Trampling Sovereignty: Donroe Doctrine And The Paradoxes Of International Law

The recent military actions conducted by the United States to arrest Venezuelan President Nicolás Maduro and his wife on charges of narco-terrorism, apart from exhibiting the shifting dynamics between economic and territorial imperialism, broach certain crucial questions for international law. It is far from obfuscating that harping on any rule-based international order, democratisation, and human rights is one thing, and actually practising them is quite another. Yet, the United States is a living embodiment where these contradictions paradoxically co-exist.

The political posturing of US President Donald Trump—by threatening the administrations of Mexico, Colombia, Cuba, and Denmark (to annex Greenland)—has been characterised by some commentators as the “Donroe Doctrine”. The 1823 Monroe Doctrine, now rebranded as Donroe, which gives primacy to American hegemony in the Western Hemisphere, carries profound implications for the principles of international law, which view nation-states as sovereign equals and prohibit the use of force. It also reveals the paradoxes that permeate the structure of the international law enforcement mechanism.

Customary International Law And Constrianing Acts Of Authority

The system of international law is a product of the emanation of the free will of nation-states. In other words, a State is free to join this system or remain outside its ambit. It is the exercise of this free will to join (or not to join) the international order that creates, and acts as, a foundational pillar for the existence of the system of international law. Therefore, international law views States as sovereign equals irrespective of their military prowess. Further, incorporating this principle under Article 2 of the United Nations Charter has rendered it an integral part of codified international law, binding on all member nation-states, including the United States. Accordingly, the arrest of Maduro from Venezuelan soil undermines the concepts of sovereign equality and the prohibition on the use of force. It further violates the sacrosanct tenets of customary international law. In Indian constitutional parlance, it can be equated to the “basic structure” doctrine.

Customary International Law (CIL) is that uncodified body of law established through the perpetual conduct of sovereign entities among themselves. Not all international law is written entirely in ink. CIL is recognised in the adjudication of disputes by the Statute of the International Court of Justice under Article 38(1) as “international custom, as evidence of a general practice accepted as law”.

In Nicaragua v. United States (1986), the International Court of Justice (ICJ) made it clear that CIL binds every country, regardless of what treaties they have signed or withdrawn from. One of the paramount features of CIL is immunity ratione personae (personal immunity) of heads of States for acts done in the exercises of sovereign functions. Further, the ICJ, in a landmark ruling in Democratic Republic of the Congo (DRC) v. Belgium (2002), held that the issuance of an arrest warrant against a sitting Foreign Minister of another country—who, along with the Head of State and Head of Government, enjoys absolute immunity while in office—amounts to a breach of CIL.

Subsequently, the ICJ cemented the aforesaid principle in Djibouti v. France (2008) and entrenched the “constraining acts of authority” test. While adjudicating whether a French domestic court can send a witness summon to the President of Djibouti over alleged involvement in the murder of a French Magistrate who was working as a technical advisor in Djibouti's Ministry of Justice, the ICJ, interpreting customary international law under 38 of ICJ Statute, held that for an act of a country to qualify as a constraining act for a foreign official must be coercive in nature like arrest or summons with penalty. Absent such element of coerciveness in the present case, the summon to the President does not constitutes any violation of international law, as it was merely procedural.

Further, in the landmark ruling of Germany v. Italy (2012), the ICJ, while interdicting Italy upheld that Germany cannot be prosecuted in domestic courts as it offended sovereign equality and immunity.

Crucially, it is important to underscore that the military action undertaken by the United States grossly undermines the preambular goal enshrined in the UN Charter: “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. Needless to say, the concepts of sovereign equality and the prohibition on the use of force have now acquired a new and troubling pedestal of meretriciousness.

The International Criminal Court And Paradoxes Of International Law

Nonetheless, a reasonable question may arise regarding the role played by the International Criminal Court (ICC) vis-à-vis the personal immunity of heads of State. If the ICC can issue a warrant to arrest a head of State, then the principle of personal immunity derived from customary international law appears to be futile. At the forefront of this quagmire are two Articles—27 and 98 of the Rome Statute.

Article 27 incorporates the idea of a vertical relationship between the ICC and member States. It means that the ICC has the jurisdictional competence to try and punish any foreign official, including heads of State, in a complete departure from customary international law. However, Article 98 embeds a fundamentally different principle, which precludes the requested State from acting “inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”.

Article 98 is fashioned along the lines of a horizontal relationship among sovereign States and provides an exception to the rigours of Article 27. Herein, the reference to a “third State” has a similar connotation as under Article 2(1)(h) of the Vienna Convention on the Law of Treaties, designating a State that is not a party to a given treaty. Therefore, the jurisdiction of the ICC is absolutely ousted when a State is a non-party to the Rome Statute. Neither can a member State be encouraged by the ICC to disregard its international law obligations.

It is evident that treaty law under Article 27 and customary law under Article 98 of the Rome Statute, being paradoxical in nature, are at loggerheads. This is precisely the reason why confusion still persists over the arrest of heads of State despite arrest warrants issued by the ICC. Exploiting this legal chasm, Mongolia was able to defy the ICC mandate to arrest President Putin for alleged crimes committed in Ukraine (a Rome Statute member).

The ICC, in the case of President Omar al- Bashir (2019), made it abundantly clear that 'when the exercise of jurisdiction by the Court entails the prosecution of a Head of State of a non-State Party, the question of personal immunities might validly arise. The solution provided for in the Statute to resolve such a conflict is found in article 98(1) of the Statute'. This establishes that Article 98 (personal immunity) takes precedence over Article 27 based on treaty law. This is also in sync with Article 34 of the Vienna Convention on the Law of Treaties, which states that the Statute cannot impose obligations on third States without their consent.

Undoubtedly, the penchant of the United States for performing acts of aggression and institutionalising them through doctrines like the Donroe Doctrine reveals its abhorrence for international law. A doctrine articulated ostensibly to discourage European imperialism has been effectively distorted to legitimise American imperialism. The fact that the 1823 Monroe Doctrine was a product of European expansion towards the Americas—much like NATO expansion towards Russia—is ironic in itself. It is important to reflect that such doctrines were adopted when the world was a different place. Multilateral institutions based on global governance architecture were far from reality. However, even if the conditions of 1823 do not exist today, its mindset does. This rings true with George Orwell's words: Political language is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.

The Donroe Doctrine, which endeavours to secure American hegemony in the Western Hemisphere for its insatiable appetite for resources and geopolitical concerns, is emblematic of American impunity and the dampening of a rule-based international order. If a country professes a doctrine that is in manifest contravention of international law and the UN Charter, it lends credence to the rapidly waning utility of multilateral institutions like the United Nations Organisation and forums such as the International Criminal Court.

Pertinently, it is perceptible from the foregoing discussion that arresting Maduro, a sitting head of State, and trying him in a US domestic court is a clear transgression of customary international law embedded in Article 98 of the Rome Statute, Article 38 of the ICJ Statute, and established legal precedents as it amounts of constraining act of authority of a foreign official coupled with a coercive measure. Further, such actions violate the principle of sovereign equality and the prohibition on the use of force enshrined in the UN Charter. Allegations, howsoever strong, cannot undermine immunity ratione personae granted to heads of State under any condition; such acts would be antithetical to international law.

It is often the case that commitment to international law is eclipsed by erratic changes in regimes. In this vein, the UN Charter and international law enforcement mechanisms require a serious and moral relook to prevent wars and the trampling of the universal, sovereign rights of States. Until then, it is axiomatic that the present system has become precariously otiose.

The Author Is An Advocate Practicing At High Courts of Delhi and Madhya Pradesh

Views Are Personal