Article by Francesco Arreaga,
On August 5, 2020, former acting Attorney General Sally Yates stated during a Senate Judiciary Committee hearing, “We've all heard Russian interference in our election so much that it's kind of lost its shock value...[but] the Russian government had used cyberattacks, the strategic release of stolen information, and a coordinated campaign to weaponize social media against American citizens.” Senior U.S. intelligence agents believed that California was one of seven states in which “Russian operatives had compromised state websites or databases” prior to the 2016 election.
These cyberattacks continue to this day. For example, this March, the National Intelligence Council issued a report describing how Russia conducted influence operations to denigrate President Biden’s candidacy as well as the Democratic Party, undermine public confidence in the electoral process, and exacerbate sociopolitical divisions. Further, Russia is suspected of being behind the recent cyberattack targeting federal agencies and private corporations. Reports indicate that this cyberattack compromised the Justice Department, Department of Treasury, Commerce Department, Department of Homeland Security, the Pentagon, intelligence agencies, nuclear labs, and Fortune 500 companies.
The UN Charter creates a system whereby the Security Council is responsible for resolving international conflict. But what happens when a permanent member of the Security Council that has the power to veto resolutions is the actor engaging in cyber election interference against another nation? This article does not deal with the question of how a nation should respond to election interference via cyberspace; it simply deals with the question of whether a nation can respond to cyber election interference under the UN Charter. The only recourse that a nation has to defend itself under this circumstance is through Article 51 of the UN Charter.
Article 51 states that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” Some international law scholars construe Article 51 as barring a nation from responding to election interference via cyberspace through self-defense. This blog utilizes Russia’s 2016 cyber election interference in the United States as a case study to argue that a nation should be able to act in self-defense against cyber election interference under Article 51 of the UN Charter.
The UN’s Purpose
Article 1 of the UN Charter outlines the four fundamental purposes of the United Nations. First, maintaining international peace and security; second, developing friendly relations among nations that are grounded in the belief that people must have equal rights and self-determination; third, achieving international cooperation in promoting respect for human rights and fundamental freedoms for all; and fourth, being the center for achieving these common goals.
These four purposes are interconnected and should not be conceived of independently from one another. This is especially true for the first two purposes of the charter because international peace is impossible if one State does not recognize the equal rights and self-determination (political sovereignty) of the people of another State. In other words, international peace exists in conjunction with principles of liberty, equality, and self-determination.
Cyber Election Interference Threatens Political Sovereignty
A U.S. Senate Foreign Relations Committee report details how the Russian government attempted to influence “democracy in the United Kingdom through disinformation, cyber hacking, and corruption.” For example, in the period leading to the Brexit referendum, a Russian organization was “actively posting about Brexit” in an attempt to influence the vote and magnify social discord. In 2017, a Russian cyberespionage group launched phishing attacks against French presidential candidate Emmanuel Macron's campaign. Days before the runoff vote in France’s presidential election, hacked emails from Emmanuel Macron’s campaign were leaked online in an attempt to influence the result of the election.
An indictment by Special Counsel Robert Mueller against several members of Russia’s military intelligence agency describes how, in 2016, Russia “conducted large-scale cyber operations to interfere with the 2016 U.S. Presidential election.” Russian agents hacked into the emails of multiple Hillary Clinton campaign employees, including the campaign chairman. They also infiltrated the computer networks of the Democratic National Committee and Democratic Congressional Campaign Committee to steal emails and documents. Russia also engaged in a targeted information warfare campaign through social media by creating fake social media accounts to instigate Americans to join a flash mob opposing Secretary of State Hillary Clinton’s presidential candidacy. Furthermore, a report by the Senate Intelligence Committee extensively details how Russian operatives specifically targeted African American voters on social media.
The Tallinn Manual on the International Law Applicable to Cyber Operations explains that internal sovereignty includes the “authority of a State to independently decide on its political, social, cultural, economic, and legal order.” Cyber operations that disregard another State’s “exercise of its sovereign prerogatives constitute a violation of such sovereignty and are prohibited by international law.” Russia’s cyberattacks during America’s 2016 presidential election disregarded the UN Charter’s purposes of maintaining international peace or respecting the right of self-determination, and violated America’s internal sovereignty.
