'The Legitimacy of Spying Among Nations' by Raphael Bitton
formulates
a liberal groundwork for espionage among nations. First, it presents the inadequacy of the prominent arguments for espionage embedded mainly in Just War Theory. It argues, alternatively, that a modicum of cooperation in the international sphere calls for a new legal obligation in international law-a duty of basic transparency among nations. Modern international law is interpreted, therefore, as an attempt to maintain the necessary measure of transparency in international relations: the legality of espionage reflects the limited enforcement of a duty of basic transparency. By fulfilling a duty of transparency, a transparent state cannot catch its neighbors off guard as far as its strategic intentions, as in the case of surprise aggression. This paper argues, however, that transparency is a structural feature: it is an attribute of typical liberal regimes. Non-liberal nations are, therefore, likely to oppose a duty of transparency as incompatible with their religious or political doctrines. Transparency is therefore essential for the co-existence of nations and yet politically unreachable. Espionage among nations, this paper argues, enables the resolution of this apparently hopeless and fundamental conflict in international relations. It facilitates the enforcement of transparency on non-liberal nations without imposing a liberal structure on them. Hence, it is argued that a rule obligating a basic duty of transparency among nations, enforced exclusively through espionage, is morally justifiable — since it would be endorsed by all nations in an impartial, fair process of global deliberation.
Bitton comments
Espionage among nations is an exceptionally old and extensive human
endeavor. In times of both war and peace intelligence organizations are allocated a
generous slice of states’ resources. Foreign espionage also entails considerable
moral harm. One would expect to find, therefore, that it is anchored in solid moral
and legal underpinnings. Surprisingly, this costly and harmful activity lacks a clear
justification. Legal and philosophical scholarship is extremely interested in, for
example, the legitimacy of war among nations, and the proper legal framework for
regulating war. The legitimacy of the domestic use of governmental force, too, is
debated rigorously. Yet when it comes to espionage, moral theorists are as soundless as spies. If espionage is even considered, it is generally perceived as an extra-moral activity, one that takes place beyond the boundaries of ethics. Espionage is
frequently associated with a murky sphere in which the gravitational pull of states’
supreme interests bends the standard contours of moral space. This paper therefore
aims to answer one primary question: what is the appropriate ethical justification for
espionage? This justification, whatever it may be, should underpin the body of law
that regulates espionage.
My account of international espionage begins from the observation that
espionage between states is an undercover, state-sponsored intrusion into the
restricted space of another state for the sake of collecting information. Access to a
given space can be restricted in many ways, including — but not limited to —
physically, visually, acoustically, digitally, and legally. An intrusion into a restricted
space can be achieved through any known method of espionage, human or
technological.
Throughout my argument, I follow a basic distinction between espionage
during states of emergency (such as war or conflict) and espionage during peacetime
(or ordinary circumstances). I define an “emergency” as a time that calls for remedial action in order to address a clear, imminent, and serious threat posed by one state
against a basic interest of another. War is a classic state of emergency. An explicit
threat of war obviously creates an emergency as well. By definition, in “peacetime,”
State A has no indication that State B is planning any harmful action against it.
Espionage that is undertaken in response to emergencies can be justified sufficiently,
it seems to me, by reference to Just War Theory and the rules of necessity
and self-defense. It is peacetime espionage that poses the real justificatory challenge.
This paper offers a new theoretical justification for peacetime espionage
among nations. It consists of three parts. Part I takes on currently available
justifications for espionage, including the realist argument (Section I.A) and an
application of Just War Theory (Section I.B), and finds them inadequate. In Parts II
and III, I offer a new approach to justifying espionage. First, I argue that states
should be subject to a duty of basic transparency in their relations with other states.
Next, I develop the thesis that espionage serves as a transparency-enforcing device,
one that resolves an otherwise irresolvable political conflict between liberal and nonliberal
nations. In light of espionage’s sophisticated and essential role in international
relations, I argue that a rule that permits it as an instrument for the enforcement of a
duty of basic transparency among nations would be endorsed by all impartial,
rational, and reasonable nations.
