3.1. The general prohibition and its framing

The earliest codification of the doctrine of non-intervention, which is found in the 1933 Montevideo Convention on the Rights and Duties of States (Montevideo Convention), provides that ‘[n]o State has the right to intervene in the internal or external affairs of another’.Footnote ³⁵ As Arnulf Becker Lorca has argued, in its time, the Montevideo Convention ‘marked a definite departure from classical international law’.Footnote ³⁶ The codification of the prohibition of intervention ‘did not lay down existing law, but created new law’.Footnote ³⁷ It rendered wrongful behaviour that had previously been lawful.

The doctrine of non-intervention emerged to protect the Global South’s choice of political, economic, social and cultural systems from the predation of the Global North.Footnote ³⁸ Before signing the Montevideo Convention, the US had invoked a right to intervene in Latin American States to ‘protect its nationals or national interest, to recover public debt and other pecuniary claims based on injuries suffered by its nationals’.Footnote ³⁹ By ratifying the Montevideo Convention, it endorsed a more restrictive definition of diplomatic protection.

The prohibition of intervention is now codified in the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty (Declaration on the Inadmissibility of Intervention) and the 1970 Friendly Relations Declaration.Footnote ⁴⁰ The Declaration on the Inadmissibility of Intervention condemns ‘armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements’.Footnote ⁴¹ It prohibits ‘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’.Footnote ⁴² The Friendly Relations Declaration similarly provides that ‘[n]o 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’.Footnote ⁴³

ICJ jurisprudence on the nature of the prohibition is limited. In Nicaragua, the ICJ held that:

Despite the scarcity of legal opinions on the doctrine, distinguished publicists place the doctrine high in the hierarchy of international legal norms. In Nicaragua, the Separate Opinion of Judge Sette Camara provided that:

As noted in Section 1, the doctrine of non-intervention is qualified in two ways. It is only wrongful to intervene in respect of ‘matters in which each State is permitted … to decide freely’ and only then if the intervention constitutes ‘coercion’.Footnote ⁴⁶

At first glance, domestic jurisdiction and coercion appear to reflect different ways of thinking about non-intervention. When considering domestic jurisdiction, focus falls on the internal affairs of the State that is subject to intervention—the matters on which it is permitted to decide freely. In other words, this facet of the doctrine reflects sovereign autonomy, the internal aspect of sovereignty. In contrast, when considering coercion, the focus falls on the actions of the State that is accused of unlawful intervention. It asks whether the manner in which that State conducted its international relations was lawful. In other words, this facet of the doctrine reflects the external aspect of sovereignty. While domestic jurisdiction and coercion might thus be considered as contrasting ways to conceive of intervention, these two prongs of intervention are better seen as manifestations of a single idea: that is, that there exists a baseline in international law for matters on which a State is permitted to decide freely.

3.2. Coercion

Coercion did not appear in the original definition of unlawful intervention in the Montevideo Convention.Footnote ⁴⁷ Its status in the modern doctrine of non-intervention is a result of the efforts of Western States to limit the extent of the doctrine of non-intervention advocated by the Global South.Footnote ⁴⁸ These efforts, and the subsequent attempts by Global South States to lower the bar as to what constitutes coercion, have made it an elusive component of the doctrine of non-intervention.

According to Oppenheim, wrongful intervention is ‘forcible or dictatorial or otherwise coercive, in effect depriving the state intervened against of control over the matter in question’.Footnote ⁴⁹ Yet Oppenheim’s first adjective—‘forcible’—is unhelpful. Nicaragua and Armed Activities considered intervention to be of a scale and duration sufficient to breach the prohibition on the use of force, directed at the overthrow of a government. In Armed Activities, the ICJ made it clear that the doctrine of non-intervention is not limited to violent acts.Footnote ⁵⁰ If the definition of intervention is centred on force, then it is redundant. Wrongful force will constitute wrongful intervention, but it will be wrongful anyway. Following Oppenheim, the purpose of the doctrine of non-intervention is to capture wrongs that are ‘dictatorial’ or ‘otherwise’ coercive.

Yet it is hard to supply (or even obtain) a clear definition of what ‘coercion’ might mean in the scope of the doctrine.Footnote ⁵¹ The Tallinn Manual 2.0 on the International Law Applicable to Cyber Warfare (Tallinn Manual) acknowledges that the ‘term “coercion” is not defined in international law’.Footnote ⁵² (Neither is dictatorial conduct.) The Tallinn Manual suggests its own exploratory definition of coercion: ‘an affirmative act designed to deprive another State of its freedom of choice’.Footnote ⁵³ It states the ‘key is that the coercive act must have the potential for compelling the target State to engage in an action that it would otherwise not take (or refrain from taking an action it would otherwise take)’.Footnote ⁵⁴ Such acts are distinguished from ‘persuasion, criticism, public diplomacy, propaganda … and the like’.Footnote ⁵⁵

Perhaps, then, compulsion—that is, depriving another State of its freedom of choice—is what distinguishes lawful persuasion and unlawful intervention. But this definition of coercion is also unsatisfactory. It is hard to think of examples in which States are completely deprived of freedom of choice, including cases such as Nicaragua and Armed Activities, where the interventions were forcible. There are few offers that States cannot refuse. Indeed, when a polity is completely deprived of freedom of choice, this suggests that it lacks statehood. For example, the fact that Manchukuo could be compelled to act by Japan demonstrated that it was not a sovereign State.Footnote ⁵⁶

