Reconstructing the Principle of Non-Intervention and Non-Interference – Electoral Disinformation, Nicaragua, and the Quilt-work Approach

Abstract

In Nicaragua, the International Court of Justice defined intervention as coercion of a State’s sovereign choices. This is accepted as unquestioned lex lata by virtually all international legal scholarship. Troublesomely, the coercion definition fails to reckon with dangerous methods of twenty-first century interpositions such as electoral disinformation campaigns. In response, scholars call for the cardinal principle of non-intervention and non-interference to be redefined to prohibit, among other things, disruptive and persuasive interferences. This Article makes two novel propositions. First, it argues the coercion definition is an incomplete statement of the lex lata. A close examination of the textual history reveals States never even managed to define the principle of nonintervention and non-interference. Rather, the principle has functioned as an empty container, evolving rapidly against the backdrop of burgeoning economic interdependence, the Cold War, and decolonization. Indeed, States have sought to prohibit some manifestations of non-coercive interpositions, such as electoral interference and subversive propaganda. Second, this Article contends that attempts to redefine a principle which is inherently fluid and evolutionary are bound for futility. Borrowing from the policy-oriented perspective of international law, this Article instead proposes a “Quilt-work” approach, which suggests that States work toward identifying and prohibiting specific manifestations, or “sub-norms,” of dangerous interventions and interferences. The sum of these sub-norms would resemble a quilt of concrete rules that can guide State behavior even without an overarching definition of intervention and interference. This unprecedented and pragmatic approach to international lawmaking has far-reaching implications for other international law conundrums.