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Control of Foreign Intervention in Internal Conflict, 9 VA DATE DOWNLOADED: Thu Sep 30 14:52:13 2021 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. John Norton Moore, The Control of Foreign Intervention in Internal Conflict, 9 VA. J. INT'l L. 205 (1969). ALWD 6th ed. Moore, J. ., The control of foreign intervention in internal conflict, 9(2) Va. J. Int'l L. 205 (1969). APA 7th ed. Moore, J. (1969). The control of foreign intervention in internal conflict. Virginia Journal of International Law, 9(2), 205-342. Chicago 17th ed. John Norton Moore, "The Control of Foreign Intervention in Internal Conflict," Virginia Journal of International Law 9, no. 2 (May 1969): 205-342 McGill Guide 9th ed. John Norton Moore, "The Control of Foreign Intervention in Internal Conflict" (1969) 9:2 Va J Int'l L 205. AGLC 4th ed. John Norton Moore, 'The Control of Foreign Intervention in Internal Conflict' (1969) 9(2) Virginia Journal of International Law 205. MLA 8th ed. Moore, John Norton. "The Control of Foreign Intervention in Internal Conflict." Virginia Journal of International Law, vol. 9, no. 2, May 1969, p. 205-342. HeinOnline. OSCOLA 4th ed. John Norton Moore, 'The Control of Foreign Intervention in Internal Conflict' (1969) 9 Va J Int'l L 205 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information THE VIRGINIA JOURNAL OF INTERNATIONAL LAW VOLUME 9 MAY 1969 NUMBER 2 The Control of Foreign Intervention in Internal Conflict" JOHN NORTON MOORE ** TABLE OF CONTENTS PAGE I. J)ELInITATION OF THE PROBLEM ................ 209 A. INTERVENTION IN INTERNAL CONFLICT AS A MAJOR PUBLIC ORDER CONCERN ....................... .............. 209 B. SOME INTELLECTUAL TRAPS IN THEORIZING ABOUT INTERVENTION ................. • ..... 212 1. TERMINOLOGICAL CONFUSION ......... 212 2. THE CONTEXTUAL FALLACY ................... 217 C. THE OUTLINES OF A POLICY RESPONSIVE APPROACH 219 1. THE PROBLEM FOR STUDY ....... 219 2. THE METHODOLOGY ............... .. 221 II. THE PROCESSES OF INTRASTATE CHANGE, EXTERNAL INTER- FERENCE, AND DECISION AS CONTEXT 223 A. THE PROCESS OF INTRASTATE CHANGE .... .. 223 B. THE PROCESS OF EXTERNAL INTERFERENCE: SOME SYS- TEMIC FACTORS ............ .. 230 C. THE ORGANIZATION OF THE INTERNATIONAL LEGAL PROCESS TO RESPOND TO CLAIMS OF INTERVENTION 240 III. THE BASIC COMMUNITY POLICIES AT STAKE IN INTERVEN- TION .................. ... ..... 246 A. SELF-DETERMINATION 247 1. ITS REFERENT ........ 247 2. THE SCOPE OF PEOPLES TO WHOM IT Is APPLIED: THE PROBLEM OF DEFINING SELF 248 3. THE PROBLEM OF DETERMINATION 249 * I am indebted to Hardy C. Dillard, Rosalyn Higgins, Myres S. McDougal and W. Michael Reisman for their many helpful suggestions on an earlier draft of this essay. My work on this essay was also materially assisted by a summer research grant from the University of Virginia Law School Foundation. Re- sponsi'bility for the *iews expressed, however, is my own. ** Professor of Law and Director of the Graduate Program, The University of Virginia School of Law. 206 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 9:2 PAGE B. MINIMUM HUMAN RIGHTS ...................... 