In contrast, the Friendly Relations Declaration and the Charter of the Organization of American States set the bar for what constitutes ‘coercion’ far lower than the Tallinn Manual. They refer to activity designed to obtain ‘advantages of any kind’ from another State.Footnote ⁵⁷ But, again, coercion cannot mean this because the doctrine of intervention is not supposed to ‘outlaw diplomacy’.Footnote ⁵⁸ It is supposed to distinguish intervention from persuasion, criticism and public diplomacy. All of these are actions designed to obtain an advantage of some kind. If these options are rejected, it becomes clear that what counts as ‘coercion’ can only be defined with reference to context.

Indeed, the dominant philosophical theory of coercion is a contextual theory. It defines all coercion as threats to change the position of the victim relative to some baseline.Footnote ⁵⁹ As Anna Stelle notes, ‘most post-1970’s writing on this topic assumes the fundamental premise that proposing to make another party worse off with regard to some baseline simply is what it is, or at least part of what it is, to commit the wrong of coercion’.Footnote ⁶⁰ By this argument, what counts as coercion can only be identified if the relevant baseline for what counts as a threat is identified first.

The baseline theory means that what counts as coercion depends on context: on what the complainant expected, or what they were entitled to expect. For example, in his formative article, Robert Nozick raised the example of the slave who is told that they will not receive their regular beating if they comply.Footnote ⁶¹ The baseline here is “being beaten”. In turn, some people might think that they are being coerced into coming into work every morning. The baseline here is “staying in bed”.

On the same basis, international lawyers might think that an invitation to accept a loan, or to join a free trade zone or non-aggression pact is coercive, provided that the offer is good enough to bend the State’s will.Footnote ⁶² Yet unless the type of freedom a person, or a State, deserves in a given situation is specified, it is not possible to say whether they are being coerced. This ‘normal and expected course of events’ functions as a ‘baseline in assessing whether something is a threat’.Footnote ⁶³

Some writers think that the very idea of coercion is circular: wrongful forms of intervention are by definition ‘coercive’, whereas the ‘coerciveness’ of an act is determined by its wrongfulness.Footnote ⁶⁴ This is half-right—coercion is a placeholder for another idea. But that idea is not ‘wrongfulness’. It is the sort of freedom which a State ought to expect. What counts as coercion cannot be defined without first defining the freedom that such coercion is supposed to constrain. That is a contextual question and, as will be seen, the concept of ‘domestic jurisdiction’ is supposed to answer that question.

The definition of intervention set out in Section 3.1 supposedly combines a broad prohibition with two limiting devices—coercion and domestic jurisdiction. There is now reason to suspect that these two devices might, in fact, be one single idea. The reason is, when deciding whether State action is coercive, a baseline that defines the freedom that the State ought to possess must first be established—the matters on which it is permitted to decide freely. The thing that enables the description of electoral interference, or public diplomacy, as unlawful intervention in a State’s internal affairs, is a satisfactory account of what constitutes ‘internal affairs’.

3.3. Domestic jurisdiction

As discussed in Section 1, intervention is coercion in respect of matters ‘in which each State is permitted, by the principle of State sovereignty, to decide freely’.Footnote ⁶⁵ What counts as intervention may itself depend on what those matters are.

There is a strand of scholarship and practice in non-intervention which seeks to define what counts as the ‘internal affairs of the State’—the area that is ‘not in principle, regulated by international law’.Footnote ⁶⁶ This idea makes the Chinese statements in Section 1 look less eccentric than they might at first appear. The argument is that if intervention protects the choice of a political system, and if criticism of the State’s human rights record is a challenge to the political system, then the criticism might be an unlawful intervention. This argument requires an unworkably broad definition of domestic jurisdiction. It would ‘outlaw diplomacy’, as Tom Farer observed.Footnote ⁶⁷ The trouble, however, is that international law has not developed a workable legal account of domestic jurisdiction.

In certain subfields of international law, the law outlines the respective jurisdiction of the State and of the international community. For example, in international criminal law the principle of conferral expressed in Articles 13–16 of the Rome Statute of the International Criminal Court does this work, as does the Margin of Appreciation doctrine in international human rights law.Footnote ⁶⁸ But there is no general account of the area regulated by international law. In this respect, international law differs from other legal orders, including transnational legal orders, which have developed an account of the space occupied by their system. For example, in European Union (EU) law, the principle of conferral and the principle of subsidiarity explain (imperfectly) the scope of the legal power of the EU. The domestic constitutional laws of federal or confederal legal orders employ similar ideas for a similar purpose.Footnote ⁶⁹ However, international law has no general principle of conferral. Scholars including Rosalyn HigginsFootnote ⁷⁰ and Eirik Bjorge,Footnote ⁷¹ have suggested that this is a direction that public international law might have taken at one point in its development but, ultimately, did not.

