International Law and Election Interference

Lindsey Mattila (CMC ’17)

On January 6, 2017, The U.S. Intelligence Community– 16 separate governmental agencies that work on intelligence activities– released a report stating that there is enough evidence to conclude that Russia was behind the cyber attacks on the Democratic National Committee email servers. This hacking produced intel that the Intelligence Community argues could have potentially swayed voters’ opinions of Hillary Clinton and Donald Trump. While Russia did not interfere specifically with ballot counting, Russia did indeed have an impact on the outcome of the election, regardless of how indirect it may have been. Although there is evidence incriminating Russia, there is not a clear answer for how to legally hold Russia accountable.

Technically, there is an established legal framework to protect countries from this specific type of influence. The United Nations Charter states in Article 2 that countries are not “to intervene in matters that are essentially within the domestic jurisdiction of any state.” A decade or so later, the UN also added to this that, “no state has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal affairs of any other state.” Historically, countries would influence elections through the use of physical coercion. Now, countries are using cyber attacks to sway and influence other states’ elections. Physical coercion was typically used by stronger countries, but any state theoretically has the ability to conduct cyber attacks. Even with this international legislation, it is very difficult for the United States, or the United Nations, to enforce any consequences on Russia. This is also due, in part, to the issue that there is no clear consensus that Russia’s hacking actually violates these two laws. Some argue that physical coercion and interference are two separate acts, and that interference does not qualify as complete coercion.

International law has never been the strongest form of law– states are often more motivated to uphold the law to protect their reputations rather than out of respect for the law itself. Moreover, international law regarding election interference is especially weak since there are not any mechanisms to hold states accountable. During the Cold War, many elections in Russia’s satellite countries were seriously undermined by the political and physical influence of Russia. The United States used similar influence in countries like Italy, Iran, and Chile. This may be the first time that a cyber attack on an election has been so publicized, but it is certainly not the first time that another country has interfered with another state’s election.

Nevertheless, the looming question is how to hold a state accountable when it tries to influence, but not directly interfere, with a democratic election. In regards to the UN Charter, if the United States could convince the UN that Russia did, in fact, violate the Charter, this would grant the United States the option to use self-defense via Article 51.  Article 51 grants states the right to use self-defense, including physical force if an unwarranted attack has occurred. A physical confrontation between Russia and the United States, however, would be less than ideal for the state of global relations. So, realistically, the United States can only resort to sanctions and can use this event as a tool to tarnish Russia’s reputation amongst other leading countries.

Moving forward, it will be interesting how the UN reacts to more subtle forms of coercion and interference. Furthermore, if the UN decides that these types of influence are prohibited by Article 2, it must still determine how it will enforce legal repercussions. Lastly, it will be more important for individual states to find ways to maintain civic faith in democratic principles and institutions even in the midst of hacking and interference.

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