The Oxford Statement On International Law Protections Against Foreign Electoral Interference Through Digital Means

[Dapo Akande, Antonio Coco, Talita de Souza Dias, Duncan B. Hollis, Harold Hongju Koh, James C. O’Brien and Tsvetelina van Benthem.]

Election insecurity constitutes a dangerous global threat. Thirteen prominent intelligence experts stated, in a brief filed in U.S. federal court, that: “Over the last several years, evidence has emerged that Moscow has launched an aggressive series of active measure campaigns to interfere in elections and destabilize politics in Montenegro, Ukraine, Moldova, France, Germany, the Netherlands, Estonia, Sweden, Austria, Italy, Poland and Hungary, to name just a few. They sought to inflame the issues of Catalonian independence and the Brexit vote in the United Kingdom.” Unfortunately, this is also not just a problem with one State; other States appear to have adopted similar tactics and tools, making foreign election interference a critical threat to the world’s democracies. In recent days, U.S. officials have, for example, accused Iran of posing as far-right U.S. citizen groups and sending threatening e-mails to U.S. voters about whether and how they should vote.

Less than a week before the most consequential election in its modern history, United States electoral processes remain startlingly insecure. In August 2020, the US Director of National Intelligence reported that China, Russia, and Iran have been “compromise[ing] our election infrastructure for a range of possible purposes, such as interfering with the voting process, stealing sensitive data, or calling into question the validity of election results.” Last week, the US Justice Department unveiled an indictment charging six Russian GRU intelligence officers, inter alia, with attempting interference in the 2017 French elections. But there is a limit to how far such a global problem can be remedied by domestic law.

These and related reports led to the Third Oxford Statement on International Law Protections Against Foreign Electoral Interference through Digital Means, reproduced below. This Statement is the third arising out of a series of virtual workshops held in 2020 during the global pandemic at the University of Oxford, co-sponsored by the Oxford Institute for Ethics, Law and Armed Conflict (ELAC) at the Blavatnik School of Government, Microsoft, and the Government of Japan. The initial workshop produced the first Oxford Statement on the International Law Protections against Cyber Operations Targeting the Health-Care Sector, which articulated a short list of consensus protections that apply under existing international law to cyberoperations targeting the health care sector. A second virtual workshop in July clarified the international legal protection of vaccine research, and how international law applies to the protection of the development, testing, manufacture, and distribution of a COVID-19 vaccine. Those deliberations led to The Second Oxford Statement on International Law Protections of the Healthcare Sector During Covid-19: Safeguarding Vaccine Research.  More than 130 international lawyers from across the globe have become signatories to the first two Oxford Statements. The third workshop, which took place on 20 October 2020, brought together over 70 participants among international lawyers, diplomats, industry representatives and computer scientists, has yielded this ‘Third Oxford Statement’.

As with the prior two Oxford Statements, the goal of the present Statement is not to cover all applicable principles of international law, but rather, to articulate a short list of consensus protections that apply under existing international law to foreign cyberoperations with adverse consequences on electoral processes, such as balloting, verifying, and providing electorates with procedural information about how to participate in an electoral process and substantive information related to that process. The Statement enumerates a range of duties of states: negative duties – to refrain from conducting cyber operations that have adverse consequences for electoral processes in other states, and not to render assistance to such operations, – as well as positive requirements of due diligence, and duties to protect and ensure the integrity of their own electoral processes from interference by other states.

Like its two predecessors, this Oxford Statement was opened, and remains open, for signature by international law scholars, with hopes that it will spur discussion and clarification about how international law applies in this area. It is part of an ongoing “Oxford Process,” which recognizes that global crises create unique opportunities for agreement about the interpretation and application of international law protections, as well as their progressive development. The Oxford Process will continue to identify and articulate points of consensus on international law rules with respect to today’s most urgent global problems. It is a process designed to appeal across the globe; the U.S. election may be dominating the headlines today, but foreign election interference impacts all democracies and warrants international law’s continuing attention and regulation. We are pleased, moreover, to see such significant support for the Process to date, demonstrating that international lawyers can provide quick and concise guidance to States and other stakeholders on how events in cyberspace garner international legal regulation.

