The main goal of the United Nations is to maintain international peace and security, therefore, it is unsurprising that one of the most important provisions of its Charter is that contained in Article 2(4) – the principle of non-intervention. Despite that, the multiple military interventions that took place since the enactment of the Charter could be said to undermine the system. My dissertation aimed to analyse the effectiveness of the principle of non-intervention, focusing on finding a viable way to improve its observance. I applied the theory of New Legal Realism to the main research question, as it captures the essence of the problems arising in international law by including the political and social dimension. Furthermore, according to New Legal Realism, the ultimate validity of law should be established based on the practice of States, which was the key tenet of the argument I presented.
My initial hypothesis was that States are likely to breach the law if the relevant national interest outweighs any possible consequences. In order to provide a comprehensive analysis, I started with an examination of the relevant rules, case law, and most importantly, the interpretation of both. The conclusion reached was that, while States often try to pursue the interpretation which is convenient for them, it is possible to discern general rules applicable in the context of permissibility of the use of military force. That being the case, it was necessary to look at some examples in order to see how the rules are applied when a conflict is under way.
The two case studies chosen to illustrate the problems were, respectively, the intervention of the United States in Iraq and the Russian intervention in Crimea. In both cases I argued that there are good reasons to question their legality. Furthermore, an analysis of those two specific case studies had the added benefit of enabling a comparison of how the international community’s responses differed under diverse circumstances.
The examination of the international community’s reactions played a key role in my argument as it provided important insights into the way in which States weigh their national interest against the observance of law. Perhaps one of the particularly striking examples was China’s support for the annexation of Crimea by Russia. One could think that given China’s own problems with separatism, the State would be careful not to show any approval for the intervention, and yet that was not the case. Both the invasions and the support from allies seemed to suggest that States are willing to engage in opportunistic behaviour, because they do not think they will have to face any consequences. In other words, the examination of case studies implicitly confirmed the original assumption.
The above led me to argue that the problem does not lie with the rules of international law, or their interpretation, but rather with their enforcement. Therefore, I attempted to demonstrate that the simplest, and possibly the most effective way to improve the effectiveness of Article 2(4) is to make sure that the possible gain from an intervention (or its support) is considerably smaller than the risk. The traditional mechanism responsible for creation of international law, i.e. the presence of opinio juris combined with specific practice, makes it easy for States to argue that their actions were not expected to affect the state of the law; particularly, where such actions were accompanied by a legal justification (even if questionable).
My argument proposes that the application of a New Legal Realist approach could solve the issue and increase the potential ‘costs’ of an intervention. The approach focuses on States’ law-making role, and therefore subordinates the opinio juris requirement to the State practice. In such a case, the latter would have to be considered in the context of the responses of the whole international community in order to avoid inconsistencies. This, in turn, would mean that other States, both allies and adversaries, would have an interest in denouncing most of the interventions. Applying such a strong understanding of States’ law making powers would necessarily increase the costs of not punishing interventions, and therefore account for the current lack of deterrence.