This article looks at the problem of foreign state cyber and influence operations targeting democratic elections through the lens of the non-intervention principle. The work focuses on the meaning of “coercion” following the 1986 Nicaragua case, wherein the International Court of Justice concluded that “[i]ntervention is wrongful when it uses methods of coercion.” The analysis shows that coercion describes a situation where (1) the foreign power wants the target state to do something and wants to be certain this will happen; (2) the outside power then takes some action, either by issuing a coercive threat, using coercive force, or engaging in the coercive manipulation of the target’s decision-making process; and (3) the target then does that something. The application of this understanding to the problem of cyber and influence operations targeting elections leads to the following conclusions: the hacking of the information and communications technologies used in elections is always coercive, and therefore wrongful, because the foreign power is trying to get the target state to do something it would not otherwise do; fake news operations are coercive, and therefore prohibited, where they are designed to get the electorate to vote differently; disinformation campaigns intended to cause policy paralysis or manipulate the views of the population also constitute coercion, and, therefore, violate the non-intervention rule. By explaining the meaning of “coercion,” this article demonstrates that the long-established principle of non-intervention can regulate the new problem of cyber and influence operations targeting elections.
Steven Wheatley, Foreign Interference in Elections under the Non-intervention Principle: We Need to Talk about “Coercion”, 31 Duke Journal of Comparative & International Law 161-197 (2020)
Available at: https://scholarship.law.duke.edu/djcil/vol31/iss1/3