Paolo Carozza goes further, arguing that it might not be possible for international law, in its current state, to develop such a principle. He argues that the principle of subsidiarity demands a degree of coherence in the structure of both the State and the international community.Footnote ⁷² The legal order of the EU, for example, possesses such a structure, by which it is possible to determine which issues are supposed to fall within the competence of the EU and which issues are supposed to fall within the competence of the Member States. However, for Carozza, the international legal system ‘simply does not correspond to the underlying vision of embedded relationships among norms and authorities that has provided the default framework for the historical development of the idea of subsidiarity’.Footnote ⁷³ Perhaps a future configuration of international law can supply a doctrine of subsidiarity and/or conferral. Nonetheless, while some doctrines tilt in this direction, international law does not presently include such doctrines.

The obvious candidate for a doctrine that might fulfil this function is sovereignty. As was explained in Section 1, the non-intervention principle relates to matters that are of an inherently sovereign nature. It is possible to imagine sovereignty as defining a sphere of State action that sits independently of the laws and the actions of other States. In the Island of Palmas Case, Arbitrator Max Huber said that sovereignty ‘in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State’.Footnote ⁷⁴ This conception of sovereignty will prove to be important when addressing Chinese State practice but, crucially, it did not survive contact with the Lotus principle in mainstream international law. There are areas that international law does not yet regulate, but there are no areas that are, in general, insulated from the competing sovereignty of other States. A contemporary approach advocates ‘the gradual substitution of an international law of cooperation for the traditional international law of co-existence’.Footnote ⁷⁵ Perhaps, with this in mind, in Armed Activities the ICJ approached non-intervention as an international wrong that is separate to the breach of ‘sovereignty’ and ‘territorial integrity’.Footnote ⁷⁶ Domestic jurisdiction may therefore refer to ‘areas not [yet] regulated by international norms’.Footnote ⁷⁷

There is an ongoing debate as to whether sovereignty is a ‘primary rule’ of international law, which is to say, a legal rule that can be breached and whose breach justifies countermeasures. The prohibition of the use of force and the prohibition of intervention are unambiguously primary rules. Some scholars and States believe that activity that does not meet the threshold for intervention may be a separate breach of a primary rule of sovereignty. As scholars such as William Ossoff and Mike Schmitt note, American and British officials in particular hold a sceptical view about the status of sovereignty as a primary rule.Footnote ⁷⁸ In contrast, in 2017, Chinese practice provided that the principle of sovereignty enshrined in the UN Charter was ‘a basic norm in contemporary international relations’.Footnote ⁷⁹ Because of this norm, ‘no country should pursue cyber hegemony, interfere in other countries’ internal affairs, or engage in, condone or support cyber activities that undermine other countries’ national security’.Footnote ⁸⁰

On one account, sovereignty is an organising principle which shapes and justifies primary rules such as non-intervention; on another account, it is a catch-all which applies when those rules run out.Footnote ⁸¹ A full account of this debate is beyond the scope of this article, but regardless of which position is taken, as a vague, multifaceted and contested concept, sovereignty is unlikely to establish the sort of baseline which can divide coercive from non-coercive behaviour, and which ultimately can distinguish lawful State action from unlawful intervention.Footnote ⁸² Moynihan concludes that the idea of a domaine réservé ‘is not particularly helpful’, in part, on account of the imperfect overlap of ideas, including domestic jurisdiction, inherently sovereign functions and internal affairs. She says that ‘a better understanding’ of sovereign function in this context begins with State functions, including ‘a state’s choice of political, economic, social and cultural system, as well as the formulation of foreign policy’.Footnote ⁸³

There is another candidate principle which might define the sort of freedom that a State ought to expect. The final communiqué of the 1995 Bandung Conference called for ‘the abstention from intervention or interference in the internal affairs of another country’. The principle of self-determination protected the right of all nations ‘freely to choose their own political and economic systems and their own way of life’.Footnote ⁸⁴ Louise Doswald-Beck has argued that ‘the principle of non-intervention in internal affairs is, in effect, an attempt to limit outside neo-colonial attempts to influence events in other countries for the interests of the intervening country’.Footnote ⁸⁵ Pursuant to Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, States are entitled to ‘freely determine their political status’, ‘freely pursue their economic, social and cultural development’ and ‘freely dispose of their natural wealth and resources’. The quotation from Nicaragua in Section 3.1 echoes this approach.

Self-determination can be frustrated when States interfere with the processes of self-governance.Footnote ⁸⁶ The doctrine of self-determination places ‘the People’ (rather than the State) in the foreground and cherishes processes of political decision-making and the disposal of natural resources.Footnote ⁸⁷ If the baseline of freedom and national choice is framed in terms of a national or political system,Footnote ⁸⁸ then it is easier to defend the sorts of Chinese statements set out in Section 1, which oppose diplomatic criticism of China’s human rights record. Such criticism may be seen as targeting the political system, which a People has (supposedly) chosen for itself but, again, this leads back towards a concept of intervention that forbids diplomacy. This objection will be revisited in Section 5.

The doctrine of non-intervention comprises a broad, vague prohibition, notionally restricted by two qualifications: coercion and domestic jurisdiction. The law in this area—whether couched in terms of domestic jurisdiction, self-determination or sovereignty—is highly contextual. In municipal law, boundary problems about the scope of domestic jurisdiction can be resolved through doctrines such as federalism, conferral and subsidiarity. In international law, such problems are fundamental, substantially unresolved and continuously contested. Moreover, even the use of force leaves a State with a ‘choice of means’.Footnote ⁸⁹

The real question is not ‘whether’ but ‘to what extent’ the State was compelled. This question can only be answered with reference to the appropriate level of freedom of the State in the given situation and this leads back to domestic jurisdiction. This makes the principle of non-intervention highly malleable and hence amenable to various uses.

