The paradox of peacetime espionage in international law: from state practice to first principles.
In 2004 Australia secretly installed listening devices in Timorese cabinet rooms in order to gain advantage in bilateral treaty negotiations. This is the accusation levelled by Timor-Leste in ill-fated proceedings at the International Court of Justice ('ICJ'). (1) Spying during negotiations constituted bad faith, Timor-Leste argued, and the treaty was therefore void ab initio. (2) While this argument proved unpersuasive to the Court, the proceeding represents a ground-breaking of sorts. Never before had the ICJ been asked to consider the question of states' covert information gathering, or espionage. (3)
The legal status of espionage is sometimes described as a paradox, (4) referring to the inconsistency between its clear illegality at municipal law, and its much-debated legality at international law. All states prohibit the theft of their secrets under domestic law. (5) Yet states have always practiced covert surveillance on both individuals and other states. (6) A 'paradox' can be defined as an absurd, self-contradictory or strongly counterintuitive proposition, which after investigation proves nonetheless to be well-founded or true. (7) While at first blush states take a contradictory approach to espionage, the investigation into espionage under international law has been insufficient. This paper seeks to address that gap.
Inquiry into peacetime espionage poses particular problems to the international legal scholar. There are no treaties codifying the law. There is no customary law: (8) a paucity of opinio juris runs in the opposite direction of the abundant state practice. (9) And that is only the practice we know about. It barely needs stating: espionage is a success when nobody knows it has happened. This paper will compare available peacetime state practice with the treaty and customary law of armed conflict applicable to spies. After establishing that states follow armed conflict custom in peacetime practice (Part II), the most highly qualified publicists' interpretation of the practice will be critically examined (Part III). Using the principles raised in those teachings, and applying those principles to state practice, the legality of peacetime espionage, through the example of Timor-Leste v Australia, will be considered (Part IV).
II Espionage in Treaty, Custom and Practice
The customary and treaty laws governing armed conflict define espionage and its legal consequences, broadly replicated in state practice.
The act of wartime espionage is not illegal. Gathering information on the territory of the enemy state in order to gain military advantage is a normal and accepted part of war. (10) The act's legality depends on the means used. The act is illegal when information is gathered 'secretly, in disguise or under a false pretence'. (11) This quality of secrecy transforms otherwise legal information gathering into illegal espionage under the customary law of wars, codified and still applicable today. (12) Scholars agree that the same quality of secrecy sets espionage apart from states' ordinary information gathering in times of peace. (13) This broad definition, from wartime custom and peacetime practice, is adopted in this paper.
Espionage has particular consequences under the law of armed conflict. Captured spies are not afforded prisoner of war status. (14) Instead, they are customarily subjected to summary punishment. (15) But if the spy's mission is successful their liability vanishes. Should a spy complete their mission, returning to their regular army before capture, prisoner of war status will be afforded, as it is to all uniformed officers. (16) This custom, too, is codified in treaty and still applies today. (17) Liability depends not on the action of gathering or even the means employed. Liability depends instead on where the spy is at any given time. 'Our spies are patriots,' writes Commander Roger D. Scott, of the United States' European Command. (18) 'Skulking criminality,' (19) attaches only those spying on us--whoever 'we' happen to be.
Scholarship does not distinguish between state practice in times of war and peace. There is almost no distinction in state practice. While in war captured spies are liable for the death penalty, spies captured in peace may be treated to the harshest punishment under municipal law. (20) The peculiarity of this practice is more apparent in peacetime. In peacetime, an individual carrying out the functions of their state outside its territory is not subject to foreign domestic jurisdiction. Instead they attract immunity ratione materiae. (21) But this is not true of the captured spy. States will almost never admit to sending a spy. (22) States thus avoid the question of their liability under international law: state responsibility is only incurred where the impugned act is attributable to the state. (23)
Captured spies are therefore offered no state protection and instead are subjected to the domestic jurisdiction of the target state, under which they are criminals without functional immunity. Examples of this approach in state practice can be found across the globe over centuries. (24) States' failure to assert state immunity and take responsibility for their agents' actions is not a mere oversight - it is consistent with states' silence surrounding peacetime espionage. Lord Justice Moses, drawing on Franey's analysis of the Rainbow Warrior case, (25) opined that states' failure to assert immunity is 'as much evidence of the absence of state immunity as those cases where immunity is claimed but denied by the forum state.' (26) In conformity with the law of armed conflict, spies in peacetime are personally liable if caught. States can thus avoid questions of state responsibility.
States have always covertly gathered information to their advantage, (27) criminalised individuals found stealing state secrets under domestic jurisdiction, (28) and avoided the question of state responsibility by failing to afford immunity to captured spies. This paradox is preserved in armed conflict and peace alike. (29) But what does this practice tell us about the legality of peacetime espionage?
