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ECONOMIC COERCION, THE NON-INTERVENTION
PRINCIPLE AND THE NICARAGUA CASE

E. Y. BENNEH*

INTRODUCTION:
The prohibition of the use of force in international relations contained in Article
2, paragraph 4, of the United Nations Charter is generally considered to be a part
of general international law, and even of ius cogens.' The peremptory language of
that Article does not explicitly extend, however, to the prohibition of intervention
by one State in the internal affairs of another State. Precisely what rule of
international law proscribes "intervention" is a subject of debate. Within this
debate is the question of whether economic pressure or of coercion is a form of
use of illegal intervention.'
Legal opinion on this issue is divided. The ruling of the International Court of
Justice (ICJ) in the NicaraguaCase3 has of course given some indication on the
issue. In Nicaragua, the court, in a somewhat Delphic pronouncement, stated
that:
The principle [of non-intervention] forbids all States or group of
States to intervene directly or indirectly in the internal or external
affairs of other States.
A prohibited intervention must accordingly be one bearing on matters
in which each State is permitted, by the principle of State sover-
eignty, 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. The element of
coercion, which defines, and indeed forms the very essence of pro-
hibited intervention, is particularly obvious in the case of an interven-
tion which uses force, either in the direct form of military action, or

* E. Y. Benneh, Lecturer, Faculty of Law, University of Ghana, Legon.

1. See, in general, Cassese (ed.), The CurrentLegal Regulation of the Use of Force, (1986).
2. See Damrosch, Politics Across Borders: Non-intervention and Non-forcible Influence over Do-
mestic Affairs, Vol.83 (1989), AJIL, pp.1-5-; see also the various views canvassed in Lillich
(ed.), Economic Coercion and the New International Economic Order (1977); Elagab, The
Legality of Non-Forcible Countermeasures in International Law (1985); Farer, Political and
Economic Coercion in Contemporary InternationalLaw, (1985), AJIL, p.120.
3. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaraguav.
United States of America), (Merits), Judgement, ICJ Reports (1986).

6 RADIC (1994)
236 E. Y. Benneh

the indirect form of support for subversive or terrorist armed activi-

4
ties within another State.
Earlier on, the Court had found that the principle of non-intervention has been
reflected in numerous declarations and texts, and that these testify
5
to the existence
of a "customary principle which has universal application".
It is not clear whether the Court in referring to the "customary principle" of
non-intervention also intended to have the principle extend to the prohibition of
economic coercion as a form of use of illegal intervention, but that possibility
may not be excluded. In any case, the question itself can properly be dealt with by
examining critically those relevant legal instruments bearing upon the non-inter-
vention principle.

1. THE UNITED NATIONS CHARTER, 1945

An important and radical change in international law after the Second World War
was the adoption of the Charter of the United Nations in 1945.6 Prior to the
conclusion of this treaty, and under the provisions of the Covenant of the League
of Nations, war as the most intensive form of coercion could be resorted to for
settling disputes in certain circumstances. The Charter prohibited not only War
but also use of force or its threat in international relations. In this connection,
Article 2, paragraph 4, of the Charter provides:
All members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with
the Purposes of the United Nations.
This provision is comprehensive in its reference to "threat or use of force" and
it will be suggested that the rule it contains does not extend to the prohibition of
intervention. For that matter, nowhere else in the Charter is the principle of non-
intervention explicitly laid down as a rule governing the relations of States. The
closest the Charter comes to embracing a rule proscribing intervention is in
Article 2, paragraph 7, which provides:
Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the do-
mestic jurisdiction of any State or shall require the members to
submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures
under Chapter VII.

4. Ibid., p. 10 8 .
5. Ibid., p. 10 7 .
6. Signed: 26 June 945; In Force: 24 October 1945.
 Economic Coercion, the Non-Intervention Principle 237

Yet the obligation of Article 2, paragraph 7, is that of the United Nations

Organization and not Member States as such. Indeed, the absence of any explicit
rule in the Charter prohibiting the intervention of one State or group of States in
the internal affairs of another State has meant that States do intervene and that in
the overwhelming number of cases, this has not generated a response expressed in
legal terms.7

2. THE CHARTER OF THE ORGANIZATION OF AMERICAN STATES

(O.A.S), 1948
While the UN Charter does not explicitly lay down the principle of non-interven-
tion as a rule, the basic norm of illegality of intervention has been accepted in the
Americas. The Charter of the OAS of 19488 contains the following provision in
Article 15 (Article 18 of the Revised Text):
No State or group of States has the right to intervene, directly or
indirectly, for any reason whatever, in the internal or external affairs
of any other State. The foregoing principle prohibits not only armed
force but also any other form of interference or attempted threat
against the personality of the State or against its political, economic
and cultural elements.
The development of the non-intervention principle in the Americas, and the
rule contained in the OAS Charter, have attracted a lot of attention and must be
examined at some length.

