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On Coercion in International Law \\jciprod01\productn\N\NYI\52-1\NYI101.txt unknown Seq: 1 26-DEC-19 14:27 ON COERCION IN INTERNATIONAL LAW MOHAMED S. HELAL* I. INTRODUCTION .................................. 2 R II. TALES OF COERCION ............................. 10 R A. The Russian Interference in the 2016 U.S. Presidential Election .......................... 10 R B. The 2017 North Korean Nuclear Crisis ......... 24 R C. The 2018 Murder of Washington Post Columnist Jamal Khashoggi ............................. 37 R III. THE PROHIBITION ON INTERVENTION AND THE CONCEPT OF COERCION .......................... 47 R A. The Prohibition on Intervention in the Internal or External Affairs of States ...................... 47 R 1. The Doctrinal and Political Origins of the Prohibition on Intervention ................ 49 R 2. The Sources, Scope, and Content of the Prohibition on Intervention ................ 54 R B. Unlawful Ends: Intervention in the Domaine Reserv´ e´ of States............................. 65 R C. Unlawful Means: Coercion as the Instrument of Intervention.................................. 69 R 1. The Concept of Coercion................... 70 R 2. Defining Unlawful Coercion ............... 74 R a. The Nature of Coercion: Occurrent Coercion and Dispositional Coercion ........................... 75 R b. Measuring Coercion: The Impact of Coercion vs. The Legality of Coercion ........................... 76 R * Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State Univer- sity. I thank Steven Darnell and Andrea Hearon for excellent research assis- tance, Matt Cooper of the Moritz College of Law Library for invaluable help with sources used in this article, and the editors of the N.Y.U. Journal of International Law & Politics for their outstanding work. For valuable feed- back on previous drafts of this article, I acknowledge with much gratitude Christiane Ahlborn, Cinnamon Carlarne, Ashley Deeks, Larissa van den Herik, Sean Murphy, Tom Ruys, Lucca Ferro, Peter Tzeng, J. Benton Heath and the participants in the 2019 Junior International Law Scholars Associa- tion Workshop. 1 \\jciprod01\productn\N\NYI\52-1\NYI101.txt unknown Seq: 2 26-DEC-19 14:27 2 INTERNATIONAL LAW AND POLITICS [Vol. 52:1 c. Lawful Acts as Coercive Instruments of Statecraft ........................ 81 R IV. THE COERCION CONTINUUM ..................... 89 R A. Military Coercion ............................. 91 R B. Economic Coercion ............................ 98 R C. Cyber Coercion ............................... 108 R D. Political Coercion ............................. 116 R V. CONCLUSION .................................... 120 R Coercion is both ubiquitous in international relations and unlawful under international law. Yet international law has neither defined coercion nor developed an adequate understanding of the nature, processes, and elements of coercion. This article addresses this gap in international law scholarship. It seeks to identify the legal threshold that distinguishes between unlawful acts of coercion and lawful policies and practices that states employ to pressure their adversaries or persuade their allies to alter their policies. To do so, this article examines the prohibition on intervention in the internal or external affairs of states, which is the principal rule of international law that governs coercion, and proposes a novel understanding of the content and elements of this cardinal rule of international law. It argues that violations of the prohibition on intervention consist of two elements: First, the pursuit of unlawful ends, and second, the use of unlawful (i.e. coercive) means to achieve unlawful ends. The ends of intervention are unlawful if it encroaches on the domaine reserv´ e´ of a state, while the means of intervention are unlawful if a state uses coercive instruments. To identify the instruments of statecraft that are coercive, this article constructs a “coercion continuum” that consists of the following four categories: military coercion, economic coercion, cyber coercion, and political coercion. This article provides examples of unlawful practices and policies under each of these categories. Based on the two-pronged definition of unlawful intervention as the pursuit of unlawful ends through unlawful means, this article argues that violations of the prohibition on intervention are composite breaches of international law, which is an understudied category of violations of international law. I. INTRODUCTION Coercion is ubiquitous in an anarchic world.1 All states, whether super powers or peripheral players, global hegemons or regional leaders, protect their security and pursue their in- terests by exercising coercion against their