les voix: For/Getting｜Re/Membering

所謂的[民主干預]到底是?
Under modern international law, popular sovereignty has supplanted State
sovereignty, and as only democratic States are bearers of sovereignty, any
State has the right, even more, the obligation to overthrow non-democratic
governments so as to restore the full sovereignty of the State.

The doctrine of PDI concerns the use of force to assist oppressed populations
in attaining the right of democratic self-government; however, the concept of
PDI comprises military interventions by third states to restore a democratic
government overthrown by a coup d'etat.

至於它不違反UNC Art. 2(4), 是因為:
PDI is not specifically directed against the “territorial integrity” of another State,
and even contributes to the realization of the “political independence” of that
State, since the principle of sovereign equality would only prohibit “territorial or
colonialism invasion”.

大致上, 可以分成五種態樣:
1) Unilateral PDI
- 1965 US intervention in Dominican Republic: [Justification argued by the US]
　We believe that the Dominican people, under the established principle of
　self-determination, should select their own government through free elections...
　Our interest lies in the reestablishment of constitutional government and, to
　that end, to assist in maintaining the stability essential to the expression of the
　free choice of the Dominican people.”

- 1983 US intervention in Grenada: [Justification argued by the US]
　US, supported by Jamaica, Barbados, and member states of the Organization
　of East Caribbean States (“OECS”), launched Operation Urgent Fury with a
　justification that “the military intervention by pointing to the need to restore
　the constitutional order as a prerequisite for democracy in Grenada.”
　And, the use of force was necessary “to assist in the restoration of conditions
　of law and order and of governmental institutions to the island of Grenada,
　where a brutal group of leftist thugs violently seized power.”
　[International Response]
　The action was strongly condemned in UNGA Res. 38/7 (1983) despite general
　support from the people in Grenada.

- 1989 US intervention in Panama: [International Response]
　The action was still condemned in UNGA Res. 44/240 (1989) despite such a
　huge success to restore democracy in Panama.

- 2004 US intervention in Haiti: US forced Aristide, who was reinstated by the US
　in 1994, to leave, since he had lost considerable support from Haitians due to
　his corrupted regime.
　[International Response]
　Condemnations were scarce, and the immediate deployment of a multinational
　interim force to stabilize Haiti was authorized by UNSC Res. 1529 (2004).

2) PDI by invitation
Article 20 of the Draft Articles on State Responsibility (2001) provides that “valid
consent by a State to the commission of a given act by another State precludes
the wrongfulness of that act in relation to the former State to the extent that the
act remains within the limits of that consent.”
　　＋
The Security Council reaffirmed in 1976 “the inherent and lawful right of every
State, in the exercise of its sovereignty, to request assistance from any other
State or group of States.”
[UNSC Res. 387 (1976): South Africa’s invasion against Angola]
　　＝
The right to PDI to reinstate an ousted democratic government upon its request,
may amount to a rule of customary international law.
Consent to forcible intervention by the target State trumps the prohibition of the
use of force contained in Article 2(4) of the UN Charter. (Consent by the State,
acting via internationally recognised representatives of a particular regime,
precludes the wrongfulness of pro-democratic intervention.)

3) Multilateral PDI authorized by UNSC
- 1994 UNSC’s intervention in Haiti
　In 1993, the SC imposed an economic embargo on Haiti, after its democratically
　elected President Aristide was overthrown by a military junta in 1991. However,
　it hardly made any effort.
　Therefore, the SC determined that measures under Chapter VII of the UNC were
　warranted “in these unique and exceptional circumstances”. In 1994, it, by UNSC
　Res. 841 (1993), authorized a multinational force to use all necessary means to
　facilitate the departure from Haiti of the military leadership and the prompt return
　of the legitimately elected President.

4) Multilateral PDI authorized by regional organizations
- 1997 ECOWAS intervention Sierra Leone: [International Response]
　UNSC expressed its strong support for the efforts of ECOWAS by UNSC Res. 1132
　(1997) / 1998, Nigerian ECOMOG forces was again endorsed post factum by UNSC
　Res. 1162 (1998)

5) PDI pacts
- In 1999, ECOWAS adopted the “Protocol Relating to the Mechanism for Conflict
　Prevention, Management, Resolution, Peacekeeping and Security”: The Mediation
　and Security Council has the power to “authorize all forms of intervention and
　decide particularly on the deployment of political and military missions.”

- In 2000, OAU passed a “Declaration on a Framework for an OAU Response to
　Unconstitutional Changes in Government”

- In 2001, OAS adopted the Inter-American Democratic Charter. It stipulates that
　“in the event of an unconstitutional alteration of the constitutional regime that
　seriously impairs the democratic order in a Member State, any Member State or
　the Secretary General may request the immediate convocation of the Permanent
　Council to undertake a collective assessment of the situation and to take such
　decisions as it deems appropriate.” And, this does not exclude the use of force.

- In 1990, CSCE adopted the Copenhagen Document, which stipulates that the
　participating States “recognize their responsibility to defend and protect the
　democratic order freely established through the will of the people against the
　activities of persons, groups or organizations that engage in or refuse to renounce
　terrorism or violence aimed at the overthrow of that order or of that of another
　participating State.” And, this does not exclude the use of force, either.

