Brooklyn Journal of International Law

First Page



States have resorted to meddling in the elections of their counterparts throughout history. Recently, though, there has been an exponential increased in the use of the possibilities provided by technology. Attention to this phenomenon has deservedly grown quickly and exponentially. This has led to debates focusing on the adequacy of international legal rules and general principles to respond to foreign cyber election interference. In many of these debates some have expressed doubts and skepticism about the adequacy of current international law to confront foreign election interference through cyber means. There have also been disagreements about the applicable standards to fight against cyber interferences in electoral matters. One possible suggested measure is the adoption of a new UN treaty specifically addressing foreign cyber election interference. Rather than relying exclusively on the contingent drafting of a new hard law instrument, the present work defends two complementary ideas. Firstly, that existing hard and ‘soft law’ standards can provide guidance on the legal implications of acts that meddle in foreign elections through cyber means, which can sometimes amount to unlawful interventions in the affairs of another State. That said, the necessity of clarification and the filling of gaps call for progressive development of the law concerning the issue of cyber meddling in foreign elections. Furthermore, when political impasses preclude the adoption of new binding instruments cooperative approaches can provide a valuable way to address the cyber threats to democratic elections. Secondly, we argue that alongside discussions about non-interference and sovereignty, it is possible to interpret human rights guarantees, such as the right to participate in political processes, as already demanding protection from elements of cyber intervention in political processes, with those rights being applicable and demanding protection in cyberspace. An interpretation of existing human rights guarantees in light of the general rule of interpretation serves to identify circumstances under which cyber meddling in elections would be amount to extraterritorial violations contrary to them.