The Liberty to Spy

60 Pages Posted: 21 Feb 2019 Last revised: 23 Feb 2019

See all articles by Asaf Lubin

Asaf Lubin

Yale University; Tufts University - The Fletcher School of Law and Diplomacy; Yale University - Information Society Project

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 attained the status of a dogma.

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 adopts a diagnosis of 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 rich history of Just War Theory. Adopting the Jus Ad, Jus In, Jus Post model makes for an appropriate choice, given the unique symbiosis that exists 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 proceeds to discuss the nature of the JAE. It argues that 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 two sole 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 (exploiting one’s right to spy not for the purposes for which it was intended). The paper thus concludes by introducing five 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; (4) spying as a means to facilitate a dictatorship; and (5) spying as a means to exploit post-colonial relationship.

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). Harvard International Law Journal, Vol. 61, No. 1. Available at SSRN: https://ssrn.com/abstract=3327505

Asaf Lubin (Contact Author)

Yale University ( email )

New Haven, CT 06520
United States

Tufts University - The Fletcher School of Law and Diplomacy ( email )

Medford, MA 02155
United States
617-627-6569 (Phone)

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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