Ill The Existing Legal Scholarship of Peacetime Espionage
The scholarship pertaining to peacetime espionage can be organised into three broad categories according to the author's opinion of the legal status of the practice at international law: (30)
1. peacetime espionage is legal;
2. peacetime espionage is illegal, or;
3. there are legal limits to peacetime espionage.
The first category embraces states' beloved paradox, drawing general rules from state practice. The second category avoids states' paradoxical stance by arguing that espionage is illegal under international and municipal law alike. The third category avoids the legal/illegal dichotomy, instead applying substantive rules of international law to the practice.
A. Peacetime Espionage is Legal
Most scholars who argue for the legality of peacetime espionage have worked for the defence force or intelligence service of their country. (31) They are best placed to access primary material regarding what states do and think. This information is critical to any analysis of an inherently secret practice, otherwise out of civilian reach. But these scholars are evidently also influenced by states' attitudes towards espionage. A great proportion of them apply states' flawed reasoning to their own analysis. (32)
The necessity for states to secretly gather information is frequently cited as a reason for espionage's legality. (33) But practical necessity is not a lawful justification for states' action in peacetime. Stone, notable for his civilian status in this category, concludes 'espionage transcends international law,' on the basis of states' reciprocal tolerance of the practice. (34) This flawed argument is taken to the extreme by Smith, a former General Counsel to the United States' National Security Agency. For him the practice of evading state responsibility means espionage is 'legal as a matter of customary international law.' (35) If Smith is aware of requisite opinio juris, to accompany the practice for custom to crystallise, (36) he has not cited it. Others who draw conclusions of law from the practice, find legality only as a matter of general principle, (37) a more methodologically sound conclusion.
When scholars of this category seek to apply international law, they overwhelmingly turn to the Lotus principle. (38) The principle is either cited explicitly, (39) or the absence of a prohibition referred to generally. (40) But this is hardly a considered application of the Permanent Court of International Justice's decision ('PCIJ'). Instead, Lotus is used as a substantive rule. Because no directly applicable law exists, scholars of this category assume that sovereignty, understood as a state's complete freedom of action, trumps all other considerations (including the sovereign equality of other states). (41) This is encapsulated by Sulmasy & Yoo who declare the 'burden of proof should lie with the critics of intelligence collection.' (42) (A more detailed analysis of Lotus and its application to peacetime espionage are considered below at Part IV).
Scholars of this category purport to apply settled principles of international law, but do so incompletely. Stone describes the fate of the captured spy as the sending state acquiring immunity when a spy is caught. (43) This neatly encapsulates the practices' reversal of the usual expected outcome under international law (that the individual is immune and the state bears the responsibility for its actions). (44) But this is not an application of international law, so much as a neutral observation made through its lens. Similarly, several scholars acknowledge that espionage could breach the principle of non-intervention, but do not apply the principle to state practice. (45) As always in this category, engagement with international law is eclipsed by description (and fervent justifications) of state practice.
B. Peacetime Espionage is Illegal
There is a small number of authors who argue peacetime espionage is illegal per se. Wright characterises 'espionage into official secrets' as 'doubtless interference,' (46) contrary to the customary prohibition on intervention. (47) Espionage, like 'any penetration of the territory of a state by agents of another state in violation of the local law [is a] violation of the rule of international law imposing a duty upon states to respect the territorial integrity and political independence of other states.' (48) But instead of state responsibility, Wright advocates for the personal liability of captured spies, as observed in practice. (49) This suggests Wright believes domestic illegality bears on international illegality, which it does not. (50) Similarly his account of intervention fails to consider the essential element of coercion for a breach of international law to be established. (51)
Garcia-Mora, citing Wright, states espionage is a form of international delinquency and a breach of international law. (52) His focus on jus ad bello (53) falls just beyond the scope of this paper, but it is interesting that while espionage in armed conflict is considered legal (except where it is discovered as described above), Garcia-Mora vehemently resists legality even when war is about to be on foot, so convinced was he by Wright's analysis. His unusual view demonstrates the variety of different conclusions that can be drawn from the same, perplexing, state practice.
Delupis defines illegal espionage in terms of state consent. (54) Information gathering is a licit state function, so long as it is carried out openly by state agents, as typified by the information gathering [TEXT UNREADABLE IN ORIGINAL SOURCE.]f diplomats. (55) But where a diplomat gathers secret information, the host state's consent is exceeded and espionage contrary to international law has taken place. (56) For Delupis, espionage itself directly incurs the responsibility of the sending state. (57) Drawing upon principles of territorial sovereignty and consent, Delupis theorises peacetime espionage which is illegal per se.
C. There Are Legal Limits to Peacetime Espionage
In the third category, scholars propose that substantive international law indirectly limits peacetime espionage. Chesterman's exemplary survey traverses the law of armed conflict, diplomatic immunity, peacetime non-intervention, arms control and multilateral intelligence sharing. (58) From these sources, Chesterman asserts, a 'patchwork of norms' which designate customary limits to espionage can be discerned. (59) Forcese similarly notes 'a checkerboard of principles,' constraining some state action. (60) But while extensive, their analyses are less detailed than that of Fleck and Bignami, who consider how the right to privacy might limit espionage.
