3.1. Treaties

The non-intervention principle is reflected in treaties – multilateral, regional, and bilateral. Some of the more important are described in section 6 below. Often the principle is stated baldly, without shedding light on its content, and sometimes the treaty provision, although at first glance connected with the principle of non-intervention, may in fact deal with a distinct matter, as is the case with Article 2(7) of the UN Charter (a limitation on the powers of the United Nations) and Article 41 of the 1961 Vienna Convention on Diplomatic Relations (a special rule of conduct for diplomatic agents).

3.2. Customary international law

The determination of the rules of customary international law can be an uncertain process, especially in a world of almost 200 states.

The assessment of customary law prohibitions can be particularly difficult. State practice will consist of inaction rather than action. The result is a greater reliance on what states say about the law. With respect to the principle of non-intervention, a significant part of the opinio juris is to be found in the debates and resolutions of the General Assembly and other bodies, in particular the Friendly Relations Declaration of 1970 and the Helsinki Final Act of 1975.

In reality, a rigid distinction between state practice and opinio juris is often not possible. What counts as state practice will vary depending on the area of international law concerned. While some authors may still argue that one should have regard only to what states actually do under a conviction that what they do is required or permitted by law, a more modern approach (reflected for example in the judgments of the ICJ) is to have regard to what states say, what they do, and what they say about what they do, in so far as this reflects their legal beliefs.Footnote ²¹ In the case of intervention not using force (the primary subject of this article), it is necessary to have regard to all forms of state practice and the actions and reactions of states, in so far as they are available.Footnote ²² But the clearest and most accessible evidence of the views of states in this field has most often taken the form of individual and collective statements in and through the UN General Assembly.

Writing in 1989, Damrosch pointed to ‘a rather serious gap between what a broad view of the nonintervention norm would require and what states actually do’.Footnote ²³ This is perhaps even more the case today. A thorough study of state practice would require a large research project, and would in any event probably be inconclusive. The International Court has relied in large measure on one or two declarations of the General Assembly,Footnote ²⁴ but even when these have been adopted by consensus they do not necessarily reflect the law.Footnote ²⁵ In any event, they are for the most part too general to offer clear answers to specific problems.

The 1957 resolution on Peaceful and Neighbourly Relations among States mentions ‘non-intervention in one another's internal affairs’ as one of the bases for relations between states. This was followed by the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, adopted by 109 votes to none, with one abstention (the United Kingdom). It emerged from the First (Political) Committee of the General Assembly, not the Sixth (Legal) Committee. In Nicaragua, the International Court did not challenge the US assertion that the 1965 Declaration was no more than a statement of political intent.

The 1965 Declaration was championed by Latin American countries and the Soviet bloc. It would therefore be somewhat misleading to attribute the pressure for restatement of the non-intervention principle exclusively to non-aligned countries. Although twenty-six non-aligned states voted for the 1965 Declaration, and therefore provided crucial support in the General Assembly, they were neither the most active supporters nor the initiators of the work.

The Friendly Relations Declaration is the most important of the resolutions.Footnote ²⁶ Adopted by consensus, it is the only resolution to express on its face that it reflects international law.Footnote ²⁷ Its restatement of the non-intervention principle consists of a series of broad statements calculated to mask the divisions that existed among states as to the application of the core principle. The original draft on non-intervention, submitted by Australia, Canada, France, Italy, the United Kingdom, and the United States,Footnote ²⁸ was criticized by non-aligned states as being limited to forcible measures. The Latin Americans sought the wholesale adoption of the language of the 1965 Declaration. Eventually, that language was incorporated with insignificant changes.

The Friendly Relations Declaration deals with non-intervention at length. The preamble includes the following:

The third principle (distinct from the first on the non-use of force) has an unwieldy title: ‘The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter’. The principle reads in full:

This principle, like the others in the Declaration, does not stand alone. In the words of section 2 of the Declaration,

Other instruments adopted by the Assembly have much less legal significance (if any), being controversial and adopted with negative votes. The Charter of Economic Rights and Duties of States, adopted (by a split vote) and solemnly proclaimed by the General Assembly in 1974,Footnote ³¹ is an iconic instrument of the ‘New International Economic Order’. It provided in Chapter I that ‘[e]conomic as well as political and other relations among States shall be governed, inter alia, by the principle of . . . non-intervention.’

The 1976 Declaration on Non-interference was wider than the Friendly Relations Declaration, and had a clearer exception for acts done in pursuance of the right of self-determination. It did not explain any distinction between interference and intervention, although the wording of its paragraphs 1 to 3 hinted that there might be one.

The 1981 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States likewise did not define ‘interference’, but it did attempt to describe the scope of intervention in more detail than had previous resolutions. It embodied a very broad concept of non-interference and cannot be said to reflect customary international law.Footnote ³² It began by stating the basic principle in language not so different from the Friendly Relations Declaration: ‘No State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other States’. But it then went on to assert that this principle ‘comprehends’ no fewer than twenty-three ‘rights’ and ‘duties’. These include, for example, a sweeping condemnation of military alliances, ‘[t]he duty of a State to abstain from any defamatory campaign, vilification or hostile propaganda for the purpose of intervening or interfering in the internal affairs of other States’, and ‘[t]he duty of a State to refrain from the exploitation and distortion of human rights issues as a means of interference in the internal affairs of States, of exerting pressure on other States or creating distrust and disorder within and among States or groups of States’.

