The US Elections, Alleged Fraud, and International Law

[Chiara Redaelli is a Research Fellow at the Geneva Academy, where she works for the Rule of Law in Armed Conflicts (RULAC) and the Disruptive Military Technologies projects.]

Over the past days, the world has been closely following the US presidential election. On Saturday, November 7, after days of uncertainty, Joe Biden won the election. As it is well-known, concerns related to the coronavirus pandemic and the risk of potentially increasing the transmission of the virus at polling places led several states to expand the available options for mail-in voting, which allow voters to cast their ballots via regular mail and ballot drop boxes. The fact that an unprecedented number of people opted for this possibility has caused delays, notably because postal votes take longer to be counted due to the extra steps required to verify them. Furthermore, while a number of states, such as Florida, allowed votes counting to start weeks before the elections, other states waited until polling day, i.e. November 3.

The unprecedented number of mail-in and drop box ballots has raised concerns with regard to the safety of the system and the ability to manipulate results. Notably, Trump claimed that ‘mail-in ballots are very dangerous – there’s tremendous fraud involved’ and that voting fraud took place during the elections. Furthermore, Trump’s campaign filed a number of lawsuits in key states. In Wisconsin, a recount was requested ‘based on abnormalities seen’ on the day of the elections, while in Nevada the legal claim regards the fact that around 10.000 votes were cast by citizens not residing in the state anymore. Other election-related lawsuits were filed respectively in Michigan, Pennsylvania, and Georgia by Trump’s campaign, but they were all dismissed by court judges. After Biden declared victory, Trump has announced election fraud and has shown his intention to file new lawsuits. While experts have clarified that none of the legal actions undertaken so far by Trump seem to have the potential to affect the presidential election results. Furthermore, The New York Times has been in contact with ‘top election officials in every state on Monday and Tuesday’ in order to know whether there was any suspicion of illegal voting: ‘[o]fficials in 45 states responded directly to The Times. For four of the remaining states, The Times spoke to other statewide officials or found public comments from secretaries of state; none reported any major voting issues.’ What does international law have to say in case of alleged election fraud?

Recognition of Governments

Since the twentieth century, the overwhelming majority of states have adopted the policy of recognising states, not governments. Accordingly, in situations when two or more entities declare to be the de jure government, or two individuals claim to be the de jure president, foreign countries should avoid recognising one or the other. This approach was suggested by the Mexican Foreign Secretary Genaro Estrada in 1930, who propounded that:

The Mexican Government shall issue no declaration in the sense of grants of recognition, since that nation considers that such a course is an insulting practice and one which, in addition to the fact that it offends the sovereignty of other nations, implies that judgment of some sort may be passed upon the internal affairs of those nations by other governments, inasmuch as the latter assume, in effect, an attitude of criticism when they decide, favourably or unfavourably, as to the legal qualifications of foreign regimes.

Ultimately, the aim of the so-called Estrada doctrine is to avoid any kind of judgment towards the authority in power, especially with respect to the form of government and the way in which power was obtained. Nevertheless, this approach fails to acknowledge that there are instances when recognising governments is necessary, and this is especially the case when two or more entities claim to be the de jure authority representing the state.

To be sure, state practice offers countless examples of situations when foreign countries as well as UN organs have recognised governments. For instance, following the 2014 Libyan elections, two competing entities claimed to be the government: the so-called “Tobruk government,” which won the elections, and the “new General National Council,” based in Tripoli, which controlled the capital as well as a substantial part of north-west Libya. Albeit the lack of territorial control, the majority of the international community and the UN recognised the Tobruk government as the organ capable to speak on behalf of the state. Similarly, following the 2018 Venezuelan elections, both the re-elected President Maduro and Guaidò, leader of the opposition-controlled national assembly, claimed to be de jure presidents of Venezuela, and the latter was recognised as representative of the state.

The aforementioned examples show that, even if the Estrada doctrine is vastly supported by states, in practice it is not always feasible to avoid recognising governments. Ultimately, the debate boils down to a question of agency: what are the criteria to identify the organ that can validly speak for the state? International law does not provide a clear answer to such a question and two competing approaches have been suggested by scholars. On the one hand, a number of authors argue that effective control is the decisive criterion to identify the organ capable to represent the state at the international level. On the other hand, part of the scholarship posits that democratic governments, i.e. elected trough  free and fair elections, should be recognised, even if they do not exercise effective control over territory and population.

What if the results of the elections are contested? What if Biden won the elections, but Trump refuses to step down? While international law does not provide a clear-cut answer, there have been recent precedents that could help foresee the possible reaction of the international community.

