The Liberty to Spy

60 Pages Posted: 21 Feb 2019 Last revised: 27 Apr 2020

See all articles by Asaf Lubin

Asaf Lubin

Indiana University Maurer School of Law; Berkman Klein Center for Internet & Society; Yale University - Information Society Project; Federmann Cybersecurity Center, Hebrew University of Jerusalem Faculty of Law

Date Written: February 1, 2019

Abstract

Many, if not most, international legal scholars share the ominous contention that espionage, as a legal field, is devoid of meaning. For them, any attempt to extrapolate the lex lata corpus of the International Law of Intelligence (ILI), let alone its lex scripta, would inevitably prove to be a failed attempt, as there is simply nothing to extrapolate. The notion that international law is moot as to the question of if, when, and how intelligence is to be collected, analyzed, and promulgated, has been repeated so many times that it has become the prevailing orthodoxy.

This paper offers a new and innovative legal framework for articulating the law and practice of interstate peacetime espionage operations, relying on a body of moral philosophy and intelligence ethics thus far ignored by legal thinkers. This framework diagnoses the legality of covert intelligence at three distinct temporal stages: before, during, and after. In doing so it follows the traditional paradigms of international law and the use of force, which themselves are grounded in the history of Just War Theory. Adopting the Jus Ad, Jus In, Jus Post model is appropriate, given the symbiosis between espionage and fundamental U.N. Charter principles.

This paper focuses on the first of these three paradigms, the Jus Ad Explorationem (“JAE”), a sovereign’s prerogative to engage in peacetime espionage and the right’s core limitations. Examining a plethora of international legal sources, the paper exemplifies the myriad ways by which peacetime intelligence gathering has been already recognized as a necessary pre-requisite for the functioning of our global legal order. The paper then discusses the nature of the JAE. It argues that the right to spy is best understood as a privilege in Hohfeldian terms. It shows how understanding interstate intelligence operations as a weaker “liberty right” that imposes no obligations on third parties to tolerate such behavior helps capture the essence of the customary norms that form part of the practice.

Recognizing the liberty right to spy opens the door for the doctrine of “abuse of rights” to play a role in constraining the practice. By identifying the only two legitimate justifications for peacetime espionage—advancing the national security interests of States and promoting an increase in international stability and cooperation—we are able to delimit what may constitute abusive spying, defined as exploiting one’s right to spy not for the purposes for which the right was intended. The paper concludes by introducing four categories of unlawful espionage: (1) spying as a means to advance personal interests; (2) spying as a means to commit internationally wrongful acts; (3) spying as a means to advance corporate interests; and (4) spying as a means to exploit post-colonial relations.

Keywords: ethics, moral philosophy, jurisprudence, air and space law, international criminal law, laws of war, abuse of rights, just war theory, sovereignty, war and peace, human rights, surveillance, intelligence, espionage, national security, international law

JEL Classification: K33, K39, F51, F52, F53, F54, F55, F59

Suggested Citation

Lubin, Asaf, The Liberty to Spy (February 1, 2019). Asaf Lubin, The Liberty to Spy, 61(1) Harv. Int'l L.J. 185 (2020)., Available at SSRN: https://ssrn.com/abstract=3327505

Asaf Lubin (Contact Author)

Indiana University Maurer School of Law ( email )

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Federmann Cybersecurity Center, Hebrew University of Jerusalem Faculty of Law

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Israel

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