The Riddle of the Sands†–peacetime Espionage and Public International Law

“THE RIDDLE OF THE SANDS”

†

–PEACETIME

ESPIONAGE AND PUBLIC INTERNATIONAL LAW

PATRICK C. R. TERRY*

“Partout où ne´cessite´ fait loi”

1

ABSTRACT

In contrast to the enduring popularity of spy f‌ilms and novels, the relation-

ship 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 interna-

tional law dealing explicitly with the much more common phenomenon of espio-

nage 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 revela-

tions 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 peace-

time espionage in international law per se is not only unhelpful, but actually

serves to obscure the actual issue: whether a state’s individual espionage activ-

ity 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

Fn1

† The title of a spy novel by Robert Erskine Childers. The title refers to the North German/

Frisian sands, which are either covered by water or turn into mudf‌lats (“Wattenmeer”), an area

often shrouded in fog. In the story, Imperial Germany is covertly planning an attack on the

United Kingdom in this area—a complicated “riddle” solved by the two British heroes of the story.

ROBERT ERSKINE CHILDERS, THE RIDDLE OF THE SANDS (1903).

* Patrick C. R. Terry is a Professor of Law and the Dean of the Faculty of Law at the University

of Public Administration in Kehl, Germany. V

C 2020, Patrick C. R. Terry.

1. “Everywhere where necessity determines the law” is the reputed motto of the French

External Security Service DGSE (Direction Générale de la Sécurité Extérieure). See DGSE – Direction

Ge´ne´rale de la Se´ curite´ Exte´rieure, FACEBOOK (Feb. 4, 2016), https://fr-fr.facebook.com/

DGSEFR/photos/partout-où-ne´cessite´-fait-loi/439211472936976/.

377

regulate the relationship between peacetime espionage and public international

law and are easy to discern if one wishes to do so.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

II. PEACETIME ESPIONAGE’S LEGALITY IN INTERNATIONAL LAW—THE

STATE OF THE DEBATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380

A. Peacetime Espionage is Lawful . . . . . . . . . . . . . . . . . . . . . 381

B. Peacetime Espionage is Unlawful. . . . . . . . . . . . . . . . . . . . 383

C. Peacetime Espionage is Neither Lawful nor Unlawful. . . . . . 384

III. PEACETIME ESPIONAGE’S LAWFULNESS—AN ASSESSMENT . . . . . . . . 385

A. Peacetime Espionage is Lawful . . . . . . . . . . . . . . . . . . . . . 386

B. Peacetime Espionage is Neither Lawful nor Unlawful. . . . . . 389

C. Peacetime Espionage is Unlawful. . . . . . . . . . . . . . . . . . . . 390

IV. ESPIONAGE AND INTERNATIONAL LAW—“THE RIDDLE OF THE

SANDS”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

A. Def‌inition of “Peacetime Espionage”. . . . . . . . . . . . . . . . . . 391

B. Regulation of Espionage Activities in International Law . . . 392

1. “Traditional” Espionage. . . . . . . . . . . . . . . . . . . . . 393

2. “Modern” Espionage . . . . . . . . . . . . . . . . . . . . . . . 402

a. Violation of Territorial Sovereignty . . . . . . . . . . . . 402

b. Intervention in Another State’s Affairs . . . . . . . . . 404

C. Clean-Hands-Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . 412

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413

I. INTRODUCTION

For more than a century now, espionage has captured people’s imag-

ination: works of f‌iction depicting the clandestine, often dangerous

activities undertaken by real or imagined spies have proved immensely

popular. Some of the more famous authors of spy novels, such as John

le Carre´, whom many credit with depicting the often cynical and harsh

realities of espionage, are so inf‌luential that even their political views

are respected beyond their readership. Others enjoy the more action-

fueled and glittering, but less realistic, world of espionage ref‌lected in

James Bond f‌ilms, where the difference between “good” and “bad” is

comfortingly easy to discern.

In contrast to the enduring popularity of this f‌ilm and literature

genre, 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

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

378 [Vol. 51

community has developed some rules on wartime espionage,

2

there are

no treaties or f‌irm rules of customary international law dealing explic-

itly with the much more common phenomenon of espionage during

times of peace. Given the worldwide preponderance of espionage activ-

ities, this lack of discourse seems counterintuitive. Recent develop-

ments, however, evidence a change in attitude: following the Snowden

revelations and the allegations of major Chinese and Russian cyber es-

pionage attacks, a growing interest in examining whether peacetime es-

pionage activities can be reconciled with international law is becoming

apparent. Before setting out my arguments, I should clarify that peace-

time espionage as understood in this article is limited to the gathering,

by or on behalf of a state, of information which is not publicly available

and which another state wants to keep secret.

3

In this article, I argue that discussing the lawfulness of peacetime es-

pionage in international law per se is not only unhelpful, but actually

serves to obscure the actual issue: whether a particular state’s individual

espionage activity to the disadvantage of a target state can be reconciled

with international law. In the past, espionage advocates have utilized

the paucity of discussion and law on peacetime espionage to hastily con-

clude that such activity is in broad terms either lawful or, at the very

least, not unlawful—thus allowing these advocates to avoid addressing

2. Convention (IV) Respecting the Laws and Customs of War on Land, arts. 29–31, Oct. 18,

1907, 187 C.T.S. 227; Geneva Convention Relative to the Treatment of Prisoners of War, art. 31,

Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons

in Time of War, arts. 5, 66, Aug. 12, 1949, 75 U.N.T.S. 287; Protocol Additional to the Geneva

Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed

Conf‌licts (Protocol I), arts. 39(3), 45(3), 46, June 8, 1977, 1125 U.N.T.S. 3: see also Richard A.

Falk, Space Espionage and World Order: A Consideration of the Samos-Midas-Program, in ESSAYS ON

ESPIONAGE AND INTERNATIONAL LAW 45, 80–81 (Roland J. Stanger ed., 1962); Stefan Talmon,

Sachversta

¨ndigengutachten gema

¨ß Beweisbeschluss SV-4 des 1. Untersuchungsausschusses des Deutschen

Bundestages der 18. Wahlperiode (2014), 1–39, at 16 (Ger.), https://www.bundestag.de/blob/

282872/2b7b605da4c13cc2bc512c9c899953c1/mat_a_sv-4-2_talmon-pdf-data.pdf; Christina Parajon

Skinner, An International Law Response to Economic Cyber Espionage, 46 CONN. L. REV. 1165, 1181–82

(2014); Simon Chesterman, The Spy Who Came in from the Cold War: Intelligence and International Law, 27

MICH. J. INT’L L. 1071, 1073–74 (2006); Ian H. Mack, Towards Intelligent Self-Defence: Bringing

Peacetime Espionage in From the Cold and Under the Rubric of the Right of Self-Defence 3 (June 7,

2013) (unpublished dissertation, Sydney Law School) (on f‌ile with the University of Sydney Library

system); Craig Forcese, Spies Without Borders: International Law and Intelligence Collection, 5 J. NAT’L

SECURITY L. & POL’Y 179, 181–84 (2011) (correctly pointing out that spying is not a “legal,” but rather

a “colloquial term”).

3. Talmon, supra note 2, at 16; Raphael Bitton, The Legitimacy of Spying Among Nations, 29 AM. U.

INT’L L. REV. 1009, 1011 (2014); Russell J. Buchan, The International Legal Regulation of State-

Sponsored Cyber Espionage, in INTERNATIONAL CYBER NORMS: LEGAL, POLICY & INDUSTRY

PERSPECTIVES 65, 65 (Anna-Maria Osula and Henry Roigas eds., 2016).

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