Fleck (61) criticises a 'fatalist position on the phenomenon of intelligence gathering,' and conceding its legality on that basis. (62) Many actions undertaken by states in the course of routine information gathering 'are gross violations of commonly accepted legal principles.' (63) The legal principles he cites range from unauthorised territorial incursion, to attempts to destabilise states, and crimes including bribery, blackmail, and breach of data protection laws. (64) Addressing these indirect breaches substantively, Fleck points out, for example, that 'intelligence objectives do not justify the derogation of human rights.' (65) He offers detailed analysis of the difficulty of attribution, (66) and the potential for reparations to harmed individuals and states, (67) applying the law of state responsibility to espionage in practice.
While Fleck laments intelligence agencies not taking the ICCPR seriously enough, (68) Bignami considers what information sharing in line with human rights might actually look like. (6) '' Describing how safeguards built in to European information sharing arrangements protect individuals while assisting states to police crime across boarders," Bignami proposes that a similar balance can be struck in international law. (71) Such a pragmatic approach devises a means of transparent regulation, allowing for necessary information gathering (and sharing and analysing) without necessarily ignoring human rights law. (72)
IV An Assessment of the Legality of Peacetime Espionage from First Principles
While the teachings of the most highly qualified publicists are invaluable in an area where there are so few authorities, the scholarship is not without its flaws. The first category, while highly engaged with state practice, does not use accepted legal method to support its claims. In the second category the principle of non-intervention is cited but improperly applied. The third category, which both engages in state practice and applies of international law, can best proceed if the theoretical legal underpinnings of the practice, raised but not fully investigated by the first and second categories, are addressed and understood. With that goal in mind, this paper will assess the legality of peacetime espionage from first principles.
A. The Lotus Principle and the Completeness of International Law
There are no specific rules directly applicable to peacetime espionage under international law. But international law is more than treaty obligations and crystallised custom. Rather, 'every situation has been new in its time,' and, as Fitzmaurice notes, 'international law could never have developed at all... if the absence of an express rule to cover every case had been regarded as sufficient ground for refusing to pronounce on it.' (73) Nonetheless, the absence of law directly applicable to espionage raises the possibility that espionage might be a lacuna in international law.
A non-liquet occurs when a Court declines to decide a case on the basis that there are no rules available to them for determination, reflecting a gap, or lacuna, in the law. (74) Espionage is sometimes so labelled. (75) This approach is used to support the first category's opinion that espionage is legal by virtue of the necessity of state surveillance programs. This is not, however, a legal argument. Legal argument to support espionage's legality can only proceed within an examined understanding of the international legal system.
To presume that gaps exist in international law is to assume international law is incomplete. (76) Substantively international law is incomplete: (77) rules for every possible set of facts do not exist. What does exist are principles, like sovereignty, equality, equity, and good faith. (78) These principles may not operate on their own, but they do give force to fundamental rules of international law, violation of which incurs the international responsibility (liability) of states. (79) For example, sovereignty as a concept in isolation carries little substantive consequence. (80) But states' territorial sovereignty is an unquestionable and critical substantive rule, enshrined in the Charter of the United Nations ('Charter'). (81) Courts regularly use principles to resolve disputes and determine legal rights. (82) If this approach were legally invalid, non liquets would be declared and lacunae discovered all the time. (83) In reality, as noted by Stone, writing in 1954, 'not only has no tribunal actually pronounced a non liquet, but no litigant State has seriously sought to prevent a decision already given, squarely on the non liquet ground.' (84) More recently, Bodansky, drawing upon Fitzmaurice's analysis, suggests that 'false' non liquets might exist. (85) They are found when the law (whether in the form of a directly applicable rule or gap-filling principle) is distasteful to the Tribunal, or insufficient facts are available for a determination. (86) There, a non liquet may be declared to register dissatisfaction with the law as it is. (87) For Bodansky, this is typified by the Nuclear Weapons Advisory Opinion, where nuclear weapons could not be found to be illegal under international law per se. (88) This being unacceptable to some members of the ICJ bench, a rare finding of (a 'false') non liquet is discerned. (89) With the issue being insufficient facts, rather than insufficient law, this is a epistemological gap: the law is clear but it cannot be applied to the (limited) facts available. (90)
But Bodansky posits something far more serious when he refers to ontological gaps. (91) The argument that international law is incomplete by its nature suggests that when sovereignty as a principle is used to fill a substantive gap, what actually happens is a state's will transcends the rule of law. (92) This is the 'highly contentious metaphysical proposition of the extreme positivist school' against which Brierly reacted so strongly, shortly after the Permanent Court of International Justice handed down its decision. (93) But the contentious Lotus principle, emphasising (out of context) that '[r]estrictions on the independence of states cannot...be presumed,' (94) is a misunderstanding of the majority decision and the passage's context within in it.
