Legality of espionage under international law

Black’s Law dictionary defines Espionage as- “Espionage, or spying, has reference to the crime of "gathering, transmitting or losing" information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation”. 

It requires complex thinking when we approach the question of the legality of Espionage under International Law. This is due to the existence of a lacuna between espionage in the present time when seen under the shadow of present-day International Law. Espionage has not been discussed as an activity prevalent even during the absence of any war. But the fact that peacetime espionage exists is a well-known truth. Even the United Nations, the organization responsible for governing the nations in the present era has been unsuccessful in dealing with the issue of espionage as one will find no explicit mention of this concept even in the United Nations Charter. Hence, the various elements concerning espionage such as its purpose, methods, and practice have not been discussed in detail under any legal literature, but the important thing to note is that, in the absence of warfare, espionage has never been explicitly addressed in international law. Although there exists a shortage of useful work on espionage under the International Law, the legal scholars have not been silent on the legality of this issue. The inclusion of the issue of peacetime espionage under International Law is a highly disputed issue, with varying levels of consensus by eminent jurists. The arguments for and against the legality of espionage in practice under International Law, each having varying interpretations of the UN Charter and other sources of international law, and the following analysis proposes to explore these interpretations and determine the forms of espionage that violate international law or are potentially allowable under international law, or remain virtually unaddressed by international law completely.

Geoffrey Demarest acknowledges the lacuna between the coverage of Espionage under the current International Law and at the same time differentiates between the espionage during wartime and espionage during peacetime. It is at this point that he criticizes the development of the law on Espionage which has lagged behind the other concepts under International law. According to Demarest espionage might be coined as an “unfriendly act” by the state which suffers intelligence leak due to espionage but it has not yet been proved or established that the act of espionage violates International Law governing the states. The question of the legality of espionage becomes a very important issue at this time when there are advanced way and technologies that allow intelligence gathering at a greater level and with relative ease. In today’s time, the countries are capable of hacking into the security agencies of an enemy nation and cunningly retrieve sensitive information easily. Thus a great need is felt to curb the misuse of technology today. The arguments of Demarest are supported by Roger Scott who has stated in his book the espionage under International Law might not be a fundamentally wrong activity.  For the purpose of providing Espionage legal support, he even went to the length of interpreting the "right of anticipatory or peremptory" self-defense under the UN Charter and international law as an excuse to carry out espionage. He relates espionage as an act of anticipatory action for the defense and interest of a nation. His reasoning can be further justified by analyzing the actions of the USA where the U.S. invaded Iraq in 2003 and such invasion was justified by stating that United States decided not to wait any longer for Iraq lead under the aegis of Saddam Hussein to confirm his compliance with UN resolutions aimed at bringing the destruction of weapons of mass destruction for the interest of international peace. This was the time when such anticipatory action for self- defense was critically debated throughout the world under the application of International Law. Even though the two authors discussed above have given their reasoning to justify the legality of Espionage under International Law, their standstill remains somewhat neutral in nature.

The legality of espionage international law remains till date is unclear as there are certain views which hold it as being illegal. Professor Manuel Garcia-Mora for one believes that "peacetime espionage is regarded as international delinquency and a violation of international law."  Professor Manuel is not alone with views opposing espionage as Professor Quincy Wright, for another believes peacetime espionage to be violative of a duty that states have under international law "to respect the territorial integrity and political independence of other states”.   Professor Quincy’s statement is correct to a great extent as there exists different forms of espionage and the popular one being where a  spy or a scout (may even be a diplomat for the purpose of committing espionage) enter the land of the foreign nation with an intention which is certainly undesired by that nation. Wrongful entry in a foreign sovereign land is clearly an act to violate integrity and political independence of the other state. Whereas, in the case of political espionage where the diplomat committing an act of espionage to enter with prior permission, it becomes a breach of trust for the other nation which provided an entry with a reasonable trust and as a friendly gesture.

Imprimis, international law prohibits interfering and intervening in another state internal and external affairs or supporting civil conflict against sovereignty of another state. In a landmark case of Nicaragua vs. The United States: Use of force and Self-defense where the abovementioned international law principles have been violated, was the support of the Central Intelligence Agency given to the Contras on Nicaragua territory, against Nicaragua territorial integrity and political independence. Moreover, the U-2 incident which happened on May 1, 1960 where a US U-2 spy plane was shot down by the Soviet Air Defence forces while performing a photographic aerial reconnaissance and gathering imagery information (IMINT) deep into soviet territory. The pilot Francis Gary Powers was convicted for espionage by Soviet Union, and meanwhile Soviet Union accused USA for violation of principles of Charter of United Nations.Initially, the US authorities acknowledged the incident as the loss of the civilian weather research aircraft which was operated by NASA, but when they were forced, they admitted the mission’s true purpose when the pilot Francis Gary was captured and the parts of the U-2’s surveillance equipment, including the photographs of Soviet military bases taken during the mission.Justification by US on this incident concerning illegal actions undertaken by United States against Soviet Union was (1) general practice of espionage by all states, (2) the necessity for self-defense, (3) the necessity to maintain the balance of power, (4) the unreasonableness of Soviet objection in view of its own espionage activities, and (5) the virtue of espionage or other types of intervention against communism. This case brought another unresolved issue of espionage in international law.

To this date, the concrete definition of espionage has not found an opinion under International Law. Looking at the scale and seriousness of this act it is very important for it to be discussed at an International level. The current state in which it is assumed to be legal until found is a very weak and vague legal standpoint.

Whatsoever, the developing significance of human rights and support of peace, security, and friendly relation in 21st Century will increase the need of elaboration and regulations of such a practice of espionage by international law will always be requiring political will and consensus of international community as a whole.

By: Navin Kumar Jaggi & Shreya Chandra