The right to non-intervention and non-interference

Abstract

According to the common narrative, the right to non-intervention, concerning the state’s territorial integrity, and the right to non-interference, concerning the matters which are not regulated by international law and in which the state has maintained its discretionary power, qualify together as one of the fundamental rights of states in the international legal order. This article examines the scope, meaning and legal implications of the non-intervention and non-interference principle and makes the argument that, despite its great importance as a rule of international law, its qualification as ‘fundamental’ adds nothing of substance to existing positive law. It is shown, on the one hand, that this right is not autonomous (as a liberty would be) since it is inevitably accompanied by a correlative duty of non-intervention and non-interference and, on the other, that the examined principle is entirely inherent in statehood. However, such inherence to statehood has no specific legal implications per se and does not establish an independent normative category which would allow one to distinguish between ‘fundamental’ rights or rights ‘inherent to statehood’ and the rest of states’ ‘ordinary’ rights. Thus, in order to apprehend the normative status of the non-intervention/ non-interference principle in current international law, the only important question is whether it constitutes a jus cogens norm. The international law and practice examined show that only the core of the principle entailing the prohibition of an intervention or an interference with threat or use of illegal force is of a jus cogens order, whereas an intervention or interference without use of force does not violate jus cogens.