The trend for reading this passage in isolation began in the dissenting judgments themselves, (95) and took hold, among the principle's proponents and detractors alike. (96) Scholarship remarks upon on the alarming divergence in the interpretation of the principle. (97) It is at once widely considered a fundamental rule of international law, (98) while the ICJ has continually avoided, ignored or dissented against the principle. (99) In 2002 the several judges of the World Court infamously characterised the Lotus majority as the 'high water mark of laissez-faire in international relations and an era that has been significantly overtaken by other tendencies.' (100)
But what others call a complete rejection and avoidance of the Lotus principle, (101) this paper calls an objection to the notion that a state's will can transcend international law. That notion is the high water-mark of laisse-faire, unacceptable to the modern ICJ. Importantly, the decision in Lotus does not stand for the proposition that international law is incomplete. As Guilfoyle notes, the Lotus principle itself is not applied by the majority of the PCIJ in that case. (102) Instead, the Court's starting point, 'the first and foremost restriction imposed by international law upon a State, [that]... it may not exercise its power in the territory of of another state,' (103) leads to finding the French captain to be subject to the concurrent jurisdiction of both states. (104) This is a progressive decision, championing practical cooperation between states and through the application of principles of international law. (105) The decision is not about positivist inevitability, or deemed instances of international law's inapplicability. Rather, the legal reasoning applied in Lotus promotes the idea that principles of international law, alone insubstantial, can be used to plug apparent, substantive gaps. (106) This was what the Lotus majority did as a matter of law. French and Turkish sovereignty was used, where there was no directly applicable rule (of jurisdiction on the high seas in 1926), to determine a legal finding. A 'residual principle' being so used is exemplified in the decision in Lotus. (107) The Lotus principle need not stand for the high water-mark of brute inter-state competition of international relations, oblivious to legal constraint. Rather, when considered in terms of legal argument, in its context and as a decision, the Lotus principle tells us about how international law's completeness can be realised and its principles utilised.
What can the law in Lotus, thus understood, tell us about peacetime espionage?
B. Methods for Considering the Legality of Espionage
When one state spies on another, two legal principles are immediately engaged. The first lies in the aggressor state's argument: it is my sovereign right to pursue my interests. The second is in the victim state's argument: we are equals and without my consent you cannot conduct state acts on my territory. As Abi-Saab notes, prior to the United Nations' innovative elision, (108) the principle of sovereignty and the principle of equality existed independently of one another. (109) The independent and opposing operation of these principles is evident in the case of Australia spying on Timor-Leste while in treaty negotiations. Australia's sovereign right to pursue its interests should, it seems, be limited by Timor-Leste's equal status. But these are two mere principles and not substantive rights. They are not enforceable causes of action on their own. To overcome this, the two states could rely on either of the following arguments.
1 Espionage Violates the Principle of Non-intervention
Our example of Australia and Timor-Leste begs a simple question, as do so many instances of espionage: was there an illegal intervention in the affairs of the victim state? Wright's argument that espionage is illegal begins, 'the basic principle of international law is that of respect by each sovereign state for the territorial integrity and sovereign independence of others.' (110) That duty is best articulated a General Assembly Resolution known as the Declaration on Friendly Relations. (111) The Resolution prohibits intervention, whether direct or indirect, in the internal and external affairs of states and coercion to obtain subordination in the exercise of sovereign rights to secure advantages of any kind. Sovereign equality and non-intervention both must be observed, the Resolution states, in the conduct of international relations, including the field of trade. The difficulty is, a General Assembly Resolution has no binding force. (112)
Pointing towards a source of enforceable rights and responsibilities, the Resolution often cites the duty not to intervene 'in accordance with the Charter.' However, the Charter does not protect states from intervention to the same extent as the Resolution. Article 2(4) protects the 'political independence' of nations, limited to the context of 'the threat or use of force.' Article 2(7) expressly prohibits intervention 'in matters which are essentially within the domestic jurisdiction of any state,' but only by the United Nations itself. Abi-Saab argues intervention by states is not prohibited per se; rather the legality of the intervention depends on its intended effect. (113) Illegal intervention involves the intention that the victim state act 'against its will in a domain which... is left to its free choice.' (114) This theoretical interpretation of Charter-prohibited intervention would be very difficult to apply to espionage. Noncoercive acts prejudicial to the state's defence or security are apparently not prohibited by the principle. In any case, evidence of intended effects is unlikely to ever come to light.
Perhaps the circumstances surrounding the Timor-Leste example could be sufficient evidence. Timor-Leste can argue with confidence that the decision to enter into treaties is a matter of domestic jurisdiction and it is entitled to freely decide Timorese foreign policy. Using Abi-Saab's argument, a bilateral treaty negotiation could be characterised as necessarily concerned with gaining advantage, often to the other party's disadvantage. The fact of Australia's spying on the cabinet room discussions alone could be sufficient to prove that there was an illicit intervention.