Use of digital means to disrupt or undermine elections and to interfere with a population’s right to govern itself strikes at the very core of democracy. This Statement makes clear that international law addresses and forbids such brazen assaults on the rule of law, and states should refer explicitly to such law when speaking about election interference.

The Oxford Statement on International Law Protections Against Foreign Electoral Interference Through Digital Means

We, the undersigned public international lawyers, have watched with growing concern reports of cyber incidents targeting electoral processes around the world, including allegations of foreign state and state-sponsored interference. We also note that the COVID-19 pandemic raises additional challenges to ensuring the integrity of such processes.

Whereas:

Two prior Oxford Statements have described the rules and principles of international law governing cyber operations that threaten two areas of pressing global importance, namely the safeguarding of the health care sector and global vaccine research;

International law protects electoral processes, and efforts to interfere, including by digital means, with a state’s choice of its political leaders or other matters on which it has free choice contravene basic principles of the international order;

The Charter of the United Nations (UN) establishes sovereign equality and each state’s political independence as bedrock elements of the international system; the UN General Assembly has affirmed that no state “has the right to intervene directly or indirectly, for any reason whatever, in the internal or external affairs of any other state”; and the International Court of Justice has held that every sovereign State has the right “to conduct its affairs without outside interference”;

Article 25 of the International Covenant on Civil and Political Rights declares that “[e]very citizen shall have the right and the opportunity, without … unreasonable restrictions [t]o take part in the conduct of public affairs, directly or through freely chosen representatives; [t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”; electoral interference can infringe human rights protected under the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the European Convention on Human Rights;

Other international instruments, such as the Paris Call for Trust and Security in Cyberspace (2018), have called on all stakeholders to “[s]trengthen their capacity to prevent malign interference by foreign actors aimed at undermining electoral processes through malicious cyber activities”;

All efforts by states and others to prevent such malign interferences should be consistent with international law;

The International Law Commission’s 2001 Articles on State Responsibility establish that a state is responsible for the conduct of its organs or officials, as well as for conduct carried out by persons or groups acting on the instructions of, or under the direction or control of, the state;

In line with the UN Guiding Principles on Business and Human Rights, online intermediaries and digital media companies should “conduct due diligence to ensure that their products, policies and practices … do not interfere with human rights”, as recognised in the April 2020 Joint Declaration on Freedom of Expression and Elections in the Digital Age, adopted by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and OAS Special Rapporteur on Freedom of Expression.

As states and other stakeholders learn more about the ways in which foreign cyber actions can adversely affect domestic electoral processes and how best to address such harms, international law can be further clarified and strengthened by state practice that becomes accepted as customary international law.

We affirm that all states are bound to act in accordance with the rules and principles identified below. 

Applicability

1. International law applies to cyber operations by states, including those that have adverse consequences for the electoral processes of other states. 

a. “Electoral processes” refer but are not limited to processes for selecting or electing individuals for public office, referenda, and plebiscites. These include:

i. Balloting: registering, casting, tabulating, or assuring the integrity of a ballot including voter registries, ballot security and integrity protocols, voting machines, and paper ballots;

ii. Verifying: systems used for reporting, recording, verifying and auditing votes and results of an election;

iii. Informing: public or private systems that provide an electorate with procedural information about how to participate in an electoral process, as well as substantive information, of whatever origin, related to an electoral process, including information on individuals or groups participating in electoral processes, such as candidates for elective office, political parties, or organizations.

b. Adverse consequences, in the electoral context, include actions, processes or events that intervene in the conduct of an electoral process or undermine public confidence in the official results or the process itself. These actions include but are not limited to intrusions into digital systems or networks that cast doubt on the integrity of election data, such as votes and voter registers, as well as cyber operations against individuals and entities involved in the election.

