How must states’ intelligence agencies approach their international law obligations? From the perspective of international law itself, there is a fairly clear answer: Like all sub-state entities, intelligence communities (ICs) must comply with those international obligations assumed by their states. International law does not allow certain state actors to invoke their domestic laws or structures as an excuse to ignore international law.
Yet intelligence activities – recruiting foreign assets, conducting electronic surveillance to obtain foreign intelligence, and undertaking covert actions to influence political and economic conditions abroad – look very different from traditional statecraft. Espionage and covert action frequently take place inside the territory of other states in secret, using techniques intended to be undetectable. These acts often appear, at least at first glance, to be in tension with international law constraints. Moreover, states rarely articulate their views about the relationship between intelligence activities and international law. Most states neither proclaim the legality nor concede the illegality of their intelligence activities under international law, seeming to prefer the ambiguity of the status quo.
This lack of certainty about the precise status of various intelligence activities in international law fosters conditions under which states can choose – and have chosen – different paths through the thicket. I have written a book chapter on this for a forthcoming edited volume on comparative international law. The chapter compares how certain states’ intelligence agencies approach their international law obligations. Some states (notably, the United Kingdom and Canada) expressly assert that their ICs’ activities comply with international law. Another state (the United States) is far more circumspect about whether its IC uniformly complies with international law. The United States even acknowledges that its domestic law authorizes some violations of international law, but employs various compensatory techniques to minimize overt international law violations. These two contrasting approaches – which have come to light in the wake of Edward Snowden’s leaks about foreign electronic surveillance programs – offer lessons about the capacity of international law to constrain core national security activities.
The competing approaches reveal distinct domestic legal regimes, interpretive mechanisms, policy rationales, and effects on the contents of international legal norms. Given the difficulty in reconciling some intelligence activity with certain substantive international law commitments, the UK approach creates incentives to contort existing interpretations of particular international laws that arguably apply to its intelligence activity. This, in turn, may affect the UK’s interpretation of these international laws in other, more “normalized” areas. The United States, in contrast, concededly contemplates the possibility that certain IC actions may violate international law, though it avoids specific public statements about whether and when such deviations occur. The United States also avers that at least some IC actions, such as foreign surveillance, fall outside the purview of international regulation (a conclusion that attracts criticism from several quarters), implying that those actions are lawful, even under international law. This approach may result in more cases in which international law is inapplicable or is violated, but it may also protect international law in its “ordinary” contexts. For those seeking to preserve the overall integrity and viability of particular international rules, these divergent approaches each pose problems and offer benefits that I discuss in the chapter.