Despite the merits of Abi-Saab's argument, the ICJ took a different approach when considering non-intervention in practice. (115) The Court cited two elements of intervention, tested to a high standard and with only a narrow application. 'Intervention is wrongful,' the Court explained, 'when it uses methods of coercion in regard to such choices, which must remain free ones.' (116) Coercion, said the Court, is the very essence of prohibited intervention. (117)
Here Timor-Leste runs into a serious problem. Absent evidence of Australia using the overheard information to its advantage, the element of coercion cannot be made out. Timor-Leste adduced no evidence of any such coercion in its written submissions to the ICJ. (118) Worse still for Timor-Leste, the customary principle of non-intervention was found not to be breached even in Nicaragua, despite the United States attempting to change the very political system of Nicaragua by indirectly supporting the force wielded by the rebelling contrast. (119) By contrast, gaining advantage in treaty negotiations is far less grave an intervention (if more direct).
A present-day ICJ bench would likely apply Nicaragua, ahead of Abi-Saab's interpretation of non-intervention. (120) Nicaragua non-intervention is unlikely to assist a state that has fallen victim to alleged espionage and certainly would not help Timor-Leste on the present facts. Australia would prefer and likely win a non-intervention argument.
2 The Residual Principles of Sovereignty and Equality
In Lotus the Court elected to fill the substantive gap (the question of jurisdiction on the high seas in 1926) with Turkey's sovereign right to exercise domestic criminal jurisdiction over Monsieur Demons, the captain of the titular French vessel. (121) As discussed above, Lotus need not be understood as a substantive rule itself; that, when a directly applicable substantive rule is lacking, sovereignty always fills the gap. Applying this reasoning, the burden of proof would lie, unfairly and arbitrarily, with the victim state. (122) Timor-Leste would be thus at the disadvantage of having to show Australia's tapping its cabinet rooms was illegal. More gravely, a substantive application of the Lotus principle could justify necessity in international relations transcending international law altogether, the argument put by those in favour of espionage's legality. (123) This proposition was not even accepted by the Lotus majority. (124)
The Lotus principle does not mean sovereignty is the answer where there is no directly applicable law. Instead, Lotus allows residual principles of international law, alone unenforceable, to fill substantive gaps in the law. In this way, sovereignty may be an answer, but it need not always be the answer. If sovereignty is the residual principle applied, Australia is at a distinct advantage. But what if the principle of equality were used to 'plug the gap' instead?
The formal equality of states and the inherently reciprocal nature of international law strikes at the heart of the paradox. The proper application of Lotus allows the ICJ to select a principle of international law to determine state liability. This paper argues that on these facts the principle of equality should be used.
The equality of all states refers to a legal equality, even where political equality may not exist. (125) Thus the relative political disadvantage of Timor-Leste to Australia, or Turkey to France, should not bear on their relative legal positions. The principle dictates the all states have the same legal capacity for having rights and the same capacity for realising rights. (126) Were Timor-Leste to prove that meetings of its cabinet were secretly surveilled by Australia during the CMATS negotiations, it should not have to disprove Australia's sovereign right to spy. Instead, Australia should have to prove that its spying did not undermine the equality of states. Such an approach would respect the sovereign equality of states enshrined in the Charter.
Requiring Timor-Leste to point to a positive rule preserve its sovereignty undermines the sovereign equality of states. And yet that is what the widely-cited and unfounded Lotus principle advocates would have us believe. The PCIJ's decision Lotus rejected French arguments that its sovereignty was somehow worth more than Turkey's. (127) It did so by invoking the principle of sovereignty itself to fill a substantive gap in international law. Today's ICJ came close to considering the substantive gap of peacetime espionage. Had it done so, it may have found Australia's actions legal, with there being no breach of non-intervention or pacta sunt servanda. However, Lotus could also have been applied. This would not have automatically led to a finding that peacetime espionage is legal, on the basis of sovereignty and the oft-cited but unfounded Lotus principle. Instead, on a proper application of Lotus, the ICJ may well have found Australia's liability for having acted contrary to the principle of equality.
Though many international legal scholars deem it impossible, (128) states' paradoxical position on peacetime espionage can be escaped through the application of ordinary legal method. States should not fear the examination of peacetime espionage lest its illegality is exposed. As the present example demonstrates, Australia may not have breached international law. There are arguments for both sides, based on non-intervention, and the international legal principles of sovereignty and equality, applied and reasoned within the (complete) system of international law.
By avoiding any discussion of international law applying to peacetime espionage, states and their lawyers risk miscategorising the practice. In the 21 (s1) Century, states increasingly argue international law's inapplicability to suit their will. But when states do engage in international kidnapping, arbitrary detention and torture international law does apply, whether states like it or not. (129) Modern espionage may not have reached the same level as these far more egregious evasions of international law. But in the 21st Century, shaped by the ongoing aftermath of the 11 September 2001 attacks, it is perhaps more important than ever that states and their lawyers defend legally sound practice, as espionage often might be.
