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Peacetime Espionage, International Law and the Existence of Customary Exceptions I˜Naki Navarrete† & Russell Buchan‡

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Peacetime Espionage, International Law and the Existence of Customary Exceptions I˜Naki Navarrete† & Russell Buchan‡ \\jciprod01\productn\C\CIN\51-4\CIN403.txt unknown Seq: 1 8-APR-19 15:07 Out of the Legal Wilderness: Peacetime Espionage, International Law and the Existence of Customary Exceptions I˜naki Navarrete† & Russell Buchan‡ This Article demonstrates that peacetime espionage does not benefit from permissive customary international law exceptions. The mainstream view contends that, though peacetime espionage may contravene interna- tional law, developments in customary international law (CIL) nevertheless undercut State responsibility for such conduct. The gist of this view is that acts of espionage benefit from permissive CIL exceptions because its prac- tice is widespread and accepted within the international society. However, the mainstream literature has rarely— if ever— meaningfully engaged with the practice of espionage in an effort to tease out the objective and subjec- tive elements supportive of customary espionage exceptions. This Article closes this gap and debunks the mainstream view. We show that, although widespread, most acts of espionage are committed in secret and, as such, they cannot qualify as State practice for the purpose of CIL formation. We further demonstrate that States have failed to issue expressions of the sub- jective element in support of customary espionage exceptions. We con- clude by suggesting that, while States are entitled to develop customary espionage exceptions in the future, for now they have yet to come out of the legal wilderness. Introduction ..................................................... 898 R I. International Law and Peacetime Espionage............... 901 R A. Principle of Territorial Sovereignty ..................... 905 R B. Law of the Sea ........................................ 909 R C. Diplomatic and Consular Law ......................... 910 R II. Customary Exceptions and Peacetime Espionage .......... 911 R III. State Practice ............................................. 914 R A. Duration ............................................. 915 R B. Generality and Uniformity ............................ 916 R †I˜naki Navarrete, (B.C.L., LL.B., McGill University, Faculty of Law), [email protected]. ‡ Dr Russell Buchan, University of Sheffield, UK, [email protected]. This Article was written jointly by the authors. The authors are grateful to Guilhem de Roquefeuil, Craig Forcese, Kubo Ma`e´ak, Rachel Mazzarella, Pierrick Rouat, and Nicholas Tsagourias for their invaluable comments on earlier versions of this paper. All errors are our own. 51 CORNELL INT’L L.J. 897 (2019) \\jciprod01\productn\C\CIN\51-4\CIN403.txt unknown Seq: 2 8-APR-19 15:07 898 Cornell International Law Journal Vol. 51 C. Public Character ...................................... 919 R 1. Domestic Law Authorizing Acts of Peacetime Espionage ......................................... 922 R IV. Opinio Juris .............................................. 927 R A. The Policy of Silence .................................. 928 R 1. Air Law ........................................... 929 R 2. Law of the Sea..................................... 930 R 3. Diplomatic and Consular Law ...................... 931 R 4. Space Law ........................................ 932 R B. The Process of Claims and Counterclaims ............. 934 R 1. Denials ........................................... 935 R 2. Neither Confirm Nor Deny ......................... 936 R 3. Mistakes .......................................... 938 R 4. Extra-Legal Justifications ........................... 939 R 5. Legal and Psychological ‘Cannot’ .................... 942 R C. Other Sources of Opinio Juris.......................... 945 R 1. Negative State Practice ............................. 945 R 2. Domestic Law and National Decisions ............... 949 R Conclusion ...................................................... 952 R Introduction Peacetime espionage represents a serious conundrum for international legal scholars. On the one hand, while States have failed to implement international law that directly and specifically regulates espionage, schol- ars must recognize that States inhabit an international society that com- prises multiple international laws designed to protect States’ sovereign equality.1 Because of its inherently intrusive nature, espionage is likely to run into conflict with a number of these rules. On the other hand, these scholars perceive the world order to be unpredictable and hostile.2 In this environment, they are reluctant to allow international law to curtail States’ ability to undertake espionage, which is regarded “as a vital necessity in the national security process” because it sheds light on the capabilities and intentions of other actors within the international society.3 The conundrum for scholars is therefore clear: disavowing the applica- tion of international law to espionage undermines the authority and integ- rity of the international legal order but at the same time applying international law to espionage deprives States of the national security ben- 1. See, e.g., ANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDED WORLD 130, 130 (1986) (arguing the principle of the sovereign equality of States— as enshrined in Article 2(1) of the United Nations (UN) Charter 1945— is considered to be “the fundamental premise on which all international law rests.”). 