With the deluge of spurious ‘election fraud’ claims following the 2020 US Presidential Election, the genuine issue of foreign election interference has been somewhat overshadowed. However, international lawyers should not lose sight of this emerging threat which, accelerated by new technologies, is capable of forming the basis of genuine ‘election fraud’ in the years to come. Despite much debate in the years following the Russian disinformation campaign in 2016, international lawyers have yet to arrive at a consensus as to if, and how, international law can evolve to deal with the challenges of modern election interference. In his timely new book ‘Election Interference’, Jens Ohlin puts aside rhetoric of ‘acts of war’ frequently invoked by sabre-rattling pundits and politicians, to investigate a number of alternative doctrines of international law that could provide the answers to these questions. This book review will consider Ohlin’s approach to the two key doctrines of international law he discusses with respect to the 2016 Russian interference campaign: non-intervention and self-determination.
Non-intervention
Unlike other international law scholars, (see for example Michael Schmitt and Ido Kilovaty) Ohlin is sceptical that cyber-election interference constitutes a violation of the doctrine of non-intervention. To constitute a violation of this principle, interference must first interfere with a state’s sovereign domaine réservé, and second involve an element of coercion [205]. That the conduct of elections is part of a State’s domaine réservé is accepted in a general sense, as well as in the context of cyber-interference (Rule 26 Commentary [20]). However, Ohlin questions whether cyber-election interference has ‘the essence’ of the principle of non-intervention, that of coercion.
The difficulty with applying the doctrine of coercion to cyber-interference operations like that conducted by Russian individuals in 2016 according to Ohlin, is identifying who exactly who is being coerced. It cannot be said that the state itself is actually being coerced, because the results of the election will ultimately still reflect the views of its citizens, irrespective of whether they are improperly influenced by foreign meddling. Cyber-influence operations are therefore often characterised as ‘distortion rather than coercion’.
Ohlin describes the failure of other international law scholars to properly reckon with this as reflecting a ‘teleological’ approach in the face of an ‘absence of evidence’, writing ‘information operations are not coercive simply because one hopes they are’.
The right to self-determination
Whilst Ohlin dedicates a chapter to considering whether cyber-influence operations constitute a violation of the principle of non-intervention, the real thesis of his argument is that too much emphasis has been placed on this doctrine, and that the principle of self-determination is overlooked. In Ohlin’s view, this is due to international lawyers’ reluctance to grapple with the indeterminate concepts of ‘peoples’, and the limitation of self-determination to colonial independence. Ultimately, Ohlin makes a powerful case that it is the more appropriate paradigm to address the problem of cyber-election interference.
The collective right to self-determination is a fundamental right under international law that is established in Article 2(1) of the United Nations Charter, and Article 1(1) of the ICCPR.Ohlin argues that self-determination necessarily applies to foreign election meddling because such meddling denies the right of the ‘self’ to determine political leadership. If societies choose to select their leaders electorally, this is an element of self-determination that cannot be violated.
This view is not uncontroversial. For example, Michael Schmitt has argued that it is not appropriate to look at election interference through the lens of self-determination, as the right is only concerned with the formation of states rather than with their choice of governments (p 55-56). Ohlin aptly questions this critique by pointing to the requirement for ‘internal self-determination’ which was found to be a continuing element of the right to self-determination by the Canadian Supreme Court in the case of Quebec (p 282). This is difficult to reconcile with Schmitt’s view that the right to self-determination arises at discrete moments and then, as Ohlin puts it, ‘fades into the background’. Ohlin’s view in this respect is given further support by the work of Barrie Sander who points to Antonio Cassese’s historical analysis of self-determination in arguing that Article 1(1) of the ICCPR ‘enshrined the right of the whole population of each contracting State to internal self-determination, that is, the right freely to choose their ruler’ (p 44). Nicholas Tsagourias also cites Cassese’s work in coming to the conclusion that the right to self-determination is ‘broader and is not exclusively linked to the right of peoples to form their own State’ (p 12).
Whilst Ohlin acknowledges that there are no previous cases to substantiate that election interference constitutes a violation of the principle of self-determination, and that the practice of election interference is not uncommon, he points out that the absence of prior application of a principle to a particular set of facts does not imply that the principle cannot be applied to those facts.
Conclusion
As technology continues to advance in coming years, and if politics remains as polarised as it is presently, election interference in democratic countries is likely to become a greater concern. International law is a promising way to address the threats posed by election interference, and states have already begun attempts to develop legal norms related to cyber interference through initiatives such as the Tallinn Manual 2.0. Jens Ohlin’s ‘Election Interference’ is an important and timely addition to the effort to develop these norms. In particular, his shifting of the debate away from non-interference towards self-determination is a valuable contribution.
Robert Clarke is a law student and research assistant in international law, at the University of Sydney. He also researches at the Sydney Centre for International Law.
Suggested citation: Robert Clarke, ‘Book Review: Is cyber-election interference a violation of the right to self-determination? Jens Ohlin’s ‘Election Interference’ provides a valuable correction to the debate’ on ILA Reporter (23 August 2021) <https://ilareporter.org.au/2021/08/book-review-is-cyber-election-interference-a-violation-of-the-right-to-self-determination-jens-ohlins-election-interference-provides-a-valuable-correction-to-the-debate/>