(a) General Prohibition of Non-Intervention

Prior to 1948 the basic concept of "non-intervention" was asserted in the Americas
on a number of occasions. But this was always done in general terms and without
specific reference to "economic coercion". Thus, in 1933, the Montevideo
Convention on Rights and Duties of States provided in Article 8 that: "No State
has the right to intervene in the internal or external affairs of another."9 This
provision had its basis in the text proposed by the Second International Confer-
ence of American Legal Experts in 1927, but had not been adopted until the
Montevideo Convention. Moreover, Article 11 of the Montevideo Convention
reinforced the text of Article 8 by providing that:

7. For a comprehensive study, see Benneh, Economic Pressure in InternationalLaw, Unpublished

Ph.D. Dissertation submitted to the University of Cambridge, June, 1988.
8. 30 UNTS, No. 449, signed at Bogota on 30 April 1948, as amended by the Protocol signed at
Buenos Aires, 27 February 1967, US TIAS, 6847. References to the Charter, unless indicated are
to the text as amended.
9. Article 8 of the Convention. Text in: US Treaty Series, No. 881. In force 26 December 1933. The
United States accepted the principle of non-intervention for the first time at the Montevideo
Conference.
238 E. Y. Benneh

The Contracting States definitely establish as the rule of their conduct

the precise obligation not to recognize territorial acquisitions or spe-
cial advantages which have been obtained by force whether this
consists in the employment of arms, in threatening diplomatic repre-
sentations, or in any other effective coercive measures.
The non-intervention principle was reaffirmed in the 1936 Additional Protocol
Relative to Non-Intervention.' ° The Preamble declared that:
The Governments represented at the Inter-American Conference for
the Maintenance of Peace,
Desiring to assure the benefits of peace in their mutual relations and
in their relations with all the nations of the earth, and to abolish the
practice of intervention; and
Taking into account that the Convention on Rights and Duties of
States, signed at the Seventh International Conference of American
States, December 26, 1933, solemnly affirmed the fundamental prin-
ciple that "no State has the right to intervene in the internal or
external affairs of another",
and reaffirmed that principle.
In Article 1 of this Protocol, the Parties to the Convention unequivocally
renounced the policy of intervention by any of them in the internal or external
affairs of another. To this effect, the Article stipulates that:
The High Contracting Parties declare inadmissible the intervention of
any of them, directly or indirectly, and for whatever reason, in the
internal affairs of any other of the Parties.
The violation of the provisions of this Article shall give rise to mutual
consultation, with the object of exchanging views and seeking
methods of peaceful adjustment.
Again, in 1938, the Eighth International Conference of American States, held
in Lima, reiterated the existence of the obligation of non-intervention in the
Declaration of American Principles of December 22, 1938." The Declaration
resolved inter alia that:
1. the intervention of any State in the internal affairs of another is inadmiss-
ible;
2. all differences of an international character should be settled by peaceful
means;
3. the use of force as an instrument of national or international policy is
proscribed.

10. Text in: US Trearv Series, No. 923.

11. Text in 34 AJIL (1940), Suppl. pp.200-1.
 Economic Coercion, the Non-Intervention Principle 239

No consideration was given specifically to the question of "economic coer-

cion", since the records of the discussions leading to the adoption of these texts
show no mention of the subject.

(b) Specific Treatment of Economic Coercion

With reference to "economic coercion", Article 16 (Article 19 of the Revised
Text) of the OAS Charter provides that:
No State may use or encourage the use coercive measures of an
economic or political character in order to force the sovereign will of
another State and obtain from it advantages of any kind.
This provision was inserted upon the initiative of the Cuban delegation at the
Ninth Inter-American Conference in 1948 to proscribe "unilateral coercive meas-
ures of an economic, financial, or commercial character".' 2 Because of the unavail-
ability of the records of the Conference, it has been impossible to ascertain the
views expressed by States on the intended scope of this specific treaty provi-
sion.13
Be that as it may, and despite the fact that the use of economic pressure is
widespread, there are only three cases in the practice of the OAS when there was
some reaction to economic measures taken unilaterally against Members of the
Organisation. These three cases, which are examined below, contrast sharply
with the numerous instances where economic pressure was used without there
being any complaint by the target-States.

(i) The Cuban Case, 1960

On 11 July, 1960, the Government of Cuba accused the United States of "eco-
nomic aggression" by the latter country's reduction of Cuban sugar quotas,
cancellation of its credits and the freezing of its bank accounts. Cuba also argued
that the United States action "because of its unilateral character and its coercive
aggression, constituted political intervention and economic aggression, which are
expressly condemned in Articles 15 and 16 of the Charter of the Organization of
American States (Articles 18 and 19 Revised Text), a regional organisation of the
United Nations.'"
Cuba, however, did not lodge a complaint with the OAS. Instead, it com-
plained to the Security Council of the United Nations by invoking Article 52,
paragraph 4, and Article 103 of the United Nations Charter. 5 The United States

