Content area
Full Text
Abstract
Peacetime espionage is an incredibly important and common occurrence in modern international relations, yet its legal status isfarfrom clear. This Comment explores the practice's legal background, as well as the arguments for and against its legality. While there can be many benefits to peacetime espionage, and while few countries have "clean hands," it seems unworkable to overcome the presupposition that most espionage is an "intervention" as defined by the ICJ in Nicaragua v. U.S., even if the prohibition on espionage is often unenforced. With the conclusion that most peacetime espionage is likely illegal under international law, this Comment attempts to ascertain how this prohibition can be enforced. After examining the ICJ's prohibition on "intervention, " the ICC's jurisdiction over "crimes of aggression, " the U.N. Security Council's prohibition on "force," and the Council of Europe's Convention on Cybercrime, no panacea was found. Therefore, in situations where domestic law is unable to effectively enforce this prohibition, this Comment argues that countermeasures are the best way to deter state actors from engaging in acts of peacetime espionage. However, in certain situations where extreme versions of peacetime espionage are carried out upon weak countries unable to make use of countermeasures, reliance on the ICJ, the ICC, the U.N. Security Council, or the Council of Europe may be feasible.
I. Introduction
Espionage has a glamorous image in popular culture, leading many to think about James Bond in a fancy tuxedo secretly traveling to exotic locales. In a sense, this portrayal is not always inaccurate. Still, espionage takes many forms, and can be generally defined as "the process of obtaining information that is not normally publicly available, using human sources (agents) or technical means (like hacking into computer systems)."1 The need for information has advanced in modern times, as have the methods deployed to gain such information. For these reasons, the consequences of espionage can be tremendous, sometimes even critical to wartime success.2
As will be discussed in more detail, international law is quite clear on the limited permissibility of wartime espionage, but strangely silent on the permissibility of peacetime espionage. Section II of this Comment focuses on the legal background of wartime espionage and the limited usage that international law tolerates. Section III explores whether peacetime espionage...