Documents similar to the Friendly Relations Declaration have been drawn up outside the UN framework. In particular, the 1975 Helsinki Final Act of the Conference on Security and Co-operation in Europe contains a Declaration, Principle VI of which is on ‘Non-intervention’. The language is similar to the Friendly Relations Declaration. It reads,

3.3. Case law

The International Court considered intervention in Corfu Channel, the first case to come before it. It rejected the United Kingdom's claim to a right to intervene to secure evidence, saying that

Twenty years later, the Court enlarged on the principle of non-intervention in its 1986 Nicaragua judgment:

The Court went on to say that

and that

The Court further considered whether

The Court noted that, in cases where states had acted contrary to the principle of non-intervention, they had ‘not sought to justify their conduct by reference to a new right of intervention or a new exception to the principle of its prohibition’. The Court thus concluded that ‘no such general right of intervention, in support of the opposition within another State, exists in contemporary international law’.Footnote ³⁵

Another twenty years passed, and in DRC v. Uganda the Court noted that in Nicaragua it had ‘made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State”‘. On the evidence, the Court concluded that

The principle of non-intervention has also been recognized by arbitral tribunals and domestic courts.Footnote ³⁷

3.4. Writings

The principle of non-intervention tends to be dealt with briefly in general works on international law.Footnote ³⁸ There have, however, been several writings on the subject over the last fifty years or so. Some have dealt with intervention in general.Footnote ³⁹ Most have looked at the principle in specific contexts such as intervention involving the use of force or Article 2(7) of the United Nations Charter (and corresponding provisions applicable to regional organizations), and these are referred to in the relevant sections below.

5.1. Article 2(4) of the Charter of the United Nations

The focus of the present article is on aspects of the principle of non-intervention not involving the use of force. In this section we deal only briefly, for the sake of completeness, with the law on the use of force.Footnote ⁵¹ The prohibition of the threat or use of force in international relations, set out in Article 2(4) of the Charter and in customary international law, is the most significant aspect of non-intervention, yet nowadays the international law on the use of force is not generally thought of in terms of non-intervention but as a self-standing chapter of international law. On the other hand, threats to use force will often be seen as contravening the principle.Footnote ⁵² Enforcement measures taken or authorized by the UN Security Council under Chapter VII of the Charter do not contravene the prohibition on the use of force or the principle of non-intervention. Much that may be seen as ‘intervention’ in a ‘very interventionist’ world is action authorized by the Security Council under Chapter VII of the Charter. Nor does action in self-defence, or action taken with the consent of the territorial state, contravene the principle.Footnote ⁵³

5.2. Humanitarian intervention

More controversial is so-called ‘humanitarian intervention’.Footnote ⁵⁴ It has sometimes been argued that it is not contrary to international law to use force in order to prevent humanitarian atrocities. In the past such arguments were treated with scepticism;Footnote ⁵⁵ instances of state practice were rare and were justified as self-defence rather than on humanitarian grounds. However, the arguments have been made with greater force since the operations to protect the Kurds in northern Iraq in 1991 and the Shia in the south in 1992, and especially since the Kosovo conflict in 1999.Footnote ⁵⁶ There have been no purported applications of the principle since 1999 and a large number of states rejected the idea in the lead-up to the 2005 World Summit Outcome,Footnote ⁵⁷ so it may be questionable how far the notion has gained traction.Footnote ⁵⁸

The 2005 World Summit Outcome did, however, highlight the notion of ‘responsibility to protect’. This places primary responsibility on the territorial state, but goes on to say that ‘the international community, through the United Nations, also has the responsibility to use appropriate . . . peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations’.Footnote ⁵⁹ And it then foreshadows ‘collective action, in accordance with the Charter, including Chapter VII, should peaceful means be inadequate’. It is clear from this wording, with its repeated references to the Charter, that the General Assembly intended that action should be fully in accordance with the Charter and was not anticipating some new and independent right of intervention.Footnote ⁶⁰

5.3. Support for insurgents or terrorists

There is a distinction between forcible action and non-forcible support for forcible action by non-state actors. Uses of force, or support such as to make the forcible actions of non-state actors attributable to the state,Footnote ⁶¹ are liable to breach Article 2(4). But where non-forcible supportive action is taken, such as providing a territorial base or transferring money or providing manuals, as in Nicaragua,Footnote ⁶² this may still contravene the non-use of force principle.Footnote ⁶³

The Friendly Relations Declaration provides (in the non-use of force principle) that

It goes on to state (in the non-intervention principle) that

The Friendly Relations Declaration thus sets out three rules specifically regulating the conduct of states with regard to insurgent or terrorist groups. The first prohibition is against ‘organizing’ such groups.Footnote ⁶⁵ The second is against encouraging, inciting, or assisting such groups. These forms of action are what we would broadly consider ‘support’ and would cover the conduct in Nicaragua. The third prohibition relates to ‘tolerating’ armed groups and, as well as being specifically mentioned, is implicit in the first paragraph quoted above. This third prohibition goes beyond the other two by making a failure to act illegal where the state is aware that armed groups are using its territory for training or as a base. The third prohibition does not, however, create an obligation on states to search out such groups. It applies where states are actually aware that their territory is being used for this purpose.

