The Debate | Opinion

How the Philippine Government Gets the Concept of ‘Intervention’ Wrong

Yes, international law proscribes interference in domestic affairs. But the human rights criticisms of the Duterte administration don’t rise to that level.

By Gemmo Fernandez for
How the Philippine Government Gets the Concept of ‘Intervention’ Wrong
Credit: Flickr/ ken wilson lee

The phrase “this is an intervention in the domestic affairs of the Philippines” has become all-too-familiar. It is the constant refrain of the Philippine government whenever a state, an international organization, or an expert criticizes its human rights policies.

We have seen this since the early days of Rodrigo Duterte’s presidency, when observations concerning its deadly anti-narcotics push began to pour in. Recall when the government railed, among others, against former U.S. President Barack Obama, UN Special Rapporteur for Extrajudicial Killings Agnes Callamard, the United Nations, and the European Union. Remember the response of the Duterte administration when the Office of the Prosecutor of the International Court of Justice announced that it is opening a Preliminary Examination on the situation in the Philippines and when the UN Human Rights Council adopted a resolution calling for action with regard to the killings and enforced disappearances in the country. Consider the statements of the government pertaining to the recent U.S. Senate resolution calling for a ban and asset freeze on Philippine officials linked to human rights violations. The government’s response has become predictable.

Given the frequency of its use, the question that needs to be answered then is whether there is truth to the government’s claim — that is, whether observations, criticisms, and calls for action with regard to the human rights policies of the Philippine government may be considered an intervention or interference into the Philippines’ domestic affairs. To put it more correctly, the question is whether these actions constitute the kind of intervention that the laws of nations prohibit. The answer submitted is no.

The rule against intervention or interference is a corollary of the principle embodied in Article 2(1) of the U.N. Charter recognizing the sovereign equality of states. As all states are equal; no state can coerce another in any matter that is within its rights to do or not to do. The resolutions of the U.N. General Assembly have affirmed this principle. For instance, the 1970 Friendly Relations Declaration says that “no state may use or encourage the use of economic, political or any other type of measures to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.” The 1965 Declaration on the Inadmissibility of Intervention and the 1981 Declaration on the Inadmissibility of Intervention and Interference contain similar language.

The rulings of the International Court of Justice are equally telling. In its 1949 decision on the Corfu Channel Case between Albania and the United Kingdom, the Court stated that intervention with the use of force, having given rise to the most serious abuses, has no place in international law.

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Similarly, in the 1986 judgement in the Military and Paramilitary Activities Case involving Nicaragua and the United States, the ICJ ruled that the principle of nonintervention gives each sovereign state the right to conduct its own affairs without outside interference. It went on to state that the principle forbids all states to intervene, directly or indirectly, in the internal or external affairs of other states. This include matters in which states, by virtue of sovereignty, are allowed to decide freely, such as “the choice of a political, economic, social and cultural system, and the formulation of foreign policy.” Accordingly, “intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.” More recently, the Court stated in its 2005 ruling in the Armed Activities Case between the Democratic Republic of Congo and Uganda that it is prohibited “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another state.”

The aforementioned declarations and rulings notwithstanding, “what constitutes an ‘intervention’ is nowhere set out clearly,” as Maziar Jamnejad and Michael Wood put it. Interventions by means of force appear to readily fall squarely within the prohibition. On the other side of the scale, criticisms of government policies, which governments like that of Philippines often rail against, appear to be allowed. In the middle lies a range of “non-forcible acts, such as unilateral sanctions” imposed to “persuade or force a state better to comply with international human rights standards.”

Nevertheless, from these declarations and rulings, two observations may be derived. First, is that there must be an element of coercion for an action to rise to the level of intervention. Second, the intervention or interference must be made in a domain reserved for states or “matters in which each State is permitted, by the principle of State sovereignty, to decide freely.”

Thus, not every kind of intervention or interference is wrongful and therefore, prohibited. As one of the most prominent international law experts, Lassa Oppenheim stated, “the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question.” The act need not be accompanied by force, as the Court stated in the Armed Activities Case. Nevertheless, as observed by Jamnejad and Wood, “only acts of a certain magnitude are likely to qualify as ‘coercive.’” After all, “coercion also goes to the core of the mischief that the non-intervention principle seeks to address.”

Moreover, the act must pertain to the domestic affairs of states. This reserved domain, as another eminent international law jurist, Hersch Lauterpacht explains, relates to matters that are essentially within the domestic jurisdiction of the state and are unregulated by international law or incapable of such regulation. Consequently, if international law regulates a given subject matter, then it cannot be considered to be solely within the reserved domain. It becomes a subject of which the international community of states is concerned and may involve itself.

This means that none of actions previously considered by the Philippine government as “intervention” or “interference” amount to the level that international law forbids. Surely, none of these measures have been so coercive as to deprive the Philippines of any choice. The fact that these measures have been readily dismissed by the Philippine government proves this point. Moreover, these actions by external actors, contrary to the claim of the Philippine government, are not confined to matters solely within the domestic affairs of the Philippines. Recall that these concern the compliance of the Philippines’ with its international human rights law obligations. As Rosalyn Higgins, renowned international law expert and former president of the International Court of Justice notes, the claim that “human rights questions cannot be essentially within the domestic jurisdiction seems justified.” To begin with, the subject is not just a matter of domestic regulation but also of international law. Second, by acceding to human rights treaties, states, like the Philippines, have undertaken to comply with the standards set forth in these agreements and to allow scrutiny of their efforts toward compliance. Finally, being a primary concern of the international law community, these agreements would be rendered meaningless if their provisions were to be considered to be solely within the reserved domain of states that no external actor can monitor or scrutinize.

Thus, the observations, criticisms, and measures by states, international organizations, and experts concerning the human rights policies in the Philippines, contrary to the claims of the government, are not actions that amount to the kind of intervention or interference prohibited by the laws of nations. These acts are, in fact, part and parcel of the Philippines’ membership in a community of states that has shared aims and aspirations. With common objectives, external actors have the right, and in fact duty, to scrutinize another’s acts or omissions with regard to these goals — observations and comments that the country should welcome instead of dismissing.

It is highly doubtful that the government, with its army of experts, is unaware of what amounts to an intervention in the domestic affairs of the Philippines. Nevertheless, the claim, while erroneous, continues to be the standard response of the government whenever there is scrutiny of its human rights policies. Why? No one knows. But when it uses this line, the government acts as if it has invalidated the concerns raised. It continues to implement the criticized policies, and only a few raise further questions.

Gemmo Fernandez is a member of the Philippine bar and a doctoral candidate at the Australian National University College of Law. His current research interest, the subject of his doctoral dissertation, concerns the implementation of communitarian norms in international law.