Chinese critiques of foreign interference are premised on a broad understanding of what sort of affairs are considered ‘internal’. In the 1990s, China referred to the genocide in Rwanda and ethnic cleansing in Srebrenica as ‘domestic affairs’.Footnote ⁹⁰ The Chinese statements set out in Section 1 fail to explain what makes alleged foreign intervention coercive.Footnote ⁹¹ Statements such as these might still be seen as expressions of a passive foreign policy stance without substantial legal relevance. The next section argues that these statements should not be seen in this way.

4.1. Context

Chinese uses of non-intervention reflect the PRC’s long-standing opposition to colonial interference, which predates the establishment of the PRC, as well as the more recent position of the NAM.

China’s history, and current domestic and international circumstances, give it a distinctive view of sovereignty and self-determination. Its classically Westphalian approach to sovereignty, the first element of the doctrine of non-intervention, focuses on the prescriptive jurisdiction of the State,Footnote ⁹² that is, its power ‘to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court’.Footnote ⁹³

One reason why China favours a classical approach to sovereignty is because its prescriptive jurisdiction was usurped by Western colonial powers starting in the middle of the nineteenth century, a period framed by the Chinese Government as the ‘hundred years of humiliation’.Footnote ⁹⁴ Chinese ports were forcibly opened to foreign trade by the 1842 Treaty of Nanjing, and the country ultimately lost sovereignty over parts of its territory under the 1860 Convention of Peking. Its jurisdiction was penetrated by foreign extraterritorial ‘consular’ jurisdiction, and foreign States and their corporations dictated a wide variety of policy choices, from railway and telegraph systems to the trade in opium. International law was one key mechanism for this foreign domination. As Ryan Mitchell argues, the ‘newly imposed structures of international law … came to China in 1860 as a package and in the form of a collective Western project’.Footnote ⁹⁵ China continues to describe the conventions that led to foreign penetration of its territory and usurpation of its sovereignty as ‘unequal treaties’: treaties which are unlawful because they are unequal. If China’s approach to international law continues to pay careful attention to the balance of power between the parties, then that is the product of experience.

In response to the hollowing out of its domestic jurisdiction, China articulated an original conception of sovereignty, a sovereignty which could be segmented into its component parts. In its attempt to challenge extraterritorial control of the various concessions, the Government of the Republic of China coined a new vocabulary of sovereignty, including ‘road sovereignty’ (luquan, 路权) and ‘police sovereignty’ (jingquan, 警权).Footnote ⁹⁶ A Chinese nationalist writer in 1930 protested against the involvement of the foreign-controlled Shanghai Municipal Council in the Shanghai school curriculum as a violation of ‘China’s sovereign educational rights’.Footnote ⁹⁷ The Chinese Communist Party (CCP, Party), in turn, came to power with an agenda to abolish concessions to Western powers and to eliminate foreign influence in China.Footnote ⁹⁸

In the Chinese literature, domestic jurisdiction appears to follow logically from a conception of sovereignty. Since all States are ‘sovereign’, ‘sovereignty’ is an inalienable attribute of Statehood.Footnote ⁹⁹ ‘Sovereignty’, in turn, means independence from external influence within a certain sphere.Footnote ¹⁰⁰ For example, defining the doctrine of non-intervention, the Friendly Relations Declaration refers to the ‘subordination of the exercise of … sovereign rights’.Footnote ¹⁰¹ As a consequence, intervention (and any interference) into the domestic affairs of all States must be categorically prohibited and international law must specify the content of those affairs.Footnote ¹⁰²

This is a self-consciously antiquated conception of sovereignty, both in China and in general international law. It is argued in Section 3.3 that it does not survive contact with the Lotus principle. In turn, Mitchell traces the pre-twentieth century development of the concept of guoti (国体)—‘State form’ or ‘Stateliness’—as a key dimension of China’s pre-twentieth century theory of sovereignty.Footnote ¹⁰³ An alternative, and more contemporary translation of guoti is ‘national system’. A conception of sovereignty built on the distinctive features of a national political systemFootnote ¹⁰⁴ underpins an approach to intervention based on the national choice of political, economic or cultural system.

While China no longer needs to assert ‘road sovereignty’, the same approach to domestic jurisdiction still shapes its approach to both sovereignty and intervention. In 1994, Wang Huning, the chief ideologist of the CCP, declared the importance of ‘cultural sovereignty’ as a bulwark against Western interference.Footnote ¹⁰⁵ In turn, China’s first internet white paper proclaimed China’s ‘internet sovereignty’ (wangluo zhuquan, 网络主权).Footnote ¹⁰⁶ That same year, when the Norwegian Nobel Committee awarded the Nobel Peace Prize to Liu Xiaobo, the Chinese Government protested against this as an act of interference in China’s ‘judicial sovereignty’ (sifa zhuquan, 司法主权).Footnote ¹⁰⁷ As Judge Xue Hanqin has written, ‘China invokes sovereignty often as a defence against external interference in its domestic affairs’.Footnote ¹⁰⁸

The second element of the doctrine of non-intervention relates to unwarranted influence over other States and, in particular, to the persistence of unlawful colonial patterns of control. As noted in Section 3.3, coercion can be described as a form of interference which is incompatible with the self-determination of peoples to determine their political status and freely pursue their economic, social and cultural development.

