The principle of non-intervention in international law remains the main principle governing state relations and is the symbol of sovereignty to many states. The United Nations (UN) Charter clearly sets out this principle in Article 2(7) which emphasized the need for domestic affairs of states to be respected by UN organs.[1] However, this act leaves open to controversy and an anatomical dissection of Article 2(7) will reveal how it has failed to demonstrate its effectiveness in denying various UN organs from acting in the domestic affairs of states. As a result, many question the continuing relevance of Article 2(7) in protecting states from interference and intervention.[2] This paper contends that Article 2(7), especially in relations to the domestic jurisdiction clause is largely obsolete as it is inconsistent with UN practice that has significantly influenced the interpretation of the provision.
Article 2(7)
For any successful argument that the provision is outdated, one has to undergo a historical analysis in an attempt to determine the meaning and scope intended by its drafters. Article 2(7) crucially protects the notion of sovereignty and is largely responsible for the consent of most of the states to be bound by the Charter. Article 2(7) was originally intended to be broadly defined to allow for it to evolve in accordance with this development of international relations.[3] However, the domestic jurisdiction clause is open to much subjective interpretation. In 1967, David Gilmore said that the simplicity of the clause in itself poses danger and no Article in the Charter has generated more controversy and confusion than Article 2(7).[4] Five decades on, the provision is no clearer than it was at the time Gilmore wrote. Given the absence of a clear definition on what constitutes domestic jurisdiction, it is argued that the practice of the UN can shed light and be regarded as the relevant case-law in this matter.
This paper will examine to what extend the domestic jurisdiction clause continues to fulfil its real purpose, which is to uphold the sovereignty of states. Critics argue that ‘the domestic jurisdiction exception … has over the years lost its political weight to the point that it has no more than an unsuitable residual value.’[5] This is stemmed by arguments that sovereignty and the purview of Article 2(7) has considerably diminished due to the rising interdependence between states in an era of globalisation[6]. Despite that, States and UN organs have consistently fought for the principle of sovereignty to be upheld and are not willing to sacrifice it at any cost.[7] Constant references to domestic jurisdiction is regularly brought up by the General Assembly and other UN organs through resolutions.[8] This domestic jurisdiction clause is frequently invoked by States who often assert on the continued validity and importance of the clause.[9] We will now turn to specific areas in which Article 2(7) has been invoked which will demonstrate how the ambit of domestic jurisdiction has substantially reduced by UN practice throughout the years.
Human Rights
States frequently argue that since no international obligations with respect to Human Rights was created by the Charter, they can be considered to fall within the domestic jurisdiction of states.[10] This is based on the position that human rights provisions are merely declarations of purposes rather than obligations, especially because it is not explained in the Charter.[11] It is argued that intention of those who drafted the Charter intended it to cover the entire corpus of human rights.[12] Human rights and fundamental freedoms, as well as economic and social matters not covered by inter-state treaties should be well within the domestic jurisdiction of states, especially when no legal obligations has been accepted through ratification.[13] However, this general principle of non-interference has often been brushed aside because human rights no longer fall within the domestic jurisdiction of States. Human rights today are considered not only a concern of the UN but all actors on the global scene.[14] States are deemed to have reduced their unfettered decision-making power the moment they become a party to human rights declarations and treaties and by partaking in the creation of a considerable body of customary international human rights law.[15] This is because human rights have elevated to the position of jus cogen and of customary international law.
Hence, any act committed by the state which is detrimental to human dignity is subject to UN action.[16] This covers a wide area of activity from the exploitation of minorities and gross infringement of human rights, like genocide, ethnic cleansing, massive deportations to the creation of economic and social policies that negatively impacts the population. An example of Article 2(7) controversially discussed was in The Question of Tibet.[17] The General Assembly was confronted with claims that China was depriving the Tibetan peoples of fundamental freedoms and human rights. It was interesting that El Salvador and Malaya argued that the status of Tibet is irrelevant as this is a matter concerning human rights. Despite there being continuous objections based on Article 2(7), the matter still repeatedly appeared on the agenda of the General Assembly which, later in a resolution, upheld the right to the civil and religious liberty of the Tibetan People.[18] More recently, the UN has been active in applying international pressure of the human rights violations in Myanmar.[19]
Government Systems and Elections
The UN General Assembly has consistently passed resolutions since 1989 to call for the ‘respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes’.[20] Article 2(7) was frequently invoked by the General Assembly which stressed that UN’s electoral assistance ‘should be provided at the request of interested States, or in special circumstances such as in cases of decolonization, or in the context of regional or international peace processes.’ These resolutions however have resulted in mixed responses from the UN membership. The most notable incident was during the debates in 2004 which concerns the propriety and extent of UN’s involvement in ensuring a free and fair presidential in Lebanon.[21] Lebanon claims that the matter was merely internal and that Syrian troops entered Lebanon because of legitimate requests and an agreement between two sovereign states.[22] It further reiterated that the resolution constituted an interference in the internal affairs of Lebanon. France argued that the Council is endorsing interference in the internal affairs of States by refraining to act and by acting in a robust manner, the Council was showing its confidence in Lebanon’s future.[23] At the end, a resolution was passed, with a reiteration of UN’s strong support for sovereignty.[24] Political self-organization has long been regarded as within the domestic jurisdiction of states. However, UN’s practice in recent times casted doubt on whether it will continue to be the case.