Duty to Refrain

2. A state must refrain from conducting, authorising or endorsing cyber operations that have adverse consequences for electoral processes in other states. States must refrain from, inter alia

a. Interfering, by digital or other means, with electoral processes with respect to balloting or verifying the results of an election;

b. Conducting cyber operations that adversely impact the electorate’s ability to participate in electoral processes, to obtain public, accurate and timely information thereon, or that undermine public confidence in the integrity of electoral processes.

c. Conducting operations that violate the right to privacy, freedom of expression, thought, association, and participation in electoral processes.

Duty Not to Render Assistance

3. A state must not render assistance to cyber operations that it knows will likely have adverse consequences for electoral processes in other states.

Due Diligence

4 a.    When a state is or should be aware of a cyber operation that emanates from its territory or infrastructure under its jurisdiction or control, and which may have adverse consequences for electoral processes abroad, that state must take all feasible measures to prevent, stop and mitigate any harms threatened or generated by the operation.

b. To discharge this obligation, states may, to the extent feasible, be required to, inter alia, investigate, prosecute or sanction those responsible, take measures to prevent or thwart operations spreading misleading or inaccurate information, and/or assist and cooperate with other states in preventing, ending, or mitigating the adverse consequences of foreign cyber operations affecting electoral processes.

c. The measures taken to discharge a state’s obligations should be carried out in full compliance with other rules of international law.

Obligation to Protect Against Foreign Electoral Interference

5. States have an obligation to protect and ensure the integrity of their own electoral processes against interference by other states. To discharge this obligation, states may be required to put in place electoral security measures, such as legislation and backup systems, as well as to secure the availability of public, timely and accurate information on electoral processes. Any restrictive measures taken by states that interfere with human rights must be in accordance with applicable legal requirements, such as legitimate purpose, legality, necessity, proportionality and non-discrimination.

6. These rules and principles are without prejudice to other applicable international rules and ongoing processes. 

The current list of signatories and their affiliations (for identification purposes only) is below. International lawyers who wish to append their name to the statement should send an email to oxfordcyberstatement{at}gmail.com

