Paras Shah: Last month, a mysterious object appeared in the sky over Alaska, Idaho, and Montana. U.S. officials determined it was a “spy balloon” sent by China to gather intelligence. Chinese officials insisted the balloon was just gathering information on weather patterns. But the incident caused a diplomatic snafu.
Secretary of State Antony Blinken said that Chinese actions violated U.S. sovereignty – the idea that a country’s land, air, and waters belong to it – and broke international law. That’s a big deal because international law tells countries how to behave, sort of like how traffic lights and speed signs tell drivers when to turn and how fast to go.
Welcome to the Just Security podcast, I’m your host, Paras Shah.
But what does international law actually say about spying? To answer that question, we have Asaf Lubin. Asaf is law professor at Indiana University and an expert on international law and espionage.
Hey, Asaf. Thanks so much for joining the show today.
Asaf Lubin: Thank you for having me.
Paras: So I want to get started by talking about the so-called China spy balloon incident.
And it's been a few weeks since this happened, and we have a little bit of information around what happened based on US national security sources and public reporting. So we know that this espionage device, this balloon took off from the southern coast of China, it traveled across the Pacific Ocean, it covered the US heartland, and it was eventually shot down off the coast of South Carolina.
So, what should we think about– what would international lawyers say about this incident? And what does international law generally have to say about espionage?
Asaf: So international law, surprisingly has a lot to say on the topic. The tendency is to think the international law tends to treat espionage as a taboo word. But if we look at both historical and contemporary scholarship, we'll find that most people take the position that in line with the Lotus Doctrine of the Permanent Court of International Justice. Whatever is not explicitly prohibited, is allowed. And so to the extent that we don't find an explicit prohibition on espionage in any of the international law sources out there, the practice as a whole should be allowed.
And in fact, there is no treaty that bans or outlaws espionage. Historically, there was an attempt to do that back in the 1880s. It didn't go very far. And so, espionage as a specialized area of practice, most scholars would contend, or most lawyers would contend, is not per se regulated.
But that doesn't mean that espionage is just permissible at all counts. What is left is general international law that might apply to specific espionage operations when the practice violates a particular rule.
And the most obvious rule is to rule on sovereignty. And so, if there is the right of a state to exclude others from its airspace, from its territorial space– what that entails is that if a spy enters that space, that is a violation of international law. And that is certainly the position that the US is taking here, claiming that its territorial airspace was infringed upon by the spy balloon. And in fact, there is a convention, the Chicago Convention, which defines an aircraft, under Annex Seven, as including unmanned free balloons. And the claim is that this unmanned free balloon was a state aircraft under Article Three of that same convention, and that the Chinese had an obligation to notify the Americans and seek their consent prior to entry, their failure to do so was a violation of international law. And so, here we have it a full closed universe where there was a violation of sovereignty, a violation of international law. I'd say that that is the doctrinal, traditional approach.
Paras: Okay, so just to summarize: international law doesn't have any explicit treaty banning espionage, but some acts might qualify as violations of international law if they violate a state's sovereignty. So, it depends on the method that's used. That's the kind of traditional approach, right? But you, in a number of your papers and your academic work, take a different approach. So, can you tell us a little bit about your thinking on the subject, and then how would that apply– how would that framework apply here?
Asaf: Certainly. So first, let me just explain why it is that I don't support this position, this traditional view. And the first has to do with the fact that it's rooted in territorial line drawing. So we need to identify the territory, say the territorial airspace, and cut it off from foreign activity. But as this particular example demonstrates, identifying what is the upper limits of one's territorial airspace is a challenging thing to do. So this particular balloon flew at around 60,000 feet. Is 60,000 feet within the territorial airspace of a state?
Or as we think about cyber espionage is yet another example where territorial line drawing is hard in the area of zeros and ones moving through fiber optic cables, where do we cut off the exclusion of other countries? And so territorial line drawing, to me, doesn't fit nicely with espionage activity. But more importantly, it also doesn't take into account the rich, specific history of spying.
So, go back to 1960. That's 60 years ago. When the U2 spy planes were discovered in Soviet airspace. That is the Americans flying their own aircraft in Soviet territory. Then it was shut down by the Soviets. And it was then that President Eisenhower came out and said, 'Well, you know what, it just so happened that spying, sometimes.. it's distasteful, but necessary.'
