Questioning Espionage Legality

Question on Legality of Espionage carried out through Diplomatic Missions! Espionage is probably the only clandestine activity which actually is institutionalised, organised, led, and used by governments in order...
spy game under a hard sun in a Venice square, i met this man that reminded me about a Scott movie called 'spy game' and the scene 'involved' me the man was looking around as if he was undercover, smoking his pipe and waiting for 'clues' ©Davide Serafin

Question on Legality of Espionage carried out through Diplomatic Missions!

Espionage is probably the only clandestine activity which actually is institutionalised, organised, led, and used by governments in order to achieve military, technological or political objectives. Espionage can be defined as the process of stealing information for a hostile intent from opponents, concerning strategic and national security issues, and other information considered confidential and of vital importance for a state.

Accordingly, spying in foreign countries seems to be a normal process, and constantly deteriorate relations between countries as happened with relations between France and USA when  Edward Snowden leaked information of National Security Agency surveillance program not only on US citizens, but also in the EU member states missions on New York and Washington, and citizens of EU countries.

With regard to International Law, espionage and gathering intelligence methods and techniques may violate certain treaties concerning Human Rights, such as right to privacy and principles set by international law on non-interference on internal affairs of another state, but report between espionage and international law is not defined yet and international law is tolerant toward the process of spying on foreign countries.

This tolerance on espionage is pointed out by Oppenheim and he considers the phenomenon as a normal process and very common on international relations by stating that spies are secret agents of a State sent abroad for the purpose of obtaining clandestinely information in regard to military or political secrets. Although all States constantly or occasionally send spies abroad, and although it is neither morally nor politically and legally considered wrong to send spies, such agents have, of course, no recognized position whatever according to International Law, since they are not agents of States for their international relations (Oppenheim, 1905).

While espionage is considered as obtaining classified information through different techniques and human sources, Intelligence is defined as gathering of information of public or private nature.

Furthermore, gathering of intelligence is a complex process which passes in few stages, such as information collection, data collation, data manipulation and processing and data analysis (Prunckun, 2010), and usually obtained through open sources, semi-open sources, clandestine sources and covert sources.

Picture Illustration © DP

Picture Illustration © DP

This process is possible through different techniques as use of secret agents with official or non official cover or so called Human Intelligence (HUMINT), through code breaking process (COMINT), aircraft or satellite photography (IMINT) through analysing open publications (OSINT), by technological surveillance (SIGINT) and interrogation of individuals that may have information of high interest concerning national security of a certain state.

The use of these techniques may be the first reference to establish a principle that separates lawful  intelligence gathering and espionage. However such a prohibition of espionage can be easily found on the main principles of international law.

Imprimis, international law prohibits interfering and intervening in another state internal or external affairs or supporting civil conflict against sovereignty of another state.

A famous case where abovementioned international law principles have been violated, was the support of CIA given to the Contras on Nicaragua territory, against Nicaragua territorial integrity and political independence. Moreover, the U-2 incident in 1960, brought another issue of unresolved issue of espionage in international law.

USA launched an aerial surveillance operation in Soviet Union, gathering imagery information (IMINT) through U-2 spy planes. The pilot was caught and convicted for espionage by Soviet Union, and at the same time Soviet Union accused USA for violating principles of Charter of United Nations. Justification  by US on this incident concerning illegal actions undertaken by United States against Soviet Union was  (1) general practice of espionage by all states, (2) the necessity for self-defence,  (3) the necessity to maintain the balance of power, (4) the unreasonableness of Soviet objection in view of its own espionage activities, and ( 5 ) the virtue of espionage or other types of intervention against communism. (Wright, Espionage and the Doctrine of Non-Intervention on Internal Affairs, 1962).

Therefore, regardless the unsolved and untreated question on espionage by international law, when it comes to Diplomatic Missions and their immunities and privileges granted through customary law and through treaty law, where can we draw the line between lawful reporting carried through diplomatic missions and espionage?

Diplomatic reporting is defined by Vienna Convention on Diplomatic Relations of 1961 (VCDR), and Vienna Convention on Consular Relation of 1963.

According to the VCDR, diplomatic missions to the receiving state have the rights to install and use wireless transmitter system with permit of receiving state, and also VCDR grants the secrecy of information transmitted through transmitting lines or other methods from Diplomatic Missions to Sending State. The right of diplomatic reporting may be only  limited by Article 51 of UN Charter, so in this case it may be revoked in certain circumstances justified by the intention of self-defence.

According to VCDR, reporting is a lawful function of diplomatic missions, therefore Article 3(1)(d) states that  “[functions of a diplomatic mission consist inter alia in]….ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State”.

In the other hand,  Article 41 VCDR sets a very important principle by stating that it’s duty of diplomatic missions of sending states to “respect laws and regulations of the receiving State…. and not to interfere in the internal affairs of that [receiving] State”

Commentaries on the ILC Draft Articles on Diplomatic Intercourse and Immunities of 1958, established the scope of Article 3(1) and limitations to function of reporting, by interpreting the phrase “conditions and developments” and concluding that phrase itself covers the political, cultural, social and economic activities of the country, and in general all aspects of life which may be of interest to the sending State.

However Article 41 and 42 of VCDR codified main principles on the duties of diplomatic missions towards the receiving state that already were customary law, such as  the duty to respect laws and regulations of the receiving state, the duty not to interfere in internal affairs, and the duty not to misuse diplomatic premises for wrongful purposes.

Regardless the regulations outlawing espionage carried out through diplomatic missions, privileges and immunities granted to the diplomatic missions and their staff, pave the way to illegal intelligence operations resulting with violation of domestic laws of the host state and of principles of international law.

As Oppenheim stipulated that sending spies to another state although it is neither morally nor politically and legally considered wrong, spying through diplomatic missions or other ways have become a standard state practice. Whatsoever, growing importance of human rights and maintenance of peace, security, and friendly relations in XXI century will increase the need of elaboration and regulation of such a practice as espionage by international law, always requiring political will and consensus of international community as a whole.

Arbër Ahmeti është jurist, aktualisht duke ndjekur studimet post-diplomike në të Drejtën Ndërkombëtare në Universitetin e Vjenës. Ai është kontribues për Raportet e Oksfordit për të Drejtën Ndërkombëtare në Gjykatat Vendore, punë të cilën e kryen nga Departamenti për të Drejtën Ndërkombëtare dhe Europiane të Universitetit të Vjenës. Arbëri është zëvendëskryesues i Komitetit Hulumtues për të Drejtën Ndërkombëtare dhe Qeverisje të Asociacionit Ndërkombëtar të Studentëve të Shkencave Politike (IAPSS), si dhe autor për blogun e tyre "A different View". Interesat e tij hulumtuese fokusohen në të Drejtat e Njeriut dhe të Drejtën Ndërkombëtare Humanitare, Politikat e Sigurisë dhe Mbrojtjes të Bashkimit Europian, përdorimin e forcës dhe të drejtën e vetëmbrojtjes në të drejtën ndërkombëtare, aplikimin e teorisë së lojës në marrëdhëniet ndërkombëtare, si dhe raportin mes të drejtës dhe marrëdhënieve ndërkombëtare.