My Brother’s Keeper: the Non-Intervention Norm and Ethnic Self-Determination

By Paul Cortés Ruiz

In its October 10-16, 2015 edition, The Economist ran an opinion column by the magazine’s Asian affairs correspondent, nicknamed “Banyan.”[i] Banyan wrote about the Chinese ambassador to Malaysia’s unusual remarks regarding the anti-Chinese demonstrations of September 2015 in Kuala Lumpur. Malaysia has a large Chinese minority (around 25% of Malaysian citizens),[ii] and has an affirmative action-like policy of favoring Malay and indigenous citizens over Indian, Chinese and other ethnic groups.[iii] Elements of the ruling party have pushed racial tensions to worrying levels, employing racist rhetoric in some rallies like the one in September. In this context, the ambassador stated that China “‘will not sit by idly’ if its citizens’ rights are violated.”[iv]

In and of itself, this would seem to be a pretty innocuous event. However, as Banyan points out, Chinese foreign policy relies heavily on the International Law principle of non-intervention, which bars states from “meddling” in the internal affairs of other countries.[v] This principle permeates all inter-State relations and is an integral cornerstone of sovereign equality. I would go so far as to say that one cannot speak of a modern international legal order without holding that every State is free to make sovereign decisions without the intervention of other States.

Taken to the extreme, the principle of non-intervention could be interpreted to bar States from exerting any influence on the internal affairs of other States. This, precisely, is the position that some States like China seem to hold. Yet, our world is one where States long ago ceased to be the only relevant transnational actors. Globalization has made the world smaller and more connected, making the events in one part of the world highly relevant to actors in other parts. In fact, many States routinely express their “opinions” on foreign matters of great interest to them, and so do international and non-governmental organizations. The human rights regime, for example, built upon the United Nations Charter and the regional systems, expressly relies on a certain level of intrusion into a State’s internal affairs in order to force compliance. Put simply, the principle of non-intervention is not, in general, an absolute one.

The Chinese ambassador to Malaysia later apologized for his remarks, underscoring China’s commitment to respect the Malaysian State’s sovereignty.[vi] Nevertheless, this incident raises a question that is all too prominent in today’s international arena, one that combines State interests in ethnic diasporas and the enforcement of human rights. How far can a State go in defending or supporting the rights of ethnic groups in other States without violating their sovereignty? The jury is still out on this question, but we can certainly define the concepts that need to be addressed in order to answer it.

Exceptional Intervention and the “hard-soft” dichotomy

Without a doubt, the use of military force by one State in another is intervention, permissible or not. This kind of forceful intervention, in which a State employs military means to effect a change in another State’s policy over sovereign matters,[vii] is mostly prohibited under International Law, save for a few exceptions, some of which are not universally accepted.[viii] This is what I consider to be “hard” intervention, under which we can place everything from self-defense to no-fly zones to humanitarian intervention. There is, however, a range of other actions that fall short of the use of force that are also meant to effect some change on the sovereign prerogatives of States. These non-forceful acts are what I term “soft” intervention. They impinge on some domestic sphere of sovereignty, but to a much lesser extent than hard interventions, and are also clad in some way by the legitimate exercise of a right.

Real life illustrations of “soft” intervention are numerous, but the imposition of sanctions is illustrative. Take for example the United States’ targeted sanctions on Iran for human rights abuses[ix] and under non-proliferation laws.[x] Another example of this type of intervention is political or financial support to opposition parties in other States. The U.S. National Endowment for Democracy, for example, has time and again been accused of supporting opposition parties through its funding in “illiberal” countries.[xi] Additionally, some States have considered the recognition of opposition groups as power players in local conflicts, to the chagrin of official governments, as impermissible intervention.[xii] Syrian opposition groups and their recognition by Western powers are good examples in this respect.

The above are examples of one State acting and affecting others on a domestic level, contrary to or independent of the interests of another. The issue of whether they are permissible under International Law hinges on the closely related question of when are interventions permissible and on what exactly constitutes intervention. Hard interventions are easier to define and, to some extent, classify as permissible or not. They involve the use or threat of force, for which there are much more clearly defined norms between what is permitted and what is not than in the case of soft interventions.

Ethnic Intervention in Ukraine

The Chinese ambassador’s remarks could easily be classified as an intervention into Malaysian domestic affairs, given first a strict interpretation of what intervention is. It could also be called an ethnically motivated intervention, one that is becoming increasingly common. A better-known example is Russia’s involvement in eastern Ukraine, where it is widely suspected of sending troops into the Crimean peninsula and to the eastern, Russian-speaking part of Ukraine. Apart from repeatedly denying its presence, official and semi-official arms of the Russian government have framed the conflict in eastern Ukraine in terms of Mother Russia protecting its people from fascist, anti-Russian governments. This rhetoric was expanded to target the Baltic countries and to a lesser extent Moldova, all of which have significant Russian-speaking populations and all of which have decried undue Russian involvement in their internal affairs.

While the Russian example is closer to a case of hard intervention, even taking at face value the Russian argument that it had no direct role in the conflict, it would still be highly suspect with regards to the non-intervention norm. Russians are fighting in Ukraine, using Russian weapons, and under Russian international diplomatic cover. This is, at the least, a substantial measure of support from Russia and thus a soft intervention.