And so compare that to Blinken now calling it an international law violation. There seems to be something about the unique, rich history of spying that doesn't fit with this doctrinal understanding. It's more about political uproar and performance. And so the view that I take is a different one. It's one that recognizes this rich state practice. And looking at that practice head on, to suggest that there might be particular customary – that is, long-term practices of states – that have evolved over time to form legally binding rules in espionage that are therefore the lex specialis – the special law.
Instead of trying to find the rules in some general law, we'll find it in a specialized regime for spying. So part of the thinking around a special regime for international law and espionage would say that we can regulate spying at three distinct temporal stages: before, during and after a spying operation. Meaning, in the same way we think about the law and the use of force, regulating force before, during and after uses. Spying as a related activity can be regulated in the same way.
So we might think about what are the justifications for spying. Say, national security or international peace and stability. And then, once an operation is launched, what means and technologies can be utilized, and against what targets? And the conducts of particularized spying operations, Jus In Exploratione. And so in that area, we might ask, is disproportionate surveillance or surveillance that is not effective– are those illegal? Because of the specialized regime that we're applying in this circumstance, much of it is drawn from basic human rights law.
And so in this context, China would have a right to spy for national security purposes in US airspace. But that right is obviously limited by the right of the US to not tolerate that spying, and to do everything we can to stop it. And so America has a right to shoot down the balloon, exactly as it happened here. And that is all within the lines that I propose in my broader scholarship.
Paras: I want to take a step back here and ask why any of this is relevant. Because many people believe that international law itself is unenforceable, because there's no world police after all, to enforce it. So it's different in some sense, then, if you commit a crime in the United States, and you might face the risk of jail time and a very responsive state that could enforce that law. So, what is the response to folks who say, 'Okay, these are all academic niceties, but but why does any of this matter?'
Asaf: So, espionage is the canary in the minefield in the sense that the activity around spying could introduce a whole sort of human rights violations– in particular online, to freedom of expression, privacy, as we think about data protection and cybersecurity. So one example, when we think about espionage, could be spyware. That is the privatization of certain intelligence activities and intelligence technologies.
And so an unregulated environment for surveillance and espionage could lead to particular human rights-abusing countries purchasing certain technologies that enhance their surveillance capabilities. And then using them against dissidents, against journalists, against diplomats. We saw that play out in the context of the murder of Khashoggi in the embassy in Turkey, by Saudi Arabia. Which utilized surveillance from NSO Group, an Israeli spyware company, in the lead up to his killing in that embassy. That is an example of the kind of human rights abuses that we might see. Another comes in the wake of the Snowden revelations, where mass surveillance was so severe that it caused chilling effects on freedom of expression online, because it was an unregulated environment and we learned about it only after-the-fact, generating distrust in the way states are engaging in these kinds of surveillance practices.
Paras: How does all this relate to the Chinese spy balloon?
Asaf: So, international law is reflective of the relationships between states, and it sets the outer limits and what is acceptable and non-acceptable behavior. We need particular rules of the road that could prevent deteriorations to violence, and ensuring of a functioning international system. Take just the spy balloon as an example: if we allow these aircrafts to – certainly en mass – to operate in the airspace of other states, that could risk civil aviation. So the importance of running an effective civil aviation platform depends on us having some sense of how these spy balloons are operating. We need international law to allow states to predict and run more smoothly, their international affairs.
Paras: Spying has a negative reputation, it’s sneaky, it’s often done in the shadows, but can spying be justified and does it actually have an important role to play in international relations?
Asaf: In fact, if the goal in international affairs is to establish trust and cooperations between states, then the best way to achieve that is with states knowing information about each other to lower their risk and anxiety about surprise attacks. So intelligence plays an important function in international law and regulating it in a way that doesn't create destabilization, but rather, stabilization is a necessity. At the same time, because it's so secret and revelations about espionage tend to unravel in the way they did in the Chinese spy balloon incident, the result is that there is a sense that what is happening is in disconnect with what the descriptive account of international law says should happen. If we assume that spying is illegal under the traditional rule when it violates sovereignty. And then we look at the world and we see spies everywhere, there's a sense that international law is not effective at achieving the rules that it set out to achieve. To regulate espionage is a way of ensuring that there is legitimacy within the system, that people trust that international law will do the work that it claims to do.
