19 Pages Posted: 12 Jul 2016 Last revised: 17 Aug 2016
Date Written: July 11, 2016
This essay dissects the concept of “intelligence activities” and distinguishes international law as applicable to spying versus that relevant to convert actions. It urges that while international law is mostly silent on peacetime spying per se, it is engaged by specific activities that rise to the level of intervention in a state’s sovereign affairs and which transgress the bar on the extraterritorial exercise of enforcement jurisdiction. There are, therefore, international norms that may be readily violated by at least some sorts of covert actions, above and beyond human rights principles protecting the individual. Ambiguity exists, but should not be over claimed. The article then contemplates the virtues of tempering this legal formalism to permit less than full legal compliance in the area of international law and intelligence activities. While sympathetic to the necessity for pragmatism, the article warns that a sliding compliance scale may result in the weakening of norms better served by being honored in the breach rather than abandoned in the name of realism.
Keywords: intelligence, covert action, law, international law
Suggested Citation: Suggested Citation
Forcese, Craig, Pragmatism and Principle: Intelligence Agencies and International Law (July 11, 2016). Virginia Law Review, Vol. 102, 2016; Ottawa Faculty of Law Working Paper No. 2016-29. Available at SSRN: https://ssrn.com/abstract=2807900