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Is International Espionage lawful today?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Antonio Attolico


An official of the Italian navy has been recently arrested in Rome after he was caught “in flagrante delicto” at the moment of an exchange of secret documents with the Russian military. The Italian official was forwarding a series of secret documents on NATO missions overseas, in turn of 5000€ cash.[1] Despite the tension of the situation, that has led to the trial of the Italian soldier and the expulsion of two Russian citizens with diplomatic status from the Italian eternal city, the facts have encouraged us to think about the existence and the relevance of a discipline under international law regarding espionage and the eventual consequences for the culprits of such a grave activity.


Is there a treaty or a specific discipline dealing with espionage in the international legal framework?

In fact, there is not. But, before developing this answer, it is important to recall that it is not correct to state that espionage, or as it is currently called “intelligence”, is an “official” activity carried out by both enemies and allies, and as such, it should be accepted.[2] Indeed, as war was disciplined through the Hague Convention 1907 and the 4 Geneva Conventions 1949, why should also expect a similar treatment for espionage, which has a long tradition and is currently gaining importance especially after the leaks provided by Edward Snowden in 2013.


Firstly, espionage consists of the access, on behalf of a state, to information that is held by another state and considered as confidential or strategic, in the military, security, or economic field, but the definition strictly refers to the gathering of the information.[3] Secondly, although such operations are a common practice since the world wars, intelligence itself is paradoxically not disciplined by a unitary and coherent legal regime under international law. Therefore, in order to clear the legal framework of intelligence activities, we need to distinguish the two different realities in time of war and in time of peace, because different sets of rules apply, and therefore rendering two different answers to our main question.


In time of war, there is a specific discipline based on the First Additional Protocol to Geneva Conventions 1949, for which the “spies” are not granted the status of prisoners of war when they are captured by the adverse party.[4] Yet, while they are subject to the national judicial authority of the jurisdiction involved, the sovereign state behind the spy does not commit a wrongful act under international conventions, and therefore no obligations arise on the burden of any state.


In time of peace, there is not a general discipline and it is comprehensible that states support their interest to preserve this status quo, whereas scholars try to establish some guidelines. Considering this latter, there are two opposite positions: the first, emphasizing that there is no clear rule prohibiting inter-state espionage,[5] thus its legality should be assessed in relation to the case law of each sector;[6] and the second stressing a general prohibition under international law, because of the consequent infringement of states’ sovereignty[7] due to such an act.[8]


This first approach is majoritarian and provides scholars with specific dispositions in international treaties, such as Article 22 Vienna Convention on Diplomatic Relations 1961, condemning intelligence within the embassies in any host country as a result of intrusion into inviolable diplomatic sites, which constitutes a wrongful act under international law.


Instead, the second one is sustained by a minority of scholars, due to a practical obstacle in the cases where it should apply. Actually, even if the violation of sovereignty was registered, foreign agents would be subjected to domestic authorities unless they invoked their status of diplomatic agents in that state. In this last scenario, domestic authorities could only demand their departure, declaring them “persona non grata”,[9] as matter of fact, that was what precisely happened in Italy in these months. The problem with this obstacle is that nowadays espionage is mainly carried out by influential people who are entitled to diplomatic status, therefore this entire structure results in worthless impracticability.


So, considering the consequences over international relations and diplomatic affairs between members of the international community and the factual conduct of intelligence activity in 21st century,[10] both physical and cybernetic, are we sure that the community itself should not pursue an advanced and detailed discipline on espionage in this times of peace?


 

[1] Gianluca De Feo, 'Ufficiale italiano spiava per i russi" Due fermi a Roma' (La Repubblica Esteri, 31 March2021) <https://www.repubblica.it/esteri/2021/03/31/news/ufficiale_italiano_spiava_per_i_russi_due_fermi_a_roma-294475219/> accessed 3 April 2021

[2] Natalino Ronzitti, 'Il caso Snowden e le regole dello spionaggio' (Affari Internazionali, 16 July 2013) <https://www.affarinternazionali.it/2013/07/il-caso-snowden-e-le-regole-dello-spionaggio/> accessed 4 April 2021

[3] François dubuisson, agatha verdebout, 'Espionage in International Law' (Oxford Bibliographies, 25 September 2018) <https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0173.xml#:~:text=International%20espionage%20consists%20of%20the,%2C%20security%2C%20or%20economic%20field.&text=Only%20the%20status%20of%20spies,subject%20to%20specific%20international%20rules.> accessed 5 April 2021

[5] Fabien Lafouasse, L’espionnage dans le droit international (1st edn, Paris: Nouveau Monde Éditions 2012)

[6] Gérard Cohen-Jonathan, and Robert Kovar, 'L’espionnage en temps de paix' [1960] 6(1) Annuaire Français de Droit International, 240 <DOI: 10.3406/afdi.1960.903> accessed 6 April 2021

[7] UN General Assembly, Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States., 9 December 1981, A/RES/36/103 [8] Quincy Wright, 'Essays on Espionage and International Law', (1st Ohio State University Press 1962)

[9] Article 9 Vienna Convention on Diplomatic Relations 1961

[10] Veronika prochko, 'The International Legal View of Espionage' (E-International Relations, 30 March ) <https://www.e-ir.info/2018/03/30/the-international-legal-view-of-espionage/> accessed 7 April 2021

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