12. See Ninth InternationalConference of American States, Bogota, 1948, Report of the Delegation
of the United States of America, pp.201, 203., See also Whiteman, Digest of InternationalLaw,
Vol.5, p. 8 3 2 .
13. A practically identical provision was included as Article 8 of the Economic Agreement of
Bogota, drafted in 1948 but which has not entered into force.
14. See Keesing's Contemporary Archives, July 23-30, 1960, 17538; Dept. of State, Bulletin, No.
1101, Aug. 1, 1960.
15. See SCOR, 15th Year, 874th Meeting, p.874; Doc. S/4378.
240 E. Y. Benneh

denied the Cuban charge of intervention in Letter dated 15 July, 1960, addressed
to the President of the Security Council.' 6 The Cuban complaint was supported in
the Security Council by the Soviet representative who stated that the
United States decision to discontinue sugar purchases from Cuba
represents an attempt to strangle Cuba's economy; it is none other
than a coercive measure of an economic character, the use of which is
condemned as we know by the Charter of the Organization of Ameri-
can States, so frequently cited here, and it is fundamentally at vari-
17
ance with the rules of international law.
On 13 July 1960, without the consent of the Cuban Government, Peru
requested the convocation of the Meeting of Consultation of the OAS in accord-
ance with Article 39 of the OAS Charter "for the purposes of considering the
exigencies of hemispheric solidarity, the defence of the regional system, and the
defence of American democratic principles in the face of threats that might affect
them". The Meeting of Consultation did not specifically debate the United States
economic measures against Cuba. Instead, on 29 August, 1960, the Meeting
approved a resolution which broadly decided to:
Condemn the intervention or the threat of intervention by any extra-
continental power in the affairs of the American republics; reject the
attempt of the Sino-Soviet powers to make use of the political, eco-
nomic, or social situation of any American State, inasmuch as that
attempt is capable of destroying hemispheric unity and endangering
the peace and security of the hemisphere; reaffirm that the inter-
American system is incompatible with any form of totalitarianism;
proclaim that all Member States of the regional organization are
under obligation to submit to the discipline of the inter-American
system; declare that all controversies between Member States should
be resolved by the measures for peaceful solution that are contem-
plated in the inter-American system. 18

(ii) The NicaraguaCase, 1985

In mid-1985, the Government of Nicaragua lodged a complaint with the OAS
following the imposition of a total embargo on trade by the United States against
Nicaragua.' 9 United States action was taken under the International Emergency
Economic Powers Act2" which authorises the United States President, by Execu-

16. Ibid., Doc. S/4388.

17. Ibid., 878th Meeting, p.8.
18. See Resolution 13, Seventh Meeting of Consultation of Ministers of Foreign Affairs, Final Act,
OAS, Official Records, Doc. OEA/Ser. C. 11.7., San Jose, Costa Rica (1960).
19. See Dept. of State, Bulletin, Vol.85, pp. 7 4 et seq.
20. 50 USC 1701 et seq. For other statutory authorities, cf National Emergencies Act (50 USC 1601
et seq); Chapter 12 of Title 50 of the United States Code (50 USC 191 et seq); and Section 310 of
Title 3 of the United States Code.
 Economic Coercion, the Non-Intervention Principle 241

tive Order, "to deal with any unusual and extraordinary threat to the national
2
security, foreign policy, or economy of the United States". '
During consideration of the Nicaraguan complaint at the Regular Session of
the OAS, nine member States - Peru, Brazil, Argentina, Uruguay, Surinam,
Venezuela, Mexico, Colombia, and the Bahamas, presented a draft resolution
which in its operative paragraphs read as follows:

1. To reaffirm that the adoption of unilateral coercive economic measures

against any Member State is a violation of international law, in particular
the Charter of the United Nations and the Charter of Organization of
American States.
2. To urge a repeal of the complete trade embargo and other coercive meas-
ures taken against Nicaragua and that no similar measures be adopted in
22
the future.
In the debates, the United States representative denied that its measures
against Nicaragua violated the OAS Charter, and stated, inter alia, that Nicaragua
was engaged in a course of conduct which is a massive violation of
the OAS Charter and of international law more generally; conducting
a campaign of subversion and aggression against its neighbours, and
violating the political and other human rights of the Nicaraguan
people.
The United States representative further asserted that the measures specifically
were not in violation of Article 19 of the OAS Charter, "because that article
describes as coercive only those measures directed to force the sovereign will of
another State and obtain from it advantages of any kind", and added that his
Government was not seeking "to obtain advantages from Nicaragua". Rather, he
argued, the "United States decision to cease trading with Nicaragua is primarily
intended to prevent Nicaragua from deriving benefits from its trade with the
United States; and to manifest support for the achievement of the objectives
embodied in the 1983 Contadora Document of Objectives". He then went on to
state that the United States measures:
[a]re also consistent with Nicaragua's 1979 commitments to the OAS
[sic] and with the objectives of the OAS Charter itself which was
intended to promote the peace and security of the region. Further,
there is no general principle of customary law which obliges one

21. See Executive order 12513, May 1, 1985, Dept. of State Bulletin, Vol.85 (1985) at 75. See also
Statement made by Assistant Secretary Motley, 7 May 1985, which gives 3 main objectives of
the sanctions; (i) to underscore to both friends and adversaries our determination to resist
subversion and to protect our security and that of our friends; (ii) to reaffirm our opposition to
Sandanista policies; and (iii) to maintain pressure on the Sandanistas as an inducement to
change'. ibid.
22. See OAS General Assembly: Second Committee, Economic and Social Matters, Doc. AG/Com.
11, Doc. 12/85, 6th December, 1985.
242 E. Y. Benneh

State to trade with another. The OAS Charter did not, and was not
23
intended to, create such a rule.
The nine-Member draft resolution was not put to vote because of lack of a
quorum.

