Fox: Intervention by Invitation

Gregory H. Fox (Wayne State Univ. - Law) has posted Intervention by Invitation (in The Oxford Handbook on the Use of Force, Marc Weller ed., forthcoming). Here's the abstract:

States have frequently justified interventions in internal armed conflicts by claiming they were invited to assist one of the belligerent parties. In most cases the invitation is said to come from the government. Much less frequently states rely on an invitation from a rebel group fighting against the government. As a general matter, invitations from governments provide a lawful basis for intervention and invitations by rebel groups do not. The ICJ affirmed this dichotomous view of intervention by invitation in its 1986 Nicaragua opinion and has not been contradicted by any leading authority since.

But the Nicaragua formulation is rife with problems. Some are of long-standing. In a situation where rebels control a substantial portion of national territory, can the government still issue an invitation on behalf of the state? The traditional effective control principle is of little help in that situation. Are the two sides then equivalent to two states at war, meaning third parties can give assistance to either? Or must third parties abstain from aiding either side on the theory that neither can legitimately speak for the state?

More recently, the question has arisen whether there should be a qualitative evaluation of the party issuing the invitation. This follows on the rise of democratic legitimacy principles in disputes over recognition of governments. Should an invitation by a government or rebel group be judged, at least in part, by the democratic bona fides of the issuing party? The Security Council’s experiences with invitations in the Haiti, Sierra Leone, Côte D’Ivoire and Malawi suggest that such qualitative determines are entering international law for the first time. But the precedents have important limitations, notably the presence of the Security Council at virtually every stage. Invitations untethered from collective determinations about the merits of the requesting party carry a real danger of rampant unilateralism, especially if they come from rebel forces. This is perhaps the reason the Nicaragua opinion set out a rule devoid of any nuance. AS the Court warned, “it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a state, were also to be allowed at the request of the opposition. This would permit any state to intervene at any moment in the interna1 affairs of another state.”