The first category, covert operations, consists of active operations and cyber operations, which are actions a state takes to influence or affect a foreign sovereign that lack public endorsement by the state and usually remain classified (Fatouros 1976, 193 Jackamo 1992, 992). This definition adequately splits espionage into its two categories: covert operations (a tool for the execution of policy) and intelligence (a tool to inform policy). The forms and aims of espionage differ significantly, especially with the advent of technology however, espionage can roughly be defined as a “tool for the execution of policy as well as a tool to inform policy” (Scott and Jackson 2004, 4). “Espionage by definition is intended to occur without detection ” therefore, it is safe to assume that defining and regulating it brings significant complications (Deeks 2015, 314).
The international legal concepts of importance to this analysis stem from Article 2(1) and Article 2(4) of the UN Charter (1945): the prohibition of the use of force, the principle of sovereignty and non-intervention, and self-determination, as well as rights stemming from other conventions, such as privacy protection. The second section discusses the relevant debates concerning the various interpretations of international law surrounding each type of espionage and their legality in the following order: active operations, human intelligence, cyber operations, and cyber intelligence. The following analysis is comprised of two parts, the first of which defines the two types of espionage: covert operations and covert intelligence, distinguishing between the human and cyber variants of both. Through this investigation, the consensus about what state sovereignty and territorial integrity entail has potentially begun to change since the end of the Cold War, making previous forms of espionage that were not yet considered illegal, such as human intelligence, now illegal, but leaving some new forms of espionage, specifically cyber espionage, almost entirely unaddressed. The arguments for and against the legality of espionage in state practice each have varying interpretations of the UN Charter and other sources of international law, and the following analysis intends to investigate these interpretations and determine the forms of espionage that violate international law, are potentially permissible under international law, or remain virtually unaddressed by international law altogether. The convergence of international law with peacetime espionage is a highly contested issue, with varying levels of consensus by legal scholars. There are various elements to espionage concerning its purpose, methods, and practice, but the important thing to note is that, in the absence of war, espionage is never explicitly addressed in international law (Demarest 1996, 339 Chesterman 2006, 1072). One of the issues and developments inexplicit in the United Nations Charter (UN Charter) is espionage. International law in the nuclear and technology era requires constant reinterpretation or reassertion to address new problems, issues, and developments in the international system.
Interpreting international law’s approach to a given concept is not without complications, such that even the issues that international law is seemingly explicit about are not without their contested areas.
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