(iii) The FalklandIslands/Islas Malvinas Case, 1982

Whereas the OAS did not take any action in the two cases examined above, it
stated its opposition to the measures taken by the United States against Argentina
during the Falkland Islands/Malvinas Conflict in 1982.
On 30 April 1982, the United States Government applied a series of economic
measures against Argentina including (i) the suspension of all military exports,
(ii) the withholding of certification of eligibility for military sales, (iii) the
suspension of new Export-Import Bank Credits and Guarantees, and (iv) the
suspension of Commodity Credit Corporation Guarantees. 24 This followed the
invasion of the Falkland Islands/Islas Malvinas by Argentina. In a statement
outlining United States actions, the Secretary of State, Alexander Haig, stated:
"Now, however, in light of Argentina's failure to accept a compromise we must
take concrete steps to underscore that the United States cannot and will not
25
condone the use of unlawful force to resolve disputes".
In a resolution adopted by the inter-American Economic and Social Council
on 9 October 1982, entitled "Coercive Measures" the OAS declared:
The coercive measures adopted against the Argentina Republic as a
consequence of the Malvinas Islands conflict are in violation of the
Charter of the Organization of American States, especially Article
19; the United Nations Charter, the "Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations"
[Resolution 2625 (XXV) of the UN General Assembly]; the rules
Duties of States [Resolution 3281 (XXIX) of the UN General Assem-
bly] and in other international instruments, and therefore constitute a
grave precedent for future relations between the developed countries
and the developing countries of the American continent and through-
out the world.26
The United States representative to the Council, however, objected to this resolu-
tion. He stated:

23. See Consistency of U.S. Economic Measures with OAS Charter, Statement made by the U.S.
representative at the Meeting of the Second Committee on December 6, 1985, in Acts v
Documentos, Segunda Comision, Decinoquinto Periodo Ordinaria de Sesiones de la Asamblea
Generale.
24. Keesing's Contemporary Archives, 24 September, 1982, at 31709.
87
25. Dept. of State Bulletin, June, 1982, pp. -88.
26. See Final Report, XVII Annual Meeting of the Inter-American Economic and Social Council at
12
the Ministerial Level, OEA/Ser.H/X 11.40, CIES/3772, rev. 1, at p. (1982).
 Economic Coercion, the Non-Intervention Principle

We do not accept the implication that we adopted coercive measures.

The United States had no legal obligation to keep up the benefits
that it withdrew from Argentina, nor did not violate any existing
agreement with that country.
The measures the United States adopted were not intended to
obtain advantages of any kind; quite to the contrary, their purpose
was to demonstrate the consistency of the United States t'is-d-vis the
principle of peaceful settlement of disputes.
The measures taken by the Government of the United States
demonstrated the United States' adherence to the basic principles of
international law and were fully in keeping with its international
obligations, and particularly with the pertinent resolutions adopted by
the United Nations Security Council.27
Two points are worthy of note. The first concerns the difficulty of defining
..coercive measures". If the view is accepted that intervention is illegal then
prohibition can hardly apply to every case of withdrawal of economic benefits
since this would considerably restrict the freedom of action of governments in the
economic sphere. International economic relations are a very large part of inter-
national relations and such relations necessarily involve elements of bargaining.
Bargaining involves "inducements" and "counter-inducements" - elements that
may be described as "pressure", even "coercion" but they cannot for that reason
alone be described as illegal.
Secondly, Articles 18 and 19 of the OAS charter are specific treaty-law
obligations. It is questionable, however, whether these provisions which have
attracted a lot of attention are of any relevance outside the Inter-American System.

3. THE DRAFT DECLARATION ON RIGHTS AND DUTIES OF STATES,

1949
On 21 November 1947, the General Assembly of the United Nations directed the
International Law Commission to prepare a Draft Declaration on the Rights and
Duties of States. 28 By 1949, the Commission had drawn up a draft declaration
which it submitted to the General Assembly. 29 The Commission observed inter
alia that "the rights and duties set forth in the draft declaration are formulation in
general terms, without restriction or exception, as befits a declaration of basic
rights and duties. The articles of the draft declaration enunciate general principles
of international law, the extent and the modalities of the application of which are
to be determined by more precise rules". 30 Article 3 of the Draft Declaration
contains a formulation of the principle of nonintervention as follows:

27. See statement of Ambassador Alberto Martinez Piedra, U.S. representative to the Inter-American
Economic and Social Council, OAS Department of Public Information, Oct. 22, 1982, p.1.
28. See in this connection, General Assembly Resolution 178 (11) of 21 Nov. 1947.
29. Text in: ILC Yearbook (1949), pp.2 86 -288.
30. Ibid., p.290.
244 E. Y. Benneh

Every State has the duty to refrain from intervention in the internal or
31
external affairs of any other State.
During the study of the International Law Commission on the articles of the
Draft Declaration, some attention was focused on the question of "economic
coercion" as reflected in the principle of non-intervention under the OAS Char-
ter.3 2 Some members suggested that the Commission had not been explicit in its
definition of intervention. For example, Mr. Yepes proposed the adoption of the
formula included in Article 15 (Article 18 of the Revised Text) of the Bogota
33
Charter (i.e. Charter of the OAS) to replace the draft Article of the Declaration.
In rebuttal, Mr. Cordova of Mexico said he did not agree with the last phrase
"economic and cultural elements" in that article of the Bogota Charter. He,
however, was of the opinion that "if a definition were necessary, the first part of
the Bogota Charter might be included".34 Mr. Spiropoulos of Greece was opposed
to the inclusion of the Bogota article because it was "vague, inadequate formula-
tion; it contained certain notions outside the field of international law". 35 Mr.
Alfaro of Panama found Mr. Yepe's proposal "unsatisfactory" since the text of
the Bogota Article3 6 "contained a confusing number of elements.
The proposal for substituting the text of the Bogota article for the draft article
37
of the Declaration was rejected by 9 votes to 1 in the Commission.
The Draft Declaration which was adopted by the International Law Commis-
sion was subsequently referred to the Sixth Committee of the General Assembly
for comment. In the Sixth Committee, 38 Argentina 39 and Cuba proposed that a
similar article to Article 16 of the Bogota Charter (Article 19 of the Revised Text
be inserted after Article 3 of the Draft Declaration. The Argentinean proposal read:
Every State or group of States has the duty to refrain from applying or
abetting the application of coercive economic or political measures
designed to force the sovereign will of another State and to obtain
40
from that State advantages of any kind.
In this connection, the Argentinean representative, Mr. Vieyra pointed out:

31. This article was derived from original article 5 of the Panamanian text. In its Commentary on this
article, the ILC notes that the principle has already found place in various international docu-
ments. ILC Yearbook (1949), p. 2 8 7 .
32. Ibid., pp.89-93.
33. Ibid., p. 9 0 .
34. Ibid., pp. 9 0 -9 1, 93.
35. Ibid., p. 9 2 .
36. Ibid.
37. See UNGA, Official Records, Six Committee, Summary Records, 20 September-November,
1949, 172nd-173rd Meetings.
38. Doc. A/C.6/1.9.
39. Doc. A/C.6/L.25.
40. This Article reads: "No State may use or encourage the use of coercive measures of an economic
or political character in order to force the sovereign will of another State and obtain from it
advantages of any kind"
 Economic Coercion, the Non-Intervention Principle 245

Economic aggression, which it was designed to prevent, contained

certain elements of aggression as well as of intervention, and was
therefore not fully covered in Article 3, which dealt with intervention
alone. 4
Introducing the Cuban proposal, Mr. Garcia-Amador stated:
Of the two new articles which the Cuban delegation wished to add,
the first dealt with economic and political aggression. Article 3 of the
Draft Declaration enunciated the general principle of non-interven-
tion by one State in the internal or external affairs of another. The
purpose of the new article which would be inserted after Article 3
was to complete that general principle by dealing with and expressly
condemning the two most frequent manifestations of intervention,
namely economic aggression and political aggression, as follows:
No State may use or encourage the use of coercive measures of an
economic or political character in order to force the will of another
State and obtain from it advantages of any kind. a2
The Cuban proposal was based on Article 16 (Article 19 of the Revised Text)
of the Bogota Charter. In this connection, the Cuban representative further stated:
Economic aggression could assume many forms, ranging from
threats of, or the effective application of, enforcement measures in-
tended to obtain or maintain advantages or specific situations, to the
suppression of free competition in the international market and the
economic subjugation of the country which was the victim of that
kind of aggression. In all those cases, it was the economic integrity
and independence of the State which were undermined and even
completely destroyed. All States were vulnerable to that type of
aggression, but those it affected most were the countries with the
least developed or the least diversified economy, because an attack
upon one of their basic products could upset their entire economic
structure.
In the draft article proposed to cover those two forms of aggres-
sion, the Cuban delegation had attempted to foresee all the motives
which might impel a State to resort to enforcement measures of an
economic or political nature. Thus, whatever might be the advantages
the State sought, whether it profited directly from them or enabled
individuals to profit from them, its actions would be unlawful.43

41. UNGA, Official Records, Sixth Committee, Summary Records 20 September-November, 1949,
172nd Meeting, p.199.
42. Ibid., 173rd Meeting, p.202.
43. Ibid.
246 E. Y. Benneh

