Espionage : To be, or not to be Lawful under International Law?

Introduction

Espionage is an ancient art whose genesis leads further back to biblical times. Scriptures of the Old Testament depict a story of The 12 Spies, a narrative of espionage administered by Moses under God’s instruction.^[1] Since then, the utilisation of espionage has further progressed through the Middle Ages and even in Tudor times. It was only during modern warfare that the orchestration of espionage by warring states had escalated.^[2] Governments recognised the value of espionage as a powerful instrument for them to wield during such a time, with the means to collect information that was highly confidential, nevertheless a valuable asset to possess against another State in the event of war. This facet is emphasised during World War II, where espionage had become the bedrock of a government’s duty in ensuring its country’s survival and triumph, accounting espionage as a “vital necessity in the national security process”.^[3] 

As explained above, states bear a great influence in constructing foreign and security policies; the endurance of such authority requires a provision in the form of possessing vital intelligence.^[4] Hence, intelligence constitutes the knowledge required to fulfil a specific objective of a state through the assembly of a decision or policy.^[5] However, an operative measure that is rigorous, repetitive and continuous in nature, must be executed beforehand for a State to possess intelligence. Such an operation is built upon steps of “planning, collection, processing, and dissemination”.^[6] This is an endless and vulnerable staircase of an operation for these steps are always taken in a consistent and continuous manner, as well as that the effect of one step affects the others. The repetition in the undertaking of these steps ultimately sums up to an operation that is known as espionage. For the most part, the analysis and dissemination of information is not a fragment of espionage.^[7] In the narrowest sense, espionage is purely the planning and exercise of gathering confidential information, whose conduct wields deception, thus practised in utmost secrecy. This view is reflected in Article 46(3) of the First Additional Protocol to the 1949 Geneva Convention, which underlines that an act of information gathering within the territory of another state by utilising “false pretences or in a deliberately clandestine manner” is considered as espionage. To this end, any act or attempt of information gathering that does not utilise the aforementioned prerequisites should not be regarded as a practice of espionage.

Difference between Wartime and Peacetime Espionage

The attractiveness of espionage regarded by modern states is of a great value for them to practise it at any given time.  However, the collection of information which utilises false pretences or in a deliberate, clandestine manner during war should not be concluded as an act of espionage. Article 46(1) of the First Additional Protocol to the 1949 Geneva Convention provides that : 

“….any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.”

The following subparagraphs to this article explains that a member of the armed forces who dons the uniform while conducting an act of information gathering, or even in an attempt to do so, is not a spy; nor is he considered to have undertaken espionage. Rather, the individual in question is granted prisoner of war status upon his capture for doing such an act. On the contrary, conducting the act without sporting any uniform is classified as espionage. To illustrate, the dispatchment of an armed forces member by a sending state disguised as a diplomatic agent to gather confidential information in the receiving state is considered to be espionage. This is due to the fact that the armed forces member utilised false pretence and the act is in a deliberate, clandestine manner, to ease the process of gathering confidential information. 

The consequence of committing espionage is regulated by a state’s national law. This is reflected in the controversial execution of Julius and Ethel Rosenberg, who were charged with espionage, for conveying classified information regarding the Manhattan Project (a U.S. government research project that produced the first atomic bombs) to the Soviet Union.^[8] They were executed for that act under the United States Espionage Act of 1917.^[9] Furthermore, this demonstrates the grave consequence of committing espionage, albeit during peacetime between the two states. 

With this argument, it is preemptive to interpret what is meant by wartime and peacetime itself to discern whether certain acts of gathering undisclosed information actually counts as espionage or not. The exact threshold to wartime can be analysed through the term ‘armed conflict’. It is imperative to note that at present, it is unfavourable for states to admit the occurrence of war, especially since its forbiddance through the principles outlined within the UN Charter. On the other hand, armed conflicts certainly do exist and transpire in the existence of states. Thus, armed conflict poses as a more favourable term to coin an event of (a) fighting between States, (b) protracted armed violence between government authorities and organised armed groups, or (c) between organised armed groups. 

