Spying and International Law

With increasing numbers of foreign governments officially objecting to now-widely publicized U.S. espionage activities, the topic of the legality of these activities has been raised both by the target governments and by the many news organizations reporting on the issue.  For those interested in better understanding this controversy by learning more about international laws concerning espionage, here are some legal resources that may be useful.

The following is a list of multinational treaties relevant to spies and espionage:

• Brussels Declaration concerning the Laws and Customs of War (1874).  Although never ratified by the nations that drafted it, this declaration is one of the earliest modern examples of an international attempt to codify the laws of war.  Articles 19-22 address the identification and treatment of spies during wartime.  These articles served mainly to distinguish active spies from soldiers and former spies, and provided no protections for spies captured in the act.
• The Hague Convention (II): Respecting the Laws and Customs of War on Land (1899).  This treaty was primarily concerned with the rules of military engagement, and only addressed espionage occurring during wartime.  Article 24 acknowledged the use of “ruses of war” and “methods necessary to obtain information” about the enemy army and nation; while not legalizing espionage.  Articles 29-31 address the identification and treatment of spies during wartime; these articles provided for spies captured in the act to receive a trial, but offered no further protection.
• The Hague Convention (IV): Respecting the Laws and Customs of War (1907).  This treaty retained in its annex the espionage provisions of Convention (II), in identically numbered articles.
• Geneva Convention (IV): Relative to the Protection of Civilian Persons in Time of War (1949).  This treaty is concerned with the treatment of captured civilians during wartime.  Article 5 addresses the treatment of persons detained as spies, providing that captured spies could be denied privileges that would permit spies to reveal damaging information, but otherwise requiring the same protection for spies as for other prisoners; in context, this article prohibits the treatment of espionage (by the enemy) in wartime as a capital offense.
• The Vienna Convention on Diplomatic Relations (1961).  This treaty is concerned with the privileges of a diplomatic mission while in a foreign country.  Article 22 protects the premises of the mission from invasion, Article 24 outlaws both forcible and covert examination of the archives and documents of a diplomatic mission, and Articles 27 and 40 protects mission communications from being monitored; articles 30, 36 and 40 extend these guarantees of privacy to an official diplomat’s private residence and property.  This agreement is one of the earliest instances of nations placing legal limits on their own espionage activities.
• The Vienna Convention on Consular Relations (1963).  This treaty is concerned with extending to consulates many of the privileges and protections enjoyed by diplomats.  Articles 27 and 31 protect the premises of the consulate, Articles 33 and 61 protect its documents (with some restrictions), Articles 35 and 54 protect its communications, and Articles 50 and 54 protect the personal bags of consular employees and their families from customs inspection while travelling.
• Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS).  An annex to the Marrakesh Agreement establishing the World Trade Organization, TRIPS is concerned with the protection of intellectual property.  Article 39 requires the protection of trade secrets, but Article 73 exempts national governments from following TRIPS for any reason they consider essential to their security interests; effectively, TRIPS prohibits private corporate espionage.

The following is a list of academic legal studies available online; readers may find them useful in explaining why so little of what is considered spying is illegal under international law, and why there is often conflict between international and domestic laws concerning espionage:

• Craig Forcese, Spies Without Borders: International Law and Intelligence Collection, 5 J. NAT'L SECURITY L. & POL'Y 179 (2011), available from the Journal of National Security Law and Policy website.
• A. John Radsan, The Unresolved Equation of Espionage and International Law, 28 MICH. J. INT'L L. 595 (2007), available from the Social Science Research Network (SSRN) website. 
• Glenn Sulmasy & John Yoo, Counterintuitive: Intelligence Operations and International Law, 28 MICH. J. INT'L L. 625 (2007), available from SSRN.
• Simon Chesterman, The Spy Who Came In from the Cold War: Intelligence and International Law, 27 MICH. J. INT'L L. 1071 (2006), available from SSRN.
• Roger D. Scott, Territorially Intrusive Intelligence Collection and International Law, 46 A.F. L. REV. 217 (1999), available from the Air Force JAG website.
• David P. Fidler, Economic Cyber Espionage and International Law: Controversies Involving Government Acquisition of Trade Secrets through Cyber Technologies. 17 ASIL Insights, no. 10 (2013), available from the American Society of International Law website.