Abstract
In the Nicaragua Case, the International Court of Justice described coercion as the “very essence of prohibited intervention.” The characterization of coercion as an essential element of non-intervention has become unquestioningly accepted by States and scholars and has dominated debates on how the prohibition on intervention applies in various contexts, including in relation to economic sanctions and cyberoperations. This article challenges the ICJ’s assertion. It does so by retracing the history of the evolution of the prohibition on intervention. It begins by surveying the travaux préparatoires of three Inter-American treaties in which non-intervention was first codified, and then explores the negotiations on the two most influential declarations adopted by the U.N. on non-intervention. This historical inquiry will reveal, first, that States never understood coercion as a defining element of non-intervention, and second, that there is no support for the definitions of coercion that some States and scholars have adopted in recent years, especially in the context of applying non-intervention to cyberoperations. This article concludes by offering an alternative understanding of coercion. It proposes a “unified threshold of coercion” that applies to forcible and non-forcible intervention. According to this approach, an act would be considered coercive if it entails the exertion of a degree of pressure that is comparable to the scale and effects of a violation of the prohibition on the threat or use of force.
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