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Espionage, Secrecy, and Institutional Moral Reasoning

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Abstract

Cecile Fabre’s Through a Glass Darkly offers a compelling account of the ethics of espionage drawn from both interpersonal morality and democratic and cosmopolitan political theory. Yet the spying that her theory finds permissible or prohibited does not map onto the spying that states undertake and that international law either explicitly or implicitly authorizes. That law allows or tolerates significant spying to promote compliance with diverse international legal regimes as well as advance other important public order values — well beyond that allowed under Fabre's theory. This disconnect represents a challenge for her theory and ideal theory generally. This essay identifies these gaps and considers alternative approaches to addressing them. It argues that the political morality of spying should be explored through institutional moral reasoning that takes account of the actual practices, expectations, and institutions that states have created; it then offers a set of criteria for the international political morality of espionage. The essay concludes with a discussion of a key feature of all espionage, namely the secrecy of the methods used — as opposed to their goal of find others’ secrets. International law is both pushing transparency in many areas yet still allowing secret conduct by states, and these practices should also inform a theory of espionage.

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Notes

  1. STAGD, pp. 55-60.

  2. Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles, Dec. 8, 1987, Protocol Regarding Inspections, 1657 UNTS 4, 149.

  3. Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, art. III, 729 UNTS 169.

  4. Treaty on Open Skies, Mar. 24, 1992, treaties.unoda.org.

  5. Statute of the International Atomic Energy Agency, Oct. 23, 1956, art. VIII, 276 UNTS 3 (states “should make available such information as would, in the judgement of the member, be helpful to the Agency.”).

  6. See, e.g., SC Res. 2610, Dec. 17, 2021, para. 53 (“Encourages all Member States to submit to the [Sanctions] Committee for inclusion on the ISIL (Da’esh) & Al-Qaida Sanctions List names of individuals, groups, undertakings and entities participating... in the financing or support of [those entities’] acts”).

  7. Rome Statute of the International Criminal Court, July 17, 1998, art. 54(3)(e) and (f), 2187 UNTS 3.

  8. Simon Chesterman, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford: Oxford University Press, 2011), pp. 157-201.

  9. Office of the United Nations High Commissioner for Human Rights, Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice (Geneva, 2015), pp. 61, 73 (on confidentiality of information); p. 111 (model standard rule of procedure noting that commissions may “request and receive information and materials from Governments.”).

  10. Michael J. Berlin, “Hushed U.N. Chamber Hears Recording of Stalking Pilots,” Washington Post, Sept. 7, 1983.

  11. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, arts. 51, 57, 1125 UNTS 3.

  12. See generally Asaf Lubin, “The Reasonable Intelligence Agency,” Yale Journal of International Law 47(1) (2022): pp. 119-64.

  13. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, art. 3(1)(d), 500 UNTS 95. Matthew Lee and Josh Lederman, “Spies Posing as Diplomats Have a Long History,” AP News, Mar. 26, 2018.

  14. James Kraska, “Intelligence Collection and the International Law of the Sea,” International Law Studies 99(1) (2022): pp. 601-32, pp. 602, 605-616.

  15. Asaf Lubin, “The Liberty to Spy,” Harvard International Law Journal 61(1) (2020): pp.185-243.

  16. See, e.g., Anne Peters, “There is no explicit rule that prohibits espionage. But that doesn’t mean it’s allowed.” Verfassungsblog, Oct. 31, 2013 (arguing illegality of eavesdropping by diplomats), https://verfassungsblog.de/there-is-no-explicit-rule-that-prohibits-espionage-but-that-doesnt-mean-its-allowed/.

  17. STAGD, p. 52-53.

  18. Ibid., pp. 96-104.

  19. Ibid., p. 102.

  20. See generally Tim Weiner, Legacy of Ashes: The History of the CIA (New York: Anchor Books, 2007).

  21. See, e.g., El-Masri v. The Former Yugoslav Republic of Macedonia, European Court of Human Rights, Grand Chamber Judgment, Application No. 39630/09, Dec. 13, 2012 (finding numerous violations of human rights in connection with US rendition program).

  22. Big Brother Watch and Others v. United Kingdom, European Court of Human Rights, Grand Chamber Judgment, Applications No. 58170/13, 62322/14 and 24960/15, May 25, 2021 (finding violation of right to privacy in bulk intercept regime).

  23. STAGD, pp. 61-63. Yet the duty to distinguish between combatants and civilians applies to both sides in a war, regardless of the (self-perceived or objective) justice of one’s cause.