Chinese jurists had a distinctive voice in this debate from the very beginning. As Ryan Mitchell notes, China’s representatives at the Versailles Peace Conference sought to limit the scope of ‘regional understandings’ in the Convenant of the League of Nations, such as the American Monroe Doctrine (the American foreign policy stance declaring the Americas off-limits for European powers), which could have justified Japan’s interventions into China.Footnote ¹⁰⁹ Arnulf Becker Lorca similarly highlights the role played by Wu Chaoshu, China’s delegate to the 1930 Hague Conference, in shaping the nascent doctrine of non-intervention in light of the extraterritorial reach of colonial powers in contemporary China.Footnote ¹¹⁰

The newly established PRC enshrined its conception of sovereignty through the so-called Five Principles in 1953. The Five Principles described the ideals of Chinese foreign policy as ‘mutual respect for sovereignty and territorial integrity’, ‘mutual non-aggression’, ‘non-interference in each other’s internal affairs’, ‘equality and mutual benefit’ and ‘peaceful coexistence’.Footnote ¹¹¹ The Panchsheel Treaty, signed in 1954, reaffirmed the Five Principles between the PRC and India.Footnote ¹¹² Premier Zhou Enlai took the Five Principles to the international stage at the Bandung Conference in 1955.

The principle of non-intervention served various purposes for countries in the NAM. As Antony Anghie has pointed out, some participants in the Bandung Conference endorsed the principle of non-intervention not only to oppose the colonialism and imperialism of Western States, but also to resist ‘communist colonialism’ and Chinese overseas influence.Footnote ¹¹³ In any event, the Five Principles have shaped the modern doctrine of self-determination and, indirectly (through its Chinese uses), the doctrine of non-intervention. They continue to inform the language of Chinese foreign policy. According to President Xi, the Five Principles should be the basic principles for building a community with a shared future for mankind.Footnote ¹¹⁴

4.2. State practice and opinio jurisFootnote ¹¹⁵

Chinese statements about the content of the doctrine of non-intervention can be found in the highest constitutive documents of the PRC. The Preamble to the 1982 PRC Constitution (which, with amendments, is still in force) declares that China:

As mentioned in Section 4.1, China’s foreign policy doctrine adheres to the Five Principles, which assert a policy of non-intervention.Footnote ¹¹⁷ Recent Chinese Government white papers on foreign policy also reference the concept of non-intervention, and the Chinese leadership continues to stress China’s commitment to refraining from intervening in the domestic affairs of foreign countries.Footnote ¹¹⁸

Examples of anti-interventionist speech can be found in specific areas of Chinese foreign policy. For instance, the English language text of the Declaration on the Promotion of International Law ‘fully support[s] the principle of non-intervention in the internal or external affairs of States, and condemn[s] as a violation of this principle any intervention by States in the internal affairs of other States with the aim of forging change of legitimate governments’.Footnote ¹¹⁹ In case this is read as delimiting the principle of non-intervention to attempts to overthrow governments, the same paragraph condemns ‘extraterritorial application of national law by States not in conformity with international law as another example of violation of the principle of non-intervention in the internal affairs of States’.Footnote ¹²⁰ The Joint Statement between the Russian Federation and the People’s Republic of China of 8 February 2022 restates Russia and China’s common commitment to ‘counter interference by outside forces in the internal affairs of sovereign countries under any pretext’.Footnote ¹²¹ Such speech can be seen as carefully measured attempts to conform Chinese State practice to the principle of non-intervention.

Similarly, China’s submission to the UN’s Open-Ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security in 2019 is based on the principle of non-intervention, which China described as the ‘cornerstone of a just and equitable international order in cyberspace’.Footnote ¹²² This statement defines intervention broadly as actions which ‘undermine [the] political, economic and social stability’ of other States.Footnote ¹²³ As William Ossoff observes in a comparative survey of State practice in this field, China ‘views internet governance as an exclusively sovereign matter in which other States cannot intervene’.Footnote ¹²⁴

The Chinese Government purports to adhere to ‘The Five Nos’ (wu bu, 五不) in its engagement with African States.Footnote ¹²⁵ The Five Nos stand for self-imposed restrictions on Chinese conduct in Africa: ‘no interference with African countries’ exploration of development paths … ; no interference in Africa’s internal affairs; no impositions of one’s will on others; no attachment of political conditions to aid to Africa; and no political self-interest in investments and financing in Africa’.Footnote ¹²⁶ The Chinese Government and international lawyers have generally refrained from criticising likeminded governments for human rights violations. Instead, China has accused Western governments of using human rights as a pretext to intervene in foreign States for selfish motives.Footnote ¹²⁷ The Chinese Government has also objected to economic sanctions and military interventions, especially outside the Chapter VII mechanism of the UN Charter.Footnote ¹²⁸