From this exposition of armed conflicts, it is assessed that an act of information gathering administered during a time of fighting between states, of protracted armed violence between government authorities and organised armed groups or between organised armed groups, does not constitute espionage, insofar the perpetrator wears the uniform of its armed forces. Consequently, the term espionage is only applied to acts of information gathering practised during a time when the aforementioned ‘threshold’ does not transpire.    

Legal Vacuum regarding the prohibition of espionage

Notwithstanding the vital purpose of gathering intelligence, it is inconvenient to determine the legality of espionage itself as there are yet any international legal instruments that conclusively discerns it as an entirely legal or illegal conduct. In lieu of the void in its legality, spies who commit acts of information gathering during war are then gauged as “unlawful combatants”. As mentioned above, the consequences in retaining such an unlawful profession, is provided under Article 46 of the Geneva Conventions of 1949, Additional Protocols and their Commentaries, which outlines that the aftermath of a spy who is apprehended by an adverse Party in the course of the  information collection is that they can be convicted for their deed under its own national law. Thus, international law maintains legal credibility on the effects of espionage, but induces uncertainty in the legality of its practice. 

Despite this unreliability, a verdict on the issue of its legality can be reached from the application of the Lotus principle, which discloses that any explicit prohibition under international law creates the curtailment to a state’s jurisdiction. This interprets that states are free to undertake any action to the extent that it does not violate international law. Due to the absence of an explicit prohibition on espionage under international law, it can indicate that acts of espionage conducted by states are permissible. This can be the rationale to why states were able to practise espionage during an armed conflict at liberty, untethered to any limitations of explicit international regulation that may prohibit or confine them for exercising it in the first place.  

The Main Issue within the Conduct of Espionage

Although the Lotus principle may resolve this legal vacuum, the precision within the lawfulness of espionage under international law is still, at present, shrouded in ambiguity. Among legal scholars, espionage is a prevalent issue that often culminates to a conundrum on whether it should remain lawful under international law. It is continually regarded as a controversial matter as perspectives on this issue are utterly irreconcilable, essentially divided between the permissivists and prohibitionists.^[10] Despite the divergence in these viewpoints, either convictions are made plausible on the grounds of legally-cogent reasonings. Yet, the following arguments arranged within this review attest that espionage is a (i) prohibited form of threat or use of force  in Article 2(4) of the Charter of the United Nations (UN Charter) and a (ii) violation towards a state’s right to confidentiality of information. In addition, espionage (iii) violates the provisions of the Tallinn Manual 2.0 if the act is operated through cyber means.

i. Espionage is a prohibited use of force in Article 2(4) UN Charter

Firstly, espionage violates the provision in Article 2(4) of the UN Charter : 

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

The prohibition on the threat or use of force regulated within Article 2(4) is obliged to manifest itself as a treaty obligation. However, the realm of such force and what is to be appropriately considered as forbidden is not specified within this Article. Nevertheless, military armed forces was the generally accepted category, but this ambit has since been augmented in effect to the disapproval of war within the UN Charter.^[11] Hence, the prohibition on the threat or use of force against any state’s territorial integrity or political independence should be upheld even in the absence of war, or in other words, during peacetime when military forces are static. 

Eventually, the purview to such a prohibition should include the threat or use of  “any weapons by a state directed against another state”.^[12] Such forces must be prohibited regardless of whether it was sourced through military means or merely by the use of weapons itself. Consequently, what is meant by armed forces is defined by the ICRC as : 

 “All persons who fight on behalf of a party to a conflict and who subordinate themselves to its command. As a result, a combatant is any person who, under responsible command, engages in hostile acts in an armed conflict on behalf of a party to the conflict.”^[13]  

Whereas the ICRC defines weapon as : 

