Your Election, but Whose Choice? - A Study of the Applicability of the Principle of Non-intervention to Foreign Electoral Cyber Interference Aiming to Manipulate Voting Behaviour

Abstract: Electoral cyber interference aiming to manipulate voting behaviour is becoming increasingly sophisticated, which creates a risk of the interference undermining the trust in the democratic process with declining voter turnout as a result. The interference could potentially also affect the outcome of elections. The development of the technology enabling cyber voter manipulation is rapid, and international law lags behind. There are no wide-spread conventions or customary international law applicable to the specific situation. The general insecurity regarding the legality of cyber operations aiming to manipulate voting behaviour increases the risk of conflicts resulting from misunderstandings or misperceptions between states. To contribute to the clarification of the legality of voter manipulation, the purpose of this thesis is to analyse the legality of electoral cyber interference aiming to manipulate voting behaviour in relation to the principle of non-intervention. To achieve the purpose the critical argumentation method has been used. While electoral cyber interference aiming to manipulate voting behaviour clearly fulfils the first criterion of non-intervention, by intervening in the domaine réservé of another state, the fulfilment of the second criterion, coercion, is more complicated. The criterion of coercion is not fully defined in international law, but is traditionally described as forcible or dictatorial coercion compelling a state to involuntarily act or refrain from acting with non-abidance resulting in consequences. In this definition, electoral cyber interference aiming to manipulate voting behaviour does not fulfil the criterion of coercion. A different interpretation of the criterion of coercion is the definition of coercion as the manipulation of the environment in which the voters form their opinion to thereby exercise control over the voters. This definition has been suggested to make the criterion of coercion more adapt to the modern technological development, and to include voter manipulation. However, the support of this more modern interpretation is scarce. As a result of this, the correct definition of the criterion of coercion should be forcible or dictatorial coercion. Therefore, electoral cyber interference aiming to manipulate voting behaviour is not a violation of the principle of non-intervention due to the lack of coercion. Despite voter manipulation not constituting a prohibited intervention today, a prohibition could facilitate the protection of free elections and thereby state sovereignty. A development of the scope of the principle of non-intervention, either by widening the definition of the criterion of coercion or by replacing it, could be a practical and efficient solution.