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Document Type

Article

Publication Date

Summer 8-1-2022

Publication Citation

29 Indiana J. Global Legal Studies 69 (2022)

Abstract

Following the alleged Russian meddling in the 2016 US presidential election, there has been noticeable interest in the lawfulness of foreign interference in another state's elections under public international law. The obvious lack of previous research on the issue is surprising, given that election meddling in other states has been a widespread practice since at least the end of World War II. Indeed, according to Dov Levin, between 1946 and 2000, the United States and the Soviet Union (and Russia) alone were responsible for 117 partisan "electoral interventions" in other states. What is more, meddling in foreign elections is effective. Based on his groundbreaking research on foreign interference in elections, Dov Levin has concluded, "I find such interference to have a significant impact in the desired direction in most situations, frequently in a magnitude sufficient to determine the identity of the winner."

Why, then, this sudden interest in the topic? Most likely, this is due to the fact that, for the first time in ages, the United States was the target of a meaningful information operation initiated abroad, with the goal of influencing the outcome of a presidential election. However, many instead have argued that new means of technology have made it necessary to analyze the legal situation in more detail-the way social media enables foreign governments to target an audience of millions by spreading fake or manipulated news stories. While there can be no doubt that the internet has changed the dimensions of what is possible as far as spreading propaganda or misinformation is concerned, it is, nevertheless, not correct to claim that the election meddling of the past was much less intrusive. Rather, considering the contemporary means at the disposal of both the target states and the foreign intervenors, past election meddling has at times been comparable, if not more intrusive, than the Russian actions in the run-up to the 2016 election in the United States. Rather than limiting the discussion to cyber meddling, it is therefore justified to examine the lawfulness of election meddling as a whole, irrespective of the technical means employed.

In order to illustrate that election meddling is a long-standing practice and that past instances evidenced interference on a massive scale, I will first describe two well-known examples of outside interference in more detail-the massive US intervention in the Italian election of 1948 and the Russian interference in the US elections in 2016-before briefly turning to some other instances of alleged US and Russian election meddling. This will be followed by an in-depth analysis of the legality of foreign election meddling, which will conclude that the prohibition on interventions in the internal affairs of other states is the appropriate benchmark to decide whether a specific action by a state to interfere in another state's election was lawful or not.

The analysis will necessitate a definition of what constitutes a prohibited intervention in the internal affairs of another state. Based on the partial definition the International Court of Justice (ICJ) provided, it needs to be established, firstly, whether the intervenor's aim was to influence matters that belong to the target state's protected internal affairs (domaine réservé). There is, however, widespread agreement that the process whereby a population chooses its government falls within the scope of the matters protected by the prohibition on interventions.

Secondly, for the intervention to be unlawful, it needs to be coercive. At what point mere interference morphs into a coercive intervention is very controversial. I will argue that, generally speaking, interference turns coercive when the target state cannot terminate the outside meddling at its pleasure. By differentiating lawful interference from possibly unlawful intervention, it will become obvious that states do have some leeway in trying to influence another state's voters. Even if this is irritating to the target state, it is, for example, acceptable for a foreign government to express its preferences as to who ought to win an election in another state so that official criticism of a foreign party's manifesto, or of statements made by foreign politicians, is similarly lawful. If, at the other end of the scale, the intervenor attempts to attack another state's election procedure by manipulating vote counts, deleting or adding voters to electoral registers, or otherwise disrupting the electoral process, then the threshold of a coercive intervention is undoubtedly met. In my view, the same is true when a state engages in funding preferred parties or candidates in another state.

But the threshold of intervention is also met, I will argue, when actions that may well only be judged as persuasive if clearly attributable to a foreign state are instead undertaken in a deceptive, manipulative way. For example, when a state pays off target-state journalists so that they write or broadcast comment pieces favorable to the intervenor's goals during an election campaign or initiates a campaign on social media, and thereby insinuates that the relevant posts were authored by target-state citizens, then that constitutes unlawful intervention. This is even more the case if the intervenor spreads fake news or engages in espionage to obtain information harmful to the disfavored candidate that is then published during an election campaign.

In these borderline cases, the difference between persuasion and intervention comes down to the deception. If a state openly articulates its preferences, the target state can react in all kinds of ways, and its citizens can evaluate the foreign state's statements in the proper context. The manipulative intrusion, on the other hand, robs the target state of the opportunity to react and serves to confuse the electorate that, for example, may well judge a fellow citizen's views differently than it would a foreign state's opinion. This difference is also the reason for the deception on the part of the intervenor. The intervening state does not want to be recognized as such, well aware that its views otherwise might well be dismissed by target-state voters and refuted by the target state itself. By posturing as a target-state citizen or organization, the intervenor wants to prevent the target state from reacting, as there is no reason why a state should prohibit its citizens from expressing their views. The intervening state's conduct thus amounts to coercion because it actively participates in another state's election campaign in a way the target state cannot prevent or terminate. Furthermore, the intervening state cannot rely on any legal justification for its actions. Such actions are therefore unlawful interventions in the internal affairs of another state, whether successful or not.

My analysis of prohibited interventions will, however, also make the point that it is not always sufficient for an act to be coercive to be unlawful. Exceptionally, even a coercive intervention can be lawful if the means employed by the intervening state correspond with its sovereign right to decide its own external matters freely. For example, a state may threaten to impose economic sanctions on another state if a specific party is elected into power. Although frequently more coercive in effect than manipulating and deceiving voters during an election campaign, such a threat, nevertheless, is lawful, as there is still widespread agreement that it is at every state's discretion to decide the states it wants to do business with. Furthermore, it is at least arguable that by announcing such measures before an election, the intervenor is providing target-state voters with factual information they may wish to consider when casting their vote.

Before concluding, I will briefly analyze other rules of public international law that may be implicated by election meddling and explain why I believe these rules are not as relevant to the discussion as the prohibition on interventions. Many authors argue that election meddling violates the target state's sovereignty. And indeed, very often election meddling will also result in a violation of another state's sovereignty. However, it is also true that many of the actions described previously do not violate another state's sovereignty so that many of the intervenor's actions would be left unregulated. More recently, Jens Ohlin has suggested that election meddling violates the target-state population's collective right of self-determination. I will briefly set out why I believe this to be unconvincing based on the fact that, in my view, the collective right of self-determination of peoples in already existent states is one of the rights the prohibition on interventions protects.

In this article, I will not deal with the issue of attribution of election meddling to states, which, certainly in the cyber realm, has at times become an almost insoluble problem. Furthermore, I will not discuss whether a state has the duty to stop private individuals from intervening in another state's elections. When actions of private individuals or companies are mentioned in this article, it will be assumed that the respective state instructed such private actors to undertake the intrusive actions described. Finally, as far as specific actions are attributed to specific states, I am relying on publicly available information. Obviously, I cannot judge whether the conclusions drawn as to a state's responsibility are correct.

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