27/08/2023
WHAT IS ESPIONAGE UNDER INTERNATIONAL LAW ?
International espionage consists of the access, on behalf of a state, to information that is held by another state and considered as confidential or strategic, in the military, security, or economic field. This classical conception has evolved to also include surveillance programs implemented by intelligence agencies toward individuals as well as company-to-company industrial espionage. While for a long time espionage essentially took place in the physical space, in the 21st century, it primarily takes place in the cyberspace. It should also be noted that, against common assumptions, the notion exclusively refers to the gathering of information and does not refer to covert operations carried out by secret services more generally. Although such operations are a very old and common practice, it is paradoxically not regulated by a single and coherent legal regime under international law. Only the status of spies in times of war is, in fact, subject to specific international rules. Moreover, until quite recently, the legal issues raised by espionage have largely been ignored by the doctrine. It was only in the context of the Cold War—in light of various incidents that opposed the United States and the USSR—that authors started to take a real interest in interstate spying activities on land and sea, and in air and space. The analyses provided then focused on general international law and on the principle of state sovereignty. American authors, most of whom held public office, dominated the field. This often resulted in a literature that defended the legality of intelligence-gathering activities as conducted by US agencies. That being said, more critical writings also exist. Recent studies, in particular, have started to question the compatibility of surveillance practices with human rights law. After the 9/11 attacks, the issue of espionage has, indeed, gained new momentum due to the implementation of new augmented surveillance programs for the purpose of fighting terrorism. The development of new technologies and communication media has, likewise, heightened possibilities for mass surveillance. In June 2013, the revelations made by Edward Snowden, a former agent of the National Secret Agency (NSA), concerning the United States’ intelligence programs reinvigorated legal and political debate around espionage activities by states. In legal scholarship, discussions have mainly focused on the legality of espionage under international human rights law. Forms of espionage have become more diverse and sophisticated, involving a wide array of practices and actors. Because of this diversity, and of the absence of a single, general legal regime under international law, the problems raised by espionage require the examination of a different set of rules: sovereignty; nonintervention; use of force; sea, air, and space law; human rights; international economic law; international criminal law; etc.