These obligations are set out in more detail in the 1981 Declaration, which lists in its Section 2

1. (f) The duty of a State to refrain from the promotion, encouragement or support, direct or indirect, of rebellious or secessionist activities within other States, under any pretext whatsoever, or any action which seeks to disrupt the unity or to undermine or subvert the political order of other States;

2. . . .

3. (g) The duty of a State to prevent on its territory the training, financing and recruitment of mercenaries, or the sending of such mercenaries into the territory of another State and to deny facilities, including financing, for the equipping and transit of mercenaries;

4. . . .

5. (h) The duty of a State to refrain from organizing, training, financing and arming political and ethnic groups on their territories or the territories of other States for the purpose of creating subversion, disorder or unrest in other countries.

6.1. Article 2(7) of the Charter of the United Nations

Article 2(7) of the Charter of the United Nations provides that

Practice under Article 2(7) has evolved over time. Its significance is now considerably reduced.Footnote ⁶⁷

Article 2(7) was not intended to state a general principle of international law. It is part of the law of the United Nations and defines the organization's competence. Action in breach of Article 2(7) is ultra vires the United Nations, but is not necessarily wrongful under general international law. In any event, it is doubtful if a recommendation emanating from the General Assembly could ever be ‘coercive’, and ‘enforcement measures’ by the Security Council are exempt from the prohibition.

6.2. Articles 3 and 19 of the Charter of the Organization of American States

The principles of the OAS are set out in Article 3 of its Charter.Footnote ⁶⁸ They include a right of states to choose their political, economic, and social systems without interference, and a duty to refrain from intervening in the affairs of other states. Chapter IV of the Charter (‘Fundamental Rights and Duties of States’) includes several rights and duties that are part of the non-intervention principle, such as respecting the rights of other states and a right to develop cultural, political, and economic life freely. Article 19 expressly rejects the right to interfere in the affairs of states, even by non-forcible means.

6.3. Title 1 of the Treaty on European Union

The Treaty on European UnionFootnote ⁶⁹ provides a mechanism for the European Union to intervene in the affairs of member states. Article 1a states that it is founded on ‘the values of respect for human dignity, freedom, democracy, equality and the rule of law’. Article 7 states that the Union may determine that the Article 1a principles have been breached, call member states to answer questions, and ultimately suspend rights, including the right to vote in the Council.Footnote ⁷⁰

6.4. Article 4 of the Constitutive Act of the African Union

Article 4 of the Constitutive Act of the African Union of 11 July 2000 (as amended by the Protocol on Amendment of the Constitutive Act of 3 February/11 July 2003) sets out the principles in accordance with which the African Union shall function. They include:

1. (f) prohibition of the use of force or threat to use force among Member States of the Union;

2. (g) non-interference by any Member State in the internal affairs of another;

3. (h) the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity as well as a serious threat to legitimate order to restore peace and stability to the Member State of the Union upon the recommendation of the Peace and Security Council;

4. (j) the right of Member States to request intervention from the Union in order to restore peace and security.

This has to be read with Article 4 of the Protocol relating to the Establishment of the Peace and Security Council of the African Union of 9 July 2002, which provides that ‘non interference by any Member State in the internal affairs of another’ will be a principle of the Union.Footnote ⁷¹

There is no provision corresponding to Article 2(7) of the Charter of the United Nations. On the contrary, while Article 4(g) of the Constitutive Act (as amended) contains a standard non-interference provision, like that in the OAS Charter, Article 4(h) states that the African Union has a right to intervene in respect of certain ‘grave circumstances’, although this may imply that it cannot intervene absent those ‘grave circumstances’.Footnote ⁷²

6.5. Other regional organizations

The constituent instruments of a number of regional and sub-regional organizations refer to the principle of non-intervention. These include the following.

Under the Charter of the Association of Southeast Asian Nations (ASEAN),Footnote ⁷³ ASEAN and its member states must act in accordance with the Principles set out in Article 2(2). These include ‘(e) non-interference in the internal affairs of ASEAN Member States’ and ‘(f) respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion’.

The Pact of the League of Arab StatesFootnote ⁷⁴ contains provisions prohibiting intervention between members and elaborate procedures for making decisions binding on member states.

The new Charter of the Organization of the Islamic ConferenceFootnote ⁷⁵ makes non-interference a principle of the organization, and member states undertake not to interfere in the internal affairs of other member states.