It is to be hoped that the scholarship of peacetime espionage continues to assist states in this endeavour. The third category's application of international law to the state practice of espionage is the most useful in this regard. Their work is best supported through thorough investigation into the norms and legal principles of international law that underpin the debate surrounding the legality of peacetime espionage.
(1) Treaty on Certain Maritime Arrangements in the Timor Sea ('CMATS Treaty'), cited in 'Memorial Submitted by Timor-Leste,' Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), International Court of Justice, 28 April 2014.
(2) Vienna Convention on the Law of Treaties opened for signature on 23 May 1969 11 55 UNTS 331 (entered into force 27 January 1980) art 26.
(3) 'Request for the Modification of the Order Indicating Provisional Measures of 3 March 2014,' Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), International Court of Justice, 22 April 2015; Dieter Fleck, 'Individual and State Responsibility for Intelligence Gathering' (2007) 28(3) Michigan Journal of International Law 687, 692).
(4) Julius Stone, 'The Problem of Non Liquet in Contemporary International Law' in Legal Controls of International Conflict (Maitland, 1954) 153; Charles Demarest, 'Espionage in International Law' (1996) 24(2) Denver Journal of International Law 321, 347.
(5 ) Manuel Garcia-Mora, 'Treason, Sedition and Espionage as Political Offences Under the Law of Extradition' (1964) 26 University of Pittsburgh Law Review 65, 80.
(6) A. John Radsan, 'Unresolved Equation of Espionage and International Law' (2007) 28(3) Michigan Journal of International Law 595.
(7) 'Paradox, n. and adj.' OED Online. Oxford University Press, March 2016. Web. 20 May 2016.
(8) Article 38 (1) (b) Statute of the International Court of Justice; North Sea Continental Shelf (Federal Republic of Germany v Netherlands) (Judgment)  1CJ Rep 4, [paragraph]70, 71 ('North Sea Continental Shelf).
(9) Simon Chesterman, 'The Spy Who Came in from the Cold Wat: Intelligence and International Law' (2006) 27(4) Michigan Journal of International Law 1071.
(10) Commentary on Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (International Committee of the Red Cross, 1987) 562 ('Commentary on Additional Protocol I").
(11) The Government of Armies of the United States in the Field (Lieber Code) of 24 April 1863 art 88, in D Schindler and J Toman, The Laws
of Armed Conflict (Martinus Nijhoff Dordrecht, 3rd ed, 1988) 3-23.
(12) Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 187 CTS 227 (entered into force 26 January 1920) reg 9; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of the Victims of International and Armed Conflicts (Protocol I) opened for signature 8 June 1977 1125 UNTS 3 (entered into force 7 December 1978) art 46(3) ('Additional Protocol I).
(13) For example, Roger D. Scott, 'Territorially Intrusive Intelligence Collection and International Law' (1999) 46 The Air Force Law Review 217; Radsan, above n 6, 601; Glenn Sulmasy and John Yoo 'Counterintuitive: Intelligence Operations and International Law' (2007) 28(3) Michigan Journal of International Law 625, 626; Demarest, above n 4, 325; Jeffrey H. Smith, 'Keynote Address, Symposium: State Intelligence Gathering and International Law' (2007) 28(3) Michigan Journal of International Law 543, 545; Ingrid Delupis, 'Foreign Warships and Immunity For Espionage' (1984) 78 American journal of International Law 53, 62.
(14) Articles 46(1), (3) & (4), Additional Protocol I, above n 13.
(15) Commentary on Additional Protocol I, above n 10,562.
(16) Article 46(4), Additional Protocol I, above n 13.
(17) Commentary on Additional Protocol I, above n 10,562.
(18) Scott, above n 14, 217 (emphasis added).
(20) Demarest, above n 4, 334; Delupis, above n 14, 62, Sulmasy & Yoo, above n 14, 628; Scott above n 14, 219.
(21) Hazel Fox and Philippa Webb, The Law of State Immunity (Oxford University Press, 3rd ed, 2013), 564, 565; Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp. (No. 10) at 43, UN Doc A/56/83 (3 August 2001) art 4 (Articles on State Responsibility).
(22) Delupis, above n 14, 65, 66; Quincv Wright, 'Espionage and the Doctrine of Non-intervention in Internal Affairs' in Roland J. Stanger (ed), Essays on Espionage and International Law (Ohio State University Press, 1962) 3, 17-21; Demarest, above n 4, 340, 341; Julius Stone, 'Legal Problems of Espionage in Conditions of Modern Conflict' in Roland J. Stanger (ed), Essays on Espionage and International Law (Ohio State University Press, 1962) 29, 33).
(23) Articles on State Responsibility art 3, above n 23.
(24) Eraney draws examples from France, China, Chile, Germany, United States, Russia, United Kingdom, Sweden Argentina and Iraq from 1886 onwards (Elizabeth Franey, Immunity, Individuals and International Law: Which Individuals are Immune from the Jurisdiction of National Courts under International Law? (PhD Thesis, London School of Economics, 2009), 225-235).
