10 May Rerouting Parts of Ukrainian Internet Traffic – A Violation of the Principle of Non-Intervention?
[Pia Hüsch is a Graduate Teaching Assistant and PhD candidate at the University of Glasgow, focusing on the regulation of cyber operations in international law.]
Temporary Rerouting of Internet Traffic in Kherson, Ukraine
On the 2nd of May 2022, several news outlets reported that part of the Ukrainian internet connection in the occupied Ukrainian region of Kherson almost completely broke down, only to be re-installed hours later. NetBlocks, a London-based monitor of internet service disruption, said that the internet traffic in the region was rerouted via Russian communications infrastructure. Two days later, on the 4th of May, it was confirmed that the disruption occurred due to shelling damaging Kherson’s fibre optic network and that the connection was restored and had been reconnected to Ukrainian infrastructure. The head of Ukraine’s State Service of Special Communications and Information Protection, Yurii Shchyhol, claimed that Russia’s rerouting activities were a violation of international law.
Even though the rerouting was temporary, such action has a number of consequences as internet traffic through Russian networks is likely to be subject to Russian internet regulations. Before the invasion of Ukraine in February 2022, Russia restricted internet use via its networks, e.g. in the form of online censorship and routing traffic through state-controlled infrastructure. Extensive further restrictions have recently been imposed by the Russian government in the context of the invasion of Ukraine, including measures such as banning social media platforms like Facebook and Instagram but also other websites such as Human Rights Watch or Euronews.
The re-routing of some of Ukrainian’s networks must of course be seen in a larger context of a military intervention that clearly violates many norms of international law, i.e. prohibition on the use of force but also has seen the unlawful recognition of the “separatist republics” next to alleged war crimes and human rights violations. Further, the attempt to reroute internet traffic might also be part of Russia’s strategy to annex further parts of Ukraine like Kherson and potentially establishing a “Kherson People’s Republic”. The rerouting of internet traffic in combination with annexation strategies certainly brings to mind developments seen in Crimea in 2014-2017. The region of Kherson is also said to be using the Russian rouble from 1 May. according to Russia-appointed authorities. The British Ministry of Defence stated that recent developments form part of “Russian intent to exert strong political and economic influence in Kherson over the long term”.
Does Rerouting Internet Traffic Constitute an Unlawful Intervention?
Next to the assessment of the act in a larger context, a separate legal question arises of whether the act of rerouting internet traffic – assuming such an act has been committed by a state or can be attributed to one – in of itself violates the principle of non-intervention irrespective of any preceding use of force which may have already violated the principle of non-intervention. Rerouting internet traffic could further amount to violations of human rights law, such as the freedom of speech, or the principle of state sovereignty, but these will not be examined in this post. Instead, focus lies on the two requirements that have to be met in order for an activity to qualify as a prohibited intervention: the act in question which is conducted by one state against another must target the domaine réservé of another state and it must have been conducted in a coercive manner.
Does Rerouting Internet Traffic Target a State’s Domaine Réservé
Whether the domaine réservé, an area that is in principle not regulated by international law, was targeted is often considered to be the easier analysis of the two-step assessment to establish unlawful intervention. With the rise of human rights law and the general expansion of the scope of international law, however, the number of matters not addressed by public international law has decreased significantly and with it, a state’s domaine réservé has arguably shrunk. There is generally little agreement on what exactly still falls within the scope of domaine réservé but some matters, such as holding elections, are widely considered to form part of a state’s domaine réservé.
Does rerouting internet traffic then target a state’s domaine réservé? Cyberspace, although not explicitly regulated by a comprehensive international treaty, certainly is subject to regulation by public international law – an argument that has been widely supported by states and academia – and as such, seems to fall outside the scope of the domaine réservé. However, definitional ambiguity in the interpretation of the norm’s requirements is the bread and butter of anyone applying the principle of non-intervention. Conversely, it could also be argued that despite the internet’s perceived transboundary nature, the ability to make routing decisions concerning internet traffic within a state’s infrastructure, such as cables and servers, is not regulated by international law and thus, remains under the prerogative of a state. Where such interpretation is adopted, rerouting another state’s internet traffic could qualify as an act targeting a domaine réservé.
Can Rerouting Internet Traffic Constitute a Coercive Act?
The second requirement an act has to fulfill in order to qualify as a violation of the principle of non-intervention is that of coercion. Coercion, which the ICJ has said to form “the very essence” of intervention, is perhaps equally unclear in its definition as the domaine réservé. At the core of it, however, lies a differentiation between what might be considered mere influence of another state and what constitutes an unlawful intervention. According to Oppenheim, coercion thus includes the subordination of another state’s will and is a “dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things”. The ICJ has previously interpreted this standard restrictively and if the resurrected debates on non-intervention in the context of the Russian election interference into the 2016 U.S. presidential election have illustrated one thing, then that it is difficult to establish whether or not the coercion requirement has been fulfilled in concrete scenarios relating to cyber operations. Although some support exists for the interpretation that Russian interference in the U.S. presidential elections included coerciveness, the majority opinion seems to share the assessment that coercion could not be established.
In the context of rerouting internet traffic in Kherson, it seems equally difficult to establish that the threshold of the coercion requirement was met. Does the rerouting – if it can be attributed to Russia – establish that Russia coerces Ukraine into a change of conduct? What outcome is Russia coercing specifically? Again, rerouting internet traffic and subjecting it to Russian internet restrictions raises questions about violations of human rights law and state sovereignty, and has considerable consequences for the people using the internet, not at least on how they form their opinion on the ongoing war, their relationship with Russia and to their own government – decisive aspects that could impact on how people using Russian-censored internet react to a potential referendum – irrespective of the legitimacy thereof. Nevertheless, without further information, it is challenging to see how the coercion requirement is fulfilled exactly.
Non-Intervention and Rerouting Internet Traffic – A Dead End?
Similar to conduct assessed in the context of foreign election interference, applying the principle of non-intervention to rerouting of internet traffic seems to lead to dissatisfactory results in practice. Given the high threshold which renders the principle of non-intervention largely unsuitable to provide nuanced regulation of low-intensity cyber operations, some scholars have argued in favour of reconceptualising the principle of non-intervention in light of the principle of self-determination. Admittedly, this proposal opens up a pandora’s box. The scope of the principle of non-intervention on its own is already difficult to determine in practice, even before adding self-determination – another difficult to grasp principle of international law with its own contradictions, particularly in a context involving Russia and Ukraine – into the mix. However, the argument in favour of reconceptualising non-intervention in line with self-determination points to the core of why it seems dissatisfactory that non-intervention does not apply to many forms of foreign election interference: even where activities in question do not digitally alter the result, the ability of voters to independently and freely form their own opinion and exercise their right to authentic self-government by choosing their political regime has been tampered with, Similar arguments could be applied to instances of rerouting internet traffic like in Kherson, where rerouting internet traffic significantly impacts access to independent media and thus, interferes with people’s ability to independently form an opinion while being subject to Russian restrictions on internet traffic as well as military control of the area. Such parallel reasoning seems especially fitting if a “referendum” is also being held.
In sum, it is difficult to see how rerouting internet traffic might amount to a violation of the principle of non-intervention. Even if one argues that such act targets the domaine réservé of another state, establishing that the threshold of coercion is met is difficult. These observations are similar to those made when applying the principle of non-intervention to foreign election interference in cyberspace. As such, rerouting internet traffic does not necessarily amount to an illegal intervention, but it may increase support for reconceptualising the principle of non-intervention in light of the principle of self-determination.