In a recent interview with Marc A. Thiessen, President Donald J. Trump acknowledged that the U.S. carried out a cyberattack on Russian agencies in 2018. According to the President, the cyberattack forms part of a broader policy of confronting Russia and was designed to frustrate Moscow’s attempts to interfere with the U.S. mid-term elections. It will be a mistake to perceive this plan of Moscow as an isolated event where a state has attempted to influence the election results in another democracy. In the post-Brexit era, the idea of the internet as an instrument to influence electoral process seems to be increasingly naturalized, that is, it is being accepted as the new normal. The involvement of Russian trolls in 2016 US Elections, electoral interferences in the Netherlands, the UK, France and Germany, interference by Pakistan in India’s general election all demonstrate that the frequency of such interferences is on the rise.
This increase, in part, can be attributed to the fact that such intrusions have not been met with strong retaliation by afflicted states. President Obama described the Russian interference in 2016 U.S. presidential election, as a mere violation of “established international norms of behaviour” and declined to refer to the cyberattacks as a violation of international law. President Trump, on the other hand, did concede that 2016 elections was subjected to cyberattacks, but has abstained from ascribing its responsibility solely to Russia.
The growth in electoral interferences is also complimented by the fact that in international sphere, there is no legal instrument which regulates states’ actions in the cyberspace. Sans an international regulatory framework, state subjects are free to engage in acts of electoral interference without any fear of invoking responsibility under international law. There is a possibility though, to levy sanctions under national legislations. For example, the US has imposed sanctions on Russia through a series of Executive Orders under a special enactment titled Countering Russian Influence in Europe and Eurasia Act of 2017. The effectiveness of national sanctions, however, remains doubtful since evidence suggests that Russian attempts are still underway in meddling with the upcoming US elections of 2020.
Hence, at this point, it is important to achieve consensus in the international community that such interferences are illegitimate. The underlying lack of legitimacy is manifest when examining the issue through the lens of international law. The existing system of rights and obligations under international law requires states to refrain from certain actions that may compromise the principle of state sovereignty. This article considers electoral interference from two separate perspectives: first from the government’s perspective and second, from the citizens’ perspective right of self-determination. It concludes by outlining how the existing legislative regime under international law could be transformed to support arguments against such interference.
From the perspective of sovereignty of states
Under international law, the fundamental principle that facilitates inter-state relations is the doctrine of sovereignty. This doctrine is based on the premise of equality and mutual recognition of political independence among states, meaning thereby that all states are equal and independent. The concept of State Sovereignty consists of corresponding dictums of (i) non-intervention, meaning that one country cannot interfere in domestic affairs of another country (which will include its electoral process); and (ii) self-determination, which means that states and its subjects have a right to freedom from outside intervention.
These two principles, central to our discussion, serve a two-prong role in protection of the electoral process. Firstly, there is a right to freely determine the functioning within the borders of the State, i.e. the conduction of its electoral process (self-determination) and secondly there is an obligation on other states to not interfere, directly or indirectly, in the domestic electoral process of any other country (non-intervention).
This system of mutual respect for state sovereignty under international law is reinforced through several international instruments. For example, Article 1(2) of the Charter of the United Nations (‘UN Charter’) obligates states to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. Article 2(7) of the UN Charter proscribes its signatories from intervening in matters which are essentially within the domestic jurisdiction of other states. UN General Assembly Resolution 2625 categorically stipulates that any attempt aimed at disruption of a country’s political independence violates the principles enshrined in the UN Charter.
Hence, states are obliged to respect the sovereign nature of other states. This position finds homage in several modern academic theses pertaining to the realm of political studies. For example, David Miller in his book On Nationality (click here pg. 107) argues that global justice at its core, consists of two concurrent principles – national self-determination and its associated national responsibility to respect the self-determination of other states.
A similar notion of mutual respect finds acknowledgement in the Rawlsian theory of international law. Rawls who furthers an anti-statist approach, in his essay The Law of Peoples formulates this idea in terms of obligations of different governmental regimes of the world which they owe to each other. He argues that it is incumbent upon governments to respect and avoid intervening in the functioning of other governmental regimes unless there are egregious circumstances that can justify such an act, for example grave violation of human rights or degeneration of a political regime into tyranny.