“Any item of equipment supplied by States or armed groups to their armed forces or members so that in an armed conflict they can take violent action against the enemy, and whose use, within the limits justified by military necessity and the rules of international humanitarian law, is legitimate in time of war.”^[14]

According to the above definitions, the permissivists’ school of thought argues that espionage should not be classified as a use of force. The first distinction lies within the execution of espionage. It is not the goal for an agent of espionage to engage in hostile acts during the process, instead he conducts it while pretending to be doing something else in an absolutely clandestine manner (false pretense).^[15] A prevalent case of an espionage agent who operates under a false pretence is Klaus Fuchs, a Soviet Spy in the British TUBE ALLOYS nuclear weapons programme.^[16] Fuchs intended to offer the Russians information on the project; he opted to utilise the role of a scientist to camouflage such an incriminating act. Apart from this first contrast, the second distinction lies within the aspect that espionage constitutes a practice, not an item of equipment as regarded in the ICRC definition of weapons. To this end, the permissivists render that espionage does not violate Article 2(4) since it does not constitute a prohibited use of force.  

Yet, on the other end of the spectrum, espionage can be included within the scope of the prohibited use of force – this is a reflection of the prohibitionist view. Article 2(4) maintains the value of a state’s territorial integrity, that is the “right to integrity or inviolability of states.”^[17] The purpose of Article 2(4) is to preserve a state’s territorial integrity by prohibiting the threat or use of force by another state. It is without a doubt that espionage is a violation towards a state’s territorial integrity as it constitutes a “sovereign act that one state carries out on the territory of another state.”^[18] This violation towards a state’s territorial integrity is manifested through either direct or indirect forms. A precise interpretation to direct forms of violation is derived from the 1974 Definition of Aggression within the General Assembly Resolution 3314. A legal definition on what is meant by such a violation is provided in Article 1 of the Resolution :

“the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.”  

Hence, espionage should not be omitted from the scope of aggression as denoted above. It should be augmented to view espionage as a form of aggression as well, since the undisputed consequence to such a practice is the contravention of territorial sovereignty. Consequently, if the ambit of use of force provided in Article 2(4) can be interpreted to not only include military armed forces, but had also incorporated any use of weapon against another state during peacetime as a prohibited use of force – in that case, Article 2(4) needs to be interpreted in a manner that it encompasses espionage as a prohibited use of force as well.  

The proper legal interpretation towards the UN Charter must be ‘in accordance with the ordinary meaning to be given to its term in their context, and in the light of its object and purpose’. Yet, significant interpretations have been conducted extensively beyond the ordinary meaning of the provided words.^[19] This is proven when interpretations by the United Nations Security Council (UNSC) towards Article 39 of the UN Charter has gone beyond the ordinary meaning expressed within. The UNSC has continued to broadly interpret what constitutes a ‘threat to the peace, breach of the peace or act of aggression’ as provided in Article 39.^[20] Consequently, it is justifiable to interpret the prohibited use of force provided in Article 2(4) as the practice of espionage as well. It is a wise interpretation since espionage undermines world order, in which the effects of espionage could induce conflict between states.^[21] In conclusion, the prohibited use of force in Article 2(4) is reflective of a means to the end; every act that violates a state’s territorial integrity must be prohibited to achieve international peace. This, without a doubt, involves prohibiting acts of espionage.

ii. Espionage is a violation towards a state’s right to confidentiality of information

Secondly, in another perspective, it is preemptive to verify the right of a state to enshroud certain information from the awareness of another state. A state’s right to impose confidentiality upon the information it possesses can be deduced from Article 72(1) of the International Criminal Court Statute (ICC Statute) : 

“This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests… “

The significance in fortifying a state’s national security interests is realised within the aforementioned article. It establishes that a state’s incentive to conceal certain information is justifiable by reasons that such information will threaten its national security if unveiled to the knowledge of another state. These national security interests are characterised as a state’s assets that must be safeguarded from external interference. A further definition to what is meant by a state’s national security interests is interpreted as: 

