Prohibition of intervention

== Definition ==
Prohibition of intervention
The obligation of non-intervention, a norm of customary international law,The customary nature has been highlighted by several States, including Australia, Brazil, Germany, Iran, Norway, Sweden, the United Kingdom and the United States. 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 Nicaragua v United States case: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.Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14 [205].In order for an act, including a cyber operation,Many States, including Australia, Brazil, Canada, Estonia, Israel, Italy, Japan, New Zealand, Norway, Singapore, Sweden, Switzerland, the United Kingdom and the United States, have acknowledged that the prohibition of intervention applies to cyber operations. This has been also highlighted by the UN Group of Governmental Experts. See UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (22 July 2015) A/70/174, para 28(b); UNGA, Report of the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security (14 July 2021) A/76/135, para 71(c). to qualify as a prohibited intervention, it must fulfil the following conditions:Many States agree that intervention ‘involves “coercion” in relation to a State’s domaine réservé’. See Ori Pomson, 'The Prohibition on Intervention Under International Law and Cyber Operations' (2022) 99 International Law Studies 180, 217. In this regard, see the national positions of Australia, Brazil, Canada, Estonia, Germany, Israel, Italy, The Netherlands, New Zealand, Norway, Romania, Singapore, Sweden, Switzerland, the United Kingdom and the United States.
The act must bear on those matters in which States may decide freely.Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. I.C.J. Reports 1986, 14 [241]. 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 electionsDutch 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; Finland, ‘International law and cyberspace: Finland’s national positions’ (15 October 2020), 3; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 5.), and external affairs (“formulation of foreign policy”; or “recognition of states and membership of international organisations”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.)—the so-called domaine réservé of States.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”); Nationality Decrees Issued in Tunis and Morocco (French Zone) on November 8th, 1921 (Great Britain v France) Advisory Opinion, (1923) PCIJ Series B no 4, 7th February 1923 [24]. 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:See also Harriet Moynihan, ‘The Vital Role of International Law in the Framework for Responsible State Behaviour in Cyberspace’ (2020) 6(3) Journal of Cyber Policy 394, 400-1. 
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.See, e.g., 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, defining coercion as ‘compelling a state to take a course of action (whether an act or an omission) that it would not otherwise voluntarily pursue’ and noting that ‘[t]he goal of the intervention must be to effect change in the behaviour of the target state’; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 5, defining coercion as a situation in which a State’s ‘will is manifestly bent by the foreign State’s conduct’ and noting that ‘the acting State must intend to intervene in the internal affairs of the target State’; see further, the national positions of Italy, Switzerland, Estonia, Norway and Romania; see also Tallinn Manual 2.0, commentary to rule 66, para 19 (‘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.’). 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)”.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. 
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.See, e.g., Australia, ‘Supplement to Australia’s Position on the Application of International Law to State Conduct in Cyberspace’ (2019) 4 (‘A prohibited intervention is one that interferes by coercive means (in the sense that they effectively deprive another state of the ability to control, decide upon or govern matters of an inherently sovereign nature), either directly or indirectly, in matters that a state is permitted by the principle of state sovereignty to decide freely.’); New Zealand, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020), para 9(b) (stating that a State cyber activity is coercive if ‘there is an intention to deprive the target state of control over matters falling within the scope of its inherently sovereign functions’); United Kingdom Attorney General’s Office Suella Braverman: ‘International Law in Future Frontiers’ (19 May 2022). See also Tallinn Manual 2.0, commentary to rule 66, para 19 (‘A few Experts took the position that to be coercive it is enough that an act has the effect of depriving the State of control over the matter in question.’). 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.Harriet Moynihan, ‘The Vital Role of International Law in the Framework for Responsible State Behaviour in Cyberspace’ (2020) 6(3) Journal of Cyber Policy 394, 403; see also Sean Watts, ‘Low-Intensity Cyber Operations and the Principle of Non-Intervention’ in Jens D Ohlin, Kevin Govern and Claire Finkelstein, Cyber War: Law and Ethics for Virtual Conflicts (Oxford University Press 2015) 256 and ff. 
