Volume 51
Issue 2
Winter '20

"The Riddle of the Sands"–Peacetime Espionage and Public International Law

Written By: Patrick C. R. Terry

Abstract

In contrast to the enduring popularity of spy films and novels, the relationship between public international law and espionage has proven to be a less popular topic of discussion amongst academics and lawyers. The state of the law reflects this: while the international community has developed some rules on wartime espionage, there are no treaties or firm rules of customary international law dealing explicitly with the much more common phenomenon of espionage during times of peace. This has led some academics to concur with the motto attributed to France’s External Security Service (DGSE), quoted above, according to which necessity determines the law. Following the Snowden revelations and the allegations of major Chinese and Russian cyber espionage attacks, however, a growing interest in examining whether peacetime espionage activities can be reconciled with international law is becoming apparent.

This Article argues that discussing the lawfulness or unlawfulness of peacetime espionage in international law per se is not only unhelpful, but actually serves to obscure the actual issue: whether a state’s individual espionage activity directed against a target state can be reconciled with international law. I demonstrate that peacetime espionage activities are usually clearly unlawful under public international law, irrespective of whether the spying state employs traditional or more modern methods, i.e., cyber espionage. In fact, far from the relationship between international law and espionage being equivalent to “the Riddle of the Sands,” legal rules are in place that already comprehensively regulate the relationship between peacetime espionage and public international law and are easy to discern if one wishes to do so.

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