It is striking that China does not typically use the doctrine of non-intervention—or call upon other States to use it—when complaining about certain types of interference in its internal affairs. In August 2019, the US Department of the Treasury designated China’s sovereign monetary policy as currency manipulation. The People’s Bank of China called this ‘a capricious act of unilateralism and protectionism’ and claimed that it would ‘severely undermine international rules and have material impacts on the global economy and finance’.Footnote ¹²⁹ Nevertheless, China did not describe the designation as an interference in China’s domestic affairs or as a serious breach of international law. In October 2022, the US Department of Commerce announced regulations which restricted the export to China of chips made using American tools. China brought a dispute before the World Trade Organisation (WTO), accompanied by statements by the Ministry of Commerce and the Chinese Semiconductor Association.Footnote ¹³⁰ China made no reference to intervention in this context.

The Chinese Government does not frame foreign influence that occurs through the WTO regime as unlawful intervention, whereas it does object to essentially similar interventions through human rights treaty bodies.Footnote ¹³¹ For instance, China has accepted decisions regarding its censorship regime under the WTO Dispute Settlement Understanding (DSU), while rejecting recommendations regarding censorship reached through the Universal Periodic Review (UPR) of China’s human rights treaty obligations.Footnote ¹³² The legal effects of decisions reached through the DSU and the UPR are different: the former are binding, the latter are not.Footnote ¹³³ It also matters that these WTO disputes and UPR recommendations relate to different aspects of the Chinese censorship regime.Footnote ¹³⁴ The point remains that the Chinese Government accepts some types of interference by some actors, but not by others.

More recent legal developments extend the language of intervention to a broader range of essentially foreign interests. For example, in 2023 the Standing Committee of the National People’s Congress adopted the PRC Foreign Relations Law, which sets up a basic legal framework for enacting extraterritorial sanctions. Article 37 of the PRC Foreign Relations Law authorises the Chinese State to take necessary measures in order to protect the security and legitimate rights and interests of Chinese citizens and organisations overseas.Footnote ¹³⁵

Chinese protests against interference typically relate to one aspect of China’s domestic jurisdiction in particular, which the Chinese Government calls its ‘core interests’. When the concept of Chinese ‘core interests’ was first adopted in the early 2000s, it referred exclusively to Taiwan.Footnote ¹³⁶ Subsequently, the scope of the Chinese ‘core interests’ has been broadened to include other territorial issues, such as China’s sovereignty over Tibet, Xinjiang and the Diaoyu/Senkaku Islands.Footnote ¹³⁷ The Chinese Government opposes involvement in these matters as interference in China’s domestic affairs.Footnote ¹³⁸

Nevertheless, unless China’s view on its territory, including its maritime territory, is widely shared, it should be clear that not all core interests are domestic affairs. It also seems that Chinese uses of intervention and interference are not always consistent. When the Arbitral Tribunal convened under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) ruled against China in July 2016, Foreign Minister Wang Yi called the ruling a number of things, including a ‘bad-faith dramatization’.Footnote ¹³⁹ He did not describe it as an interference in China’s domestic affairs.

China has been accused of interfering in the domestic affairs of other States. Its State practice includes examples of the behaviour which it identifies as interference. For example, 12 years ago, after the Chinese author Liu Xiaobo was awarded the Nobel Peace Prize, China imposed various requirements on Norwegian exports, including new sanitation and veterinary controls for Norwegian salmon.Footnote ¹⁴⁰ The share of Norwegian salmon imports in the Chinese market fell from over 80 per cent to 25 per cent.Footnote ¹⁴¹ As noted in Section 4.1, the Chinese Government objected to the award as unlawful foreign intervention. (Perhaps these actions might therefore be seen as legal countermeasures.) At the same time, China’s reaction could be seen as interference in the domestic affairs of Norway. More recently, China excised Lithuania from the General Administration of Customs list of States, a move which prevented goods shipped or transhipped from Lithuania from being landed at Chinese ports, designed to influence Lithuanian policy.

China’s diplomacy has also been described as ‘coercive’ in Southeast Asia where, according to Bonnie Glazer, ‘China has directly used economic relations to compel target countries to alter their policies’.Footnote ¹⁴² In 2015, the Chinese Government deployed warships to evacuate hundreds of Chinese and foreign nationals from the Yemen civil war.Footnote ¹⁴³ The Chinese Government described this action as a humanitarian relief mission, while noting that the intervention had taken place with the consent of the Yemeni Government.Footnote ¹⁴⁴ The Chinese Government also objected to the formation of the Yemeni Government of the Houthi rebels, which some Chinese legal scholars regarded as a departure from its traditional anti-interventionist posture.Footnote ¹⁴⁵ Furthermore, the Chinese Government has not always opposed humanitarian intervention through the UN Security Council (UNSC). Its support has, however, been conditional on the consent of the parties to the conflict, as was the case in Darfur.Footnote ¹⁴⁶ China notably abstained from a UNSC vote authorising the use of military measures against the Libyan Government in 2011.Footnote ¹⁴⁷