Alleged Elections Fraud and Recognition of Governments in International Law

On December 1, 2016, the incumbent Gambian President Yahya Jammeh lost the elections to Barrow. A few days later, he denounced grave irregularities in the ballots and referred the matter to the Supreme Court. Pending the Court’s decision, the Parliament decided to extend Jammeh’s mandate for 90 days. According to the Estrada doctrine, foreign countries should have waited for the ruling of the Supreme Court. Instead, international community overwhelmingly condemned Jammeh’s actions and recognized Barrow as the new president of The Gambia. For instance, the Peace and Security Council of the African Union declared that it did not recognize Jammeh as the de jure president anymore (AU Peace and Security Council, Communiqué, 13 January 2017, Addis Ababa, Ethiopia, PSC/PR/COMM. (DCXLVII)). In the same vein, the Economic Community of West African States issued a communiqué that recognized the results of the elections, requested the endorsement of the AU and UN on the matter, and agreed to ‘take all necessary measures to strictly enforce the results of the elections’ (ECOWAS, Fiftieth Ordinary Session of the ECOWAS Authority of heads of State and Government, Final Communiqué, 17 December 2016, Abuja, Federal Republic of Nigeria). Following unsuccessful diplomatic attempts to settle the dispute, ECOWAS set an ultimatum to the incumbent: either step down on 19 January, or ECOWAS would forcibly intervene in favour of Barrow. As Jammeh refused to comply, ECOWAS troops entered The Gambia. The same day, Barrow was sworn into office in the Gambian embassy in Senegal and returned to his country on Saturday, January 21. The UNSC issued Resolution 2337, where it urged:

[A]ll Gambian parties and stakeholders to respect the will of the people and the outcome of the election which recognized Adama Barrow as President-elect of The Gambia and representative of the freely expressed voice of the Gambian people as proclaimed by the Independent Electoral Commission.

There are clearly a number of differences between the current situation in the US and the events that unfolded in the aftermath of the Gambian elections in 2017, not least the fact that Jammeh became president through a coup d’état in 1994 and remained in power for 22 years. Nevertheless, the two situations present one crucial similarity, namely that in both cases the incumbent president lost the presidential election, claimed that there have been election frauds, and affirmed to have the right to serve a new term. In the US, a number of senior officials supported Trump’s claims. For instance, Mike Pompeo, US Secretary of State, affirmed that ‘there will be a smooth transition to a second Trump administration.’

In case of alleged elections frauds, a crucial question emerges with regard to the role of domestic constitutional order in international law. The principle of non-intervention imposes on states an obligation not to interfere in the internal affairs of another state. Furthermore, the right to internal self-determination of people establishes that every people has the right to freely choose its own government, as well as its political and economic regime (see Article 1 common to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights). Accordingly, recognising a person as de jure president pending allegations of election frauds would violate both the principle of non-intervention and the right to internal self-determination. Nevertheless, state practice seems to have a tendency to disregard domestic (un)constitutional issues.

For instance, in 2009 the President of Honduras, Manuel Zelaya, was organizing a non-binding referendum on whether to convene a special assembly to reform the Honduran Constitution, when his opponents criticised his intents, claiming that the real purpose was to extend his presidential term. On 26 June 2009, the Honduran Supreme Court unanimously issued an arrest warrant against the president; two days later, the national army carried out the order, ousting Zelaya. In spite of the decision adopted by the Supreme Court, the overwhelming majority of the international community denounced the events as a coup and continued recognising Zelaya as the de jure President.

At the beginning of 2014, intense protests broke out in Ukraine. On 22 February, the Parliament voted to remove Yanukovych and decided that elections would be held on 25 May. The president reacted promptly to the Parliament’s decision, defining its action as a coup. In the subsequent days, an arrest warrant was issued against President Yanukovych, who found refuge in Russia. As a matter of fact, the Ukrainian Constitution requires at least three-quarters of its constitutional composition to vote in favour of impeachment in order to impeach the president. However, the members of the Parliament on 22 February were 328, while the total number of the members is 449 (see post by Zachary Vermeer). Therefore, the vote was null and void due to the lack of 9 votes.

If we refer back to the US elections, it is worth mentioning that over the past weeks Trump has repeatedly refused to commit to a peaceful transfer of power. During the Senate Judiciary Committee hearings for the Supreme Court nomination of Amy Coney Barrett, she was asked whether ‘every President should make a commitment, unequivocally and resolutely, to the peaceful transfer of power’ and she affirmed that ‘whether the president has said that he would not peacefully leave office … is a political controversy right now, [and] as a judge, I want to stay out of it and I don’t want to express a view’ (A. Davidson Sorkin, ‘Amy Coney Barrett’s Silence Is an Expression of Extremism’, The New Yorker, 18 October 2020). Furthermore, days before Barrett was nominated to become the ninth Justice, Trump affirmed that ‘it’s very important that we [the Republicans] have nine justices’ instead of eight, referring to the possibility that the elections results would ‘end up before the Supreme Court.’ Following Biden’s victory, Trump refused to concede the election.

As aforementioned, international law does not provide a clear answer as to what states should do in case of contested elections. On the one hand, the Estrada doctrine prescribes that states should recognize other states, not governments. The principle of non-intervention and the right to internal self-determination would support this approach, which many countries claim to follow. On the other hand, the cases of Honduras, Ukraine, and The Gambia would suggest that foreign countries have disregarded allegations of election frauds. This practice seems therefore to highlight the emergence of a new tendency of the international community, in contrast with the Estrada doctrine. Nevertheless, this conclusion warrants a word of caution. Decisions about the recognition of an entity as the new government, or of an individual as the new president, are ultimately political choices. While a new trend is emerging from state practice, it is undeniable that international law permits an area of discretion. It is within this are that different interests and political considerations play a decisive role.