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ORIGI. AL

« BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE

UNITED STATES OF AMERICA

To Lawrence O'Brien, Chief_counsel

You are hereby commanded to summon Arrando...Selva...

to be and appear before the Subcommittee..on. Panama. Canal.of.the. Merchant..Marine. &

Fisheries
Committee of the House of Representatives of the United States, of which the Hon. Garroll-Hubbard,

is chairman,

1

in their chamber in the city of Washington, on Thursday, June. 7.,1.97.9.

at the hour of ...1.0.A.M.

then and there to testify touching matters of inquiry committed to said Committee; and he is

not to depart without leave of said Committee.

Herein fail not, and make return of this summons.

Witness

my

hand and the seal of the House of Representatives

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ORIGINAL

Subpena for Armando Selva

before the Committee on the Merchant Marine

& Fisheries

Served

... House of Representatives

Mr. HUBBARD. Is there anything else?
We are now adjourned, subject to the recall of the Chair.
[The following was submitted for the record:]

STATE DEPARTMENT'S RESPONSE OF COMMITTEE REQUESTED LIST OF ACTIONS

CONSTITUTING A VIOLATION OF THE PRINCIPLE OF NON-INTERVENTION The Department is unable to provide such a list but we are enclosing for the committee's information a copy of a memorandum prepared by the Legal Adviser's Office in 1974 on the development and scope of the principle of non-intervention under international law. Over the years, numerous charges of intervention have been raised in the OAS. However, there remains only one instance in which the Organization has actually found a member state to have intervened in the internal affairs of another. In 1964, the Ninth Meeting of Consultation of Ministers of Foreign Affairs considered evidence that the Castro Government had attempted to overthrow the Government of Venezuela through terrorism and guerrilla warfare and declared that those acts constituted intervention in the interal affairs of Venezuela.

DEPARTMENT OF STATE, Washington, D.C., October 25, 1974.

MEMORANDUM OF LAW

Subject: Intervention in the Internal Affairs of Other States.
From: George H. Aldrich, Acting Legal Adviser.

The Office of the Legal Adviser of the Department of State has been asked to set out the relevant international law on this subject. This memorandum will deal with the subject in terms of general principles of law and general types of factual situations. It will not be concerned with the facts of particular instances of alleged intervention. A. Development of the Principle of Non-Intervention

The legality under international law of activities by a State relating to the political life within other States is determined by application, in light of all relevant circumstances, of the general principle of international law that no State may intervene in the internal affairs of another State. The application of this principle is likely to raise more difficult questions than the principle solves, but before dealing with them, it is important to note how the principle developed.

1. United Nations Charter.—The twentieth century has seen many dramatic developments in international law, and the most significant has been the expansion of the rules that prohibit a State from taking actions directed against the territorial integrity or political independence of another State." The emphasis has been, with a few exceptions, on the prohibition of the threat or use of force, but the relevant rules have not been so limited as to imply complete freedom to engage in other hostile activities not involving the threat or use of force. Thus, the United Nations Charter provides in Article 2, paragraphs 3 and 4:

"3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

“4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations."

This language does not in terms proscribe “intervention” in the internal affairs of other States, but it is certainly capable of being interpreted as proscribing hostile acts not involving the threat or use of force. The fact that paragraph 7 of that same article explicitly states that “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 . . may indicate that the drafters of the Charter deliberately avoided use of the term "intervention" in dealing with the rights and duties of States, as opposed to those of the U.N. organization. Be that as it may, the language of the Charter was open to subsequent interpretation.

