Does Foreign Electoral Interference Violate International Law?
Interference in democratic decision-making processes carried out by outside powers is anything but a novel phenomenon. Especially during the period of the Cold War, both the United States and the Soviet Union almost routinely meddled with elections in foreign countries, with varying degrees of subversion and coercion. Former officers from U.S. intelligence services readily admit to having engaged in the practice during the decades after the end of the Second World War. There is little doubt that the Soviet Union consistently acted in the same manner. In fact, since the early 1960s, Moscow has employed subversive methods to increase the chances of the preferred candidate in presidential elections in the United States. In a widely quoted paper from 2016, the scholar Dov Levin estimated that between 1946 and 2000, the US attempted to influence no fewer than 81 elections in other countries, while the Soviet Union/Russia did the same in at least 36 cases, both openly and through covert information operations.
But although the issue has never really dropped off the international agenda, it has received renewed attention in various scholarly disciplines of late, principally in light of the revelations of the scale, sophistication, and persistence of Russian influence operations prior to the Brexit referendum in the UK and the 2016 US presidential election. In particular, recent technical developments and the now dominant position of social media platforms within the global media ecosystem have led to a reappraisal of foreign interference activities in both academia and international diplomacy.
The proliferation of digital media over the last twenty years has had profound effects both on the recipients and on the producers and disseminators of information, two aspects that are deeply interconnected. For the latter, digitisation and the global online networks mean that news and other pieces of information can spread at greatly increased speed and considerably lower cost. By default, communication now happens across borders, which enables actors to address audiences in foreign countries directly. Social media platforms have organised this global public discourse horizontally, which means that the traditional media have lost their role as gatekeepers to the news ecosystem. In this ‘hyper-pluralistic information environment’, everyone is able to communicate directly with everyone else, strengthening the position of hitherto marginalised voices and points of view. On the other hand, each person is able to distribute and amplify all political messages that suit them, with no regard for verifying a claim’s factual basis.
At the same time, thanks to ubiquitous data tracking on the internet, media users constantly leave traces of their online behaviour, and every website they visit collects information about personal characteristics, acquired goods, or watched videos. The accumulated data enable interested parties to infer interests and political preferences, tapping a growing pool of intimate personal information that can be exploited for micro-targeting of receptive audiences. Developments in artificial intelligence have allowed for the creation of so-called bots that amplify political messages, including targeted pieces of disinformation, at a scale not imaginable for human agents. These bots also make it easier to conceal the identity of the source of the information and the identity of its creator, further muddying the waters of the contemporary information ecosystem.
The digital transformation of the media landscape has also fundamentally altered the way in which information is received. The ease with which communication happens via digital channels has led to an ‘information deluge’, which causes a constant feeling of being overwhelmed, making the target audience’s attention the primary scarce resource that needs to be captured in the global information ecosystem. As the large amounts of new information everyone has to process cause disorientation and confusion, one almost natural cognitive defence strategy is to retreat into filter bubbles and echo chambers that reduce the information onslaught to digestible snippets of an ostensible reality. In turn, these isolated islands of opinion can be exploited by outside actors in order to micro-target pliable voters with tailor-made sets of information. This distorted contemporary information environment has caused the erosion of the shared public sphere within political communities and inhibits the ability of citizens to make informed political decisions.
In light of this profound and far-reaching shift, the question is whether the existing rules of international law continue to be sufficiently able to address adversarial state conduct that exploits the discontents created by the novel communication technologies. Does the emergence of digital influence operations call for the development of a new set of inter-state rules?
Traditionally, international law has prohibited intervention in another state’s internal affairs only if the interfering act – for example, material or financial support for oppositional armed groups – amounted to “coercion”, an elusive concept that has never received an unambiguous, workable definition. In any case, the dissemination of information in a foreign country was not considered as reaching the necessary threshold. However, the described developments have prompted a number of legal scholars to argue that such manipulative conduct is just as harmful as traditional modes of coercion and should thus qualify as amounting to unlawful intervention. Others suggest that beyond the principle of non-intervention, electoral interference should be considered a violation of the target state’s sovereignty or – conceptually closely related – the target population’s right to self-determination, which comprises the right to freely determine one’s own political status.
The importance of academic opinions notwithstanding, international law is created by the states themselves, and among the international community of states there remains a remarkable reluctance to address the phenomenon within the framework and in the language of international law. States have certainly become aware of the novel threats to their electoral processes and have reacted with a host of political and legal measures, including the enactment of new laws that tackle the problems of disinformation and other deliberate distortions of the media ecosystem. However, to date there have been almost no official statements that qualify adversarial information operations as prohibited intervention or the violation of any other rule of international law. At least with a view to democratic, open societies, one explanation for this restraint might be an awareness that any definition of “unlawful interference” that comprises the dissemination of information in other countries might end up further curtailing the already sorry global state of the freedom of expression. But if hostile disinformation campaigns continue to be a scourge in the near future, expect more and more international actors to advocate for strengthening international legal protections.
The Israel Public Policy Institute (IPPI) serves as a platform for exchange of ideas, knowledge and research among policy experts, researchers, and scholars. The opinions expressed in the publications on the IPPI website are solely that of the authors and do not necessarily reflect the views of IPPI.
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