The concepts of sovereignty and nonintervention stand at the heart of the election interference discourse, but they are also a substantial shortcoming of that discourse. The scholarly literature needs to think more creatively about legal doctrines that can analyze election interference in an intuitive and compelling way. The present chapter argues that the answer lies in the long-ignored right of self-determination. Section 1 explains the right of self-determination and its undeniable status as a binding right under international law. Section 2 explains why election interference violates self-determination. Section 3 answers an obvious question: If self-determination is the key to understanding election interference, why have international lawyers so assiduously avoided this powerful legal category? Finally, Section 4 considers several objections to the self-determination framework, namely that: (i) self-determination applies before the creation of statehood but not after; (ii) there is insufficient state practice or opinio juris of states objecting to election interference on grounds of self-determination; (iii) election interference cannot be illegal under international law because so many states have engaged in it; and (iv) the right of self-determination might not apply when a state acts extraterritorially, as Russia did when it intervened in U.S. elections.

Russian interference in the 2016 election was not an isolated event but was, rather, a cluster of related techniques, each of which will be described in this chapter. There is wide agreement in government and intelligence circles about what happened, though the Trump administration has at times stated contradictory things about whether the interference occurred, or contradictory characterizations of the interference. There was: (1) hacking of email accounts and the public release of information stolen from these accounts; (2) social media campaigns, including paid advertisements on Facebook and postings on Twitter engineered by so-called troll farms; and (3) the infiltration of advocacy organizations such as the National Rifle Association, with the goal of influencing the domestic political landscape. These activities raise two important issues that are analyzed in this chapter. First, are the actors who engage in this interference private actors or state agents, and does it make a difference? Second, based on the methods used, what conclusions can be drawn about Russia’s strategic objectives in interfering in the 2016 elections? These questions must be answered in order to answer the fundamental question, i.e., whether election interference violates international law, and if yes, in what way.

When international lawyers talk about election interference and whether it violates international law, they usually ask whether it violates the sovereignty of the target state. Under this approach, the legal question is whether a foreign state has inappropriately intervened in the domestic affairs of the state holding the election in a way that violates the target state’s sovereignty. This sovereignty-based framework for evaluating election interference is by far the most common approach taken by mainstream international lawyers studying the issue. Although politicians and policy experts often jump to the cyber-war framework, the first reaction among sophisticated international lawyers is to ask whether election interference violates the sovereignty of the state holding the election. As the following sections will demonstrate, however, the sovereignty framework is poorly suited to resolving the case of foreign election interference, for several reasons. The doctrinal requirements for a violation of sovereignty require either a territorial intrusion, the element of coercion, or the usurpation of an inherently governmental function. However, none of these requirements is satisfied by the type of election interference that were at issue in the 2016 election. Election interference violates international law, but sovereignty is the wrong framework for understanding its illegality.