1. Dapo Akande, Professor of Public International Law, Co-Director, Oxford Institute for Ethics, Law & Armed Conflict (ELAC), University of Oxford
2. Mariana Salazar Albornoz, Member of the Inter-American Juridical Committee, Professor of International Law, Universidad Iberoamericana
3. Kai Ambos, Professor and Chair of Criminal Law, Procedure, Comparative Law, International Criminal Law and Public International Law, Georg August Universität Göttingen, Germany
4. Joshua Andresen, Deputy Head of School and Senior Lecturer in National Security and Foreign Relations Law, School of Law, University of Surrey
5. Mahnoush H. Arsanjani, Former Director, Codification Division, Office of Legal Affairs, United Nations
6. Karine Bannelier, Associate Professor of International Law, Deputy Director of the Cyber Security Institute, University Grenoble Alpes
7. Richard Barnes, Professor of International Law, School of Law, University of Lincoln
8. Pnina Sharvit Baruch, Senior Research Fellow and Head of Program on Law and National Security, Israel Institute for National Security Studies
9. Gary Bass, Professor of Politics and International Affairs, Princeton University
10. Eyal Benvenisti, Whewell Professor of International Law, University of Cambridge, C C Ng Fellow, Jesus College, Director of the Lauterpacht Centre for International Law
11. Susan H. Bitensky, Professor of Law, Michigan State University College of Law
12. Christopher J. Borgen, Professor of Law and Co-Director, Center for International and Comparative Law, St. John’s University School of Law
13. Michael Bothe, Professor emeritus of Public law, Law School, J.W. Goethe University, Frankfurt/Main
14. Tess Bridgeman, former Special Assistant to the President, Associate White House Counsel, and Deputy Legal Adviser to the National Security Council; Co-Editor-in-Chief, Just Security
15. Chester Brown, Professor of International Law and International Arbitration, The University of Sydney Law School
16. Russell Buchan, Senior Lecturer in International Law, University of Sheffield
17. Emiliano Buis, Professor of International Law, University of Buenos Aires
18. Michael Byers, Professor & Canada Research Chair in Global Politics and International Law, University of British Columbia
19. Nicolás Carrillo-Santarelli, Associate Researcher of the Institute of Human Rights and Business, UDEM University
20. Benarji Chakka, Professor of International Law, VIT-AP University School of Law (VSL), VIT-AP University, India
21. Théodore Christakis, Professor of International and European Law, Chair Legal and Regulatory Implications of Artificial Intelligence, University Grenoble Alpes
22. Roger S. Clark, Board of Governors Professor, Rutgers Law School
23. Antonio Coco, Lecturer in Public International Law, University of Essex and Visiting Fellow at ELAC, University of Oxford
24. Camilla Guldahl Cooper, Associate professor at the Norwegian Defence University College, Oslo
25. Geoffrey S. Corn, Gary A. Kuiper Distinguished Professor of National Security Law, South Texas College of Law Houston
26. Emily Crawford, Associate Professor, Sydney Law School, The University of Sydney
27. Robert Cryer, Professor of International and Criminal Law, University of Birmingham, United Kingdom and Extraordinary Professor of Law, University of the Free State, South Africa
28. Federica D’Alessandra, Executive Director, Oxford Program on International Peace and Security, ELAC
29. Tom Dannenbaum, Assistant Professor of International Law, The Fletcher School of Law & Diplomacy, Tufts
30. Margaret M. deGuzman, James E. Beasley Professor of Law and Co-director of the Institute for International Law and Public Policy at Temple University Beasley School of Law
31. François Delerue, Research Fellow in Cyberdefense and International Law at the Institut de Recherche stratégique de l’École militaire (IRSEM) and Adjunct Lecturer at Sciences Po, Paris, France
32. Talita de Souza Dias, Postdoctoral Research Fellow, ELAC, University of Oxford
33. Jessica Dorsey, Assistant Professor of International and European Law, Utrecht University School of Law
34. Alonso Gurmendi Dunkelberg, Assistant Professor, Universidad del Pacífico, Peru
35. Jeffrey Dunoff, Laura H. Carnell Professor of Law, Temple University School of Law
36. Max du Plessis SC, Adjunct Professor, Nelson Mandela University and Senior Researcher, Institute for Security Studies
37. Kristen E. Eichensehr, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law
38. Cesáreo Gutiérrez Espada, Emeritus professor of International Law, Universidad de Murcia, Spain
39. Dorothy Estrada-Tanck, Associate Professor of Public International Law and Director of the Legal Clinic, University of Murcia, Spain
40. Tom Farer, University Professor and Dean Emeritus (1996-2010), Josef Korbel School of International Studies, University of Denver
41. Benjamin B. Ferencz, former Nuremberg war crimes Prosecutor