6.6. Vienna Convention on Diplomatic Relations, Article 41(1)

There are two separate, but not always clearly distinguished, rules relevant to allegedly interventionary activities of diplomats. There is the specific rule set out in Article 41 of the Vienna Convention on Diplomatic Relations – the duty placed on a diplomatic agent (and others enjoying privileges and immunities) ‘not to interfere in the internal affairs’ of the receiving state. And there is the principle of non-intervention. As an organ of the sending state, what a diplomatic agent does in an official capacity (whether on instructions or not) may fall foul of general international law.

Article 41(1) of the Vienna Convention on Diplomatic Relations provides that, without prejudice to their privileges and immunities, all persons enjoying privileges and immunities ‘have a duty not to interfere in the internal affairs of [the receiving] State’.Footnote ⁷⁶ On this point, as on much else, the Convention reflects customary international law. The 1928 Havana Convention regarding Diplomatic Officers contained a similar principle,Footnote ⁷⁷ although the Harvard draft of 1932 had nothing on the matter. But neither the text of the Vienna Convention nor the travaux préparatoires shed much light on the specific content of the duty not to interfere.

Some members of the ILC considered that the non-interference provision in Article 41 was intended to cover the actions of members of diplomatic missions in their personal capacity, rather than official acts carried out on instructions from their government, in respect of which the non-intervention principle under general international law applied.Footnote ⁷⁸ Fitzmaurice, for example, ‘agreed . . . on the undesirability of introducing the concept of intervention. . . . the provision was to cover personal acts of meddling by diplomatic agents. . . . The case of Lord Sackville . . . was a case of mere interference, with no suggestion of dictatorial intervention.’Footnote ⁷⁹ However, that view was not shared by all members. Notably, a proposed express limitation of Article 41 to acts done by diplomats ‘outside their functions’ was removed.Footnote ⁸⁰

What diplomats do in their official capacity may of course amount to a violation by the sending state of its obligations under the principle of non-intervention under general international law. Despite the debates over the original intention behind Article 41(1) of the Vienna Convention, it is not on its face limited to acts done in a personal capacity, and the lawfulness of official acts may well be raised with reference to the provision. In any event, it is not always easy to distinguish between official and personal acts.

The commentary to Article 40 of the ILC's Draft Articles on Diplomatic Intercourse and Immunities (which became Article 41 of the Convention), after giving the example that ‘they must not take part in political campaigns’, states the obvious:

There is no suggestion that participation in domestic politics must in any way be ‘coercive’ or ‘dictatorial’ or seek the replacement of the government. It could even be on the side of the government. Actions which would be perfectly lawful if carried out by a private individual may violate the diplomat's duty not to interfere in internal affairs.

From time to time foreign diplomats take part, or appear to take part, in political demonstrations. It is perhaps not always easy to distinguish between observing a rally and taking part in it.

Beyond that, it is difficult to be prescriptive. As the Dutch government put it,

State practice does not shed great light. The application of the duty of non-interference probably relies on the instinctive good sense and understanding of the diplomat, balanced against the fact that the receiving state does not have to give reasons for declaring a diplomat persona non grata.Footnote ⁸³

6.7. International Convention on Broadcasting, 1936

The International Convention Concerning the Use of Broadcasting in the Cause of Peace, adopted under the auspices of the League of Nations on 23 September 1936, is still in force between certain states (although in the 1980s, following accession by the USSR, it was denounced by Australia, France, the Netherlands, and the United Kingdom).Footnote ⁸⁴ Under its Article 1,

6.8. Other treaties

There are many other treaties which refer to the non-intervention principle, often by way of a saving clause. For example, Article 3 of Additional Protocol II to the Geneva Conventions is entitled ‘Non-intervention’, and provides inter alia that

This provision is repeated in Article 1(5) of the Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (1996 Amended Protocol II) to the 1980 UN Weapons Convention,Footnote ⁸⁵ and in Article 22(5) of the 1999 Second Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict.Footnote ⁸⁶ The eighth paragraph of the preamble to the Rome Statute of the International Criminal CourtFootnote ⁸⁷ emphasizes that ‘nothing in this Statute shall be taken as authorizing any State Party to intervene . . . in the internal affairs of any State’.

There are many bilateral instruments incorporating language on non-intervention. A prominent example is the Algiers Declaration ending the Tehran hostages crisis, in which the United States pledged ‘that it is and from now on will be the policy of the United States not to intervene, directly or indirectly, politically or militarily, in Iran's internal affairs’.Footnote ⁸⁸ More routinely, treaties on friendship and co-operation often incorporate a positive statement of the non-intervention principle, though again without spelling out its specific content.Footnote ⁸⁹

7.1. Political interference (including funding)

‘Political interference’ covers diverse situations where one state becomes involved in the internal political processes of another. This type of intervention encompasses acts of greatly differing intensity and coerciveness.Footnote ⁹³

