Legitimacy of international espionage activity
Felix Staicu Mihai Claudiu Barloiu
Espionage among nations is an exceptionally old and extensive humand endevours. Our account of international espionage begins from the observation that espionage between states is an undercover, state-sponsored intrusion into the restricted space of another state for the sake of collecting information 1. Espionage and international law start from different points. Espionage dates from the beginning of history while while interantional law as embodied, in customs, conventions or treaties, is a more recent phenomenon. They are also based on contradictory principles, the core of espionage being treasury and deceit while the core of international law is decency and common humanity. Surprisingly, this costly and harmful activity lacks a clear justification. Legal and philosophical scholarship is extremely interested in, for example, the legitimacy of war among nations, and the proper proper legal framework for regulating war. The legitimacy of of the domestic use of governmental force, too, is debated rigorously. Yet when it comes to espionage, moral theorists are as soundless as spies. Throughout our argument, we follow a basic distinction between espionage during states of emergency (such as war or conflict) and espionage during peacetime (or ordinary circumstances). I define an “emergency” “emer gency” as a time that calls for remedial action in order to address a clear, imminent, and serious threat posed by one state against a basic interest of another. It is peacetime espionage that poses the real justificatory challenge. Espionage that is undertaken in response to emergencies can be justified sufficiently, seems to us, us, by reference to Just War Theory (“JWT”) and the rules of necessity and self-defense. Similarly, just as it assesses the legality of military acts (“jus in bello”), JWT should decide which means are legitimate for intelligence-gathering intelligence -gathering and which are not. I suggest that this seemingly attractive and powerful argument is fallacious. At best, it justifies the collection of intelligence during wartime or other emergencies. But peacetime espionage and wartime espionage are fundamentally different.2
1
On various approaches to defining espionage, see M MARK LOWENTHAL, INTELLIGENCE: FROM SECRETS TO POLICY 2 Angela Gendron, Just War, Just Intelligence: An Ethical Framework for Foreign Espionage, 18 INT’L J. INTELLIGENCE & COUNTERINTELLIGENCE 398 (2005)
Espionage functionally permits states not only to verify that their neighbors are complying with international obligations, but also to confirm the legitimacy of those assurances that their neighbors provide. States are more willing to cooperate across various functional lines because espionage is available as a tool by which to monitor foreign behavior. 3 Most of the literature concerning espionage and international law addreses situations in which the laws of war apply. The rules of espionage in times of war, wheter based on The Hague Regulation of 1907, the Geneva Conventions, The Protocol Additional to the Geneva Convention or other sources are straight forward. According to Article 29 Convention (IV) respecting the Laws and Customs of War on Land Hague- A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. Significantly, the Hague Regulations do not make belligerent espionage a violation of the laws of war. International law neither endorses nor prohibits espionage, but rather preserves the practice as a tool by which to facilitate international cooperation. National representatives are faced, in the international original position, with the choice between endorsing and rejecting a duty of basic transparency enforced exclusively through espionage. If they reject this rule, states will not be required to be transparent, and their neighbors will have no right to spy on them. The representatives are expected to adopt a maximin strategy: i.e., to choose the option that offers the best minimum result. Let us suppose that the international community adopts a ban on espionage. From each state’s point of view, giving up intelligence-gathering means practically accepting a kind of national blindness. In fact, this particular form of blindness would extend to information about other states’ non-compliance with the rule against espionage, since other states would presumably conduct their espionage cla ndestinely. This is a crucial point, because the stability of any international norm hinges on each nation’s expectation that the other nations will observe it. 4 The literature concerning the espionage in international law outside of the laws of war is much less developed as Richard Fold noted: „Traditional International Law is remarkably oblivious to the peacetime practice of espioange”. The lite rature that does exist on peacetime espionage can be split into three groups, one group suggests peacetime espionage is legal (not illegal) under international law , another group suggests peacetime espionage is legal under international law, a third group placed between the other two, maintains that peacetime
3
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1176&context=auilr JANNA THOMSON, JUSTICE AND WORLD ORDER: A PHILOSOPHICAL INQUIRY 31 (1992); Forde, supra note 8, at 76 4
espionage is neither legal nor illegal. In any event the uncertainty in the literature supports the thesis that espionage is beyond international consensus .
1. Espionage is not illegal Geogrey Demarest aggrees that there is an interesting lacuna betwen espionage and international law also he distinguish betwen wartime espionage and peacetime espionage .Demarest’s conclusion , althogh espionage unfriendly act it does not violate interantional law.To prove his statements Denmarest argues that there is a trend where by international organizations such as the United Nations have incesed thier inteliggence gatbhering capabillities . To give espionage some legall support we tide it up to the right of anticipatory or paremptory self defense under the UN Charter and international law.5 2. Espionage is illegal Professor Manuel Garcia Mora belives that peacetime espionage is regarde as an international delinquency and a violation of international law. 6Professo Quincy Wright belives that peacetime espionage violates a duty that states have under International Law to respect to teritorial integrity and political independence of other states.7According to Delupis espionage appears to be illegal under international law in time of peace if it involves the presence of agents sent clandestinely by a foreign power into the teritoy of another state.In to Delupis knowledge international tribunals have not convicted anyone for the simple wrong of espionage. 8
3. Espionage is neither legal or legal. Two former Cia officials Daniel Silver, and Frederick Hitz state that there is something almost oxymoronic about addressing the legality of espionage under international law,9Speaking of the ambiguos of espionage under international law they conclude that espionage is neither clealy condoned nor condemnd under international law . The rules and the ethics are situational . Countries are much less tolerant when espionage is commited against them, then when they are commiting it against friends and foes. Wheter espionage is legall or ilegall under international law they are realista about the fact that countries for reason of self defense and for their own interest are going to commit espionage in other countries. According to them that may explain why no treaties specifically prohibit espionage. As Cristopher Baker ar gues :” 5
Lt.Col. Geoffrey B.Denmarest, Espionage in Interantional Law
6
Manuel Garcia Mora, Treason, Sedition and Espionage as Poltical Offenses unde the law of extradition, Quincy Wright, Espionage and the doctrine of non-intervention in internal affaires. 8 Ingrid Delupis-foreing worships and immunity from espionage, 7
9
Daniel Silver, Intelligence and Counter Intelligence
International Law neither endorses nor prohibits espionage but rather preser ves the practice as a tool by which to facilitate international cooperation . Looking back to another era when the Americans and Soviets negotiated over the size of their nuclear stockpiles , Baker demonstrates that shared inteli ggence can be vey useful in monitoring and enforcing agreements in arms control. Whitout espionage countries could be required simply to accept the information provided by other treaty partners as accurate.10 Proffessor Simon Chesterman states that espionage creates functional benefits for the internatonal community and he further suggests that the benefits of sharin g intelligence with multilateral organizations could lead the i nternational community to develop new international norms.11 Conclusion Based on the things that we presented we agree with the last theory that international espionage is neither legal nor illegal, and that states accept this situation as a common practice. Intelligence gathering will always be a key part in states self-defence policy, because trust cannot be a guidance in a state security policy. So if states do not seek complete disarmament, there is no reason to ban espionage practices, because even if they were banned, states will find a way to continue the information-gathering practices, for well-known purposes.
10
Cristopher D.Baker, Tollerance of International Espionage. A functional approach. Simonn Chesterman, The spy who came in from the Cold War: Intelligence and International Law.
11