(26) Kburts Bat and Mongolia v Investigating judge of the German Federal Court and the Secretary of State for Foreign and Commonwealth Affairs  3 WLR 180, [paragraph]99.
(27) Chesterman, above n 9, 1072; Lassa Oppenheim International Law, a Treatise (D. McKay, 8th ed, 1960), [paragraph]455; Scott 218; Sulmasy & Yoo, above n 14, 626; Demarest, above n 4, 330.
(28) Garcia-Mora, above n 5, 80; Demarest, above n 4, 330.
(29) Demarest, above n 4, 347.
(30) This is an adaptation of the approach taken by Radsan (above n 6), two of whose categories are adopted here.
(31) Baker is a former Counsel to US President's Foreign Intelligence Advisory Board (James E. Baker, 'What's International Law Got to do With It--Transnational Law and the Intelligence Mission' (2007) 28(3) Michigan Journal of International Law 639); Garraway is a former Stockton Professor of International Law at the US Naval War College (Charles H.B. Garraway, 'State Intelligence Gathering: Conflict of Laws' (2007) 28(3) Michigan Journal of International Law 575); Radsan is a former assistant General Counsel to the Central Intelligence Agency (above n 6); Smith is a former General Counsel, Central Intelligence Agency (above n 14); Sulmasy was a Judge Advocate and Associate Professor of Law, United States Co
(32) For example, Smith, above n 14, 554; Baker, above n 33).
(33) Myres McDougal, Harold D. Lasswell, W. Michael Reisman, 'The Intelligence Function and World Public Order' (1973) 46(3) Temple Law Quarterly 365; Smith 544; Baker, above n 34, 651.
(34) Stone, above n 24, 31.
(35) Smith, above n 14, 554.
(36) Article 38(1 )(b) Statute of the International Court of Justice; North Sea Continental Shelf  ICJ Rep 4, [paragraph]70, 71.
(37) Scott, above n 14, 226; Demarest, above n 14, 347.
(38) The Lotus principle is the isolated quote, that '[restrictions on the independence of states cannot... be presumed,' (55 'Lotus (France v Turkey) (Judgment)  PCIJ (ser A) No 10, 19 (Lotus').
(39) Stone, above n 24, 33, 34; Ian Mack, Towards Intelligent Self Defence: Bringing Peacetime Espionage in From the Cold and Under the Rubric of the Right of Self Defence (LLB Honours Thesis, University of Sydney, 2013), 13.
(40) Scott, above n 14, 217, 226; Radsan, above n 6, 615; Sulmasy & Yoo, above n 14, 637; Demarest, above n 4, 347
(41) This argument is criticised below at Parts IV(A) and IV(B)(2).
(42) Sulmasy & Yoo, above n 14, 628.
(43) Stone, above n 24, 39.
(44) See above, n 23.
(45) Sulmasy & Yoo, above n 14, 628; Smith, above n 14, 545.
(46) Wright, above n 24, 5.
(47) Ibid, 4, 5.
(48) Ibid, 4, 5.
(49) Ibid, 12.
(50) Ibid, 12
(51) Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment)  ICJ Rep 70, [paragraph]205 ('Nicaragua'), see further below at section VB1.
(52) Garcia-Mora, above n 5, 79, 80.
(53) Ibid, 82.
(54) Ibid, 82.
(55) Ibid 63.
(56) Ibid, 62; Vienna Convention on Diplomatic Relations opened for signature on 18 April 1961 500 UNTS 95 (entered in to force 24 June 1964) art 3(1)(d).
(57) Delupis, above n 14, 69.
(58) Chesterman, above n 9.
(59) Ibid 1076.
(60) Craig Forcese, 'Spies Without Borders: International Law and Intelligence Collection' (2011) 5(1) Journal of National Security Law & Policy 179.
(61) Unusually for this category, Fleck is a former Director of International Agreements and Policy in the German Ministry of Defence (above n 4).
(62) Ibid, 692.
(63) Ibid, 693.
(64) Ibid, 692, 693.
(65) Ibid 693; International Covenant on Civil and Political Rights opened for signature on 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 4 (ICCPR)
(66) Fleck, above n 3, 694-697.
(67) Ibid, 706.
(68) Ibid, 693.
(69) Francesca Bignami, 'Towards a Right to Privacy in Transnational Intelligence Networks' (2007) 28(3) Michigan Journal of International Law 663.
(70) Ibid, 666, 667.
(71) Ibid, 673, 674.
(72) Ibid, 666, 667; see also Marko Milanovic, 'Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age' (201 5) 56(1) Harvard International Law 81.
(73) Gerald Fitzmaurice, 'The Problem of Non-Liquet: Prolegomena to a Restatement' in Melanges Offerts a Charles Rousseau: La Communaute Internationale (A. Pedone, 1974) 89, 99.
(74) Stone, above n 4, 153.