adversaries. None- 1. See generally Helen Milner, The Assumption of Anarchy in International Relations Theory: A Critique, 17 REV. INT’L STUD. 67 (1991) (arguing that the international system is described as anarchic because it lacks a central law- making and law-enforcement authority that monopolizes the legitimate use of force). \\jciprod01\productn\N\NYI\52-1\NYI101.txt unknown Seq: 3 26-DEC-19 14:27 2019] ON COERCION IN INTERNATIONAL LAW 3 theless, international law has not defined coercion. Although the International Court of Justice (ICJ) described coercion as the defining element and “the very essence” of unlawful inter- vention,2 international judicial precedent and international law scholarship have not developed a definition, understand- ing, or conceptualization of coercion.3 This article addresses this lacuna. The principal rule of international law that governs the exercise of coercion in international relations is the prohibi- tion on intervention in the internal or external affairs of states. Surprisingly, however, this cardinal rule of international law that is frequently invoked by states has received limited schol- arly attention. On the other hand, violations of the prohibition on intervention and purported exceptions to this rule—such as humanitarian and pro-democratic intervention,4 covert in- tervention and espionage,5 cyber intervention,6 and indirect intervention,7—have attracted far more attention than the prohibition on intervention itself. The lack of scholarly consid- eration of the prohibition on intervention and the preoccupa- tion with its exceptions, combined with the fact that this rule is often the subject of rhetorical references in the political par- lance of states, has led some scholars to conclude that the pro- 2. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 205 (June 27) [hereinafter Nicara- gua Case]. 3. See Jens David Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law?, 95 TEX. L. REV. 1579, 1581 (2017) (“Unfortunately, there is little in international law that outlines a complete theory of coer- cion . .”). 4. E.g., Michael Byers & Simon Chesterman, Changing Rules About Rules? Unilateral Humanitarian Intervention and the Future of International Law, in HU- MANITARIAN INTERVENTION: ETHICAL, LEGAL AND POLITICAL DILEMMAS 177, 178 (J. L. Holzgrefe & Robert O. Keohane eds., 2003); David Wippman, De- fending Democracy Though Foreign Intervention, 19 HOUS. J. INT’L L. 659, 660–62 (1997). 5. E.g., Thomas J. Jackamo, III, Note, From the Cold War to the New Multi- lateral World Order: The Evolution of Covert Operations and the Customary Interna- tional Law of Non-Intervention, 32 VA. J. INT’L L. 929, 938 (1992). 6. E.g., Marco Roscini, World Wide Warfare – Jus ad Bellum and the Use of Cyber Force, 14 MAX PLANCK Y.B. U.N. L. 85, 102–03 (2010). 7. E.g., Nigel D. White, The Legality of Intervention Following the Nicaragua Case, 9 INT’L REL. 535, 535 (1989). \\jciprod01\productn\N\NYI\52-1\NYI101.txt unknown Seq: 4 26-DEC-19 14:27 4 INTERNATIONAL LAW AND POLITICS [Vol. 52:1 hibition on intervention is of little substantive import and is “essentially hortatory in nature.”8 This article challenges this view. It remedies the lack of understanding of the content and contours of the prohibition on intervention, and develops a concept of coercion for inter- national law. It traces the origins of the prohibition on inter- vention, outlines its scope, describes its doctrinal content, and proposes a novel understanding of the elements of this funda- mental rule of international law. It defines unlawful interven- tion as the pursuit of unlawful ends through unlawful means. The ends (i.e. the purposes of intervention) are unlawful if a state impinges on the domaine reserv´ e´ of another state. The domaine reserv´ e´ is a concept that refers to areas of domestic or foreign policy in which a state has not undertaken interna- tional legal obligations. In other words, these are policy areas in which a state retains unfettered freedom of action.9 The prohibition on intervention protects states against foreign in- trusion into this realm where the liberty of states is intact and unencumbered by international legal obligations. The means (i.e. the tools of intervention) are unlawful if a state employs coercive instruments of statecraft. To determine whether the instruments deployed by a state are coercive, and thus unlawful, this article constructs a concept of coercion for international law. Drawing on scholarship on coercive diplo- macy in international relations and building on the philosoph- ical literature of coercion, this article conceptualizes coercion as a bargaining strategy that states implement to compel their
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