Juan Pablo Argello

Poltica Internacional II
18/07/2014

LEGALI TY OF ESPI ONAGE
ISSUE
In June 2013, The Guardian and Washington Post published classified documents about
several programs of the National Security Agency (NSA), among them was a program called
PRISM. The documents revealed that, through PRISM, in addition to monitoring
communication and information exchange of US citizens, the US government was accessing
the communications systems of other countries. Many internet companies were supporting
this program had access to the information of users around the globe. The news had immense
diplomatic repercussions and disapproval came not only from American citizens, but also
from several heads of states from countries whose citizens, and even themselves, were spied
on (El Universal, 2013). In addition, the search and persecution of Edward Snowden, who
initially revealed these activities, generated international debate about the legality of
espionage activities of the US. This document will analyze the legality of espionage activities
as defined by current law. This document will follow the IRAC method, which explains the
issue, describes relevant international laws (rule), analyzes applicability, and concludes.
INTERNATIONAL LEGAL FRAMEWORK
The issue of espionage is controversial because there are no legal documents that explicitly
prohibits it. All there is are some legal dispositions that can be related to it, and that we will
use to determine its legality. But first we will examine what does espionage means.
The Oxford Dictionary defines espionage as the practice of spying or of using spies, typically
by governments to obtain political and military information. Nevertheless, at a technical
level, the activities of intelligence can be divided in three categories: (i) gathering of
information; (ii) analysis of the information obtained y (iii) undercover operations (Alba
Uribe, 2013). In the case of the information revealed by Snowden, the category of espionage
will be the one limited to the gathering of information.
The US justifies its actions by citing the USA Patriot Act, a piece of legislature that was
approved in 2001 after the 9/11 terrorists attacks, and extended for four more years by
President Obama in 2011. Under the article 215 of this act, the FBI can obtain records using
various US organizations and that these organizations will have access to these records even if
they dont belong to them. The FBI can also demand organizations not to disclose this
requirement.
Another legal document that can be used to defend the legality of espionage is the Rome
Statute of the International Criminal Court, which established the International Criminal Court
and international criminality. This legal instrument fails to define espionage as an
international crime.
In spite of not been typified, there are dispositions in the international law that indicates a
limit to espionage. The 2625 resolution
1
(XXV) of 1970 of the United Nations General
Assembly, dictates that:
No State or group of States has the right to intervene, directly or indirectly, for any reason
whatever, in the internal or external affairs of any other State. Consequently, armed intervention
and all other forms of interference or attempted threats against the personality of the State or
against its political, economic and cultural elements are in violation of international law.
In the case Nicaragua against the US, the International Court of Justice (ICJ), due to the various
interpretations to the preceding disposition, affirmed that:
a prohibited intervention must be one bearing on matters in which each State is permitted, by
the principle of State sovereignty, to decide freely (for example the choice of a political,
economic, social and cultural system, and formulation of foreign policy). Intervention is wrongful
when it uses, in regard to such choices, methods of coercion, particularly force, either in the
direct form of military action or in the indirect form of support for subversive activities in
another State.
In terms of individuality, the Universal Declaration of Human Rights (UDHR) says explicitly
(article 12) that the right of private life is a human right:

1
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
In relation to the limitation of national jurisdiction, the ICC in the Lotus
2
case determined that:
[...]the first and foremost restriction imposed by international law upon a State is that failing
the existence of a permissive rule to the contrary it may not exercise its power in any form in
the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be
exercised by a State outside its territory except by virtue of a permissive rule derived from
international custom or from a convention. (paragraph 45).
It does not, however, say that international law prohibits a State from exercising jurisdiction
in its own territory. In cases which acts have taken place abroad, it cannot rely on the same
permissive rule of international law. Such a view would only be tenable if international law
prohibited States to extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, and if, as an exception to this general
prohibition, it allowed States to do so in certain specific cases. This is certainly not the case
under international law as it stands at present. For a complete prohibition such that States
may not extend the application of their laws and jurisdiction of their courts to persons,
property and acts outside their territory; it leaves them a wide measure of discretion which
every State considers suitable to adopt prohibitive rules for certain cases., This discretion left
to States by international law displays the variety of rules which can be adopted without
objections or complaints on the part of other States In these circumstances all that can be
required of a State is that it should not overstep the limits which international law places
upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its
sovereignty. (pargraphss 46 and 47)
ANALYSIS