The most coercive form of political interference is ‘regime change’, which is a clear violation of the non-intervention principle. In the context of non-forcible intervention, regime change will be chiefly achieved through support and funding for insurrectionary opposition groups. Nicaragua was at its heart a case about the United States funding and supporting a political opposition to a foreign government. The ratio decidendi of Nicaragua seems to depend on the intention of the Nicaraguan Contras to overthrow the Sandinista National Liberation Front (FSLN) government.Footnote ⁹⁴ Although an intention to overthrow the government is not a requirement for foreign party funding to be illegal (such a requirement would allow too much), the judgment is clear that it is not legitimate for a state to intervene in order to overthrow a ‘bad regime’.Footnote ⁹⁵

Where the funding is for non-insurrectionary political parties, the law is less clear. It has been suggested that a rule prohibiting the funding of political parties abroad would be uncertain in scope in the light of prevailing state practice.Footnote ⁹⁶ Support for foreign political parties is becoming increasingly overt and states do not seek to justify their actions. However, the tendency to fund parties through non-state actors may suggest that states continue to have doubts about the legality of such acts.Footnote ⁹⁷ This is also reflected in the increase in domestic legislation prohibiting foreign-sourced funding.Footnote ⁹⁸ The key test remains coercion. Funding a political party where the domestic law of the recipient party prohibits it will usually contravene the principle of non-intervention, as will funding a party with coercive goals. Even absent those factors, the level of support might be of such a magnitude as to be coercive.

Analysis of political interference is complicated by state-to-state funding intended to prop up a particular ruling faction within the state. Such support is often far more effective than funding the party directly, in part because of the greater sums involved.Footnote ⁹⁹ This raises the question of the consent justification for intervention.Footnote ¹⁰⁰ The will of the state would only be subordinated in these situations if the state were seen as synonymous with the people and not the government of the day; however, that is not the position under current international law.Footnote ¹⁰¹ Given the consent of the government, such funding will not be prohibited as intervention.

The provision of support or funding to a party on the eve of an election is a more intrusive act, more likely to result in a change in government, than that given at other times. Practice is extensive, presumably because the pre-election form of political support will be most effective. States are particularly concerned about this form of intervention, and nine General Assembly resolutions condemning interference in electoral processes were adopted between 1989 and 2001.Footnote ¹⁰²

It is increasingly common for third states (often through international organizations such as the OSCE) to take a close interest in, and be free with their comments on, the conduct of the elections. This is often at the invitation of the state concerned. Indeed, that state's co-operation is important, as was evident from the problems with observing the Russian presidential elections in March 2008, which led the OSCE to cancel its mission. But state practice confirms that even without such consent, comment on the fairness (or otherwise) of elections is not contrary to international law.Footnote ¹⁰³

7.2. Economic coercion

Economic measures can be directed against states or their leaders to force a change in policy.Footnote ¹⁰⁴ In so far as economic sanctions are adopted by the UN Security Council under Chapter VII of the Charter, they raise no issue under the non-intervention principle. Individual states and regional organizations sometimes have recourse to economic measures instead of taking forcible measures, as – not being contrary to Article 2(4) of the Charter – they may be easier to justify politically and legally.Footnote ¹⁰⁵ While such measures may contravene treaty obligations, it is unclear how far the prohibition on intervention extends to unilateral economic measures.Footnote ¹⁰⁶ General Assembly resolutions refer to economic intervention as a matter of course. Some are dedicated exclusively to economic intervention. The Friendly Relations Declaration (in the second paragraph of its section on the non-intervention principle) states that

Except in the context of certain General Assembly resolutions, which cannot be regarded as reflecting the law,Footnote ¹⁰⁷ any prohibition of economic intervention is narrowly construed. In Nicaragua, the ICJ said that

The actions of the United States at issue in Nicaragua and found not to breach the principle of non-intervention are the most common, and potentially most severe, economic actions that can be employed against a state.

In 1973 Arab states reduced their oil output by between 5 per cent and 25 per cent in order to force Israel to change certain policies relating to Palestine and to force other states to change their diplomatic stance towards Israel. If the ICJ in Nicaragua is correct and a total trade embargo is not economic intervention, then it seems that a 5 per cent to 25 per cent reduction in exports of a single resource would not be intervention either.

The answer appears to lie, as ever, in the requirement of coercion. The debate between proponents and opponents of applying the principle of non-intervention to economic measures is really a debate about the impact of these measures on the target state. It is clear from the multitude of instruments relating to intervention that the principle is to apply to acts other than the use of armed force, and there is no reason to exclude economic measures. The problem is rather in making the argument that a state's sovereign will can be overborne through the imposition of economic measures. What the ICJ appears to be saying in Nicaragua is that the particular acts at issue in the case did not amount to intervention, which is not to say that they could not in another scenario. States that are dependent on aid from one state or conduct their trade almost exclusively with that state may find it easier to argue that the imposition of economic measures against them was coercive and thus illegal.