2. Id. at 131. 3. W. Hays Parks, The International Law of Intelligence Collection, in NATIONAL SECURITY LAW 433, 433 (John N. Moore & Robert Turner eds., 1990). \\jciprod01\productn\C\CIN\51-4\CIN403.txt unknown Seq: 3 8-APR-19 15:07 2019 Out of the Legal Wilderness 899 efits afforded by this practice.4 How have international legal scholars resolved this problematique? The short answer is: they haven’t. Rather than tackling head-on the ques- tion of whether espionage is compatible with international law, scholars have instead preferred to sidestep this debate and avoid it entirely. In doing so, they have determined that “international law is silent on the sub- ject”5 of espionage, that is, that this is a practice that is neither “legal nor illegal under international law.”6 In 2007, for example, Radsan— a former assistant general counsel at the Central Intelligence Agency (CIA)— was so exasperated by the predicament that espionage creates for international lawyers that he exhorted: “Accepting that espionage is beyond the law, we should move on to other projects— with grace.”7 International legal scholars have not been able to walk away from espi- onage. New and more effective means and methods of espionage keep emerging and these developments force espionage into the international legal spotlight. Take for instance the dawn of cyberspace and the potential for cyber-enabled espionage. Cyberspace is a domain that is now widely utilized by States to store massive quantities of confidential information. Given the speed and ease at which this information can be accessed, cou- pled with the fact that cyber espionage is a relatively risk-free enterprise insofar as it can be committed remotely, the practice has “metastasize[d]”8 in the last decade and “cyber espionage projects [are] now prevalent.”9 Compelled to grasp the nettle, there has been a flurry of international legal scholarship in recent years examining the applicability of interna- tional law to peacetime espionage.10 Increasingly, scholars have conceded 4. Simon Chesterman, The Spy Who Came in from the Cold War: Intelligence and International Law, 27 MICH. J. INT’L L. 1071, 1072– 73 (2006) (Chesterman refers to this conundrum as the “elephant in the room” for international lawyers). 5. Gary Brown, Spying and Fighting in Cyberspace: What is Which?, 8 J. NAT’L SEC. L. & POL’Y 621, 621 (2016). See also Richard A. Falk, Foreword to ESSAYS ON ESPIONAGE AND INTERNATIONAL LAW V (Roland J. Stranger ed., 1962) (“Traditional international law is remarkably oblivious to the peacetime practice of espionage.”). 6. A. John Radsan, The Unresolved Equation of Espionage and International Law, 28 MICHIGAN J. INT’L L. 595, 596 (2007). A number of authors have proposed their own criteria that can be used to determine the legality of peacetime espionage under interna- tional law. See, e.g., Ashley S. Deeks, Confronting and Adapting: Intelligence Agencies and International Law, 102 VA. L. REV. 599, 605 (2016); Ido Kilovaty, World Wide Web of Exploitations: The Case of Peacetime Cyber Espionage Operations under International Law: Towards a Contextual Approach, 18 COLUM. SCI. & TECH. L. REV. 42, 42 (2016); Darien Pun, Rethinking Espionage in the Modern Era, 18 CHI. J. INT’L L. 353, 353 (2017). 7. Radsan, supra note 6, at 597. 8. David P. Fidler, Economic Cyber Espionage and International Law: Controversies Involving Government Acquisition of Trade Secrets through Cyber Technologies, 17 ASIL INSIGHTS 10 (2013). 9. Pete Warren, State-Sponsored Cyber Espionage Projects Now Prevalent, THE GUARD- IAN (Aug. 30, 2012), https://www.theguardian.com/technology/2012/aug/30/state- sponsored-cyber-espionage-prevalent [https://perma.cc/AQ8N-7W9B]. 10. See, e.g., Russell Buchan, The International Legal Regulation of State-Sponsored Cyber Espionage, in INTERNATIONAL CYBER NORMS: LEGAL, POLICY & INDUSTRY PERSPECTIVES (Anna-Maria Osula & Henry R˜oigas eds, 2016); KRIANGSAK KITTICHAISAREE, PUBLIC INTERNTIONAL LAW AND CYBERSPACE (2016); Katharina Ziolkowski, Cyber Espionage— New \\jciprod01\productn\C\CIN\51-4\CIN403.txt unknown Seq: 4 8-APR-19 15:07 900 Cornell International Law Journal Vol. 51 that certain forms of espionage transgress international
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