251 C. MINIMUM PUBLIC ORDER ......... ............ .... ........ 252 D. PROCESS CRITERIA FOR EFFECTIVE NON-INTERVENTION STAN DARDS .... ... ..................... .. .. .. ........... 253 IV. INTERVENTION IN INTERNAL CONFLICT: CLAIMS PRESENTING COMMON POLICIES AND CONDITIONING FACTORS ...... 254 TYPE I SITUATIONS: CLAIMS NOT RELATING TO AUTHOR- ITY STRUCTURES .............. ................. .. ..... 259 A. CLAIMS TO PROVIDE MILITARY ASSISTANCE TO A WIDELY RECOGNIZED GOVERNMENT IN THE AB- SENCE OF INTERNAL DISORDERS .............................. 259 B. CLAIMS TO ASSIST A WIDELY RECOGNIZED GOVERNMENT IN CONTROLLING NON-AUTHORITY-ORIENTED INTER- NAL DISORDERS ........................................ 260 C. CLAIMS TO USE THE MILITARY INSTRUMENT IN THE TERRITORY OF ANOTHER STATE FOR THE PROTECTION OF HUMAN RIGHTS ......................................... 261 TYPE II SITUATIONS: CLAIMS RELATING TO ANTI-COLO- NIAL WARS . ................................. ... 264 A. CLAIMS TO ASSIST A COLONIAL POWER IN AN ANTI- COLONIAL W AR ................................................... 266 B. CLAIMS TO ASSIST THE BREAK-AWAY FORCES IN AN ANTI-COLONIAL W AR ............................................... 266 C. CLAIMS BY AN ADMINISTERING AUTHORITY TO USE THE MILITARY INSTRUMENT TO PREVENT BREAK-AWAY 268 TYPE III SITUATIONS: CLAIMS RELATING TO WARS OF SE- CESSION .................. ....... ...... ............... 268 A. CLAIMS TO ASSIST THE FEDERAL FORCES IN A WAR OF SECESSION ......................................... .... 269 B. CLAIMS TO ASSIST THE SECESSIONIST FORCES IN A WAR OF SECESSION .. ........................................................ 270 C. CLAIMS THAT EXTERNAL ASSISTANCE TO AN OPPOSING FACTION JUSTIFIES ASSISTANCE ...................... 270 TYPE IV SITUATIONS: CLAIMS RELATING TO INDIGENOUS CONFLICT FOR THE CONTROL OF INTERNAL AUTHORITY STRUCTURES ........................ .......... 271 A. CLAIMS TO ASSIST A WIDELY RECOGNIZED GOVERN- MENT IN A STRUGGLE FOR CONTROL OF INTERNAL AUTHORITY STRUCTURES .............................. 272 1969] THE CONTROL OF FOREIGN INTERVENTION PAGE B. CLAIMSO'I( ASSIST AN INSURGENT FACTION IN A STRUG- GLF9lFbRCONTROL OF INTERNAL AUTHORITY STRUC- TURES ...................... 276 C. CLAIMS TO ASSIST ANY FACTION IN A STRUGGLE FOR CONTROL OF INTERNAL AUTHORITY STRUCTURES WHERE A WIDELY RECOGNIZED GOVERNMENT CAN- NOT BE DISTINGUISHED 277 D. CLAIMS THAT EXTERNAL ASSISTANCE PROVIDED TO AN OPPOSING FACTION JUSTIFIES ASSISTANCE 279 E. CLAIMS TO USE THE MILITARY INSTRUMENT IN THE TERRITORY OF ANOTHER STATE FOR THE PURPOSE OF RESTORING ORDERLY PROCESSES OF SELF-DETER- MINATION IN CONFLICTS OVER INTERNAL AUTHOR- ITY STRUCTURES INVOLVING A SUDDEN BREAKDOwN OF ORDER......... .. 