A META-CRITIQUE OF FRONTIER SCHOLARSHIPS ON THE LAWS OF PEACETIME ESPIONAGE: TOWARDS A SYSTEMIC FRAMEWORK FOR LEX SPECIALIS.

• Author: Liu, Yang

CONTENTS I. Introduction 38 II. Three Traditional Approaches 42 1. States Practices 42 2. Self-defense 44 3. International Order 46 b. Espionage is Neither Legal nor Illegal but Per Se Permissible 48 1. Spies Are Not State Agents Under International Law 48 2. The Lotus Principle 49 3. International Cooperation 51 c. Espionage is Per Se Illegal 52 1. Espionage Violates Customary International Law 52 2. Espionage Violates Specific Treaties 54 3. Problems of This Approach 55 III. Frontier Theories and the Piecemeal Approach to Espionage 58 a. Craig Forcese's Method-based Approach 59 1. Summary of arguments 59 2. Analysis and Critique 61 b. Ashley S. Deeks's Harm-Based Approach 64 1. Summary of Arguments 64 2. Critique and the Need for an Ontological Turn 66 c. Asaf Lubin's Purpose-Based Approach 68 1. Summary of Arguments 68 2. Four Problems of Lubin's Approach 70 IV. A Dialectical Concept of Just Cause for Espionage that Explores Unknown Unknowns 73 a. The Liberal World Order and a State's Duty to Have a Transparent Deliberation Process 74 b. The Historical Dimension of the Just Cause to Explore Unknown Unknowns 76 V. A Just Intelligence Framework for the Lex Specialis of Peacetime Espionage 77 a. From the Just War Tradition to the Just Intelligence Theory 77 b. Jus ad Explorationem 81 1. 1. Just Cause 81 2. Just Intention 82 3. Correct Authority 82 4. Macro-Proportionality 83 5. Other Factors 83 c. Jus in Exploratione 84 1. Discrimination 84 2. Micro-Proportionality 85 3. No Means or Methods Mala in Se 85 d. Jus post Explorationem 86 VI. Conclusion 86 I. Introduction

Espionage is often described as the world's second-oldest profession, (1) which is "as honorable as" the world's oldest profession, prostitution. (2) Sun Tzu's The Art of War, written in around the 5th century BCE, is one of the earliest written books discussing this profession. (3) In his book, Sun Tzu connected espionage with warfare and provided arguably the first systematic explanation of the different types of spies and the ways to effectively employ them to achieve one's military goals. (4) In early western civilization, espionage was also constantly discussed in the context of warfare. For example, the Bible recorded two instances where spies were employed: Moses sent spies to Canaan to investigate whether it is plausible to attack and win warfare against them, (5) and Joshua sent spies to Jericho to explore the weakness of their military and national defense. (6) Relying upon the stories of Moses and Joshua, Hugo Grotius, arguably the "father of international law," (7) found wartime espionage to be per se legal under international law. (8) This view has been adopted by later scholars and international treaties. For example, the Declaration of Brussels of 1874, (9) the 1899 Hague agreements, (10) and the 1907 Hague rules (11) all considered espionage as a lawful means of warfare. (12)

In contrast, the legal status of peacetime espionage under international law is ambiguous. On the one hand, most states engaged in, are engaging in and will keep engaging in espionage activities because espionage can serve vital national security interests--as W. Hays Parks puts it:

[N]ations collect intelligence to deter or minimize the likelihood of surprise attack; to facilitate diplomatic, economic, and military action, in defense of a nation in the event of hostilities; and in times of "neither peace nor war," to deter or defend against actions by individuals, groups, or a nation that would constitute a threat to international peace and security (such as acts of terrorism). (13) On the other hand, all states regard foreign espionage activities as a threat to their national security and have domestic laws illegalizing and prohibiting other states from conducting intelligence activities within their territories. Thus, scholars often describe the legality of espionage as a "paradox." (14) As W. Hays Parks summarizes:

"[D]omestic laws are promulgated in such a way to deny foreign intelligence collection efforts within a nation's territory without inhibiting that nation's efforts to collect intelligence about other nations. No serious proposal has ever been made within the international community to prohibit intelligence collection as a violation of international law because of the tacit acknowledgement by nations that it is important to all and practiced by each." (15) Admittedly, regulating espionage under international law is challenging. As summarized by Ashley Deeks, there are at least five obstacles. (16) First, intelligence activities "implicate a state's core national security interests." (17) Second, espionage activities are often hard to detect, so without reliable verification and safeguards, states are unwilling to be bound by agreements limiting espionage activities. (18) Third, even if a state wants to reach such an agreement, meaningful negotiation will be challenging as it might reveal its intelligence capacities. (19) Fourth, states have different espionage capacities, and states with a higher level of expertise often resist excessive regulations. (20) Fifth, there used to be little public pressure to regulate espionage because in the past espionage can seldomly affected average citizens directly. (21) For these reasons, it is understandable why international law scholars did not pay a lot of attention to espionage and did not really solve the paradox - as Radsan once pessimistically claimed: "[i]nternational law does not change the reality of espionage." (22)

However, from a normative perspective, the legal paradox of espionage must be resolved. The current ambiguous legal status of espionage is problematic because it fails to deal with and might even exacerbate what some scholars describe as the "liberal dilemma" of espionage - "[l]iberal states are dedicated to the protection of human rights but protecting the rights of their citizens may entail infringing upon or violating the rights of foreign citizens." (23)

Following the disclosure of the vital role espionage activities played in the U.S.-led coalition's decision to use force to overthrow the Iraqi government of Saddam Hussein by the U.S. Joint Congressional Inquiry, (24) the Australia Flood Commission report, (25) and the U.K. Hutton Report, (26) the past twenty years have observed a resurge of academic interests in the ethics and laws of espionage. Recently, some scholars have envisioned the need for and the plausibility of the lex specialis of peacetime espionage. (27) Considering such a background, my aim in this paper is threefold.

First, this paper will provide an overview of the three traditional approaches to the relationship between espionage and international law (espionage is per se legal, per se illegal, and neither legal nor illegal but per se permissible) and explain why they are no longer acceptable. Second, this paper will introduce recent scholarships advocating for a piecemeal approach to espionage (some but not all kinds of espionage activities are legal). Scholars advocating for this approach have proposed different tests to differentiate illegal espionage from legal espionage. This paper will explain why the approaches adopted by these scholars, although insightful, are neither ideal nor comprehensive. Lastly, this paper will propose a new framework for the lex specialis of peacetime espionage by incorporating the just intelligence theory, a frontier theory in intelligence studies. The biggest advantages of this paper's framework are threefold: (1) first, it illustrates why a state can conduct espionage to explore unknown unknowns or without specific causes, and (2) secondly, it preserves the pragmatism value of espionage in promoting transparency and the liberal world order, and (3) lastly, it incorporates the merits of other piecemeal approaches and thus is more comprehensive.

This paper will adopt the U.S. Army's definition of espionage as the conduct of intelligence collection by nation States against other nation States. (28) Sometimes this paper will use the terms espionage and spy interchangeably, but the focus of this paper is not limited to traditional spy activities or HUMANINT, instead, it will address espionage activities in general. However, other intelligence activities such as covert actions or domestic surveillance for law enforcement purposes are not relevant to this paper's discussion.

2. Three Traditional Approaches

   This section will introduce the traditional approaches to espionage. As many scholars have correctly summarized, traditional theories can be divided into three approaches, which regard espionage as, respectively, per se legal under international law, per se illegal under international law, and neither legal nor illegal but per se permissible. (29) While there are still many scholars who advocate for these approaches, with the development of modern espionage technologies, this paper argues that they are no longer acceptable.

   1. Espionage is Per Se Legal

      1. States Practices

         To begin with, a group of scholars argues that espionage is per se legal under international law because of the widespread state engagements in espionage activities. (30) State practices alone, however, are not sufficient to legitimize espionage, as espionage can still be a constantly practiced illegal activity. (31) Thus, in supporting their arguments, these scholars have brought up some further arguments. And their approaches can be classified into two versions: a soft version and a hard-core version.

         Scholars adopting the soft approach would rely on the so-called "clean hand principle." (32) The clean hand doctrine provides that "where two parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing nonperformance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other party." (33) Thus, even if espionage is not legal, since basically all...