International Peace and Security
In the Spanish Question in 1946, it was argued that the nature of a governing regime in a state is a question recognized under the domestic jurisdiction of the state.[25] However, Australia submitted that although the form of government is prima facie within domestic jurisdiction, the presumption can be rebutted if there is a threat to peace.[26] It submitted a resolution, which was later adopted to determine whether the situation had led to a threat to international peace.[27] In the sub-committee report, they concluded that the Spanish regime was a ‘potential menace to international peace’ and would constitute an international concern rather than a domestic concern of Spain.[28] This case is a troubling one as it illustrates how just two years after the Charter, Article 2(7) was broadmindedly set aside to give way to the emergence of a concept of ‘international concern’ with the aim of limiting the definition of matters within the domestic jurisdiction.
In a Security Council debate on the prevention of armed conflict, Netherland shared this view when its delegate stated that a rigid adherence to Article 2(7) would ignore the fact that most present-day conflict were of an internal, domestic nature, whereas the Charter appears to be drafted with conflicts between States in mind.[29] It is hence in contention that as long as there is activities directed towards violations or threats to human rights, such activities fail to fall within the domestic jurisdiction of a State.[30] This is because once a state no longer guarantees protection of its population, there is an implied loss of its sovereignty.
Conclusion
After looking at UN practice in areas where Article 2(7) has been invoked, one cannot help but question again what matters constitutes the domestic jurisdiction of states. Drafters of Article 2(7) intended it to protect the sovereignty of States against incursions by UN Organs, but this paper submits that Article 2(7) is out-dated and emptied of substance. This is because, as we have examined an increasing number of matters are no longer considered to be within the domestic jurisdiction of States. The convoluted wording of the article has led to much even more uncertainty and UN practice has blatantly disregarded the original intentions of Article 2(7). This paper concludes that, a matter can only be considered a domestic jurisdiction of a state only in situations where UN political organs has not determined to the contrary. This leaves not many matters left to be considered within the domestic jurisdiction of states and it is likely that this trend would continue, rendering provisions of Article 2(7) out-dated given that the original intentions of the drafters no longer reflect the law.
[1] Charter of the United Nations 1945, Article 2(7) [2] Ian Brownlie, Principles of Public International Law (7th edn, OUP 2008) 296 ; Rudolf Bernhardt, ‘Domestic Jurisdiction of States and International Human Rights Organs’ 7 (1986) HRLJ 205 [3] Rosalyn Higgins, ‘The Legal Limits of The Use of Force by Sovereign States, United Nations Practice’ (1961) 37 British Year Book of International Law 76 [4] D.R. Gilmore, ‘The Meaning of "Intervene" within Article 2 (7) of the United Nations Charter. An Historical Perspective’ (1967) 16(2) ICLQ 7 [5] UNCHR ‘United Nations strategies to combat racism and racial discrimination’ (26 February 1999) UN Doc E/CN.4/1999/WG.1/BP.7. [6] James Crawford et al, ‘The End of Sovereignty? Roundtable’ (1994) 88 ASIL Proc 71 [7] UNSC Res 2032 (22 December 2011) UN Doc S/RES/2032; UNSC Res 1271 (22 October 1999) UN Doc S/RES/1271 [8] UNGA Res 65/203 (21 December 2010) UN Doc A/RES/65/203; UNHRC Res 18/6 (29 September 2011) UN Doc A/HRC/RES/18/6 [9] UNGA ‘Report of the Committee for Programme and Coordination on the 2nd part of its 36th session’ (13 September 1996) UN Doc A/51/16 (Part II), 9, para 20. [10] Helen Jones, ‘Domestic Jurisdiction—From the Covenant to the Charter’ (1951) 46 ILR 259 [11] UN ‘Repertory of Practice of UN Organs’ (1955) Volume I para 414 [12] Goronwy Jones, The United Nations and the Domestic Jurisdiction of States (University of Wales Press, 1979) 17 [13] George Nolte, ‘Ch.I Purposes and Principles, Article 2(7)’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) 12 [14] UNGA ‘51st session: 78th plenary meeting’ (10 December 1996) UN Doc A/51/PV.78, 3 [15] D McGoldrick, ‘The Principle of Non-Intervention: Human Rights’, in Vaughan Lowe and Colin Warbrick (eds), The United Nations and the Principles of International Law (Routledge 1994) 94f [16] Benedetto Conforti, The Law and Practice of the UN (3rd edn, Martinus Publishers 2005) 142 [17] UNGA ‘Question on Tibet’ (21 October 1959) UN Doc A/PV.834 [18] UNGA ‘Question on Tibet’ (21 October 1959) UN Doc A/RES/1353(XIV) [19] UNHRC ‘Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar’ (17 September 2018) UN Doc A/HRC/39/CRP.2 [20] UNGA ‘Resolution adopted by the General Assembly on 19 December 2017’ (25 January 2018) UN Doc A/RES/72/164; UNGA ‘Resolution adopted by the General Assembly on 8 December 2005’ (6 January 2006) UN Doc A/RES/60/64 [21] UNSC ‘5028th Meeting’ (2 September 2004) UN Doc S/PV.5028 [22] Ibid [23] Ibid [24] UNSC Res 1559 (2 September 2004) UN Doc S/RES/1559 [25] UN (n.11) Volume II Chapter VIII [26] Ibid [27] UNSC Res 4 (29 April 1946) UN Doc S/RES/4 [28] UNSC ‘The Report of the Sub-Committee on the Spanish Question’ (1 June 1946) UN Doc S/75 [29] UNSC ‘4072nd Meeting’ (29 November 1999) UN Doc S/PV.4072 [30] Nolte (n.13) 15
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