Whether a State May Act in Self-Defense when Cyber Election Interference Occurs
One view of cyber election interference is that these acts exist in a “gray zone” of international law. Professor Gary Corn explains how hostile activities in the “gray zone” of international law occur in “the far more uncertain space between war and peace.” They are understood as actions that are aggressive and rise above normal but are “deliberately designed to remain below the threshold of conventional military conflict and open interstate war.” International actors exploit this gray zone in the law because they alter the status quo while not clearly violating international law or starting war.
A second view, that of Professor Michael N. Schmitt, suggests that Russia’s cyber election interference “is not an initiation of an armed conflict” and that, therefore, the U.S. cannot respond in self-defense under the UN Charter. It is “impossible to draw definitive red lines regarding cyber election meddling in the context of the territorial aspect of sovereignty, except with respect to situations causing physical damage or at least a significant impact on functionality.” Scholars also point to how armed attacks are typically those that can cause death.
For example, international law experts who contributed to the Tallinn Manual on International Law Rule 71(5) explain that a critical factor in deciding whether a cyber intrusion is an armed conflict is determining whether the cyber operation is analogous to actions “otherwise qualifying as a kinetic armed attack.” Moreover, the cyber operation must involve the use of a cyber weapon, defined in the Tallinn Manual on International Law Rule 103(2) as “cyber means of warfare that are used, designed, or intended to be used to cause injury to, or death of, persons or damage to, or destruction of, objects, that is, that result in the consequences required for qualification of a cyber operation as an attack.”
A final view is that a nation may respond in self-defense when facing cyber election interference. President Joe Biden has characterized foreign election interference as a threat to “America’s sovereignty, democratic institutions, and national security.” He has asserted that he “will treat foreign interference in our election as an adversarial act” and make full use of “executive authority to impose substantial and lasting costs on state perpetrators.” These assertions are in line with the long held view in the United States that Article 51 of the UN Charter may be interpreted to mean that the country may act “in self-defense in response to any amount of force by another State.”
A State Must be Able to Act in Self-Defense in the Face of Cyber Election Interference
The creation of cyberspace and the advancement of technology have fundamentally changed the methods nation states may use to violate the sovereignty of other nations or pose threats to international peace. Sovereignty is the first principle outlined in the UN Charter, which declares that the “organization is based on the principle of the sovereign equality of all its Members.” The fourth principle of the United Nations expounds on the importance of sovereignty by establishing that “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Finally, sovereignty is connected with the U.N. Charter’s second purpose, which is to foster relations among nations based on respect for equal rights and the self-determination of people.
Russia’s interference in the 2016 American presidential election threatened the political integrity and sovereignty of the United States and contradicted the principles and purpose of the UN Charter. Any nation must be allowed to defend itself against such an act of aggression. The United States’ interpretation of Article 51 is the only means of upholding the purposes of the UN Charter, especially when cyberattacks are perpetuated by other members of the UN Security Council that can veto UN Security Council resolutions.
Even if it were the case that cyber election interference were not considered an “armed attack,” Judge Simma noted in his separate opinion for the Oil Platforms case, that a State is able to respond to an attack that does not reach the “armed attack” threshold of Article 51 of the UN Charter. Importantly, the State being attacked may defend itself “within a more limited range and quality of responses…and bound to necessity, proportionality and immediacy in time in a particularly strict way.” This viewpoint is in line with the International Court of Justice opinion in the Nicaragua case that explained how even though one nation’s actions did not rise to the level of an armed attack, the acts could have “justified proportionate counter-measures on the part of the State which had been the victim of these acts.”
Conclusion
A nation must be able to respond to hostile acts by international actors that threaten the soundness of its electoral system. This is not only normatively beneficial but also comports with the UN Charter’s purpose. Our perception of international conflict often does not account for the technological advancements that permit cyberspace to be exploited for harmful means. It is critical that we develop an understanding of international law that accounts for the new challenges we face in world affairs.
Author
Francesco Arreaga (J.D. Candidate, Class of 2021) is a Contributor to Travaux. He has been a member of the Berkeley Journal of International Law since his first year of law school and has enjoyed writing for Travaux. Francesco holds a B.A. in Political Science and Chinese, as well as a minor in Global Studies from UCLA. He is currently the Co-President of the American Constitution Society at Berkeley Law and last year served as the Co-President of the Berkeley Immigration Group. Francesco is passionate about ensuring that the voices of immigrants, working people, and communities of color are represented in government. Currently, Francesco is interning as a law clerk in the U.S. Senate.