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.Tallinn Manual 2.0, commentary to rule 66, para 21. See also the national positions of Canada, Germany and Norway. The element of coercion also entails the requirement of intent.Tallinn Manual 2.0, commentary to rule 66, paras 19 and 27. See also the national positions of Germany, New Zealand and Sweden.
While coercion is evident in the case of an intervention involving the use of force, ‘either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State’, as affirmed by the ICJ,Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. I.C.J. Reports 1986, 14 [205]. See also national position of Canada, Germany and The Netherlands. it is less clear with respect to non-forcible forms of interference.See Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 82. Some States support the approach that intervention may take various forms, such as economic and political coercion.See Ori Pomson, 'The Prohibition on Intervention Under International Law and Cyber Operations' (2022) 99 International Law Studies 180, 212. While some States have stressed that economic coercion can still be sufficient for a breach of the rule of non-intervention, others remained ambiguous in their positions. States have referred to different examples that could be classified, depending on the circumstances of the case, under the prohibition of intervention. See the national positions of Australia (‘intervention in the fundamental operation of Parliament, or in the stability of States’ financial systems’), Canada (‘a malicious cyber activity that disrupts the functioning of a major gas pipeline, compelling the affected State to change its position in bilateral negotiations surrounding an international energy accord’), Italy (‘influence activities aimed, for instance, at undermining a State’s ability to safeguard public health during a pandemic’), New Zealand (‘a prolonged and coordinated cyber disinformation operation that significantly undermines a state’s public health efforts during a pandemic; and cyber activity deliberately causing significant damage to, or loss of functionality in, a state’s critical infrastructure, including – for example – its healthcare system, financial system, or its electricity or telecommunications network’), Norway (‘a cyber operation deliberately causing a temporary shutdown of the target State’s critical infrastructure, such as the power supply or TV, radio, Internet or other telecommunications infrastructure in order to compel that State to take a course of action’), Singapore (‘cyber-attacks against our infrastructure in an attempt to coerce our government to take or forbear a certain course of action on a matter ordinarily within its sovereign prerogative’), Switzerland (‘This is particularly true of economic coercion, which could be the case if a company that is systemically relevant was paralysed through a cyber operation’), the United Kingdom (‘intervention in the fundamental operation of Parliament, or in the stability of our financial system’; ‘to undermine the stability of another State’s financial system or to target the essential medical services of another State’; ‘Covert cyber operations by a foreign State which coercively restrict or prevent the provision of essential medical services or essential energy supplies […]disruption of systems controlling emergency medical transport (e.g., telephone dispatchers); causing hospital computer systems to cease functioning; disruption of supply chains for essential medicines and vaccines; preventing the supply of power to housing, healthcare, education, civil administration and banking facilities and infrastructure; causing the energy supply chain to stop functioning at national level through damage or prevention of access to pipelines, interchanges, and depots; or *preventing the operation of power generation infrastructure. Turning to economic stability, covert cyber operations by a foreign State that coercively interfere with a State’s freedom to manage its domestic economy, or to ensure provision of domestic financial services crucial to the State’s financial system, would breach the rule on non-intervention […] disruption to the networks controlling a State’s fundamental ability to conduct monetary policy or to raise and distribute revenue, for instance through taxation. Or disruption to systems which support lending, saving and insurance across the economy’), and the United States (‘a cyber operation that attempts to interfere coercively with a State’s ability to protect the health of its population –for example, through vaccine research or running cyber-controlled ventilators within its territories during a pandemic’). One example that has been reiterated in several States’ positions, including Australia,Australian Government, Australia's position on how international law applies to State conduct in cyberspace (2020). Brazil,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, (August 2021) 19. Canada,Government of Canada, International Law applicable in cyberspace (April 2022) Germany,Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 5-6. Israel,Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020). New Zealand,New Zealand Foreign Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 2. Norway,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 68-69. Singapore,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 83. the United KingdomAttorney General Jeremy Wright:Cyber and International Law in the 21st Century (23 May 2018); United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement (3 June 2021); Attorney General Suella Braverman: International Law in Future Frontiers, 19 May 2022. and the United States,Brian J Egan, International Law and Stability in Cyberspace (10 November 2016) 13-14; Hon Paul C Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference (2 March, 2020); Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 140. is the case of cyber operations by a State interfering with another state’s ability to hold an election or manipulating the election results. Many States have affirmed that the assessment has to be done on a case-by-case basis.See the national positions of Canada, Romania, Sweden and Switzerland. 