280 F. CLAIMS TO USE THE MILITARY INSTRUMENT AGAINST THE TERRITORY OF A STATE PROVIDING ASSISTANCE TO AN OPPOSING FACTION 282 TYPE V SITUATIONS: CLAIMS RELATING TO EXTERNAL INI- TIATION OF THE USE OF FORCE FOR THE IMPOSITION OF INTERNAL AUTHORITY STRUCTURES 284 A. COLD-WAR CLAIMS FOR THE USE OF THE MILITARY IN- STRUMENT IN THE TERRITORY OF ANOTHER STATE FOR THE PURPOSE OF MAINTAINING OR IMPOSING "DEMOCRATIC" OR "SOCIALIST" REGIMES 286 B. CLAIMS FOR THE USE OF THE MILITARY INSTRUMENT IN THE TERRITORY OF ANOTHER STATE FOR THE PUR- POSE OF ALTERING INTERNAL AUTHORITY STRUC- TURES WHICH DENY SELF-DETERMINATION ON A RACIAL BASIS 287 C. CLAIMS TO ASSIST EXILE OR REFUGEE GROUPS FOR THE PURPOSE OF RESTORING SELF-DETERMINATION 290 TYPE VI SITUATIONS: CLAIMS RELATING TO COLD-WAR DIviED NATION CONFLICTS 291 A. CLAIMS BY ONE HALF OF A COLD-WAR DIVIDED NATION TO TAKE OVER THE AUTHORITY STRUCTURE OF THE OTHER HALF OR TO ASSIST AN INSURGENT FACTION IN A STRUGGLE FOR CONTROL OF INTERNAL AU- THORITY STRUCTURES 292 208 VIRGINIA JOURNAL OF INTERNATIONAL LAw [Vol. 9:2 PAGE B. CLAIMS TO ASSIST THE WIDELY RECOGNIZED GOVERN- MENT OF A COLD-WAR DIVIDED NATION TO RESIST TAKEOVER OF ITS AUTHORITY STRUCTURES BY THE OTHER HALF OF THE DIVIDED NATION OR TO COUN- TER ASSISTANCE PROVIDED TO AN INSURGENT FAC- TION BY THE OTHER HALF . ............. ................. 292 C. CLAIMS TO USE THE MILITARY INSTRUMENT AGAINST THE TERRITORY OF ONE HALF OF A COLD-WAR DI- VIDED NATION WHICH IS PROVIDING ASSISTANCE TO AN INSURGENT FACTION IN THE OTHER HALF ....... 293 V. INSTITUTIONAL WEAKNESSES OF THE INTERNATIONAL SYS- TEM AFFECTING THE CONTROL OF INTERVENTION AND SOME RECOMMENDATIONS FOR IMPROVEMENT 294 A. PROBLEMS AND PROSPECTS ............................ 294 B. RECOMMENDATIONS FOR IMPROVEMENT IN THE INTER- NATIONAL CONSTITUTIVE PROCESS ........................ 296 1. THE GENERAL ASSEMBLY AS AN AUTHORIZING A GEN CY ....................... ..................................... 296 2. A PROPOSAL FOR INTERNATIONAL REPORTING OF M ILITARY ASSISTANCE .......................................... 300 3. FACT-FINDING IN THE INTERVENTION CONTEXT: SUGGESTIONS FOR INTERNATIONAL OBSERVATION AND D ISCLOSURE . ........................... ....... .... 304 4. PROSPECTS IN SEARCH OF DEVELOPMENT . 308 C. RECOMMENDATIONS FOR IMPROVEMENT IN THE NA- TIONAL CONSTITUTIVE PROCESS: THE SYSTEMATIC INCLUSION OF INTERNATIONAL LAW AS AN INPUT IN FOREIGN POLICY PLANNING ..... 310 VI. TOWARD POLICY RESPONSIVE CONTROL: AN EVALUATION OF PAST STANDARDS AND RECENT PROPOSALS AND A SUMMARY OF TENTATIVE RECOMMENDATIONS 315 A. EVALUATION OF PAST STANDARDS AND RECENT PRO- POSALS ..... ... .. .... 315 1. THE TRADITIONAL STANDARD 315 2. THE NEUTRAL NON-INTERVENTION STANDARD 316 3. A PROHIBITION OF PARTICIPATION IN TACTICAL OP- ERATIONS . 320 19691 THE CONTROL OF FOREIGN INTERVENTION PAGE 4. A PROHIBITION ON UNILATERAL INTERVENTION . 327 5. MODERNIZATION AS A ToucHsToNE 331 B. SummARY OF TENTATIVE RECOMMENDATIONS 332 1. RECOMMENDATIONS FOR THE APPRAISAL OF INTER- VENTION ...................... 333 2. RECOMMENDATIONS FOR INSTITUTIONAL IMPROVE- MENT .....................339 I. DELIMITATION OF THE PROBLEM A. INTERVENTION IN INTERNAL CONFLICT AS A MAJOR PUBLIC ORDER CONCERN The nuclear arms race, the economic gap between the have and lave not nations and the weakness of international organization have long been recognized as major public order concerns. During -the last few years it *has become increasingly evident that
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