42. David P. Fidler, Adjunction Senior Fellow for Cybersecurity and Global Health, Council on Foreign Relations
43. Dieter Fleck, Honorary President, International Society for Military Law and the Law of War
44. Robin Geiss, Professor and Chair of International Law and Security, University of Glasgow; Director, Glasgow Centre for International Law and Security (GCILS)
45. Geoff Gilbert, Professor of International Human Rights & Humanitarian Law, School of Law and Human Rights Centre, University of Essex
46. Chiara Giorgetti, Professor of Law, Richmond Law School
47. Guy S. Goodwin-Gill, Professor of Law, University of New South Wales (UNSW), Andrew & Renata Kaldor Centre for International Refugee Law, UNSW; Emeritus Fellow, All Souls College, Oxford
48. James A. Green, Professor of Public International Law, School of Law University of Reading
49. Oren Gross, Irving Younger Professor of Law, University of Minnesota Law School
50. Nienke Grossman, Professor of Law; Co-Director, Center for International and Comparative Law, University of Baltimore School of Law
51. Douglas Guilfoyle, Associate Professor of International and Security Law, University of New South Wales Canberra
52. Oleg Gushchyn, Professor, Military Law Department, Taras Shevchenko National University of Kyiv, Ukraine
53. Monica Hakimi, James V. Campbell Professor of Law, University of Michigan Law School
54. Françoise J. Hampson, Professor Emeritus, Law School & Human Rights Centre, University of Essex
55. Adil Haque, Professor of Law and Judge Jon O. Newman Scholar, Rutgers Law School
56. Kevin Jon Heller, Professor of International Law and Security, University of Copenhagen (Centre for Military Studies); Professor of Law, Australian National University
57. Christian Henderson, Professor of International Law, University of Sussex
58. Stacey Henderson, Lecturer of Law, Adelaide Law School, The University of Adelaide
59. Tamás Hoffmann, Senior Research Fellow, Centre for Social Sciences Institute for Legal Studies; Associate Professor, Corvinus University of Budapest
60. Duncan B. Hollis, Laura H. Carnell Professor of Law, Temple University School of Law
61. María-José Cervell Hortal, tenured professor of Public International Law, Universidad de Murcia, Spain
62. Kristine Huskey, Clinical Professor of Law, University of Arizona James E. Rogers College of Law
63. Mark Janis, formerly Fellow of Exeter College & Reader in Law, University of Oxford
64. Eric Talbot Jensen, Robert W. Barker Professor of Law, Brigham Young University
65. Derek Jinks, A.W. Walker Centennial Chair in Law, University of Texas School of Law
66. Kate Jones, Faculty of Law, University of Oxford
67. Kadri Kaska, Head of Law Branch, NATO Cooperative Cyber Defence Centre of Excellence
68. David Kaye, Professor of Law, UC Irvine School of Law, UN Special Rapporteur (2014-2020)
69. Shayan Ahmed Khan, Senior Research Associate, Research Society of International Law
70. Ido Kilovaty, Assistant Professor of Law, University of Tulsa College of Law
71. Jan Klabbers, Professor of International Law, University of Helsinki
72. Pierre Klein, Professor, Centre of International Law, Université libre de Bruxelles, Belgium
73. Harold Hongju Koh, Sterling Professor of International Law, Yale Law School,  Legal Adviser (2009-13) and Assistant Secretary for Democracy, Human Rights and Labor (1998-2001), US Department of State
74. Robert Kolb, Professor in Public International Law, University of Geneva
75. David Kretzmer, Emeritus Professor of international Law, Hebrew University of Jerusalem
76. Leonhard Kreuzer, Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
77. Masahiro Kurosaki, Associate Professor of International Law and Director of the Study of Law, Security and Military Operations, National Defense Academy of Japan
78. Patryk I. Labuda, Postdoctoral Fellow, Amsterdam Center for International Law
79. Henning Lahmann, Senior Researcher, Digital Society Institute, ESMT Berlin
80. Kobi Leins, Senior Research Fellow in Digital Ethics, Centre for AI and Digital Ethics; Non-Resident Fellow, United Nations Institute for Disarmament
81. Rain Liivoja, Associate Professor of Law, University of Queensland
82. Marco Longobardo, Lecturer in International Law, University of Westminster
83. Juan Jorge Piernas López, Tenured Professor of Public International Law, University of Murcia, Spain
84. Fabrizio Marrella, Full Professor of International Law and Pro-Vice-Chancellor for International Relations, “Ca’ Foscari” University of Venice, Italy; Professeur invité at the Sorbonne Law School, University Paris I Panthéon Sorbonne
85. Maurice Mendelson QC, Blackstone Chambers Barristers; Emeritus Professor of International Law in the University of London
86. Tomohiro Mikanagi, Ministry of Foreign Affairs, Japan
87. Marko Milanovic, Professor of Public International Law, University of Nottingham School of Law
