Did Russian Cyber Interference in the 2016 Election Violate International Law?

By Ohlin, Jens David | Texas Law Review, June 1, 2017 | Go to article overview

Did Russian Cyber Interference in the 2016 Election Violate International Law?


Ohlin, Jens David, Texas Law Review


Introduction

Sovereignty is a funny thing. It is allegedly the foundation of the Westphalian order, but its exact contours are frustratingly indeterminate. When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by, among other things, hacking into the e-mail system of the Democratic National Committee (DNC) and releasing its e-mails, international lawyers were divided over whether the cyber attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of "established international norms of behavior" and pointedly declined to refer to the cyber attacks as a violation of international law.1

Some international lawyers were more willing to describe the cyber attack as a violation of international law.2 However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To the layperson, the Russian hacking constituted an impermissible (and perhaps) shocking interference in the American political process-an intervention that nonlawyers would not hesitate to label a "violation of sovereignty" as that term is used in political or diplomatic discourse.3 The problem arises when one attempts to translate that commonsense intuition into legal discourse. At that point, the translation effort breaks down for a variety of reasons.

The genesis of the difficulty is that none of the standard rubrics for understanding illegal interventions clearly and unambiguously apply to the facts in question. For example, the Russian interference could simply be viewed as an act of espionage, but it has long been understood (at least until recent controversies in human rights law) that spying violates domestic-but not international-law. An alternative rubric would focus on the intervention aspect of Russia's behavior. The problem here is that the standard-though by no means universally accepted-definition for what counts as an illegal intervention requires doctrinal elements such as coercion that may not be present in this case. So too with regard to the notion of an illegal "usurpation of an inherently governmental function,"4 a legal description that is a poor fit for Russia's hacking during the 2016 election, for reasons that will be more fully articulated below.

That being said, it would be a mistake to hastily reject our commonsense intuitions about the impropriety of Russian hacking during the election. The lack of fit with the doctrinal requirements for an illegal intervention against another State's sovereignty is simply an indication that the notions of "sovereignty" and "intervention"-though mainstays of contemporary public international law doctrine-are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements (at a systematic level) and their future destiny (at a more granular level of policy). It is precisely this more basic right of self-determination that was violated by Russia's conduct. Unfortunately, the right of self-determination has largely lain fallow since the global process of decolonization was completed,5 with the exception of a few cases of controversial secessions.6 But the Russian hacking campaign is evidence that self-determination's departure from the scene in international law should be mourned and, if possible, reversed because there are situations and cases where the best legal categories for understanding the situation are not sovereignty and intervention but rather the frustratingly imprecise notion of self-determination.7

Accordingly, this Article proceeds in three parts. Part I will analyze the law of espionage and spying, which are widespread practices in today's world. Though spying was once condemned as illegal under international law, that historical mistake has been rectified, and most international lawyers agree that spying violates domestic rather than international law. …

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