As we have seen, the principle of non-intervention has two elements; the first is coercion and the second is an intention to change the policy of the target state. With regard to the second requirement, it is helpful to consider the position of the Organization of the Petroleum Exporting Countries (OPEC). OPEC controls much of the global supply of oil and maintains prices. Nearly every decision made by it might be considered as intervention, because it will have an effect on the global economy, and potentially in dramatic ways. However, its decisions cannot be said to breach the non-intervention principle in so far as OPEC does not act as a political body. Its aims do not extend beyond market regulation and price stabilization. Its actions are not therefore accompanied by an intention to change the policy of affected states.Footnote ¹⁰⁹

The distinction between withdrawal of benefits, which are less likely to contravene the non-intervention principle, and more direct action such as embargoes, was glossed over in Nicaragua. It is arguable that benefits are simply a question of state generosity, and the factors for allocating aid are extra-legal and ought not to be regulated. However, the purpose of the non-intervention principle is to prevent the ‘subordination of sovereign will’. The reliance of many vulnerable states on aid makes its withdrawal in practice one of the most effective methods of pressure.

Since 1992 the UN General Assembly has adopted annually a resolution on the US ‘economic, commercial and financial embargo’ against Cuba, in which it reaffirms ‘among other principles the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments’.Footnote ¹¹⁰ In 2007, many speakers in the debate (including the EU) condemned the extraterritorial aspect of the embargo, but not – at least not on legal grounds – the embargo as such. The United States maintains that the decision to trade with other countries is a bilateral matter, and points out that from time to time various UN member states have taken similar measures.

It ought to be emphasized that economic intervention is, like all other forms of intervention, a matter of state-to-state behaviour. The only situation in which the actions of a private company could fall foul of the non-intervention principle is where the attribution test in state responsibility is met.Footnote ¹¹¹ That test will be particularly difficult to apply here, because the concepts at the core of the international law of attribution, such as control, training, and funding, were formed in the context of forcible intervention. The 1981 Declaration asserts that states have a duty to control private corporations. Even if this provision reflected customary international law, which it does not, the company would not be liable directly for its actions; responsibility would lie with the state for a failure to control.

7.3. Extraterritorial enforcement jurisdiction

The exercise of enforcement jurisdiction in the territory of another state, without its consent, breaches the non-intervention principle.Footnote ¹¹² Unlike prescriptive jurisdiction, enforcement jurisdiction is normally territorial. It is an inherent part of a state's ability to apply its laws and maintain security within its borders. Examples of prohibited extraterritorial enforcement jurisdiction include the collecting of evidenceFootnote ¹¹³ and police and other investigations (even if not purporting to use powers of compulsion) conducted without the consent of the territorial state.Footnote ¹¹⁴ Although it is open to states to argue that their extraterritorial enforcement measures are done for benign purposes and so cannot be coercive, as was argued by the United Kingdom in Corfu Channel, extraterritorial enforcement measures will nearly always be considered illegal.

7.4. Extraterritorial prescriptive jurisdiction

The limits on a state's prescriptive jurisdiction can be viewed as a question of non-intervention. Thus when the United States sought to impose obligations on foreign companies extraterritorially in support of its own foreign-policy objectives,Footnote ¹¹⁵ this was seen as unlawful intervention in the affairs of the states whose companies were affected, and led to countermeasures.Footnote ¹¹⁶

Although it is difficult to see how a non-discriminatory application of a state's laws by the judicial branch could be coercive, the extraterritorial exercise of jurisdiction could amount to intervention in some situations.Footnote ¹¹⁷ Where there is no basis at all for the exercise of jurisdiction, for example over a non-national for conduct carried out overseas and not attracting universal jurisdiction, then the exercise of jurisdiction will very likely contravene the non-intervention principle. Doctrines of non-justiciability developed by national courts in both civil and criminal cases are often based – expressly or implicitly – on the principle of non-intervention.Footnote ¹¹⁸ And, as Sir Ian Sinclair has written, ‘a court may refuse to pronounce upon the validity of a law of a foreign State applying to matters in its own territory on the ground that to do so would amount to an assertion of jurisdiction over the internal affairs of that State’.Footnote ¹¹⁹

7.5. Recognition and non-recognition

Premature recognition of statehood is often seen as an unlawful intervention in the internal affairs of the territorial state.Footnote ¹²⁰ The unlawfulness of premature recognition was raised with regard to Israel in 1948, although the circumstances were special.Footnote ¹²¹ In the early 1990s the recognition of the states of the former Yugoslavia on the break-up of the Socialist Federal Republic of Yugoslavia (SFRY) was the subject of the Opinions of the Badinter Commission.Footnote ¹²² The General Assembly has sought an advisory opinion on whether Kosovo's declaration of independence was in accordance with international law, but did not ask about recognition.Footnote ¹²³ The recognition in August and September 2008 of the statehood of Abkhazia and South Ossetia by Russia and Nicaragua, following the conflict in Georgia, was widely condemned.Footnote ¹²⁴