(75 ) Steven R. Ratner, 'Symposium: State Intelligence Gathering and International Law - Introduction' (2007) 28(3) Michigan Journal of International Law 539.
(76 ) Daniel Bodansky, 'Non Liquet and the Incompleteness of International Law' in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Gambridge University Press, 1999) 153.
(77) Fitzmaurice, above n 78, 110.
(78) Bodansky, above n 81, 165; See also Bin Cheng, General Principles Of Law as Applied by International Courts and Tribunals (Stevens & Sons Limited, 1953), ch 12.
(79) Crawford, James, 'International Law as a Discipline and Profession' (2012) 106 American Society of International Law Proceedings 471 (Manley O. Hudson Medal Lecture), 476.
(80) Ibid; Charter of the United Nations.
(81) Charter of the United Nations art 2(4).
(82) David Harris and Sandesh Sivakumaran, Cases and Materials on International Law (Sweet & Maxwell, 8th ed, 2015), 52-037 - 2-040); see also Bodansky, above n 80, 165.
(83) Stone 153, above n 4, Douglas Guilfoyle, 'SS Lotus (France v Turkey) Permanent Court of International Justice, 1927.' Unpublished Article, 3.
(84) Stone, above n 4, 153.
(85) Bodansky, above n 81, 170; Fitzmaurice, above n 78, 100.
(88) Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)  ICJ Rep 226.
(89) Bodansky, above n 81, 156,159.
(90) Ibid, 154.
(92) See Stone, above n 24, 31.
(93) J. L. Brierly, The "Lotus"Case (1928) 44 The Law Quarterly Review 133, 155; Lotus  PCIJ (ser A) No 10.
(94) Lotus  PCIJ (ser A) No 10, 18.
(95) Ibid, 34 (Judge Loder), 42 (Judge Weiss) and 60 (Judge Nyholm).
(96) Hugh Handeyside, "The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat?' (2007) 29(1) Michigan Journal of International Law 71, 75.
(97) Ibid, 72
(98) Ibid; Guilfoyle, above n 88, 19.
(99) Handeyside, above n 101, 74.
(100) Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) |2002] ICJ Rep 3, 78 (Judge Higgins, Judge Buergenthal and Judge Kooijmans).
(101) Handeyside, above n 88, 74.
(102) Guilfoyle, above n 88, 19.
(103) Lotus  PCIJ (ser A) No 10, 18.
(105) Guilfoyle, above n 88, 19, 1.
(106) Guilfoyle, above n 88, 2.
(107) Handeyside, above n 101, 78-80; Guilfoyle, above n 88, 11.
(108) Charter of the United Nations art 2(1).
(109) Georges Abi-Saab, 'Some Thoughts on the Principle of Non-Intervention' in Karel Wellens (ed), International Law: Theory And Practice, Essays in Honour of Eric Suy (Kluwer Law International, 1998) 225.
(110) Wright, above n 24, 3.
(111) Declaration on Principles of International Law concerning Eriendly Relations and Co-operation among States in According with the Charter of the United Nations, GA Res 2625 (XXV), UN GAOR, 25th sess, 1883rd plen mtg, Agenda Item 121, UN Doc/8082 (24 October 1970) ('Declaration on Friendly Relations').
(112) Article 38(1) of the Statute of the International Court of Justice is understood not to include General Assembly Resolutions as a source of law (see generally Harris, above n 87, [paragraph]2-068; James Crawford (ed), Brownlie's Principles of Public International Law (Oxford University Press, 7th ed, 2008, 20). Conversely. Fleck posits that 'peacetime rules of international law may be seen as including an implicit prohibition on subversive activities, as reflected in the [Declaration on Friendly Relations]' (above n 3, 692).
(115) Abi-Saab, above n 114, 227, 228.
(114) Ibid; Nicaragua [ 1986] ICJ Rep 70, [paragraph]205.
(118) 'Memorial Submitted by Timor-Leste', Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), International Court of Justice, 28 April 2014.
(119) Nicaragua [ 1986] ICJ Rep 70.
(120) Despite their theoretically equal status as subsidiary sources of international law, per Statute of the International Court of Justice art 38(l)(d).
(121) Lotus  PCIJ (ser A) No 10, 32.
(122) Stone, 'Non-Liquet and the Function of Law in the International Community,' 136 cited by Fitzmaurice, above n 78, 105; Sulmasy and Yoo, above n 14, 628.
(123) See above Part 111(A).
(124) See above Part IV(A).
(125) Juliane Kokott, 'States, Sovereign Equality' in Max Planck Encyclopedia of Public International Law (Oxford University Press, April 2011).
(127) Guilfoyle, above n 88.
(128) Radsan, above n 6, 601.
(129) Fleur Johns, Non-legality in International Law: Unruly Law (Cambridge University Press, 2013).
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|Author:||Browne, Kathryn Jane|
|Publication:||Australian International Law Journal|
|Date:||Jan 1, 2017|
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