Cyber Election Interference and Self-Determination—Elections in Taiwan

Taiwan faces a significant disinformation challenge, with misleading information infiltrating the daily lives of its citizens, including through platforms like Facebook and LINE groups.[1] The People’s Republic of China (PRC) continues to make substantial efforts to exert influence on Taiwan’s elections. As the 2024 elections draw closer, the PRC is employing new tactics, such as inviting prominent pundits and pollsters to visit and utilizing Chinese short videos in Taiwan’s elections.[2] These developments suggest a growing level of certainty and intent to alter voter decision processes as the election date approaches.

Information operations have become a prevailing strategy employed by hostile States to undermine the democracy of another nation. Traditional interpretations of international law require physical harm or coercion, such as casualties or infrastructure damage, to violate norms like non-intervention or domaine réservé,[3] which would be difficult to establish when information tactics are used. However, after the 2016 U.S. elections, Professor Jens David Ohlin expanded this concept by arguing that the right to self-determination goes beyond secession and holds significance in the context of election interference.[4]

The principle of self-determination holds a distinct place in international law, characterized by its dual nature: external and internal.[5] The former encompasses the rights established in the Preamble and the context of the Covenants, ICCPR and ICESCR, granting a substantive legal right to external self-determination for individuals enduring colonial rule and those living under foreign military occupation. The latter, internal self-determination, is somewhat more intricate, primarily entailing the people’s right to participate in the governance of their region. Therefore, while self-determination has often been associated with the right to secession under international law, it is only a part of what the rule encompasses. In fact, it also includes a community’s right to shape its political future, as outlined in the Covenants.[6] This right grants them the freedom to determine their political status and pursue economic, social, and cultural development independently.[7]

Ohlin’s central argument is that foreign cyber operations involve impersonation or pretense, where accounts appear to be those of the nation’s own citizens but are, in fact, foreign. This constitutes the unique harm caused by foreign cyber operations.[8] It’s essential to note that Ohlin’s argument rests on the assumption that the unwanted opinions of foreign participants, such as Russians, are of value. This article underscores that this assumption is based on foreign content being conveyed in the same language as the victim state. However, this may not apply in the case of the PRC and Taiwan. Content originating from the PRC is often in simplified Chinese, in contrast to the traditional Chinese characters used in Taiwan. This difference is easily noticeable upon reception. Therefore, if Taiwanese citizens choose to accept information while being aware of its foreign origin, the unique harm proposed by Ohlin is rendered non-existent. It becomes a fully self-determined choice. On the other hand, if the PRC were to deliver disinformation in traditional Chinese characters, mitigating differences in terminology, characters, and grammar, it would align with Ohlin’s argument for a violation of self-determination, making it an externally determined (or other-determined) act.

Such interferences continue to exist within the grey areas of the international law of cyberspace,[9] necessitating further discussion, including the development of international rules.[10] These rules would help prevent or, at the very least, manage the escalation of their undesirable effects. Therefore, before the framework of international law catches up, States can only stand on their own to safeguard their democratic interest. In this context, Taiwan employs a range of strategies involving both the public and private sectors to enhance resilience against such cyberattacks. Notably, the Ministry of Education has established the Media Literacy Educational Resources Network for the K-12 school curriculum on how to detect false information, with the intent of giving children “media competency before they are of legal age to vote.”[11] Additionally, the Ministry of Justice Investigation Bureau provides fact checking information on its website, which include the Taiwan FactCheck Center, RumToast, Line Fact Checker and MyGoPen. Taiwan has effectively established a defense mechanism to protect its citizens from misinformation.

In conclusion, despite the significant volume of accounts seeking to undermine democracy and sow distrust in Taiwanese society, their actions will not violate self-determination as long as the Taiwanese recipients are aware of their foreign origin. This article contends that the PRC’s efforts to influence Taiwan’s democracy are unethical and may lead to conflicts. However, the legality of these actions under international law hinges on the will and perception of the Taiwanese people, rendering it a complex and nuanced issue.

[1] See generally Sean P. Quirk, Lawfare in the disinformation age: Chinese interference in Taiwan’s 2020 elections, 62(2) Harv. Int’l L. J. 525 (2021).

[2] Lin Jun-hong & Liu Rong, New Chinese Tactics in Election Interference: Inviting Prominent Pundits and Pollsters to Visit, Revealing Chinese Short Video Involvement in Taiwan’s Elections, Mirror Media (Oct. 24, 2023), https://www.mirrormedia.mg/story/20231023inv017.

[3] Michael N. Schmitt, When Is a Cyberattack a Use of Force or an Armed Attack?, 45(8) Computer 82, 83 (2012); Jens David Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law?, 95 Tex. L. Rev. 1579, 1588-1593 (2017); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.14, ¶ 205 (June 27).

[4] See generally Jens David Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law?, 95 Tex. L. Rev. 1579 (2017).

[5] Antonio Cassese, Self-Determinations of Peoples: A Legal Reappraisal 67-140 (1995).

[6] ICCPR, Art. 1(1); ICESCR, Art. 1(1).

[7] See generally Jens David Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law?, 95 Tex. L. Rev. 1579 (2017).

[8] Jens David Ohlin, Election Interference: A Unique Harm Requiring Unique Solutions, in Defending Democracies: Combating Foreign Election Interference in a Digital Age 239, 245 (Jens David Ohlin, Duncan B. Hollis et al. eds., 2021).

[9] See generally Michael N. Schmitt, Grey Zones in the International Law of Cyberspace, Yale J.Int’l L. Online 1 (2017), available at: https://www.yjil.yale.edu/grey-zones-in-the-international-law-of-cyberspace/.

[10] Kristen E. Eichensehr, Ukraine, Cyberattacks, and the Lessons for International Law, 116 Am. J. Int’l L. Unbound 145, 149 (2022).

[11] Quirk, supra note 1, at 541.