Live and Let Spy? Cyber espionage in international relations and international law
The academic literature on spying is dominated by two myths. First, international relations theorists draw a direct line between spying and the maintenance of international peace and security. Their argument is that, given the anarchic structure of the world order, spying allows States to identify threats to their national security and take action against them. Second, influenced by this realist understanding of international relations, international lawyers claim that international law is silent on the topic of espionage and, as a result, this activity is permitted by that legal framework. This paper debunks these myths. This paper argues that, because spying involves the unauthorized collection of confidential information, it can inhibit international cooperation, destabilize international relations, and undermine the international community’s efforts to address threats to international peace and security. Next, this paper submits that the intelligence community is bound by international law in the same way and to the same extent as any other organ of the State. Although States have not (yet?) devised an ‘international law of spying,’ this paper avers that there is a range of general principles and specialised regimes of international law that apply to spying and, by extension, to cyber-enabled spying. How international law applies to cyber espionage is demonstrated through an assessment of the recent hacks against SolarWinds and Microsoft.