The Increasing State Practice and Opinio Juris on Spying

By Ashley Deeks
Wednesday, May 6, 2015, 4:30 PM

Ben flagged today that the Germans have been caught out spying on friends and allies. What makes this a story is the way the Germans responded more than a year ago when Snowden’s leaks revealed that the NSA was spying on Angela Merkel: with shock and awe.

Stepping back a bit from the substance of NSA’s and the German spy service’s activities, Snowden’s leaks have prompted a larger trend that is relevant to international law formation. As a result of the leaks, states have started saying much more than they historically have about spying and how they think it relates to international law. States historically were quite content to keep their views to themselves, but the Snowden leaks have evinced more explicit statements about their views of the relationship between international law and, in particular, foreign surveillance.

In these statements, states have taken diverse perspectives on what rules of international law do and should govern intelligence activities. States typically invoke the ICCPR, the Vienna Convention on Diplomatic Relations, and customary norms such as sovereignty and territorial integrity. For example, Brazilian President Dilma Rousseff called the NSA surveillance program a “situation of grave violations of human rights and of civil liberties.” Germany’s Foreign Ministry summoned the UK ambassador to Germany to demand that he explain reports that the United Kingdom was spying on Germany from within its embassy in Berlin, and “indicated that tapping communications from a diplomatic mission would be a violation of international law.”   And in the wake of reports that the NSA was collecting all phone calls of individuals in the Bahamas, the Bahamas stated that it “wishe[d] to underscore the most worthy principles of [the Organization of American States] charter: that international law is the standard of conduct of States, the primacy of sovereignty, maintenance of territorial integrity, [and] freedom from undue external intrusion and influence.”

In virtually all of these cases, states have not proffered specific legal analyses of the question or attempted to wrestle with the longstanding historical practice of spying notwithstanding these international rules. The international law approach a particular state chooses will likely be driven by a combination of the state’s intelligence capabilities, the level of security threats that it perceives, its sensitivity to allegations of international law violations, and the likelihood that a court will review its practices. But the references to international law violations are unmistakable.

Of course, by taking positions on other states’ foreign surveillance, these states – for better or worse – make it harder for they themselves to claim that their own foreign surveillance activities are consistent with international law. This is part of the trap into which Germany has fallen. The more frequently states make affirmative statements about particular kinds of espionage, the more they limit their own freedom to act (or at least their ability to claim that those actions are internationally lawful). Likely for this reason, many states continue to maintain a studied ambiguity about whether the NSA’s actions (and therefore similar acts by their own intelligence services) violate international law. France, for instance, which has extensive surveillance capabilities, has used political, rather than legal, language to criticize U.S. surveillance.

The leaks therefore have served three functions: to reveal tangible state practice related to foreign surveillance; to initiate a debate (both on the international plane and, presumably, inside the executive branches of many governments) about what existing international law has to say about foreign surveillance; and to produce (verbal) state practice and opinio juris in response to the tangible state practice. These reactions to the active state practice of states such as the United Kingdom and United States set the stage for international law development as the reactions acquire additional nuance and, possibly, prompt litigation that will foster judicial review.  A thorough analysis of these developments will need to consider the sincerity of each state’s claims; the incentives of the states making these various claims; and tangible practice by the intelligence communities of the states making these claims.

Nevertheless, the fact that many states have been provoked into stating their views on the relationship between electronic surveillance and international law – not simply whether a state’s foreign surveillance should comply with international law but also which international laws are implicated by surveillance – is an important development in the process of understanding how intelligence activities are and should be regulated by international law.