Foreign Interference in Elections under the Non-Intervention Principle : We need to Talk about “Coercion”

Wheatley, Steven (2021) Foreign Interference in Elections under the Non-Intervention Principle : We need to Talk about “Coercion”. Duke Journal of Comparative & International Law, 31. pp. 161-197. ISSN 2328-9708

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Abstract

There is a lack of agreement on the law applicable to cyber and influence operations targeting democracy, leaving a legal grey zone in which foreign powers can seemingly act with impunity. This paper examines the problem from the perspective of the non-intervention principle, exploring the legality of the hacking of the ICTs used in elections, as well as fake news and disinformation campaigns. To do this, we need to explain how these can be categorized as ‘coercive’, following the conclusion of the International Court of Justice, in the Nicaragua case, that ‘Intervention is wrongful when it uses methods of coercion’. The analysis shows that coercion describes a situation in which (1) a foreign power wants the target state to do something, and wants to be certain this will happen; (2) the foreign power then takes some action, either by issuing a coercive threat, using coercive force, or engaging in coercive manipulation; and (3) the target state then does that something. Applied to the problem of cyber and influence operations targeting democracy, we can see that the hacking of elections is always coercive, because the objective is to get the target state to do something it would not otherwise do. This is also true of fake news operations designed to get the electorate to vote differently, and disinformation campaigns intended to cause policy paralysis or manipulate the views of the population so they come to align with the interests of the outside power. By explaining the meaning of ‘coercion’, this article demonstrates how the old non-intervention rule can regulate the new problem of cyber and influence operations targeting democracy.