[NOTE]
1) The concept of PDI has never been used as the primary legal justification for the
　use of force.
　[Ex. ECOWAS justified itself in Sierra Leone operation by (a) collective self-defense,
　(b) humanitarian intervention, (c) regional arrangement, and (d) pro-democratic
　intervention.]

2) 有學者覺得: PDI跟R2P are distinct exceptions of prohibition of use of force
但竟也有學者說: R2P有兩種, one is to protect human rights (so-called HI), the other
is to protect democracy (so-called PDI) [但我認為後者說不通, 因為理論不符, 法律性
質也不一樣, one refers to responsibility, the other implies a right]

3) 尼加拉瓜案不支持!!!
a) Nicaragua case (1986): a State, in casu the United States, needs to claim that its
　intervention, which it justified on the political level, is also justified on the legal
　level, in order to establish a new right of intervention regarded by it as existing in
　such circumstances. A post factum legitimization, as proffered by legal academics,
　does not suffice to establish a right of pro-democratic intervention.
　(因為是馬後炮, 所以不能當作justification)

b) [p. 108, paragraph 206]: “The Court has to consider whether there might be
　indications of a practice illustrative of belief in a kind of general right for States to
　intervene, directly or indirectly, with or without armed force, in support of an
　internal opposition in another State, ...
　[p. 109-110, paragraph 209]: The Court finds that “no such general right of
　intervention, in support of an opposition within another State, exists in contemporary
　international law.” (沒有干預內戰一方之權利, at any rate)

c) 但ICJ也承認[p. 14, paragraph 126]: “… intervention is allowable at the request of
　the government.” (也就是說, 如果有consent的話, 又另當別論了 XD)

因此, 我覺得[PDI]可能包含6個要件
1) Consistency with the political self-determination of the people of the target State
　因為大部分的學者質疑, imposition of democratic system onto a State is immoral
　and against people’s political self-determination in freely choosing their political
　institution. 所以一定要是當地國的人民, 本來就pro-democracy!!!

2) Invitation or consent from the legitimate, democratic and internationally recognized
　government
　Invitation絕對沒問題, 因為Congo v. Uganda案也曾確認過, 問題是在government
　in exile同意的效力!!! 學者認為, 雖然traditionally, 有effective control的regime
　才是能合法給予consent的, 但在近代已經不一樣, DEMOCRATIC LEGITIMACY and
　INTERNATIONAL RECOGNITION so determine!!!

3) Enforcement actions aimed at overturning the unconstitutional, illegitimate and
　undemocratic regime
　Authors似乎都不否認illegitimacy may be cured, if the new regime restore the
　constitutional order and democratic system in the State, 所以有學者認為, 除非
　this is foreseen to be unlikely happen in future, 或是new regime has prima facie
　exercised its administrative power in opposite way, 才能被攻擊!!!

4) Right intention of restoration of democracy and constitutional order within the
　target State
　這個要件來自於: US interventions were condemned not simply because the rule
　it based upon yet reached the level contained within international law at that time,
　but also because the actions were viewed to involve with considerations related to
　US foreign policy.

5) Decision-making process of the intervention actions to be taken by collective and
　multilateral means
　可以roughly整理出三種possible conditions: (a) Authorization of the UNSC; (b)
　Authorization of regional organizations; or (c) PDI pact [也就是第六種態樣裡面的
　treaty-based mutual defense for restoration of democracy]
　(a) Haiti situation
　(b) ECOWAS operations
　(c) 通常都是:
　　　A multilateral treaty--> a treaty-sourced organ to be established--> specific
　　　authorization for the organ to initiative military intervention--> transparent
　　　and neutral process for decision-making

(MAYBE: 6) Intervening actor being democratic
　BUT, it seemingly makes no difference, because the Sierra Leone situation was still
　commended by the UNSC and accepted by international community, though it was
　mainly conducted by Nigeria which is deemed as an undemocratic State.

惟, 適用於[2012 Jessup]本案中的話... (I mean...in the shoes of R國)
1) A國本來就是民主國家, 人民pro-democracy沒有問題
2) Green remains to be legitimate, 其consent沒有問題
3) 這個要件應該就要靠application of Andler是個大壞蛋的事實了
4) A國本來就是民主國家, R國和其之間並無ideology上的矛盾
5) 這裡, 可能會有兩種講法: (a) Regional organization, 但原則上A國不是成員國,
　會有點難fall within the category of ECOWAS-type; (b) (有沒有可能是) PDI pact,
　因為look upon 1990 ENI Treaty, 其實ENI Council是有被授權mutual defense的,
　if A國has ever been prone to ENI, 是否可以被支援呢!? (這要再想想)
6) R國 is undoubtedly a democratic State, 問題是到底需不需要討論這個要件?!

資料整理自下列來源:
1998 The Use of Force to Restore Democracy--International Legal Implications of
　　　the ECOWAS Intervention in Sierra Leone (by Karsten Nowrot & Emily Schbacker)
2004 Pro-democratic Intervention in International Law (by Cedric Ryngaert )
2009 Intervening interests: humanitarian and pro-democratic intervention in the
　　　Asia-Pacific (by Robert Lancaster)
2010 Democratic Governance and International Law