88. Tal Mimran, Lecturer of Public International Law and Research Fellow, Hebrew University of Jerusalem
89. Harriet Moynihan, Senior Research Fellow, International Law Programme, Chatham House (Royal Institute of International Affairs)
90. Sean D. Murphy, Manatt/Ahn Professor of International Law, George Washington University Law School  
91. Michael A. Newton, Professor of the Practice of Law, Vanderbilt University Law School
92. James C. O’Brien, Vice Chair, Albright Stonebridge Group
93. Jens David Ohlin, Vice Dean and Professor of Law, Cornell Law School
94. Obiora Chinedu Okafor, Professor and York Research Chair in International and Transnational Legal Studies, Osgoode Hall Law School, York University, Toronto, Canada
95. Roger O’Keefe, Professor of International Law, Bocconi University and Honorary Professor of Law, University College London
96. Andreas Paulus, Professor, University of Goettingen, Germany
97. Mónica Pinto, Professor Emerita, Universidad de Buenos Aires, Facultad de Derecho, Argentina
98. Erin Pobjie, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
99. Anni Pues, Lecturer in International Law, Glasgow Centre for International Law and Security, University of Glasgow
100. Steven R. Ratner, Bruno Simma Collegiate Professor of Law, Director, University of Michigan Donia Human Rights Center, University of Michigan Law School
101. Michael Reisman, Professor Yale Law School
102. Henry J. Richardson III, Professor of Law, Temple University School of Law
103. José Antonio Moreno Rodríguez, Member of the Inter-American Juridical Committee
104. Marco Roscini, Professor of International Law, Westminster Law School, University of Westminster
105. Leila Nadya Sadat, President, International Law Association (American Branch); Special Adviser on Crimes Against Humanity, International Criminal Court Prosecutor; James Carr Professor of International Criminal Law, Director, Whitney R. Harris World Law Institute, Washington University School of Law
106. Barrie Sander, Assistant Professor of International Justice, Leiden University – Faculty of Governance and Global Affairs
107. Andrew Sanger, University Lecturer in International Law, University of Cambridge, and Fellow of Corpus Christi College and of the Lauterpacht Centre for International Law
108. Arman Sarvarian, Senior Lecturer in Public International Law, University of Surrey
109. Marco Sassòli, Professor of International Law, University of Geneva, Switzerland
110. Ben Saul, Challis Chair of International Law, Sydney Law School
111. Sergey Sayapin, Associate Professor and Associate Dean, School of Law, KIMEP University
112. David J. Scheffer, Clinical Professor Emeritus, Northwestern University Pritzker School of Law
113. Michael Schmitt, Professor of International Law at the University of Reading and Francis Lieber Distinguished Scholar at the United States Military Academy (West Point)
114. Iain GM Scobbie, Professor of Public International Law, Director of the Manchester International Law Centre, University of Manchester
115. Irene Vázquez Serrano, Assistant Professor of International Law, University of Murcia, Spain
116. Bruno Simma, Member, Iran-United States Claims Tribunal, former Judge at the International Court of Justice, Professor of Law, University of Michigan Law School, Ann Arbor, U.S.A.
117. David Sloss, John A. and Elizabeth H. Sutro Professor of Law, Santa Clara University School of Law
118. Ronald C. Slye, Professor of Law, Seattle University School of Law
119. Ralph G. Steinhardt, Lobingier Professor of Comparative Law & Jurisprudence; Co-Founder, GW-Oxford Programme in International Human Rights Law, The George Washington University Law School
120. Dale Stephens, Professor of Law, The University of Adelaide Law School
121. Surya P. Subedi, QC, OBE, DCL, Professor, School of Law, University of Leeds, England; Barrister, Three Stone Chambers, Lincoln’s Inn, London
122. Shana Tabak, Executive Director, Tahirih Justice Center
123. Stefan Talmon, Professor and Director, Institute for Public International Law, University of Bonn, and Visiting Fellow, All Souls College, Oxford
124. Ruti Teitel, Ernst C Stiefel Professor of Comparative Law, Director, Institute on Global Law, Justice and Policy, New York Law School
125. Nicholas Tsagourias, Professor of International Law, University of Sheffield
126. Tsvetelina van Benthem, Research Officer, ELAC
127. Willem van Genugten, em. Professor of International Law, Tilburg University
128. Liis Vihul, Founder and CEO, Cyber Law International
129. Wolff Heintschel von Heinegg, Professor of Public International Law and European Law, European University, Frankfurt (Oder)
130. Michael Waibel, Professor of International Law, University of Vienna, Austria
131. Christopher Waters, Dean, Faculty of Law, University of Windsor, Canada
132. Ralph Wilde, Associate Professor of International Law, University College London, University of London