'Virtual' Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law

39 Pages Posted: 30 May 2018 Last revised: 19 Aug 2018

Michael N. Schmitt

Naval War College - Stockton Center for the Study of International Law; University of Exeter Law School; Lieber Institute, USMA at West Point

Date Written: May 18, 2018

Abstract

This article examines remotely conducted election meddling by cyber means in the context of international law and asks whether such cyber operations qualify as “internationally wrongful acts”. An internationally wrongful act requires both a breach of a legal obligation owed by one State to another under international law and attribution of the act to the former. The article considers three possible breaches related to such meddling – violation of the requirement to respect sovereignty, intervention into internal affairs of another State, and, when the cyber operations are not attributable to the State from which they were launched, breach of the due diligence obligation that requires States to ensure cyber operations with serious adverse consequences are not mounted from their territory. The article then examines the various modalities for attributing a cyber operation to a State under international law. Whether cyber meddling in another State’s election is unlawful, as well as the severity thereof, determines the range of responses available to the victim State. The article concludes that the law applicable to remotely conducted meddling in another State’s election is unsettled, thereby comprising a normative grey zone ripe for exploitation by States and non-State actors.

Keywords: cyber, election, meddling, sovereignty, intervention, interference, international law

Suggested Citation

Schmitt, Michael N., 'Virtual' Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law (May 18, 2018). 19 Chicago Journal of International Law 30-67 (2018). Available at SSRN: https://ssrn.com/abstract=3180631

Michael N. Schmitt (Contact Author)

Naval War College - Stockton Center for the Study of International Law ( email )

686 Cushing Road
Newport, RI 02841
United States

HOME PAGE: http://www.usnwc.edu/Academics/Faculty/Michael-Schmitt.aspx

University of Exeter Law School ( email )

Streatham Court
University of Exeter
Exeter, EX4 4QJ
United Kingdom

HOME PAGE: http://socialsciences.exeter.ac.uk/law/staff/mschmitt/

Lieber Institute, USMA at West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

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