A state's failure to recognize an entity that fulfils the criteria for statehood will not normally constitute intervention. International law does not generally impose an obligation to recognize. However, in certain exceptional circumstances, where non-recognition is intended to force a change of policy, there could be a breach of the non-intervention principle. The treatment of Macedonia by Greece is an interesting case. After secession from Yugoslavia, the former Yugoslav Republic of Macedonia took as its constitutional name ‘Republic of Macedonia’ and adopted a flag which included the Star of Vergina. Greece objected, on the grounds that the choice of name and flag implied a claim to Greek territory, lobbied states to refuse to recognize Macedonia, and sought to block its entry into international organizations including the UN and NATO.Footnote ¹²⁵

7.6. Broadcasting and propaganda

Broadcasting (through all means, including radio, television, and the Internet) is a common way to influence policy in other states. Broadcasts can be used to change perceptions of a state in the international community through the provision of biased news reports, or by transmitting information into another state in order to influence its population.Footnote ¹²⁶

There is some textual support for a prohibition on certain extraterritorial broadcasts. The preamble to the 1976 Declaration on Non-Interference refers to ‘campaigns of vilification’ and ‘subversion and defamation’. The 1981 Declaration refers to ‘defamatory campaign[s], vilification or hostile propaganda for the purpose of intervening or interfering in the internal affairs of other States’.Footnote ¹²⁷

Article 19(2) of the International Covenant on Civil and Political Rights provides for the right to seek, receive, and impart information and ideas regardless of frontiers. However, the right is not absolute. Article 19(3) allows limitation of the right in order to protect others and for ‘the protection of national security or of public order, or of public health or morals’. Further, Article 20 prohibits propaganda for war and the advocacy of national, religious, or racial hatred.Footnote ¹²⁸

Whether a broadcast contravenes the non-intervention principle depends on all the circumstances. If it is deliberately false and intended to produce dissent or encourage insurgents, the non-intervention principle is likely to be breached. If factual and neutral, it is doubtful that the broadcast will constitute intervention, regardless of the effect it may in fact have.

7.7. Diplomacy

Verzijl has written that ‘[t]he borderline between simple diplomatic pressure upon a foreign government and a forcible interference in its internal or external affairs is entirely fluid’.Footnote ¹²⁹ While it could be argued that much modern diplomacy (especially so-called ‘public diplomacy’) raises issues under the principle of non-intervention, states frequently issue statements criticizing conduct by other states, or commenting on foreign situations. States meet to discuss common problems and to agree on the conduct of international relations. States act so as to avoid the censure of other states, and the solutions obtained through these exchanges and discussions often have carrot and stick, or quid pro quo, elements. Such discussions are routine in international relations and are the first resort of states seeking to change the behaviour of other states.

The relationship between diplomatic activity and intervention was one of the most controversial aspects of the negotiations leading to the Friendly Relations Declaration. Several Western states sought an amendment relating to ‘the generally recognized freedom of States to seek to influence the policies and actions of other States in accordance with international law and settled international practice’.Footnote ¹³⁰ The proposal was rejected by developing countries, who saw themselves as victims of current practices and did not wish to legitimize such treatment. The United Kingdom, however, made a statement to the effect that

7.8. Action to promote and protect human rights

The relationship between the non-intervention principle and international human rights law has been controversial from the outset.Footnote ¹³² During the negotiation of the Friendly Relations Declaration a particular source of contention was the exclusion of a ‘habitual engagement rule’, which would have provided expressly that the prohibition of intervention would not extend to matters generally engaged in by states on the basis that they must be permissible and lawful.Footnote ¹³³ In particular, developed countries argued that actions to induce a state to comply with its human rights obligations were not contrary to the prohibition on intervention, whereas developing countries were again concerned not to legitimize practices that they felt were contrary to their independent status.

In recent years some Western politicians have seemed to assume that the external imposition of a political system, or even regime change, is acceptable in certain (ill-defined) circumstances.Footnote ¹³⁴ This is not a view that many lawyers would share. In the United Kingdom, for example, the Attorney General advised categorically against any such right before the invasion of Iraq in 2003.Footnote ¹³⁵ At the other end of the spectrum, what should be (and largely is) uncontested is that states and international organizations are entitled to criticize the human rights situation in other countries.Footnote ¹³⁶ Between lies a range of non-forcible acts, such as unilateral sanctions or broadcasts, which aim to persuade or force a state better to comply with international human rights standards. In its 1989 resolution on ‘The Protection of Human Rights and the Principle of Non-intervention in the Internal Affairs of States’, the Institute of International Law stated,

The scope of a human rights ‘exception’ to the principle of non-intervention is unclear. At the very least it should apply in those circumstances in which the General Assembly has proclaimed a responsibility to protect (‘genocide, war crimes, ethnic cleansing and crimes against humanity’),Footnote ¹³⁹ but this may be overly restrictive. On the other hand, if the exception extends even to minor breaches of human rights, it would allow a coach and horses to be driven through the non-intervention principle.

Lack of clarity about the principle of non-intervention does not make it any easier to resolve these difficulties. However, certain concepts could be applied to the relationship between human rights and intervention to make it workable. In particular, applying the concepts of the margin of appreciation and proportionality would prevent states using minor human rights breaches to justify major interventions.

