Foreign Election Interference

Prior to the 2022 U.S. midterm elections, the Federal Bureau of Investigation and the Cybersecurity and Infrastructure Security Agency have warned that foreign actors may create and disseminate disinformation to influence the outcomes of the elections. If such attempts of foreign election interference are attributable to a State, their legality under international law comes into question. Although different means of foreign election interference, including disinformation campaigns, have been fiercely debated since the 2016 U.S. elections, only few contributions focused on the right to self-determination. This blogpost argues that the right to self-determination as enshrined in Art. 1 of the International Covenant on Civil and Political Rights (ICCPR) and Art. 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) is violated when electors are unable to form opinions independently. Therefore, it prohibits even subtle means of foreign election interference, such as disinformation campaigns by foreign States.

The Value of Analysing Foreign Election Interference Through the Lens of Self-Determination

Much of the scholarly debate on foreign election interference has focused on the prohibition of intervention or the general protection of sovereignty (e.g. Hollis, Sander, Schmitt, Terry, Wheatley). However, the application of these customary rules, especially to disinformation campaigns, proves difficult since there is no consensus among States regarding the legality of foreign election interference: In 1989, Resolution 44/147, which declared attempts to sway elections as incompatible with the Friendly Relations Declaration, was adopted by 113 votes to 23, with 11 abstentions. Subsequent iterations, spanning until 2005, gained even less support. More recently, in State publications on international law applicable in cyberspace, most States limited their examples for a prohibited intervention to altering the vote count or preventing the orderly conduct of elections (e.g. Australia, Canada, Israel, United Kingdom 2021, 2022, United States). Broader examples are sparse, with Germany, the Netherlands and New Zealand hinting at disinformation campaigns, Norway condemning hack and leak attacks and Iran declaring the engineering of public opinions prior to elections as illegal. Likewise, no consensus exists regarding the – highly disputed – notion of sovereignty as a rule. According to the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, a State violates another State’s sovereignty when it interferes with or usurps the inherently governmental functions of the latter. In their publications on international law applicable in cyberspace, Canada, Germany, Norway and Switzerland named the conduct of elections as an inherently governmental function. Yet, only Switzerland explicitly referred to disinformation campaigns. Consequently, below the threshold of altering the vote count or preventing the orderly conduct of elections, no consensus exists among States regarding the illegality of foreign election interference.

Due to these difficulties, Ohlin suggested that foreign election interference violates the right to self-determination (here, here and here; see also Sander, Tsagourias here and here). By interpreting Art. 1 ICCPR and ICESCR, the difficulties arising from a lack of consensus among States can be avoided. Whereas customary international law necessitates settled State practice and opinio iuris, the interpretation of treaty provisions is governed by the customary means of interpretation reflected in Art. 31 and 32 Vienna Convention on the Law of Treaties (VCLT). Although, according to Art. 31(3) VCLT, subsequent practice and agreements by States Parties shall be taken into account, the International Law Commission pointed out that this necessitates a common understanding between the Parties and must not override all other means of interpretation. Consequently, Art. 1 ICCPR and ICESCR must be interpreted in accordance with the ordinary meaning of their terms in their context and in light of their object and purpose (Art. 31(1) VCLT) with the travaux préparatoires serving as subsidiary means of interpretation (Art. 32 VCLT).

This blogpost argues that Art. 1 ICCPR and ICESCR, firstly, protect peoples constituted as an independent State, secondly, that the provisions must be respected regardless of territory or jurisdiction and, thirdly, that foreign election interference violates the right to self-determination when electors are unable to form opinions independently. Therefore, it prohibits disinformation campaigns in the context of elections.

The Right to Self-Determination Protects Peoples Constituted as an Independent State

The application of the right to self-determination to foreign election interference was critiqued by Schmitt, who argued that “self-determination is simply not meant to apply to a situation where the ‘people’ are all citizens of a State” (see also Terry). However, this objection does not reflect the scope of Art. 1(1) ICCPR and ICESCR. Both provisions stipulate that “[a]ll peoples have the right of self-determination”. Their language does not exclude peoples which form an independent State. The travaux préparatoires further underscore that the right to self-determination is not limited to decolonization but also protects independent peoples (Annotations to the Draft ICCPR, see also Afghanistan, Denmark, El Salvador, Lebanon, United Kingdom, United States, Yugoslavia).Therefore, Art. 1(1) ICCPR and ICESCR protect peoples constituted as an independent State.

