Prohibition of intervention: Difference between revisions

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|[[File:Prohibition of intervention.svg|alt=|left|frameless|200x200px]]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. [[Prohibition of intervention|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'':<blockquote>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.<ref>''Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)'' (Merits) [1986] ICJ Rep 14, para. 205.</ref></blockquote>In order for an act, including a cyber operation, to qualify as a prohibited intervention, it must fulfil the following conditions:
|[[File:Prohibition of intervention.svg|alt=|left|frameless|200x200px]]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. [[Prohibition of intervention|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'':<blockquote>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.<ref>''Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)'' (Merits) [1986] ICJ Rep 14, para. 205.</ref></blockquote>In order for an act, including a cyber operation, to qualify as a prohibited intervention, it must fulfil the following conditions:


# 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 “choice of a political, economic, social, and cultural system”<ref name=":PI0">''[https://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)]'' (Merits) [1986] ICJ Rep 14, para 205.</ref>), and '''external affairs''' (“formulation of foreign policy”<ref name=":PI0" />)—the so-called ''domaine réservé'' of States.<ref>See, for example, Katja Ziegler, [http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1398 “Domaine Réservé”], in Rudiger Wolfrum (ed), ''Max Planck Encyclopedia of Public International Law'' (OUP 2008) (updated April 2013) (defining the ''domaine réservé'' as those “areas where States are free from international obligations and regulation”).</ref> The content of the ''domaine réservé'' is determined by the scope and nature of the state's international legal obligations. The Netherlands provide two examples of matters that are reserved to the exclusive authority of a target State: "National elections are an example of internal affairs. The recognition of states and membership of international organisations are examples of external affairs."<ref>Dutch Minister of Foreign Affairs, ‘[https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace Letter to the President of the House of Representatives on the International Legal Order in Cyberspace]’ (5 July 2019), 3.</ref>
# 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 “choice of a political, economic, social, and cultural system”<ref name=":PI0">''[https://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)]'' (Merits) [1986] ICJ Rep 14, para 205.</ref> or the conduct of national elections<ref name=":PI1">Dutch Minister of Foreign Affairs, ‘[https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace]’ (5 July 2019), 3.</ref>), and '''external affairs''' (“formulation of foreign policy”;<ref name=":PI0" /> “recognition of states and membership of international organisations”<ref name=":PI1" />)—the so-called ''domaine réservé'' of States.<ref>See, for example, Katja Ziegler, [http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1398 “Domaine Réservé”], in Rudiger Wolfrum (ed), ''Max Planck Encyclopedia of Public International Law'' (OUP 2008) (updated April 2013) (defining the ''domaine réservé'' as those “areas where States are free from international obligations and regulation”).</ref> 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. However, in the cyber context, the Tallinn Manual 2.0 suggests that “the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State”.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, para 19.</ref> 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)”.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, para 21; Dutch Minister of Foreign Affairs, ‘[https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace Letter to the President of the House of Representatives on the International Legal Order in Cyberspace]’ (5 July 2019), 3.</ref> This approach distinguishes coercing or compelling the target State from merely influencing it by persuasion or propaganda and from causing nuisance without any particular goal.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, para 21.</ref> The element of coercion also entails the requirement of intent.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, paras 19, 27.</ref> The Netherlands argues that "the use of force will always meet the definition of coercion" and that use of force is thus "always a form of intervention"<ref>Dutch Minister of Foreign Affairs, ‘[https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace Letter to the President of the House of Representatives on the International Legal Order in Cyberspace]’ (5 July 2019), 3</ref>.
# The act must be '''coercive in nature'''. There is no generally accepted definition of “coercion” in international law. However, in the cyber context, the Tallinn Manual 2.0 suggests that “the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State”.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, para 19.</ref> 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)”.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, para 21; see also Dutch Minister of Foreign Affairs, ‘[https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace]’ (5 July 2019), 3.</ref> This approach distinguishes coercing or compelling the target State from merely influencing it by persuasion or propaganda and from causing nuisance without any particular goal.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, para 21.</ref> The element of coercion also entails the requirement of intent.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, paras 19, 27.</ref>
# 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.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, para 24 (The exact nature of the causal nexus was not agreed on).</ref>
# 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.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 66, para 24 (The exact nature of the causal nexus was not agreed on).</ref>
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Revision as of 14:30, 3 April 2020

Definition

Prohibition of intervention
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:

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.[1]

In order for an act, including a cyber operation, to qualify as a prohibited intervention, it must fulfil the following conditions:
  1. 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 “choice of a political, economic, social, and cultural system”[2] or the conduct of national elections[3]), and external affairs (“formulation of foreign policy”;[2] “recognition of states and membership of international organisations”[3])—the so-called domaine réservé of States.[4] The content of the domaine réservé is determined by the scope and nature of the state's international legal obligations.
  2. The act must be coercive in nature. There is no generally accepted definition of “coercion” in international law. However, in the cyber context, the Tallinn Manual 2.0 suggests that “the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State”.[5] 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)”.[6] This approach distinguishes coercing or compelling the target State from merely influencing it by persuasion or propaganda and from causing nuisance without any particular goal.[7] The element of coercion also entails the requirement of intent.[8]
  3. 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.[9]

Appendixes

See also

Notes and references

  1. ↑ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para. 205.
  2. ↑ 2.0 2.1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 205.
  3. ↑ 3.0 3.1 Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3.
  4. ↑ See, for example, Katja Ziegler, “Domaine Réservé”, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated April 2013) (defining the domaine réservé as those “areas where States are free from international obligations and regulation”).
  5. ↑ Tallinn Manual 2.0, commentary to rule 66, para 19.
  6. ↑ Tallinn Manual 2.0, commentary to rule 66, para 21; see also Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3.
  7. ↑ Tallinn Manual 2.0, commentary to rule 66, para 21.
  8. ↑ Tallinn Manual 2.0, commentary to rule 66, paras 19, 27.
  9. ↑ Tallinn Manual 2.0, commentary to rule 66, para 24 (The exact nature of the causal nexus was not agreed on).

Bibliography and further reading

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