Other delegations in the Sixth Committee opposed both the Argentinean and
the Cuban proposals. Thus, for example, Mr. Roman of the Dominican Republic
said that although his delegation unreservedly approved the principle expressed
in the Bogota article, it
feared that the co-existing stage of development of international law
did not justify the inclusion in a declaration on the rights and duties of
States, which was of universal scope, a principle that the Latin-
American States had been able to adopt only because it corresponded
44
to the current stage of development of their legal conscience.
Neither proposal was acted upon in the Sixth Committee. For that matter, on 7
December 1951, the General Assembly decided to postpone consideration of the
matter "until a sufficient number of States have transmitted their comments and
suggestions, and in any case to undertake consideration as soon as a majority of
the Member States have transmitted such replies". 4" Member States have still not
acted on the Assembly's resolution.

4. THE DRAFT CODE OF OFFENCES AGAINST THE PEACE AND

SECURITY OF MANKIND, 1956
In 1947, the General Assembly of the United Nations directed the International
Law Commission to formulate the principles of international law which had been
recognized by the Nuremberg Trial and to prepare a Draft Code of Offences
Against The Peace and Security of Mankind.46 By 1951, a draft code had been
adopted by the Commission which was submitted to the General Assembly.47
Article 2, paragraph 9, of the Draft Code provides:
The intervention by the authorities of a State in the internal or exter-
nal affairs of another State by means of coercive measures of an
economic or political character in order to force its sovereign will and
thereby obtain advantages of any kind, is an international crime.
This provision was introduced by the Cuban delegate, Mr. Garcia-Amador,
who stated that his proposal was based on Articles 15 and 16 (Articles 18 and 19
of the Revised Text) of the Charter of the Organization of American States.48
Other delegates supported this provision. Mr. Salamanca of Bolivia declared that
intervention also included "the use of the financial resources of the government
of another State". 49 The Czechoslovak delegate, Mr. Zourek, stated that "[T]he

44. Ibid.
45. See General Assembly Resolution 596 (VI) of 7 Dec. 1951.
46. See General Assembly Resolution 596 (VI) of 7 Dec 1951.
47. Text in: ILC Yearbook (951), Vol.11, pp.134-137.
48. See ILC Yearbook (1954). Vol.11, pp. 15 1 - 15 2 .
49. Ibid., p.140.
 Economic Coercion, the Non-Intervention Principle 247

United Nations Charter declared illegal the use of force in general, including not
50
only military but also economic measures.
Taking the opposite view were those who argued that Mr. Garcia-Amador's
proposal was too broad, for many acts of an economic nature, even if reprehen-
sible and violating international law, were not necessarily crimes. Thus, accord-
ing to Mr. Spirophoulos: "It was not uncommon for States to employ political and
5
economic pressure in order to influence other States. '
The proposal to add coercive measures as an offence was adopted by 6 votes to
4, with 2 abstentions, and was included as Article 2 paragraph 9, of the Draft
2
Code of Offences Against The Peace and Security of Mankind.1
Explaining his abstention, the United States delegate, Mr. Edmonds, felt that
the draft's terms were too vague and indefinite to stand the test of statutory
political validity. He expressly stated that the non-intervention clause of Article
2, paragraph 9, prohibiting coercive measures of an economic or political charac-
ter, "appeared to condemn as unjustified interventions practically all the normal
53
manifestations of international life.
The draft which the International Law Commission adopted has been referred
to the Sixth Committee of the General Assembly of the United Nations. The
Committee only adopted a resolution proposing that further consideration of the
Draft Code be postponed until a decision was reached by the General Assembly.

5. THE DECLARATION ON THE INADMISSIBILITY OF

INTERVENTION IN THE DOMESTIC AFFAIRS OF STATES AND THE
PROTECTION OF THEIR INDEPENDENCE AND SOVEREIGNTY, 1965
On 21 December 1965, the General Assembly of the United Nations adopted the
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of
States and the Protection of their Independence and Sovereignty as part of Reso-
lution 2131 (xx). 4
The Declaration proclaims a general principle of "nonintervention" of States
in the internal and external affairs of other States, and links "economic coercion"
with "armed intervention and all other forms of intervention against the person-
ality of the State or against its political, economic and cultural elements"
The key passages of the Declaration are:
I. No State has the right to intervene, directly or indirectly, for any reason
whatever, in the internal or external affairs of any other State. Conse-
quently, armed intervention and all other forms of interference or

