The Legitimacy of Spying Among Nations

35 Pages Posted: 10 Sep 2013

See all articles by Raphael Bitton

Raphael Bitton

Sapir College School of Law & Haifa University

Date Written: July 1, 2013

Abstract

This paper formulates a liberal groundwork for espionage among nations. First, it presents the inadequacy of the prominent arguments for espionage embedded mainly in Just War Theory. It argues, alternatively, that a modicum of cooperation in the international sphere calls for a new legal obligation in international law-a duty of basic transparency among nations. Modern international law is interpreted, therefore, as an attempt to maintain the necessary measure of transparency in international relations: the legality of espionage reflects the limited enforcement of a duty of basic transparency. By fulfilling a duty of transparency, a transparent state cannot catch its neighbors off guard as far as its strategic intentions, as in the case of surprise aggression. This paper argues, however, that transparency is a structural feature: it is an attribute of typical liberal regimes. Non-liberal nations are, therefore, likely to oppose a duty of transparency as incompatible with their religious or political doctrines. Transparency is therefore essential for the co-existence of nations and yet politically unreachable. Espionage among nations, this paper argues, enables the resolution of this apparently hopeless and fundamental conflict in international relations. It facilitates the enforcement of transparency on non-liberal nations without imposing a liberal structure on them. Hence, it is argued that a rule obligating a basic duty of transparency among nations, enforced exclusively through espionage, is morally justifiable — since it would be endorsed by all nations in an impartial, fair process of global deliberation.

Keywords: legitimacy, spying, nations, international law

Suggested Citation

Bitton, Raphael, The Legitimacy of Spying Among Nations (July 1, 2013). Available at SSRN: https://ssrn.com/abstract=2323021 or http://dx.doi.org/10.2139/ssrn.2323021

Raphael Bitton (Contact Author)

Sapir College School of Law & Haifa University ( email )

Israel

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