How must states’ intelligence communities (ICs) approach their international law obligations? From the perspective of international law itself, the answer is fairly clear: ICs must comply with those international obligations that their states assume. Yet intelligence activities – recruiting foreign assets, conducting electronic surveillance on foreign leaders, and undertaking covert actions to influence political and economic conditions abroad – look very different from traditional statecraft and often appear, at least at first glance, to be in tension with international law constraints. Most states neither proclaim the legality nor concede the illegality of their intelligence activities under international law, seeming to prefer the ambiguity of the status quo.
This lack of certainty about the precise status of various intelligence activities in international law fosters conditions under which states can choose – and have chosen – different paths through the thicket. This chapter compares how certain states’ ICs approach their international law obligations. The United Kingdom asserts that its IC’s activities comply with international law. The United States is far more circumspect about whether its IC uniformly complies with international law. The United States even acknowledges that its domestic law authorizes some violations of international law, but employs various compensatory techniques to minimize overt international law violations.
The competing approaches reveal distinct domestic legal regimes, interpretive mechanisms, and effects on the contents of international legal norms. Given the difficulty in reconciling some IC activity with certain substantive international law commitments, the UK approach creates incentives to contort existing interpretations of particular international rules that arguably could apply to IC activity. This, in turn, may affect that state’s interpretation of these international laws in other, more “normalized” areas. The United States, in contrast, contemplates the possibility that certain IC actions may violate international law, though it avoids specific public statements about whether and when such deviations occur. The United States also avers that at least some IC actions, such as foreign surveillance, fall outside the purview of international regulation (a conclusion that attracts criticism from several quarters). This approach may result in more cases in which international law is inapplicable or is violated, but it may also protect international law in its “ordinary” contexts. This chapter identifies and analyzes the problems and benefits posed by the competing approaches, and offers lessons about the capacity of international law to constrain core national security activities.
Ashley S. Deeks, Intelligence Communities and International Law: A Comparative Approach, in Comparative International Law, Oxford University Press, 251–270 (2018).