The Right to Self-Determination Must Be Respected Regardless of Territory or Jurisdiction

Further, the question arises whether human rights, including the right to self-determination, apply to disinformation campaigns by foreign States. Art. 2(1) ICCPR limits a State’s extraterritorial human rights obligations to individuals within its jurisdiction, with the Human Rights Committee (HRC) interpreting jurisdiction as “power or effective control”. Schmitt argued that a State enjoys neither when conducting cyber operations. However, due to Art. 1(3) ICCPR and ICESCR, the right to self-determination must be respected regardless of territory or jurisdiction. The provisions stipulate that “[t]he States Parties to the present Covenant (…) shall promote the realization of the right of self-determination, and shall respect that right”. They do not contain any limitations as found in Art. 2(1) ICCPR. Rather, their language, especially in the context of Art. 2(1) ICCPR, suggests that the right to self-determination must be respected regardless of territory or jurisdiction.

This conclusion is supported by the drafting history: Originally it was proposed that the right to self-determination only obliges States administering other territories but the draft was amended to oblige all States (Annotation to the Draft ICCPR, see also AIWO, France, Lebanon, United States, Yugoslavia). Referring thereto, the HRC stipulated that Art. 1(3) ICCPR “imposes specific obligations on State Parties, not only in relation to their own peoples but vis‑à‑vis all people”. Although this comment regarded positive obligations owed towards a people already deprived of its right to self-determination, States are a fortiori obliged to refrain from any action depriving a people thereof. Such a duty also does not overburden States since Art. 1(3) ICCPR and ICESCR only encompass a duty to “respect” and “promote” but not to “ensure” the right to self-determination. Hence, all State Parties to the Covenants must respect the right to self-determination regardless of territory or jurisdiction.

Foreign Election Interference Violates the Right to Self-Determination when Electors are Unable to Form Opinions Independently

Art. 1(1) ICCPR and ICESCR provide that all people may “freely determine their political status and freely pursue their economic, social and cultural development”. This includes a people’s right to establish its own political institutions, develop its economic resources and direct its social and cultural evolution (Annotation to the Draft ICCPR). Since the right to self-determination is a permanent right (Working Party on Article 1), a people may continuously decide upon these matters. A means to continuously take such decisions is an election. The HRC formulated that a people enjoys a right to “choose the form of their constitution or government”. This decision must be taken freely, which the travaux préparatoires defined as “without the interference of other peoples or nations”. Therefore, by virtue of the right to self-determination, elections must be conducted freely, without external interference.

The degree of external interference incompatible with the term “freely” follows from its context. The right to self-determination forms part of the ICCPR with all individual members of a people having human rights. Thus, it is interrelated with other human rights and especially the right to vote, as was emphasized by the HRC. Hence, the term “freely” must be interpreted in the context of political human rights and especially Art. 25(b) ICCPR, which stipulates that an election must guarantee the free expression of the electors’ will. The HRC specified that there may be no “undue influence(…) of any kind which may distort or inhibit the free expression of the electors’ will”. Consequently, electors “should be able to form opinions independently, free of (…) inducement or manipulative interference of any kind”.

Disinformation campaigns undermine the elector’s ability to form opinions independently. The HRC stressed that the free communication of information and ideas is a prerequisite for free elections (here and here). Although the right to communicate information and ideas is not limited to correct statements, the Special Rapporteurs on Freedom of Expression of multiple international organizations emphasized that this does not justify the dissemination of knowingly or recklessly false statements by States. Rather, States should not make, sponsor, encourage or further disseminate disinformation. It was noted that disinformation is often designed to mislead a population and, in a later declaration, that the misuse of social media subverts electoral processes. Thus, disinformation campaigns in the context of elections violate the right to self-determination.

Conclusion

Due to its close connection to other political freedoms, the right to self-determination is well-equipped for addressing foreign election interference. Since the right to self-determination as enshrined in Art. 1 ICCPR and ICECSR is violated when electors are unable to form opinions independently, it prohibits the creation and dissemination of disinformation in the context of elections. Moreover, Art. 1(1) ICCPR and ICESCR may be helpful tools for analysing other means of foreign election interference that are currently debated in international law. For example, the HRC noted that disproportionate expenditure on behalf of one party or candidate may distort the democratic process and undermine the free choice of electors. As a result, the right to self-determination prohibits even subtle means of foreign election interference, including disinformation campaigns.

Special thanks are due to Felix Herbert, Florian Kriener and Sophie Raab.