Is There a 'New' Law of Intervention and Occupation?

• Author: Leslie C. Green
• Position: University Professor Emeritus, Honorary Professor of Law, University of Alberta, Canada
• Pages: 167-200

VII

Is There a"New" Law of

Intervention and Occupation?

Leslie C. Green*

Atleast since the seventeenth century international law has accepted as afun-

damental principle that all States are equal, none enjoying sovereignty over

any other. This principle has found expression in Vattel's famous aphorism:

Since men are by nature equal, and their individual rights and obligations the same, as

coming equally from nature, Nations, which are composed of men and may be

regarded as so many free persons living together in astate of nature, are by nature equal

and hold from nature the same obligations and the same rights. Strength or weakness

in this case, count for nothing. Adwarf is as much aman as agiant is; asmall Republic

is no less asovereign State than the most powerful Kingdom. 1

As aconsequence it has come to be accepted that a State is free to treat its nation-

als as it pleases without interference from others, aprinciple which finds expres-

sion in the domestic jurisdiction clause of the Charter of the United Nations:

Nothing contained in the present Charter shall authorize the United Nations to

intervene in matters which are essentially within the domestic jurisdiction of any state

or shall require the Members to submit such matters to settlement under the present

Charter; but this principle shall not prejudice the application of enforcement measures

University Professor Emeritus, Honorary Professor of Law, University of Alberta, Canada.

7s There a"New" Law ofIntervention and Occupation?

under Chapter VII [relating to acts of aggression and threats to or breaches of the

peace]. 2

Nevertheless, both doctrinal writings and States, especially the more powerful,

have asserted aright of intervention and even occupation in "exceptional"

circumstances.

International law recognizes two forms of occupation of the whole or part of the

territory of one State by the forces or governmental representatives of another.

Occupatio pacifica is the basis of acquiring title to territory. 3For the purpose of this

paper, the term is used for the situation that takes place when the occupied entity

has agreed to the occupation or it has been imposed without the use of force by an

occupier or as a result of amultilateral treaty, although the threat to resort to force

may be the deciding factor that induces the occupied entity to agree to the occupa-

tion. Occupatio bellica ensues during or at the end of an armed conflict and, gener-

ally speaking, is contrary to the wishes of the State occupied or is acquiesced in

since there is no other option available to that State.

Examples of occupation pursuant to agreement maybe seen in the treaties relat-

ing to the independence of the successor principalities of the Ottoman Empire

—

Bulgaria, Montenegro, Roumania and Serbia—initiated by the 1878 Treaty of

Berlin. In the case of Bulgaria, aprovisional administration was established which:

[S]hall be under the direction of an Imperial Russian Commissary until the

completion of the Organic Law. An Imperial Turkish Commissary, as well as the

Consuls delegated ad hoc by the other Powers, signatory of the present Treaty, shall be

called to assist him so as to control the working of the provisional regime. In case of

disagreement amongst the Consular Delegates, the vote of the majority shall be

accepted, and in case of adivergence between the majority and the Imperial Russian

Commissary or the Imperial Turkish Commissary, the Representatives of the

Signatory Powers at Constantinople, assembled in Conference, shall give their

decision.4

Article VII, in turn, provides that:

The provisional regime shall not be prolonged beyond aperiod of nine months from

the exchange of the ratifications of the present Treaty. When the Organic Law is

completed the election of the Prince of Bulgaria shall be proceeded with immediately.

As soon as the Prince shall have been installed, the new organization shall be put into

force, and the Principality shall enter into the full enjoyment of the autonomy.

To some extent this procedure seems to foretell the type of arrangement that

followed the operations against Afghanistan and Iraq at the beginning of this

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Leslie C. Green

century. 5The succession clauses in the Treaty of Berlin guaranteed protection to

religious and other minorities in each ofthe States concerned, but they did not pro-

vide for any form of direct sanction in the event of non-observance. In this, they

differed from the view expressed by some ofthe "fathers" of international law, who

envisaged the possibility of intervention by force, even resulting in occupation al-

legedly on humanitarian grounds in favor of an oppressed people. Thus, Grotius

was of the opinion that:

The fact must also be recognized that kings, and those who possess rights equal to those

of kings, have the right of demanding punishments not only on account of injuries

against themselves or their subjects, but also on account of injuries which do not

directly affect them but excessively violate the law of nature or of nations in regard to

any persons whatsoever. ...Truly, it is more honourable to avenge the wrongs of

others rather than one's own, in the degree that in the case of one's own wrongs it is

more to be feared that through asense of personal suffering one may exceed the proper

limit or at least prejudice his mind. .. . [Kjings, in addition to the particular care of

their own state, are also burdened with ageneral responsibility for human society. ..

.

The final and most wide-reaching cause for undertaking wars on behalf of others is the

mutual tie of kinship among men, which of itself affords sufficient ground for

rendering assistance. ... If, further, it should be granted that even in extreme need

subjects cannot justifiably take up arms [against their sovereign] ...,nevertheless it

will not follow that others may not take up arms on their behalf.6

Not all the "fathers" of international law would agree with Grotius in his view

concerning the right of a State to punish another for committing crimes against

natural law. Among these was Vattel who asked:

Did not Grotius perceive that ... his view opens the door to all the passions of zealots

and fanatics, and gives to ambitious men pretexts without numbers7?... [However, i]f

there should be found arestless and unprincipled Nation, ever ready to do harm to

others, to thwart their purposes, and to stir up civil strife among their citizens, there is

no doubt that all the others would have the right to unite together to subdue such a

Nation, to discipline it, and even to disable it from doing further harm. . . . [But n]o

foreign State may inquire into the manner in which asovereign rules, nor set itself up as

judge of his conduct. ...If he . . .treats his subjects with severity it is for the Nation to

take action; no foreign State is called on to amend his conduct and to force him to

follow awiser and juster course But if aprince, by violating the fundamental laws,

gives his subjects alawful cause for resisting him; if, by his insupportable tyranny, he

brings on anational revolt against him, any foreign power may rightfully give

assistance to an oppressed people who ask for its aid To give help to a brave people

who are defending their liberties against an oppressor by force of arms is only the part

of justice and generosity. ...But this principle should not be made use of so as to

authorize criminal designs against the peace of Nations As for those monsters who

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