The Chinese Government’s positions on the Ukrainian conflict present another qualification to its policy on non-intervention. The Chinese Ministry of Foreign Affairs has asserted that, in the application of the principles of State sovereignty and non-intervention, ‘[t]he legitimate security concerns of any country should be respected’.Footnote ¹⁴⁸ According to Wang Yi, the Chinese Foreign Minister, China both endorses ‘the sovereignty and territorial integrity of all countries’ and holds that ‘the security of one country should not come at the expense of the security of other countries’.Footnote ¹⁴⁹ Ukraine, according to the Foreign Minister, ‘should function as a bridge between the East and the West, not a frontier in big power confrontation’.Footnote ¹⁵⁰ To the extent that these statements are coherent, China appears to suggest that Russia’s legitimate security concerns require Ukraine to remain non-allied, and justifies Russia’s armed intervention in Ukraine.Footnote ¹⁵¹ Such statements may suggest that China endorses Russia’s radically interventionist agenda, which stands at odds with its previous anti-interventionist position and has virtually no support in contemporary public international law. For the most part, however, it appears that the Chinese Government seeks to justify its silence and inaction in respect of the Russian invasion of Ukraine through the doctrine of non-intervention.Footnote ¹⁵²

As discussed, China does not frequently criticise the human rights records of likeminded States. Yet, in 2017, it joined a statement which expressed ‘grave concern’ about human rights violations in Rakhine State, calling on Myanmar to cease using ‘excessive military force’ and halt communal violence.Footnote ¹⁵³ Among other demands, the statement called for the implementation of the recommendations of Kofi Annan’s Advisory Commission on Rakhine State, and for investigations into human rights abuses. The State Council Information Office also publishes an annual review of human rights violations in the US.Footnote ¹⁵⁴

State practice on non-intervention is rarely scrupulously consistent and China is no exception. A similar list of American statements and policies could be made. Here, again, the argument is laid open to the realist objection that the only explanation for the Chinese uses of the doctrine of non-intervention lies in the immediate priorities of China’s foreign policy. But, again, it is stressed that interference is not merely an impediment to Chinese foreign policy. It is a way to describe and justify Chinese foreign policy, and to influence the foreign policy of other States. Section 5 will return to this point. The following section examines the ways in which Chinese Government-aligned scholars have explored this concept.

4.3. Chinese publicists

This section surveys Chinese publications on intervention and considers what this scholarship might mean for the future direction of Chinese State practice.

Most Chinese scholars adhere to non-interventionism, seeking to expand its scope to new fields, such as to ‘internet sovereignty’.Footnote ¹⁵⁵ Nevertheless, some Chinese scholars have sought to reform the Chinese approach to non-intervention by, among other things, urging the Chinese Government to acknowledge that it no longer opposes intervention in the internal affairs of foreign States when important humanitarian and national interests require it.Footnote ¹⁵⁶

Professor Yang Zewei of Wuhan University has urged China to ‘rethink and modify’ its approach to the principle of non-intervention in line with China’s international standing and the enlargement of its national interests.Footnote ¹⁵⁷ Yang argues that China’s anti-interventionist posture has prevented it from assuming a leadership role in global governance and pursuing its own economic and security interests abroad.Footnote ¹⁵⁸ He believes that China should recognise the erosion of the principle of non-intervention, and replace its policy of non-intervention with a new doctrine of ‘protective intervention’ (baohuxing ganyu, 保护性干预).Footnote ¹⁵⁹ Yang advocates for the doctrine of ‘protective intervention’, which would see China intervene in the domestic affairs of foreign States in the event of humanitarian disasters and ‘serious threats’ to China’s national interests.Footnote ¹⁶⁰ In contrast to the advocates of the Responsibility to Protect doctrine, who justify intervention solely on the basis of humanitarian needs in the absence of UNSC action, Yang regards foreign States and regions in terms of their ‘strategic value’ in the furtherance of China’s economic influence abroad.Footnote ¹⁶¹ In sufficiently important geographical locations, preparations should be made for using military force to ensure the safety of Chinese personnel and investments.Footnote ¹⁶²

A number of Chinese legal scholars have urged the Chinese Government to take advantage of the same interventionist legal tools that Western countries have used for decades. For instance, Professor Li Ming of Peking University observes that Western countries, and the US in particular, use the recognition and non-recognition of foreign governments as a tool to pursue their interests abroad. Li Ming believes that China, too, should maintain sufficient flexibility in the application of principles such as non-interference, when it recognises foreign governments.Footnote ¹⁶³ Li Ming also raises the issue of using economic sanctions as a policy option for China to protect its investments abroad (without, however, taking a clear view on this matter).Footnote ¹⁶⁴

Professor Xiao Yongping of Wuhan University has also urged China to change its understanding of non-intervention. Xiao argues that China should examine the use of American-style long-arm jurisdiction in the pursuit of its overseas interests.Footnote ¹⁶⁵ Xiao contends that long-arm jurisdiction does not necessarily violate the sovereignty of foreign States, since international law allows domestic law to have moderate extraterritorial effects.Footnote ¹⁶⁶ He proposes law reform to establish Chinese long-arm jurisdiction. For example, Chinese securities legislation could be applied to foreign conduct which has effects in China,Footnote ¹⁶⁷ while Chinese criminal law could be applied to foreign corporations, so that China could take retaliatory measures in criminal law, or deploy countermeasures against foreign multinational companies.Footnote ¹⁶⁸ Xiao also argues that transposing international crimes, such as the crimes of genocide and torture, into domestic Chinese law would provide China with a weapon to retaliate against other States.Footnote ¹⁶⁹