2
A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel Boz-
Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10
survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey,
the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment and a fine. The
French government protested, demanding the release of Demons or the transfer of his case to the
French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent
Court of International Justice (PCIJ).
Before analyzing current and past laws, it is important to remember that in the International
Public Law, the States can do whatever is not specifically banned, as it is with citizen in the
internal order. (Alba Uribe, 2013). Since, as mentioned before, there are no international
treaties that explicitly refer to espionage, it is necessary to check other legal bodies where we
find vague and, in most cases, contradictory dispositions.
The main problem for determining the legality of espionage is that laws and treaties are not
specific enough to say which activities are considered to be interference or attempted threats
against the personality of the State or against its political, economic and cultural elements.
The Courts verdict in Nicaraguas case makes a weak contribution to its clarification since,
nowadays, States are capable of deciding in almost every affair inside its territory. (Shull,
2013).
According to Nicaraguas verdict, for the interference to be considered a prohibited
intervention, methods of coercion should be used. Despite that in espionage, gathering of
information tends to lead to coercive actions, this could not happen. A more detailed
explanation is given by Rusell Buchan (2012), who arguments that to determine the violation
of the principle of nonintervention two questions must be asked (1) did the intervention had
the intention of forcing the State to change a policy, and (2) if there is evidence that the
intervention affected the issues that the State had the power to decide freely.
For example, say that country A collects information about a Nuclear Plant in country B, in
order to sabotage it. If the sabotage is executed then there will be violation of international
law. If the sabotage is not executed, there will be no violation. In the actions made by the NSA
there exists no evidence that the information was used to coerce States or the watched
individuals, so it seems that there was no violation of the nonintervention principle.
In addition, if we take into account the espionage was made through cybernetic tools,
affirming its legality is even harder. Mostly because the information gathered was already in
the US, under the protection of American internet companies; there was no release of
information from the country, at least not territorially.
In relation to what the Patriot Act says about justifying espionage the act doesnt permit
unlimited access outside its jurisdiction according to the Lotus verdict, making it a graver
violation of internationally recognized human rights. If the US wanted to act outside of its
jurisdiction, taking into account that the motivation of the Act was to counter terrorism, the
country should have followed the established international framework for it. These acts
impose limits to the actions of repression against terrorism, under the obligation to respect
and protect human rights.
There was a clear violation of international law, as it affected the human right of a private life,
including the US citizens and ones in other states. This is because the UDHR mentions the
protection personal correspondence, and this was being interfered according to Snowden.
CONCLUSION
Due to the lack of clarity in international law, we cannot say espionage is a violation of how
States should interact. The nonexistence of a law, act or sanction that specifies allowed forms
of espionage r banned forms of espionage, in a way authorizes the US to maintain programs
like PRISM, as long they are gathering non citizens information. The principle of
nonintervention doesnt contribute much to the debate, as it doesnt define if it will constitute
an offense to the States sovereignty.
However, in the case of PRISM, there exists a clear violation of the human right of a private
life. As the media mentions, the program obtained information from electronic
correspondence and other personal information from citizens. So, regardless of there is no
violation of the principles that rule the relations of State, espionage could be illegal if it affects
the private life of individuals.
The analyzed case as with many others reflects the necessity of regulating these activities as
they could violate the rights and liberties of men and women. This constitutes a great
challenge for international organizations as theyll have to face mechanisms of gathering
informations that are harder and harder to trace.


BIBLIOGRAPHY
Alba Uribe, M. (15 de Agosto de 2013). Espionaje y derecho internacional: Una prctica lcita?
Obtenido de Juvisnovus: http://jurisnovus.blogspot.com/2013/08/espionaje-y-
derecho-internacional-una.html
El Universal. (26 de Octubre de 2013). Derecho internacional carece de legislacin contra
espionaje. Obtenido de Internacional:
http://www.eluniversal.com/internacional/131026/derecho-internacional-carece-
de-legislacion-contra-espionaje
Shull, A. (2013). Cyber espionage and international law. btenido de
api.ning.comfilesUg...giganetShull.pdf

ONU (1945). Carta de las Naciones Unidas. Obtenido de
http://www.un.org/spanish/aboutun/charter.htm
US Congress (2001). Uniting and strengthening america byProviding appropriate tools
requiredTo intercept and obstruct terrorism (USA patriot act). Obtenido de
http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf
ONU (1970). Resolucin 2625 (xxv): Declaracin relativa a los principios de derecho
internacional referentes a las relaciones de amistad y a la cooperacin entre los estados
de conformidad con la carta de las Naciones Unidas. Obtenido de
http://www.aloj.us.es/eulalia/derecho%20internacional/materiales%20dpto/resolu
cion2625.htm
ONU (1948). Declaracin Universal de los Derechos Humanos. Obtenido de
http://www.un.org/es/documents/udhr/