By: Asaf Lubin
The Law on Espionage: From Unilateral Agencies to Multilateral Mechanisms Governing the International Law of Intelligence provides a first-of-its-kind exploration of the legal framework that governs peacetime intelligence operations. This doctoral project thus reflects an attempt to write the missing textbook on espionage to be added to the grand bookshelf of international law. It rejects decades of academic scholarship that has considered spying an extralegal construct on the margins of international legitimacy that lies beyond the grasp of mortal rules and regulations. This dissertation diametrically opposes this line of argumentation, while maintaining a clear-eyed view of the important functions that intelligence plays in our public world order, further framing these functions within a broader global constitutive process.
The object of this examination is to understand the arrangements, organically devised by the international community, for resolving possible conflicts of interest between the spy and the spied, and to highlight the shortcomings of such a system of laws in our modern-day data-driven world. The result, it is hoped, is a reimagining of a professional practice: putting into words a neglected set of unexpressed but generally accepted norms and expectations in a process that will extrapolate the lex lata while being cognizant of its layers of lex simulata and lex imperfecta.
After mapping out the conceptual, thematic, and historical frames of reference underpinning this dissertation in Part I, and summarizing the existing discourse and its limits in Part II, the remaining three parts of this research seek to present, apply, and defend my proposed normative framework. The framework proposed, a diagnosis of intelligence operations at three distinct temporal stages – before (Jus Ad), during (Jus In), and after (Jus Post) – follows the traditional structures of international law and Just War Theory. Adopting the Jus Ad, Jus In, Jus Post model is an appropriate choice given the unique symbiosis that exists between espionage and traditional U.N. Charter principles.
Part III introduces the Jus Ad Explorationem (JAE), a sovereign’s prerogative to engage in peacetime espionage. This section asserts the existence of a derivative right to spy by analyzing a plethora of international legal sources, all of which require, either explicitly or implicitly, the gathering of intelligence as a necessary prerequisite for the functioning of the broader legal system. Acknowledging the existence of the JAE is important, as it allows us to begin sketching the justifications for spying and thereby draw the limits of the practice – those cases in which the right to spy may be abused by serving illegitimate purposes. Finally, the last portion of this part moves the discussion onto the complicated and often-ignored issue of the delegation of the right to spy, examining the legitimacy of both upward and downward delegation.
Part IV shifts the focus to the Jus In Exploratione (JIE), the law governing the choice of means and choice of targets employed in the conduct of spying. While the initial analysis put a spotlight on the propriety of the operation’s objectives, the consecutive inquiry turns to the propriety of the operation’s tactical core: the adoption of particular measures and methods throughout the mission’s life cycle. When reaching determinations as to the legality of the JIE, prudent international lawyers will be guided by a collection of basic principles that form the substratum of our international legal order: Rule of Law, Good Faith, Proportionality, Effectiveness, Fairness, and Comity. Together these six principles introduce a set of constraints on a State’s margin of appreciation in selecting specific surveillance techniques and reconnaissance marks. The part will conclude by applying these standards to an array of controversial contemporary and future-oriented intelligence gathering and intelligence sharing and cooperation practices and techniques.
Part V discusses the Jus Post Explorationem (JPE), the law triggered after the intelligence operation has come to an end. The JPE is comprised of two separate, but intrinsically connected, components of the International Law of Intelligence (ILI): its prescription process and accountability mechanisms. The part begins by identifying the existing constraints on two primary rudiments of prescription and accountability: transparency and access to justice. The discussion then seeks to show how these rudimentary restrictions directly impinge on the evolution of the JPE. regarding the prescriptive process, this part illustrates how incidents of international espionage, when exposed, create fertile ground for constitutive elucidation where formal codification proves unlikely. This unique regulatory reality forces traditional rule appliers and agitators (courts, academia, and civil society) to assume a more profound role as rule prescribers. Moving onto ILI’s accountability mechanisms, the section examines the role played by both informal and formal mechanisms of managing ILI’s quality control.
For further reading, see the upcoming piece: Asaf Lubin, The Liberty to Spy, 61(1) Harvard International Law Journal (2019).