Note, in particular, the Covenant of the League of Nations (signed June 28, 1919; British Treaty Series 4, 5 (1919)) and the Kellogg-Briand Peace Pact (signed August 28, 1928, entered into force for the United States July 24, 1929; Treaty Series 796, 46 Stat. 2343, 2 Bevans 732). Article 18 had its roots both in the Monroe Doctrine, and in U.S. activities in the hemisphere in the early 1900's. The Monroe Doctrine 3 was an attempt on the part of the United States to restrict intervention in the hemisphere by states outside the hemisphere. In 1904, however, with the addition of the Roosevelt Corollary, inter: vention by this country was unilaterally justified in cases of "chronic wrong-doing or an impotence which results in the general loosening of the ties of civilized society.”. It was felt that the development of such a state of affairs, absent U.S. action, would invite intervention by extrahemispheric powers and thus undermine the security system established pursuant to the Monroe Doctrine. Nevertheless, in spite of this avowedly defensive rationale, a series of United States interventions in Cuba, the Dominican Republic, Haiti and Nicaragua during the next few decades led to widespread resentment among the Latin American Governments, and a belief that the United States had protected the hemisphere from European intervention only to preserve the areas as its chosen field of economic growth.

2. The Inter-American System.—The principle of non-intervention has been developed most explicitly within the inter-American system. Article 18 of the Charter of the Organization of American States ? provides that:

“No State or group of States has the right to intervene directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements."

This situation led ultimately in 1933 to Franklin Roosevelt's “Good Neighbor” Policy. A major step in the implementation of this policy was the somewhat reluctant support by the United States of the Montevideo Convention on the Rights and Duties of States.5 Article 8 of that Convention declares that “no state has the right to intervene in the internal or external affairs of another."

The above-mentioned provision was the first formal treaty commitment by the United States to a broad principle of non-intervention. The negotiating history of this provision is not helpful in defining its limits. However, the United States made a reservation to the Montevideo Convention which bears directly on the principle. In this reservation, the United States noted, inter alia, its support of the “general principle of non-intervention” and its regret that during the conference which drafted the Convention there was not time “to prepare interpretations and definitions of these fundamental terms that are embraced in the report.” The reservation went on to tie United States actions to the policies being pursued by the Roosevelt Administration rather than to the specific terms of the Convention per se..

2 Charter of the Organization of American States (signed April 30, 1948, entered into force for the United States December 13, 1951, subject to a reservation; 2 UST 2394, TIAS 2361, 119 UNTS 3).

3 The Monroe Doctrine is discussed in chapter XII of Bemis, “A Diplomatic History of the United States” (1950, 3rd ed.) pp. 196-211.

* The text of this Corollary read as follows:

“Chronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society, may in America, as elsewhere, ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, however reluctantly, in flagrant cases of such wrongdoing or impotence, to the exercise of an international police power." (Chayes, Ehrlich & Lowenfeld II, "International Legal Process" 898 (1969)).

In presenting to the Senate the Dominican-United States Agreement of 1905, regarding United States supervision of customs collections in the Dominican Republic in order to satisfy accrued debts to various European bondholders, President Roosevelt further explained the nature of the new Doctrine:

“It has for some time been obvious that those who profit by the Monroe Doctrine must accept certain responsibilities along with the rights which it confers; and that the same statement applies to those who uphold the Doctrine. It cannot be too often and too emphatically asserted that the United States has not the slightest desire for territorial aggrandizement at the expense of its southern neighbors, and will not treat the Monroe Doctrine as a excuse for such aggrandizement on its part. The justification for the United States taking this burden and incurring this responsibility is to be found in the fact that it is incompatible with international equity for the United States to refuse to allow other powers to take the only means at their disposal of satisfying the claims of their creditors and yet to refuse, itself, to take any such steps. " (Emphasis supplied) (Bemis, op. cit. 528)

5 Convention on the Rights and Duties of States (signed December 26, 1933, entered into force for the United States December 26, 1934, subject to a reservation; Treaty Series 881, 49 Stat. 3097, 3 Bevans 145).