The arguments relating to intervention to protect human rights, and in particular human rights guaranteeing political participation, must be read in the context of the Friendly Relations Declaration and Nicaragua. The Friendly Relations Declaration states that there is no right to intervene ‘for any reason whatever’. Even more clearly, in Nicaragua the Court emphasized that there is no customary norm allowing

The judgment in Nicaragua dates from 1986. Since then, as evidenced for example by the ‘responsibility to protect’, the international consensus regarding human rights and intervention is shifting. Yet it is difficult to argue that the ‘fundamental modification’ to which the ICJ in Nicaragua referred has occurred.

8.1. Authorization under Chapter VII of the UN Charter

Acting under Chapter VII of the Charter, the Security Council, after determining the existence of a threat to the peace, breach of the peace, or act of aggression, may decide how international peace and security should be restored and impose non-forcible and forcible measures. Article 2(7) does not apply to enforcement measures under Chapter VII. By virtue of Article 103, obligations thus imposed by the Council take priority over any other obligations that a state may have.Footnote ¹⁴³ It follows that the Security Council may authorize states to take measures that would otherwise amount to an unlawful intervention. To take one example among many, in 1997 the Security Council imposed sanctions against members of the military junta in Sierra Leone because it determined that the situation in Sierra Leone, resulting from the junta's failure to allow the restoration of the democratically elected government and a return to constitutional order, was a threat to international peace and security in the region.Footnote ¹⁴⁴ In the absence of serious human rights violations by the new government, such sanctions would almost certainly contravene the principle of non-intervention if employed by a state without Security Council authorization.

8.2. Consent

Intervention (even military intervention) with the consent of the government of a state is not precluded. Difficult questions will, however, arise. ‘Intervention by invitation’ is notoriously open to abuse.Footnote ¹⁴⁵

It is sometimes suggested that intervention in a civil war on the side of the government and at its request is unlawful,Footnote ¹⁴⁶ but there is little support for this view in practice. Intervention on the side of those opposing the government, on the other hand, is clearly prohibited. Whether there is an exception to the principle of non-intervention in the case of assistance to peoples seeking to exercise the right of self-determination was once much discussed: Article 7 of the 1974 Definition of Aggression refers to the right of peoples forcibly deprived of the right of self-determination ‘to seek and receive support, in accordance with the Charter and in conformity with the [Friendly Relations] Declaration’.

Consent works in much the same way for non-forcible intervention. The essence of the principle of non-intervention is the ‘subordination of sovereign will’. Action taken with a state's consent is an expression, not a subordination, of its will.

A state can consent to an act by consenting to the mechanism which produces that act. For example, when a state consents to a dispute resolution procedure, it also consents to decisions properly produced by that procedure. The same applies with regard to mechanisms of regional organizations such as the European Union and African Union that permit action against member states engaging in grave human rights violations.Footnote ¹⁴⁷

The difficulties highlighted above with regard to consent to armed force are even greater in the more subtle context of non-forcible action. Consent, to be valid, has to be given by a legitimate authority and not under coercion. Yet to establish that consent was not freely given may be difficult. Would a statement by a strong state to a weak state that a certain course of action would be ‘unfavourably looked upon’ constitute a threat of intervention? It almost certainly would not. The most useful touchstone for consent is, again, coerciveness. If the consent was extracted by coercive means or under circumstances such that the sovereign will of the consenting state was subordinated, it can be argued that the non-intervention principle has been violated. A state's consent given because a subsequent benefit is expected, or because of concerns about a cooling of relations, is not invalid.

8.3. Countermeasures

Until Nicaragua the concept of countermeasures was not commonly applied to intervention. In that case the Court made clear the place of justifiable self-help in the area of non-intervention by applying the language of ‘proportional countermeasures’:

The Court was clear that the response by a victim state to a non-forcible intervention must itself be non-forcible. In any event, the prohibition on armed reprisals is well established.Footnote ¹⁴⁹ As for the question of the non-forcible measures that can be taken, the answer lies in the law of state responsibility.

Since their adoption by the ILC, the Articles on State Responsibility have become the starting point for any consideration of questions of state responsibility and many of their provisions are taken to reflect customary international law.Footnote ¹⁵⁰ Article 49 contains the basic rule regarding countermeasures:

1. (1) An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under Part Two.

2. (2) Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.

3. (3) Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.

The issue of proportionality is dealt with separately at Article 51:

Taking Articles 49 and 51 together, it appears that the Court's reference in Nicaragua to ‘proportionate countermeasures’ is no more than an orthodox statement of the self-help remedies available to Nicaragua in the face of an internationally wrongful act by the United States.Footnote ¹⁵¹

It is, however, normally assumed that the Court's reference to ‘proportionate countermeasures’ allowed action beyond the mere suspension of legal obligations. It may in fact be desirable to allow some retaliatory coercion short of force in international law in order to reduce the instances in which states resort to force to resolve conflicts.Footnote ¹⁵² A state can surely intervene in the affairs of a state in relation to which it is a victim of intervention in order to stop the original intervention.