50. Ibid.
51. Ibid., p. 139 .
52. Ibid., p.14 0 .
53. Ibid., p. 177.
54. See GAOR, Twentieth Session, Supp. 14, p. 11, UN Doc. A/6220 (1965). Adopted by 109 to 0,
with 5 abstentions (Australia, Belgium, Netherlands, New Zealand and the United Kingdom).
248 E. Y. Benneh

attempted threats against the personality of the State or against its politi-
cal, economic and cultural elements, are condemned.
2. No State may use or encourage the use of economic, political or any other
type of measures, to coerce another State in order to obtain from it the
subordination of the exercise of its sovereign rights or to secure from it
advantages of any kind....
3. The use of force to deprive peoples of their national identity constitutes a
violation of their inalienable rights and of the principle of non-interven-
tion.
4. Every State has an inalienable right to choose its political, economic,
social and economic systems, without interference in any form by another
State.
It is clear that the language used follows closely that contained in the OAS
Charter. Paragraph 2, in particular, speaks of "economic political or any other
type of measures to coerce another State in order to obtain from it the subordina-
tion of the exercise of its sovereign rights or to secure from it advantages of any
kind". Thus, for example, explaining his abstention, the United Kingdom repre-
sentative, Sir Roger Jackling, said that: "The principle of non-intervention con-
cerned a vital area of international law which required detailed study before it
could be fully expressed in a series of propositions. It was particularly important,
that the terms used should be accurately and precisely defined.55 The United
States also declared that it considered the declaration in that resolution to be
"only a statement of political intention and not a formulation of law". 56

6. THE DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW

CONCERNING FRIENDLY RELATIONS AND CO-OPERATION AMONG
STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED
NATIONS, G.A. RESOLUTION 2625 [XXV], 24 OCTOBER 1970
Much of the substance of the principle of non-intervention contained in Resolu-
tion 2131 [XX] is repeated in the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation 57 which was adopted by accla-
mation at the General Assembly's Twenty-fifth Session. The Declaration is
generally accepted as providing "evidence of the consensus among States of the
58
United Nations on the meaning and elaboration of the principles of the Charter".
The preamble to the Declaration itself makes several references to the impor-
tance of the maintenance of international peace and security and the development
of friendly relations and co-operation between nations as among the fundamental
purposes of the United Nations. It also expresses the conviction that:

55. GOAR, Twentieth Session, First Committee, 1422nd Meeting, Agenda Item 107, paragraph 23.
56. Ibid., A/C.I/SR.1423, p.436.
57. 25 UNGAOR, Supp. No. 28, at 121, UN Doc. A/8028 (1970); hereinafter cited as 1970 Declara-
tion. The Declaration was adopted without vote.
58. Brownlie, Basic Documents in InternationalLaw, p.35.
 Economic Coercion, the Non-Intervention Principle 249

the strict observance by States of the obligation not to intervene in the

affairs of any other State is an essential condition to ensure that
nations live together in peace with one another, since the practice of
any form of intervention not only violates the spirit and letter of the
Charter, but leads to the creation of situations which threaten interna-
tional peace and security.
Preambular paragraph nine recalls "the duty of States to refrain in their inter-
national relations from military, economic or any other form of coercion aimed
against the political independence or territorial integrity of any State".
After these recitals, the 1970 Declaration attempts a formulation of the legal
duty of non-intervention in paragraph 2 of the operative text, a formulation which
mentions, inter alia, "coercive economic measures". That paragraph provides:
No State or group of States has the right to intervene, directly or
indirectly, for any reason whatever, in the internal or external affairs
of any other State. Consequently, armed intervention and all other
forms of interference or attempted threats against the personality of
the State or its political, economic and cultural elements, are in
violation of international law.
No State may use or encourage the use of economic, political or any
other type of measures to coerce another State in order to obtain from
it the subordination of the exercise of its sovereign rights and to
secure from it advantages of any kind.
Every State has an inalienable right to choose its political, economic,
social and cultural systems, without interference in any form by
59
another State.

CONCLUSION
It is clear that General Assembly Resolutions 2131 (xx) and 2625 (xxv) appear to
recognise the use of "economic coercion" as an application of illegal interven-
tion. In proclaiming a general ban on the use of such pressure, these resolutions
appear to go beyond the terms of Article 2 (4) and (7) of the United Nations
Charter, however broadly construed. The question therefore is what legal weight,
if any, can be attributed to these resolutions? It has been observed in this context
that:
The General Assembly's authority is limited to the adoption of reso-
lutions. These are mere recommendations having no legally binding

59. Where the 1965 Declaration had condemned "armed intervention and all other forms of interfer-
ence against the personality of the State or against its political, economic and cultural elements",
this paragraph instead found them "in violation of international law.
250 E. Y. Benneh