Some Chinese legal scholars have begun to disaggregate the doctrines of sovereignty and non-intervention. According to this argumentative strategy, sovereignty is not ‘absolute’, nor can the doctrine of non-intervention be deduced from first principles of international law.Footnote ¹⁷⁰ This reflects formative ideas about the nature of sovereignty in the Chinese experience.Footnote ¹⁷¹

Finally, the most ambitious versions of Chinese interventionism call for the establishment of a new kind of international morality based on Chinese ‘wisdom’.Footnote ¹⁷² Some Chinese scholars have even called for the deconstruction of the monopoly of the traditional Western human rights discourse in order to give human rights more Chinese characteristics.Footnote ¹⁷³ Chinese scholars cite the adoption of Chinese ideological concepts, such as ‘harmonious world’ and ‘community with a shared future for mankind’, in international declarations as evidence of the international community’s acceptance of Chinese ideology.Footnote ¹⁷⁴ Chinese ideological innovations—such as the ideal of ‘building a moderately prosperous society in all respects’—provide ‘a novel practical paradigm for the human rights dimension of the international rule of law’.Footnote ¹⁷⁵ Such arguments are in line with Chinese political elites’ growing global ambitions.

Readers outside China may wonder how such revisionist statements should be assessed in the context of the Chinese party-state. Is the relativisation of the doctrine of non-intervention in Chinese scholarship a matter of individual academic creativity or is it a semi-formal sign of changing government policy? The nature of the connection between Chinese universities and the CCP is unusual, and its unusual nature is not addressed directly in the literature which considers Chinese State practice. Some foreign commentators on Chinese international law, however, have been able to appreciate the general influence of the CCP on international lawyers, while still being mystified about the specific motives and agency of Chinese international lawyers.

In Is International Law International? Anthea Roberts acknowledges that the professional community of international lawyers in China is fundamentally unlike the community of international lawyers in other jurisdictions. For example, she notes the ‘startling unanimity’ of Chinese scholars’ opinions on the UNCLOS South China Sea arbitration.Footnote ¹⁷⁶ She explains this unanimity in three ways. First, it may result from ‘the genuine belief of most Chinese legal academics that the arbitral tribunal erred in asserting jurisdiction’.Footnote ¹⁷⁷ Second, it may result from ‘a complex socialization process based on the way these scholars were educated, the reference materials that they commonly use, the media on which they rely, and the assumptions and boundaries that delimit mainstream academic debate within China’.Footnote ¹⁷⁸ Finally, Chinese academics may also ‘be unwilling to dissent on an issue of importance to the government out of fear of censorship or soft retribution in the competitive domestic academic job market’.Footnote ¹⁷⁹ These reasons are not unique to China. To a greater or lesser extent, they apply to lawyers in almost any jurisdiction. They do not explain the ‘startling unanimity’ of Chinese views on the UNCLOS South China Sea arbitration.

All arguments about international law reflect local patterns of dominance and control over media. However, in China, singular institutions shape that environment. As David Shambaugh notes, ‘virtually every conceivable medium which transmits and conveys information to the people of China falls under the bureaucratic purview of the CCP Propaganda Department’.Footnote ¹⁸⁰ Every Chinese law school has a Party Secretary and a Party Committee, whose responsibility it is to monitor the implementation of Party policy and to implement material strategic decisions made by the Central Committee. This role extends to the dismissal,Footnote ¹⁸¹ rustificationFootnote ¹⁸² and criminal convictionFootnote ¹⁸³ of academics who fail to repeat the Party line when called upon to do so.

Not all prominent Chinese international lawyers and professional organisations follow the direction of the Party on all occasions. Chinese legal scholars have some amount of freedom to form heterodox positions and they have been influential in changing the Chinese Government’s positions on some international legal questions, such as the legal effects of international treaties in Chinese domestic law.Footnote ¹⁸⁴ Idiosyncratic proposals, such as the abovementioned doctrine of ‘protective intervention’ (baohuxing ganyu, 保护性干预), are most likely instances of individual academic creativity.Footnote ¹⁸⁵

Yet it should be acknowledged that, on important and sensitive issues, including key aspects of non-intervention, Chinese legal scholars speak at the discretion of the Party.Footnote ¹⁸⁶ For example, a statement on the UNCLOS South China Sea arbitration made by the Chinese Society for International Law and published in the People’s Daily, will have been approved by managers in the Chinese Society for International Law and editors in the People’s Daily who are appointed to and maintained in their positions at the discretion of the Party.Footnote ¹⁸⁷ A field such as human rights is more tightly policed than trade.Footnote ¹⁸⁸ Seen against this background, the unanimity of Chinese legal scholars’ opinions on the UNCLOS South China Sea arbitration is not so ‘startling’. Similarly, the authors believe that the relativisation of the Chinese non-interventionism is sanctioned by the Chinese party-state. At the very least, such relativisation reflects a willingness within the Chinese party-state to reassess the Chinese approach to non-intervention.

Finally, because of the close links between scholarship and the Chinese party-state, it is not far-fetched to regard some writings of distinguished Chinese publicists as a complex form of State practice.