What ethnic intervention is not: independence movements and self-determination

This question of supporting ethnic groups in other States invites parallels with another, less controversial topic. The latter half of the twentieth century saw a historic movement towards independence and decolonization worldwide. This movement was characterized by the solidarity of States towards peoples seeking independence from their colonial powers.[xiii] Arguably, what justified this kind of support was that it was consonant with the principle of self-determination of peoples, which recognizes that “peoples”[xiv] have an inalienable right to choose their own political, social, economic and cultural systems without the interference of others.[xv] In that context, subduing whole peoples under the yoke of colonialism undeniably ran contrary to the principle of self-determination, and the majority of States considered that supporting self-determination was not only permissible, but a duty under International Law.[xvi]

The application of the self-determination principle in recent ethnic conflicts is more complicated. The context is quite different: as opposed to having a colonial power suppressing the right of self-determination, a sovereign State has to afford all its peoples full exercise of their rights under the principle. In these conflicts, usually one ethnic group is shut out from government. What self-determination recognizes here is a right of peoples to participate fully in the State’s government and to be free to develop itself culturally as group.[xvii] However—and this is still controversial[xviii]—if these conditions are not met within the political structure of the State, and if this situation manifests itself through gross human rights violations, then the oppressed group theoretically has the right to remedial secession from the State.[xix] A group of people with the right to secede is not at all dissimilar from an independence movement. If so, are States then free from the constraints of the non-intervention norm in this context?

It might be the case that the colonial exception to the non-intervention norm applies similarly to cases where a multiethnic State is suppressing the right of self-determination of one of their constituent peoples. Serious questions remain, questions that warrant further normative and historical research. For instance, to what degree does the self-determination of peoples need to be suppressed in order to permit foreign intervention? Is soft intervention permissible in this context? More significantly, is hard intervention?

Conclusion

The resurgence of ethnic nationalism outside the colonial context presents new challenges to International Law that previous understandings of concepts such as self-determination and non-intervention may not be able to fully address. As mentioned above, there are differing interpretations of the non-intervention principle that range from the absolutist to the more flexible. Ethnic separatist or autonomous movements inject a new dimension into the debates regarding intervention. Whether an absolutist approach is better than a flexible one remains unanswered.

I will venture to state that the International Law principle of non-intervention is ripe for evolution. International Law is often hard to define precisely when it is in flux. As globalization continues to spread, States with multiple ethnic groups will be pressured into changing traditional power structures to allow for more inclusive models of government. This will inevitably cause some States to resist change, possibly through heavy-handed methods that impinge on human rights and hinder the exercise of self-determination of their people. States with some interest in the internal affairs of these, due to ethnic diasporas living there, will themselves be pressured to act and intervene in these States, most likely through soft means rather than hard ones. International Law will ultimately have to adapt to a new paradigm. What we are seeing now in terms of increased ethnic conflicts and international involvement in them is just the beginning of a change in attitude, not yet in law, towards the non-intervention principle.

 

Addendum: Due to time constraints, discussion of State practice is largely omitted from this essay. I hope to complement this piece in the near future with a more nuanced article focusing on State practice and its development throughout history and recent times.


 

[i] Banyan, “Big Motherland,” The Economist (Oct. 10, 2015).

[ii] Population Distribution and Basic Demographic Characteristic Report 2010

[iii] Jomo K.S., The New Economic Policy and Interethnic Relations in Malaysia, UNRISD (2004).

[iv] Banyan, supra; The remarks also caused considerable backlash in Malaysia and the regional press. See Prashanth Parameswaran, “The Truth About China’s Interference in Malaysian Politics” The Diplomat (2 Oct. 2015) http://thediplomat.com/2015/10/the-truth-about-chinas-interference-in-malaysias-politics/.

[v] Michael Wood, “Non-intervention (Non-interference in domestic affairs)” Encyclopedia Princetoniensis, http://pesd.princeton.edu/?q=node/258 (last accessed Nov. 17, 2015).

[vi] Shannon Teoh, “Chinese Embassy allays worries over envoy’s remarks,” The Straits Times (28 Sept. 2015), http://www.straitstimes.com/asia/se-asia/chinese-embassy-allays-worries-over-envoys-remarks.

[vii] The ICJ considers intervention to be prohibited if: (1) it relates to a matter squarely in the domain of the sovereignty of States; and (2) is, at its essence, coercive. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, at ¶205 (June 27, 1986). See also Michael Wood, “Non-intervention (Non-interference in domestic affairs)” Encyclopedia Princetoniensis, http://pesd.princeton.edu/?q=node/258 (last accessed Nov. 17, 2015).

[viii] The only universally accepted exceptions are self-defense under Article 51 of the UN Charter, and action under the auspices of the UN Security Council’s Chapter VII powers. All others, including humanitarian intervention, are subject to various levels of debate.

[ix] “Department of Treasury and State Announce Sanctions of Iranian Security Forces for Human Rights Abuses” Office of the Spokesperson, U.S. Department of State (June 9, 2011).

[x] “United States Increases Sanctions Against the Government of Iran and its Proliferation Networks; Treasury and State Department Actions Target More Than 50 Entities Tied to Iran’s Procurement, Petroleum, and Shipping Networks,” Office of the Spokesperson, U.S. Department of State (July 12, 2012).

[xi] See Lori Fisler Damrosch, “Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs,” 83 A.J.I.L. 1 (1989).

[xii] See Tom Ruys, Issues Surrounding Intervention in the Syrian Civil War, 13 Chinese J. of Int’l L. 50 (2014).

[xiii] For example, the Declaration on the Granting of independence to colonial countries and peoples, A/RES/1514 (1960) was adopted without opposition in the UN General Assembly, albeit with nine abstentions.

[xiv] The term “peoples” remains legally undefined.

[xv] Annex, Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States, U.N. Doc. A/RES/25/2526 (Oct. 24, 1976)(adopted without a vote).

[xvi] See Id. (“Every State has [1] the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter… [2] the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter.”)

[xvii] Id.

[xviii] See Malcolm Shaw, International Law, 186-88, 211 (2014) (on how the self-determination principle conflicts with the territorial integrity of States).

[xix] Id., 187; see generally Reference re Secession of Quebec, 1998 2 S.C. Res. 217 (1998).

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