Hence, the mandate of the UN and the existing political scholarship, in tandem, emphasize the significance of comity amongst states, or their governments Therefore, mutual respect for sovereignty must ensue in state’s actions on an international plane. To this end, foreign electoral interference is an act which is in blatant disregard of these principles of international law and relations. Interfering with domestic affairs of a country, such as its elections, results in a direct violation of the principles of non-intervention and self-determination, which in turn, impinges upon the sovereign status of the other State.
From the perspective of lack of authority of elected government
The elected government manifests the will of the people of a state that decide to vest it with governmental authority. This authority, thus, is legitimate only if the ‘will’ of the electors was free and authentic. It is in this background that Prof. Nicholas Tsagourias argues that foreign electoral intervention should be perceived as a conduct that influences, and/ or manipulates, the will of the people who elect the government, hence, depriving it of its free and authentic nature.
This aspect is pertinent since foreign interference is generally channelled towards individual voters and attempts to manipulate the voting behaviour in the country, either by directly hacking into election systems or by indirectly using social media outlets such as Facebook or Twitter to spread misinformation or propaganda.
Article 21(3) of the Universal Declaration of Human Rights states that it is the will of the people that constitutes the source of authority of the elected government. This is further complemented by Article 1 of International Covenant on Civil and Political Rights (‘ICCPR’) which asserts that all peoples have the right of self-determination. By virtue of that right they freely determine their political status. Article 25(b) of ICCPR, in addition, obligates states to ensure that the will of the electors is ‘free.’
In essence, their amalgamation results into ‘citizen’s right to authentic self-government, that is, the right of people really and freely to choose its own political and economic regime’ (click here at p.137). This right when exercised freely, that is without coercion, gives rise to the authority of elected government. Hence, the elected government’s authority is legitimate only when the source leading to its formation, that is the will of the people, remains free.
This implies that if the process in itself is defaulted, the yielding of result constitutes a breach of principle of self-determination since the electoral outcome is not a result of free choice. Hence, foreign attempts to manipulate voting behaviour in a state by exposing voters to unsubscribed falsified information, in principle, constitutes a violation of the right of self-determination of the voters.
Currently existing international instruments
A comparatively more direct identification of State’s obligation not to interfere with domestic process of other countries using cyberspace can be found in the Tallinn Manual 2.0. This manual is published by NATO’s Cooperative Cyber Defence Centre of Excellence and analyses the application of international law to cyberspace. Rule 66 of the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations prohibits states from using cyber means to intervene in the internal affairs of another State. The rule states:
“Rule 66 – Intervention by States: A State may not intervene, including by cyber means, in the internal or external affairs of another State.”
Therefore, it can be safely asserted that meddling in domestic elections of a sovereign State is a wrongful act under international law. At this juncture, it must be noted that Tallinn Manual 2.0 does not lead to binding obligations for the State and, at maximum, can be classified as a soft law instrument. Though the Tallinn Manual forms a part of the corpus of soft law instruments, they do possess some normative power under international law.
Conclusion
Under international law, ‘whatever is not explicitly prohibited, is permitted.’ The practical implication of this principle is that any act of a State is justified if it is not in breach of a specific obligation owed by it. Since there is no binding international instrument that creates an offence for influencing electoral architecture through the medium of cyberspace, any such interference falls short of being characterized as a direct violation of international law.
Growing instances of foreign interference, through the medium of cyberspace, are a threat to the very foundational principle of international law, that is, the sovereignty of each state. From a legal perspective, such actions are in direct contradiction with established principles of international law such as the principle of non-intervention and self-determination. It must be highlighted that the current framework of international law is inefficacious in dealing with such interventions. At present, the states haven’t done enough, and it is expedient that they look for solutions to restrict foreign interferences in electoral processes, which for example can be done by negotiating binding multilateral instruments. Looking at the crystal ball, it can be safely assumed that such intrusive actions are bound to rise in number as states are increasingly equipping themselves with latest technology. Hence, it is important that states address the elephant in the room, which has been there for quite some time now, but what is more important is that they deliberate on a method to tame it before it decides to take the building for a spin