force for Member States. Solemn declarations adopted either unani-

mously or by consensus have no different status, although their moral
and political impact will be an important factor in guiding national
policies. Declarations frequently contain references to existing rules
of international law. They do not create, but merely restate and
endorse them. Other principles contained in such declarations may
appear to be new statements of legal rules. But the mere fact that they
are adopted does not confer on them any specific and automatic
authority. The most one could say is that overwhelming (or even
unanimous) approval is an indication of opiniojuris sive necessitatis,
but this does not create law without any concomitant practice, and
that practice will not be brought about until States modify their
national policies and legislation. It may also arise, however, through
the mere repetition of principles in subsequent resolutions to which
States give their approval. The General Assembly, through its solemn
declarations, can therefore give an important impetus to the emer-
gence of new rules, despite the fact that the adoption of declarations
60
per se does not give them the quality of binding norms.
Professor Lillich also says: "'While technically such resolutions are not
regarded as binding obligations under international law, their authoritativeness, in
that they reflect the expectations of the international community cannot be
dismissed out-of-hand.." Quoting the above statement, in general context that
resolutions of the General Assembly "are not per se binding, he observes: "But
the body of resolutions as a whole, taken as indication of a general customary
law, undoubtedly provide a rich source of evidence" 61
It is considered that the only justifiable conclusion to be drawn is that the near-
unanimity of the above-mentioned resolutions, coupled with their repetition, in
part, of the same or virtually the same statement, does not itself establish the
illegality of economic coercion. This proposition can be elaborated as follows:
(i) Those governments and writers who condemn economic coercion as un-
lawful use of force or of intervention use what may be described as "non-
law" to support the development of law. They refer to one or the other of
the resolutions or international instruments as a precedent without taking
note of their very limited legal effect.
(Qualification).
Article 19 of the OAS Charter (Revised Text) is a specific treaty provi-
sion. It is questionable, however, that this provision which has attracted a
lot of attention is of any relevance outside the Inter-American system.
(ii) It is impossible to extract from these resolutions what is meant by "eco-

60. Innovations in InternationalLaw-Making Processes, in Macdonald, Johnston and Morris, eds.,

1
The InternationalLaw and Policy of Human Wel/re, (19780, p. 87 at 190.
61. Lillich, Economic Coercion and the New InternationalEconomic Order A Second Look of Some
First Impressions. In Lillich (ed.) op. cit., p.107 at 111-112.
 Economic Coercion, the Non-Intervention Principle 251

nomic coercion." In this respect, the lack of any legal content to the
statements of prohibition is highly significant.
(iii) It is also significant of the fact that some States - the Western group of
States - disassociate themselves from the later declarations on the New
International Economic Onder 2 which contain similar statements of pro-
hibition.
(vi) There is a sharp contrast between what States say and what they do in
practice.
(v) There is no distinction made between economic sanctions imposed, or
authorised, by an international organisation and economic measures
undertaken on a unilateral basis. This confusion is traceable to the desire
of various partisans to establish that all economic coercion is illegal in
international law.
Considering the above, the pronouncement made by the Court in the Nicaragua
Case becomes controversial. Evidently, the Court's opinion on the principle of
non-intervention as a rule of customary international law is influenced by what it
considers as "'acceptance" by States of the principle in those Assembly resolu-
tions.63 But this view does not escape criticism. A comment on the position of
principle which appears more acceptable is offered by Professor D'Amato. He
states:
First, a customary rule arises out of State practice; it is not necessarily
to be found in UN resolutions and other majoritarian political docu-
ments. Second, opiniojurishas nothing to do with the acceptance of
rules in such documents. Rather, opinio juris is a psychological
element associated with the formation of a customary rule as a char-
acterisation of state practice. To make matters even worse, the Court
gives no independent evidence even of its own theory that States
have accepted the non-intervention rule in various resolutions and
documents, except for the question-begging fact that the States sub-
scribed to those documents and resolutions. If voting for a UN resolu-
tion means investing it with opiniojuris, then the latter has no inde-
pendent content; one may simply apply the UN resolution as it is and
mislabel it customary law. Finally, instead of beginning with State

62. See, e.g., the Charter of Economic Rights and Duties of States, adopted by the General Assembly
at its Twenty-Ninth General Session on December 12, 1974, by a vote of 120 to 6, with 10
abstentions, UNGA Res.328, 29 UN GAOR, Supp. No. 31, Vol.1, at 50, UN Doc. A/9631 (1974).
See also General Assembly Resolution 3171 (XXVII) on "Permanent Sovereignty over Natural
Resources" of 3 December 1973, a resolution which explicitly makes mention of "economic
coercion", adopted by a vote of 108 to 1,16 abstentions, 25 UN GAOR, Supp. No. 30, at 52, UN
Doc. A/9030 (1973).
63. Elsewhere the Court declared: "The effect of consent to the text of such resolutions cannot be
understood as merely that of 'reiteration or elucidation' of the treaty commitment undertaken in
the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or
set of rules declared by the resolutions themselves", Nicaragua v'United States of America op.
cit. at p.100.
 252 E. Y. Benneh

practice, the Court finds that whenever state practice conflicts with
the non-intervention rule, the practice must be an illegal breach of
that rule. This procedure similarly robs State practice of independent
content. All we need is the original alleged rule and the empty theory
that any practice inconsistent with it does not count.'
In any case, the final conclusion must be that States habitually use economic
coercion and that in the overwhelming number of cases those against whom such
coercion is applied do not respond in legal terms. State responses, in most cases,
find expression in political terms. 65 Thus, the very facts of the situation must lead
to the conclusion that international law, as based on State practice, does not
prohibit the use of economic coercion as illegal intervention.

64. D'Amato, Agora: Appraisals ofNicaragua v. United States, 81 AJIL (1987) at p.102.
65. See supra note 7.