The Paradox of Peacetime Espionage in International Law: From State Practice to First Principles

By Browne, Kathryn Jane | Australian International Law Journal, Annual 2017 | Go to article overview

The Paradox of Peacetime Espionage in International Law: From State Practice to First Principles


Browne, Kathryn Jane, Australian International Law Journal


I Introduction

In 2004 Australia secretly installed listening devices in Timorese cabinet rooms in order to gain advantage in bilateral treaty negotiations. This is the accusation levelled by Timor-Leste in ill-fated proceedings at the International Court of Justice ('ICJ'). (1) Spying during negotiations constituted bad faith, Timor-Leste argued, and the treaty was therefore void ab initio. (2) While this argument proved unpersuasive to the Court, the proceeding represents a ground-breaking of sorts. Never before had the ICJ been asked to consider the question of states' covert information gathering, or espionage. (3)

The legal status of espionage is sometimes described as a paradox, (4) referring to the inconsistency between its clear illegality at municipal law, and its much-debated legality at international law. All states prohibit the theft of their secrets under domestic law. (5) Yet states have always practiced covert surveillance on both individuals and other states. (6) A 'paradox' can be defined as an absurd, self-contradictory or strongly counterintuitive proposition, which after investigation proves nonetheless to be well-founded or true. (7) While at first blush states take a contradictory approach to espionage, the investigation into espionage under international law has been insufficient. This paper seeks to address that gap.

Inquiry into peacetime espionage poses particular problems to the international legal scholar. There are no treaties codifying the law. There is no customary law: (8) a paucity of opinio juris runs in the opposite direction of the abundant state practice. (9) And that is only the practice we know about. It barely needs stating: espionage is a success when nobody knows it has happened. This paper will compare available peacetime state practice with the treaty and customary law of armed conflict applicable to spies. After establishing that states follow armed conflict custom in peacetime practice (Part II), the most highly qualified publicists' interpretation of the practice will be critically examined (Part III). Using the principles raised in those teachings, and applying those principles to state practice, the legality of peacetime espionage, through the example of Timor-Leste v Australia, will be considered (Part IV).

II Espionage in Treaty, Custom and Practice

The customary and treaty laws governing armed conflict define espionage and its legal consequences, broadly replicated in state practice.

The act of wartime espionage is not illegal. Gathering information on the territory of the enemy state in order to gain military advantage is a normal and accepted part of war. (10) The act's legality depends on the means used. The act is illegal when information is gathered 'secretly, in disguise or under a false pretence'. (11) This quality of secrecy transforms otherwise legal information gathering into illegal espionage under the customary law of wars, codified and still applicable today. (12) Scholars agree that the same quality of secrecy sets espionage apart from states' ordinary information gathering in times of peace. (13) This broad definition, from wartime custom and peacetime practice, is adopted in this paper.

Espionage has particular consequences under the law of armed conflict. Captured spies are not afforded prisoner of war status. (14) Instead, they are customarily subjected to summary punishment. (15) But if the spy's mission is successful their liability vanishes. Should a spy complete their mission, returning to their regular army before capture, prisoner of war status will be afforded, as it is to all uniformed officers. (16) This custom, too, is codified in treaty and still applies today. (17) Liability depends not on the action of gathering or even the means employed. Liability depends instead on where the spy is at any given time. 'Our spies are patriots,' writes Commander Roger D. Scott, of the United States' European Command. …

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