Alleged Russian intervention during the 2016 U.S. presidential election presented international law with a challenge of characterizing the phenomenon of politically motivated leaks by foreign actors, carried out in cyberspace. Typically, international law’s norm of non-intervention applies only to acts coercive in nature, leaving disruptive acts outside of the scope of prohibited intervention. That raised a host of questions on the relevancy and inflexibility of traditional international law in relation to new threats and challenges in cyberspace. The discourse on transnational cyberspace operations highlights it becomes increasingly difficult to deal with nuanced activities that cause unprecedented harms, such as the Democratic National Committee Hack. This article argues foreign actors meddling with a legitimate political process in another State through cyberspace are violating the norm of non-intervention. Although the coercion requirement is absent, international law should consider non-coercive interfering acts that constitute sabotage and result in disruptive effects to domestic processes. As this paper contends cyberspace operations are distinctly different in their effects, so that a traditional standard of coercion for the norm on non-intervention is simply unattainable and requires the introduction of a new standard based on disruption. Finally, this article explores a few challenges and tensions ahead for harmful transnational cyberspace activities and offers a few directions to resolve these difficulties.
09 May 2017
'Doxfare – Politically Motivated Leaks and the Future of the Norm on Non-Intervention in the Era of Weaponized Information' by Ido Kilovaty in (2017) 9 Harvard National Security Journal comments