Voting by Proxy—Meddling in Foreign Elections and Public International Law

In the midst of these pleasing ideas we should be unfaithful to ourselves if we should ever lose sight of the danger to our liberties if anything partial or extraneous should infect the purity of our free, fair, virtuous, and independent elections. … If that solitary suffrage can be obtained by foreign nations by flattery or menaces, by fraud or violence, by terror, intrigue, or venality, the Government may not be the choice of the American people, but of foreign nations. It may be foreign nations who govern us, and not we, the people, who govern ourselves. …¹

Following the alleged Russian meddling in the 2016 US presidential election, there has been noticeable interest in the lawfulness of foreign interference in another state's elections under public international law. The obvious lack of previous research on the issue is surprising, given that election meddling in other states has been a widespread practice since at least the end of World War II.² Indeed, according to Dov Levin, between 1946 and 2000, the United States and the Soviet Union (and Russia) alone were responsible for 117 partisan "electoral interventions" in other states.³ What is more, meddling in foreign elections is effective. Based on his groundbreaking research on foreign interference in elections,⁴ Dov Levin has concluded, "I find such interference to have a significant impact in the desired direction in most situations, frequently in a magnitude sufficient to determine the identity of the winner."⁵

Why, then, this sudden interest in the topic? Most likely, this is due to the fact that, for the first time in ages, the United States was the target of a meaningful information operation initiated abroad, with the goal of influencing the outcome of a presidential election.⁶ However, many instead have argued that new means of technology have made it necessary to analyze the legal situation in more detail—the way social media enables foreign governments to target an audience of millions by spreading fake or manipulated news stories.⁷ While there can be no doubt that the internet has changed the dimensions of what is possible as far as spreading propaganda or misinformation is concerned, it is, nevertheless, not correct to claim that the election meddling of the past was much less intrusive. Rather, considering the contemporary means at the disposal of both the target states and the foreign intervenors, past election meddling has at times been comparable, if not more intrusive, than the Russian actions in the run-up to the 2016 election in the United States. Rather than limiting the discussion to cyber meddling, it is therefore justified to examine the lawfulness of election meddling as a whole, irrespective of the technical means employed.

In order to illustrate that election meddling is a long-standing practice and that past instances evidenced interference on a massive scale, I will first describe two well-known examples of outside interference in more detail—the massive US intervention in the Italian election of 1948 and the Russian interference in the US elections in 2016—before briefly turning to some other instances of alleged US and Russian election meddling. This will be followed by an in-depth analysis of the legality of foreign election meddling, which will conclude that the prohibition on interventions in the internal affairs of other states is the appropriate benchmark to decide whether a specific action by a state to interfere in another state's election was lawful or not.⁸

The analysis will necessitate a definition of what constitutes a prohibited intervention in the internal affairs of another state. Based on the partial definition the International Court of Justice (ICJ) provided,⁹ it needs to be established, firstly, whether the intervenor's aim was to influence matters that belong to the target state's protected internal affairs (domaine réservé). There is, however, widespread agreement that the process whereby a population chooses its government falls within the scope of the matters protected by the prohibition on interventions.¹⁰

Secondly, for the intervention to be unlawful, it needs...