Both potential and actual effects are considered to be relevant when assessing the coercion element.Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 101. Further, the international group of experts involved in the Tallinn Manual 2.0. considered that ‘the fact that a coercive cyber operation fails to produce the desired outcome has no bearing on whether [the prohibition of intervention] has been breached’. Tallinn Manual 2.0., commentary to rule 66, para 29.
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.Tallinn Manual 2.0, commentary to rule 66, para 24 (the exact nature of the causal nexus was not agreed on).
The prohibition of intervention applies between States, and thus it is not applicable to the activities of non-State groups, unless their conduct can be attributed to a State under the rules on attribution under international law.Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 79. See also the national positions of The Netherlands (‘The non-intervention principle, like the sovereignty principle from which it stems, applies only between states’), Sweden (‘The prohibition of intervention is applicable between States and does not apply directly to non-state actors’), and the 2022 position of the United Kingdom (‘To be clear, State direction or control of non-State actors who undertake cyber operations of the kind I have described today would also represent unlawful conduct by that State, in line with international law on State responsibility’).
Publicly available common and national positions that address this issue include:
 (2024),
 (2024), 
 (2020),
 (2024), 
 (2021),
 (2022),
 (2021), 
 (2023),
 (2024),
 (2023), 
 (2021), 
 (2019), 
 (2021), 
 (2020),
 (2023), 
 (2020),
 (2021), 
 (2021), 
 (2019), 
 (2020), 
 (2021),
 (2023),
 (2022),
 (2021), 
 (2021),
 (2022),
 (2021), 
 (2018), 
 (2021),
 (2022), 
 (2016), 
 (2020),
 (2021).
==Common positions==
===African Union (2024)===
===European Union (2024)===
==National positions==
===Australia (2020)===
=== Austria (2024) ===
===Brazil (2021)===
===Canada (2022)===
===Costa Rica (2023)===
===China (2021)===
===Czech Republic (2024)===
===Denmark (2023)===
===Estonia (2021)===
===France (2019)===
===Germany (2021)===
===Iran (2020)===
===Ireland (2023)===
===Israel (2020)===
===Italy (2021)===
===Japan (2021)===
===Netherlands (2019)===
===New Zealand (2020)===
===Norway (2021)===
===Pakistan (2023)===
===Poland (2022) ===
===Romania (2021)===
===Singapore (2021)===
===Sweden (2022)===
===Switzerland (2021)===
===United Kingdom (2018)===
===United Kingdom (2021)===
===United Kingdom (2022)===
===United States (2016)===
===United States (2020)===
===United States (2021)===
==Appendixes==
===See also===
*Scenario 01: Election interference
*Scenario 02: Cyber espionage against government departments
*Scenario 03: Cyber operation against the power grid
*Scenario 05: State investigates and responds to cyber operations against private actors in its territory
*Scenario 07: Leak of State-developed hacking tools
*Scenario 08: Certificate authority hack
*Scenario 14: Ransomware campaign
*Scenario 16: Cyber attacks against ships on the high seas
*Scenario 17: Collective responses to cyber operations
*Scenario 20: Cyber operations against medical facilities
*Scenario 23: Vaccine research and testing
===Notes and references===
===Bibliography and further reading===
Category:Prohibition of intervention
Category:Legal concepts