not limited to the right of persons physically in their territory
- Territorial jurisdiction may arise not only on the basis of physical location of where the
surveillance of the private communication took place, but also where the data was processed.
- Even if the surveillance was carried out by the sate outside its territory, however, it would still be responsible
for violations of HR in those places where it had authority or effective control.

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Right to Privacy of Persons within the Power or Effective Control of the State
- Art 2(1) of ICCPR each State Party to the present Covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Convent. The ICJ considered the scope of this jurisdictional provision and concluded that
the ICCPR is applicable I respect of acts done by a sate in the exercise of its jurisdiction outside
its own territory
- A foreigner who resides temporarily and engages in business will it be subject to the jurisdiction of the state he
is residing?
o The lover, R, while in China his communication with the senator has also been surveilled. Permitted?
Subject to the threshold of ICCPR?
There should be a threat to national security or territorial integrity before surveillance be
permitted
Even if this person is not a notional, but to the extent that certain laws are applicable, he is
within the jurisdiction of state P
Persons within jurisdiction and effective control of state: does not necessarily mean citizen
- State arties are required by art 2 par 1 to respect and ensure the covenant rights to all persons and who may
be within their territory and to all persons subject to their jurisdiction. This means that a sate party must
respect and ensure the rights laid down in the covenant to anyone within the power or effective control of the
sate party, even if not situated within the territory of the state party.
o Test: not nationality but the activity of the individual within the jurisdiction in relation to .
o PH requires judicial intervention before surveillance be valid under the ICCPR