|The obligation of non-intervention, a norm of customary international law prohibits States from intervening coercively in the internal or external affairs of other States. Prohibited intervention was authoritatively defined by the International Court of Justice in the judgment on the merits in the 1986 case Nicaragua v United States:|
In order for an act, including a cyber operation, to qualify as a prohibited intervention, it must fulfil the following conditions:
A prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.
- The act must bear on those matters in which States may decide freely. The spectrum of such issues is particularly broad and it includes both internal affairs (such as the “choice of a political, economic, social, and cultural system” or the conduct of national elections), and external affairs (“formulation of foreign policy”; “recognition of states and membership of international organisations”)—the so-called domaine réservé of States. The content of the domaine réservé is determined by the scope and nature of the State's international legal obligations.
- The act must be coercive in nature. There is no generally accepted definition of “coercion” in international law. In this respect, two main approaches have emerged in the cyber context:
Under both approaches, however, merely influencing the target State by persuasion or propaganda or causing a nuisance without any particular goal is insufficient to qualify as coercion. The element of coercion also entails the requirement of intent.
- Under the first approach, an act is coercive if it is specifically designed to compel the victim State to change its behaviour with respect to a matter within its domaine reservé. Under this approach, the “key is that the coercive act must have the potential for compelling the target State to engage in an action that it would otherwise not take (or refrain from taking an action it would otherwise take)”.
- Under the second approach giving meaning to “coercion”, it is sufficient for an act to effectively deprive the target State of its ability to control or govern matters within its domaine reservé. This latter approach distinguishes itself from the former by accepting that mere deprivation of the target State’s control over a protected matter, without actually or potentially compelling that State to change its behaviour, may constitute intervention.
- Finally, there has to be a causal nexus between the coercive act and the effect on the internal or external affairs of the target State.