63 Bevans 149-150.

8

Although there were various inter-American resolutions denouncing Nazi subversion in the hemisphere, no other inter-American treaty commitment respecting the principle of non-intervention was entered into by the United States until it became party to the OAS Charter in 1951. In participating in the drafting of the Charter, the United States had accepted, apparently again with some reluctance, the somewhat broader formulation of the principle of non-intervention now found in Article 18. In the analysis which accompanied the President's transmittal of the OAS Charter to the Senate, it was recognized that the language employed went beyond the terms of the Montevideo Convention in two respects: It referred to action by a group of states as well as by one state, and included an additional sentence referring to interference or threats against the state. The additional language was explained as follows:

*This addition, it was pointed out by its proponents, had a universal significance and was a reaction to fear of types of indirect aggression such as those to which certain Eastern European countries have been subjected.” 8

It appears also that the principal concern of the drafters was to make clear that the non-intervention principle should not be considered a bar to collective action under the Rio Treaty or U. N. Charter. Nevertheless, the Executive Branch omitted reference to this Article in a list of “new obligations” incurred under the Charter, submitted at the request of the Senate.'

The history of the principal of non-intervention as embodied in the OAS Charter suggests (a) that the United States recognized that it has accepted a somewhat more broadly stated commitment to avoiding such activity than had heretofore been accepted, although the basic obligation remained the same, (b) that the new language was designed to deal with the serious types of intervention which were taking place in Eastern Europe at the time the drafters were meeting, and (c) that the impetus for the principle in the Charter and the Montevideo Convention was at least in part the overt military interventions of the United States during the first quarter of the 20th Century. Thus, what is now Article 18 was designed to encompass both military intervention and less direct forms.

Notwithstanding this background, the precise scope of Article 18-beyond its applicability to military interventions—is by no means clear. If applied literally, absurd consequences would follow. For example, any action or failure to act by the United States could be argued to come within the prohibition, as most such acts by a great power have an important impact on many countries in this hemisphere. Thus, a decision by the United States to increase or decrease bilateral assistance to a specific country, to send a diplomatic note respecting a particular bilateral problem, to restrict or encourage the export of a U.S. product, or to support the position of one hemispheric government at the expense of another, might be attacked as contrary to the language of Article 18. Such an interpretation is not, however, supported by the negotiating history, as described above. Only the practice of states and the subsequent further development of the law can give it meaning.

3. Diplomatic Relations-Vienna Convention. - In 1961, many States, including the United States, signed the Vienna Convention on Diplomatic Relations 10 which provides, in Article 41, that all persons enjoying diplomatic privileges and immunities “have a duty not to interfere in the internal affairs” of the host State. However, that is not the same thing as a rule prohibiting a State from engaging in interven

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? (a) In response to both the establishment by the Nazis of Fifth Columns in Latin American countries which engaged in fomenting elements of discontent that in turn were used indirectly to coerce local governments, and German propaganda, the Eighth International Conference of American States, meeting at Lima in 1938, adopted a resolution reciting that "aliens residing in an American State are subject to domestic jurisdiction and any official action, therefore, on the part of governments of the countries of which such aliens are nationals, tending to interfere with the internal affairs of the country in order to regulate the status or activities of those aliens, is incompatible with the sovereignty of such state;

(b) With regard to the German Government's use of its embassies and consulates in foreign countries to subsidize the local press and organize local support for policies friendly to Germany, the Second Meeting of Foreign Ministers meeting at Havana in 1940 referred in Resolution II to the adoption at Havana in 1928 of the Convention on Diplomatic Officers establishing the principle, among others, that “foreign diplomatic officers shall not participate in the domestic or foreign politics of the state in which they exercise their functions." This Resolution further urged the American Governments “to prevent, within the provisions of international law, political activities of foreign diplomatic or consular agents, within the territory to which they are accredited, which may endanger the peace and the democratic tradition of America."

8 Message from the President transmitting the OAS Charter to the Senate, January 13, 1949; printed in Senate, “Executive A," 81st Congress, 1st Session, at 49.

• Committee on Foreign Relations, Report on the OAS Charter, Senate Executive Report No. 15, August 24, 1950, 81st Congress, 2nd Session, at 11.

10 Vienna Convention on Diplomatic Relations (signed April 18, 1961, entered into force for the United States December 13, 1972; 23 UST 3227, TIAS 7502, 400 UNTS 95.

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