The international community could benefit from a thorough re-thinking of its approach to the issue of spying, according to Professor Steven Ratner.

Ratner—the Bruno Simma Collegiate Professor of Law and director of the University of Michigan Donia Human Rights Center—recently published an article in the journal Criminal Law and Philosophy, written in response to the book Spying Through a Glass Darkly by Cécile Fabre.

In his article, Ratner notes that some types of spying are explicitly allowed in international law, such as ensuring treaties are being obeyed. Beyond that, international law makes considerable room for states to engage in routine espionage; there are no bans on such activity, he points out. 

Yet Ratner argues there exists a gap between ethical theory and real-world practice of espionage, and he proposes an alternative way to think about spying in the context of international law. He recently answered five questions about some of the issues he raises:

1. Are there generally recognized limits on spying activity within the international community, and are those limits actually observed in practice?

Some of this depends on what you mean by a spy. We assume that certain people working within embassies are actually working for intelligence services, yet they get diplomatic accreditation. This is quite common and accepted. International law has very few clear limits on what is prohibited. The only real constraint on them is whether the other state decides that they do not want to tolerate them on their territory. Indeed, some treaties even allow intelligence gathering and sharing on possible violations, and the United Nations Security Council relies on information gathered by states through spying to enforce sanctions. 

If a spy is someone engaging in covert action, there clearly are limits on what those spies can do. The spies that Russia sent to try to kill various people in the UK or that other countries send in hit squads—what they are doing is clearly unlawful. It’s a violation of human rights law and an interference in the internal affairs of the other state. When it comes to that kind of intelligence action, international law certainly has prohibitions. And that would go not just for killing, but for kidnapping or torturing as well. 

2. Is there any kind of enforcement mechanism or punishment when someone does cross the line?

States sometimes arrest spies and throw them out, but they cannot prosecute them if they’re diplomats. That’s what jurisprudence scholars call a Hohfeldian privilege—an allowance to spy even though the other state has no duty to permit it. It happens beneath the surface, but everybody knows about it.

If we consider the covert action kind of spying, misconduct might get before an international court. A few years ago, the European Court of Human Rights held Russia responsible for the poisoning of Alexander Litvinenko in London. More commonly, individual states can react if the person is still in their territory. They can charge them and bring them to trial. If they have already left, they can put them on sanctions lists and make sure that they cannot travel or freeze their assets. They can issue an international arrest warrant. We do not have any kind of centralized enforcement, but the state that is most affected will try to go after them, and sometimes they succeed.

3. In your article, you suggest that maybe the way to look at all this is not so much about ethics, but about the international political morality of espionage. Can you explain the distinction?

One way to think about spying is essentially to assume as a starting point that this is sort of impermissible and venal behavior—sneaking around on other countries’ territories. From this starting point, if we are going to allow it, we have to come up with a sort of moral justification for it, building from sort of first principles. Some scholars have tried to come up with a kind of top-down theory that would justify when a state might be able to send spies into another state. One theory, written by Oxford’s Cécile Fabre, is that they only ought to be able to do it in defense of their own democracy. 

I would say a better way of framing it is to look at the world in terms of what values states have agreed upon and what policies they share, reflected in treaties and other international law—whether environmental protection, nuclear nonproliferation, or protection of human rights. Then we can ask: What sort of spying ought to be allowed that allows states to promote those shared values and observance of that law, and what sort of spying should be prohibited because it undermines them? We also need to take into account the reality and risks that states, and not some international spy agency, will be doing the intelligence gathering. We can help answer this question by looking at what spying states have allowed in treaties or through accepted practice.

4. You identify four factors that you argue should be taken into account when thinking about a practice-based theory of spying. What are they?

First, the target: Who exactly is the government going after? If it is gathering information about another government as opposed to a private individual, I think the state should have more leeway because it does not infringe on personal privacy. 

Second, the mode for the spying. Some kinds of intelligence gathering are passive, like a satellite or a person taking photographs. Some can involve actual deception, coercion, or even torture. That kind of active mode is less legitimate than passive modes. 

Third, the goal of spying. If states are gathering intelligence to protect human rights, or prevent a war, or limit arms proliferation, that spying has a greater legitimacy. If we’re just talking about spying to advance your economic interests, that has less legitimacy. 

Fourth, the effect of spying. Spying can have pernicious consequences, like furthering domination by the strong over the weak. It can lead to interstate tensions. We have to avoid that.

5. Regulating spying would seem to require transparency and accountability—but how is that possible for an activity that’s inherently secretive?

This is one of the great challenges, because states do not want to admit that they spy. They do not wish to say what methods they use or do not use, they do not want to tie their hands about future action, and they generally do not want to call out other states—because they might want to do the same. So the idea of regulating spying is very difficult. 

What I try to say at the end of the paper is that spying raises a broader question about the extent to which international law should and can regulate secrecy as a whole. International law tolerates secrecy in many ways, yet there are also certain pushbacks against secrecy. Treaties are often negotiated in secret, which may be the only way parties can compromise and reach agreement. Negotiators need to be able to test out ideas without the glare of publicity. On the other hand, some treaties do demand public participation; on economic issues, we do not just want elites in conference rooms agreeing on things that will affect workers or consumers. 

Can we come up with a set of general principles for when secrecy should be allowed in international conduct and when it shouldn’t be? That is a profound challenge for international law.