The obligation of non-intervention established by customary international law prohibits States from intervening 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 cyber-related act, to qualify as prohibited intervention, it must fulfil the following conditions:
The act must bear on those matters in which States are allowed to decide freely. The spectrum of such issues is particularly broad and it includes both internal affairs, or the so-called domaine réservé of States[2] (such as “choice of a political, economic, social, and cultural system”), and the external affairs (“formulation of foreign policy”);[3]
The act must be coercive in nature. There is no generally accepted definition of “coercion” in international law. However, as per the analysis in the Tallinn Manual 2.0, the “majority of Experts was of the view that the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State”; according to them, 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)”.[4] This is to distinguish coercing, or compelling, the target State from merely influencing it by persuasion or propaganda and from causing nuisance without any particular goal;[5] 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.[6]
Appendixes
See also
Notes and references
↑Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para. 205.
↑See, for example, KS Ziegler, “Domaine Réservé”, in R 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”).
↑ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 205.
↑Tallinn Manual 2.0, commentary to rule 66, para. 19.
↑Tallinn Manual 2.0, commentary to rule 66, para. 21.
↑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
MN Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017)
Etc.
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