“… the state of unhindered implementation, development, enjoyment, and optimal protection of national and state values and interests which is achieved, maintained, and improved through the function of security of citizens, national security system and supranational security mechanisms, the absence of (individual, group, and collective) fear of being endangered, as well as collective sense of serenity, certainty and control over the future events and developments of importance for the life of society and the state.^[22]

Therefore, it is lawful for a state to conceal information whose nature concerns its national security as a means to safeguard it. This incentive is fundamentally permissible under the state’s jurisdiction. Consequently, any conduct of espionage by a foreign state intended to obtain that information constitutes an undeviating attack on the target state’s sovereignty.

Moreover, it is justifiable for a state to obscure information due to “expectation of privacy” from the state over that information. A state who undertakes an incentive to restrict certain information from the awareness of another state – due to privacy reasons – accounts for that state performing its inherent function. It is undisputed that such a state’s inherent function is impervious to the interference of another state. Ultimately, this connotes that sovereign states are endowed with the right to retain information in a confidential or undisclosed manner.

iii. Espionage violates the provisions of the Tallinn Manual 2.0 if the act is operated through cyber means

In a world graced with state-of-the-art technology, it is irrefutable that espionage is conducted mostly through cyber means; as many as 20 cases of cyber-attacks have been reported in August of 2023 alone, half of which have been conducted for espionage purposes.^[23] Consequently, the essence of the Tallinn Manual 2.0 can be applied in cyber-espionage matters. The rationale in arguing for the prohibition of cyber espionage under international law can be obtained from Rule 11 of the Tallinn Manual : 

A State may only exercise extraterritorial enforcement jurisdiction in relation to persons, objects, and cyber activities on the basis of:

(a) a specific allocation of authority under international law; or

(b) valid consent by a foreign government to exercise jurisdiction on its territory.

A sovereign state has the right to exercise its independence; under international law, this right is known as ‘jurisdiction’. It was previously divulged that espionage is vital in retaining a state’s sovereignty. Thus, the conduct of espionage is still permissible within a state’s jurisdiction. However, it is not at the liberty of the state to exercise espionage outside of its territory. Recalling the territorial sovereignty principle, the state’s jurisdiction in the practice of espionage is confined to within its territory only and not permitted to do so within the territory of another equally-sovereign state. 

It is only permissible for a state to exercise peacetime espionage outside of its own territory when the prerequisites – as stated in Rule 11 of the Tallinn Manual – are met. It is not a crime for a state to exercise espionage if international law explicitly specifies its permissibility or if the target state delegates the perpetrating state to exercise espionage within the former’s territory. As there are yet any existing international regulations that explicitly permits transnational espionage, it is therefore unlawful for states to carry it out; a state that conducts espionage inevitably defies international law. This, however, would be an indifference in the circumstance that the target state purposely approves the perpetrating state to exercise its sovereignty within the territory of the former, by means of espionage. 

 Rule 11 No. 3 of the Tallinn Manual further specifies that the “allocation of extraterritorial enforcement authority under treaty and customary international law must be explicit, that is, it may not be implied on the basis of other rules of general international law.” The Lotus principle reaches to a conclusion through the means of implication. It implies that espionage is tolerable under international law in the absence of its explicit prohibition. That being the case, the Lotus principle cannot be wielded to endorse wartime espionage since it is not in accordance with the aforementioned specifics of Rule 11. Thus, the exercise of espionage (specifically conducted through cyber means) at any given time is not permissible under the Tallinn Manual. 

Conclusion

In conclusion, espionage violates international law. The first reason is that espionage is a prohibited form of threat or use of force. In that sense, acts of espionage violate Article 2(4) of the UN Charter as it clearly undermines the purpose and objective of the charter, that is to safeguard territorial integrity and sustain world order. Furthermore, acts of espionage operated by a state against another state violate the latter’s right to confidentiality of information. Additionally, acts of espionage conducted through cyber means violate the provisions of the Tallinn Manual 2.0.