  24. Another attempt to reconcile the theory with the practice would argue that the secrets that states routinely seek to steal from other states are not entitled to secrecy in the first place because they are not sufficiently linked to “citizens’ exercise of their democratic agency” (STAGD, p. 47), or the rationales for economic secrets (ibid., pp. 76–80). But if so many secrets are thus not protected in the first place, then the book’s account of the ethics of espionage addresses only a small subset of actual espionage.

  25. Ibid., p. 56.

  26. See Seth Lazar, “Just War Theory: Revisionists vs. Traditionalists,” Annual Review of Political Science 20 (2017): pp. 37-54 (on reductivist vs. nonreductivist accounts).

  27. Steven Ratner, “International Law and Political Philosophy: Uncovering New Linkages,” Philosophy Compass 14:2 (2019): e12564, pp. 1-12, pp. 3-4.

  28. See, e.g., the ICJ’s narrow rulings in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 ICJ 403 (Adv. Op. of 22 July) (refraining from ruling on legality of secession) and Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 226 (Adv. Op. of 8 July) (finding insufficient information to answer question posed to it).

  29. See generally Andreas Follesdal, “The Legitimacy of International Courts,” Journal of Political Philosophy 28(4) (2020): pp. 476-99.

  30. STAGD, p. 8.

  31. Ratner, “International Law and Political Philosophy,” p. 3.

  32. Andrew Hurrell, “International Law and the Making and Unmaking of Boundaries,” in Allen Buchanan & Margaret Moore (eds.), States, Nations and Borders: The Ethics of Making Boundaries (Cambridge: Cambridge University Press, 2003), pp. 275-97, p. 277.

  33. Allen Buchanan and David Golove, “Philosophy of International Law,” in Jules Coleman & Scott Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), pp. 868-934, p. 870.

  34. STAGD, pp. 20-24.

  35. See, e.g., GA Res. 69/166, Dec. 18, 2014 (“Affirms that the same rights that people have offline must also be protected online, including the right to privacy”).

  36. “Remarks by President Obama and President Xi of the People’s Republic of China in Joint Press Conference,” Sept. 25, 2015, https://obamawhitehouse.archives.gov/the-press-office/2015/09/25/remarks-president-obama-and-president-xi-peoples-republic-china-joint.

  37. United Nations International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts (2001), art. 16 (complicity by one state in the illegal acts of another).

  38. See generally Laura Valentini, Justice in a Globalized World: A Normative Framework (Oxford: Oxford University Press, 2011), pp. 137-64 (on systemic coercion).

  39. See Steven Ratner, “The Aggravating Duty of Non-Aggravation,” European Journal of International Law 31(4) (2021): pp. 1307-42.

  40. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964), pp. 49-51.

  41. See Jonathan Klaaren, “The Human Right to Information and Transparency,” in Andrea Bianchi and Anne Peters (eds.), Transparency in International Law (Cambridge: Cambridge University Press, 2013), pp. 223-38.

  42. John Rawls, Political Liberalism, expanded ed. (New York: Columbia University Press, 1993), pp. 66-68.

  43. See, e.g., Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 52(4) (1998): pp. 887-917; Thomas Risse, “‘Let’s Argue!’: Communicative Action in World Politics,” International Organization 54(1) (2000): pp. 1-39.

  44. See Megan Donaldson, “The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order,” American Journal of International Law 111(3) (2017): pp. 575-627.

  45. Steven Ratner, “Law Promotion Beyond Law Talk: The Red Cross, Persuasion, and the Laws of War,” European Journal of International Law 22(2) (2011): pp. 459-506.

  46. Bianchi and Peters (eds.), Transparency in International Law (Cambridge: Cambridge University Press, 2013).

  47. Paris Agreement, Dec. 12, 2015, arts. 4(2), 4(8), 4(9).

  48. Military and Paramilitary Activities in and Against Nicaragua, 1986 ICJ 14 (June 27), para. 232.

  49. Kadi and Al Barakaat International Foundation v. Council of the European Union, European Court of Justice Grand Chamber, September 3, 2008, paras. 336-49.

  50. See Bianchi and Peters (eds.), Transparency in International Law, chapters 4, 5, and 11.

  51. UN Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, Study on Targeted Killings, May 28, 2010, UN Doc. A/HRC/14/24/Add.6.

  52. See Steven Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (Oxford: Oxford University Press, 2015), pp. 64-83.

  53. Kadi, paras. 334–52.

  54. Articles on Responsibility of States for Internationally Wrongful Acts, art. 52(1)(b).

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    Steven Ratner

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Ratner, S. Espionage, Secrecy, and Institutional Moral Reasoning. Criminal Law, Philosophy (2024). https://doi.org/10.1007/s11572-024-09718-7

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