Beruflich Dokumente
Kultur Dokumente
Felix Staicu
Mihai Claudiu Barloiu
Espionage functionally permits states not only to verify that their neighbors are complying
with international obligations, but also to confirm the legitimacy of those assurances that their
neighbors provide.
States are more willing to cooperate across various functional lines because espionage is
available as a tool by which to monitor foreign behavior.3
Most of the literature concerning espionage and international law addreses situations in which
the laws of war apply.
The rules of espionage in times of war, wheter based on The Hague Regulation of 1907, the
Geneva Conventions, The Protocol Additional to the Geneva Convention or other sources are
straight forward.
According to Article 29 Convention (IV) respecting the Laws and Customs of War on Land
Hague- A person can only be considered a spy when, acting clandestinely or on false
pretences, he obtains or endeavours to obtain information in the zone of operations of a
belligerent, with the intention of communicating it to the hostile party.
Significantly, the Hague Regulations do not make belligerent espionage a violation of the
laws of war. International law neither endorses nor prohibits espionage, but rather preserves
the practice as a tool by which to facilitate international cooperation.
National representatives are faced, in the international original position, with the choice
between endorsing and rejecting a duty of basic transparency enforced exclusively through
espionage. If they reject this rule, states will not be required to be transparent, and their
neighbors will have no right to spy on them.
The representatives are expected to adopt a maximin strategy: i.e., to choose the option that
offers the best minimum result. Let us suppose that the international community adopts a ban
on espionage. From each states point of view, giving up intelligence-gathering means
practically accepting a kind of national blindness. In fact, this particular form of blindness
would extend to information about other states non-compliance with the rule against
espionage, since other states would presumably conduct their espionage clandestinely. This is
a crucial point, because the stability of any international norm hinges on each nations
expectation that the other nations will observe it.4
The literature concerning the espionage in international law outside of the laws of war is
much less developed as Richard Fold noted: Traditional International Law is remarkably
oblivious to the peacetime practice of espioange. The literature that does exist on peacetime
espionage can be split into three groups, one group suggests peacetime espionage is legal (not
illegal) under international law , another group suggests peacetime espionage is legal under
international law, a third group placed between the other two, maintains that peacetime
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1176&context=auilr
JANNA THOMSON, JUSTICE AND WORLD ORDER: A PHILOSOPHICAL INQUIRY 31 (1992); Forde,
supra note 8, at 76
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espionage is neither legal nor illegal. In any event the uncertainty in the literature supports the
thesis that espionage is beyond international consensus .
Manuel Garcia Mora, Treason, Sedition and Espionage as Poltical Offenses unde the law of extradition,
Quincy Wright, Espionage and the doctrine of non-intervention in internal affaires.
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Ingrid Delupis-foreing worships and immunity from espionage,
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International Law neither endorses nor prohibits espionage but rather preserves the
practice as a tool by which to facilitate international cooperation . Looking back to
another era when the Americans and Soviets negotiated over the size of their nuclear
stockpiles , Baker demonstrates that shared inteliggence can be vey useful in
monitoring and enforcing agreements in arms control. Whitout espionage countries
could be required simply to accept the information provided by other treaty partners as
accurate.10
Proffessor Simon Chesterman states that espionage creates functional benefits for the
internatonal community and he further suggests that the benefits of sharing
intelligence with multilateral organizations could lead the international community to
develop new international norms.11
Conclusion
Based on the things that we presented we agree with the last theory that
international espionage is neither legal nor illegal, and that states accept this situation
as a common practice.
Intelligence gathering will always be a key part in states self-defence policy,
because trust cannot be a guidance in a state security policy. So if states do not seek
complete disarmament, there is no reason to ban espionage practices, because even if
they were banned, states will find a way to continue the information-gathering
practices, for well-known purposes.
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