Paras: So, spying has been called the world's second-oldest profession. But in the 21st century, we're no longer in the realm of cloak and dagger, traditional espionage, James Bond style, you know, spies sneaking around. I'm sure that some of that still happens, but the means of spycraft have gone online. They've become... in the realm of cyber and computer attacks. So how should the law and how should international law think about how it needs to update itself for the 21st century and modern means of spycraft?
Asaf: Yeah, to finish your original quote there, espionage is the world's second-oldest profession, and is just as morally debunked as the first. And what that means is that especially as we move to cyberspace, we need to really think about regulation. That is because cyber is both the great equalizer and the great destabilizer. It's the great equalizer because powers once shared by a few states, are now shared by most states. And it's the great destabilizer because powers once shared by a few states are now shared by most states. So capacity limitations of old, which allowed us to tolerate a system that was mostly unregulated, is no longer justified. Now everyone can engage in these forms of cyber espionage, which in a non-codified, non-regulated environment, means a lot of uncertainty and a lot of unpredictability.
When you add to that problems in cyber attribution, in our ability to determine who is doing what and for what reasons – what are their motivations? – there is even greater concern to the collapse of the international system. And the most important rule in that system, the prohibition on the use of force – and the insurance of peaceful resolutions of conflicts. And so what I have argued in in one of my papers, it's called "Espionage Law and Cyber Law As Communicating Vessels," is that cyber law is generating more justifications for the regulation of espionage law. Because the two start from the same environment of unauthorized access into the computer systems of other states, operation dormant within those systems, sensing collecting information – that's all espionage. And then using it for particularly offensive operations, that cyber operations. That's where if you want to regulate that latter behavior, you will need to start with the regulation of espionage as a whole. I think that's exactly what the Tallinn Manual drafters came to realize when they began drafting. The Tallinn Manual is a body of work produced in support by the government in Estonia. It's edited by Michael Schmidt and it's trying to set the international law, the lex lata rules, the existing rules of international law governing cyber operations.
Paras: And anything else you'd like to add that we haven't touched on yet?
Asaf: I'll just say one more thing: espionage, by design, is about secrecy. And it's about secret behavior. And part of the problem in thinking about regulation of espionage is because so much of itis done not under the light, the cleansing light of transparency. And that is why so many have suggested the custom, that state practice and opinio jurisgenerating customary rules, has nothing to say about espionage. Because what is unknown is therefore not practice that could be counted for the purpose of the generation of custom. I think that that is a faulty account, that adopting this formalist positivist viewpoint will generate a lot of weaknesses to our frameworks and thinking about something that is, while secret, is also subject to a lot of known behavior, diplomatic winking, foundational subtext. So it does grave injustice to the intellectual growth of this legal field to just ignore secret practice. And I think that is one of the important takeaways from thinking about espionage.
Paras: Right. And just to give a little bit of background, customary international law is one body of international law. And there are several different sources of international law. There are treaties, there are judgments from the International Court of Justice and other courts. There are the opinions of scholars, but customary international law is one type of international law here that we're talking about. And I guess I want to ask a follow up question on that. So if this activity happens in secret, then how do we create state practice? Which is one element of custom. State practice is how states behave. And if they behave in a certain way, then we can say that they start to create behavior that is binding. And opinio juris is this idea that they take those binding actions, those types of practice, out of a sense of legal obligation. So they're not doing it just because they want to, but because they feel that the law requires them to do something that way. So how do we then address this question of a secret state practice?
Asaf: Sir Daniel Bethlehem wrote a great article in the Cambridge Journal of International Law back in 2012, called "The Secret Life of International Law. And in that article, he says that there is a lot of this state practice that is secret. And if we completely ignore it for the reason that is secret, we will miss a lot of what states are doing and what states are considering when they're taking particular action. And so international law will be incomplete if we ignored the secret life of international law. So how do we address it? We start looking at secrecy in a more complex and nuanced way. Where not all secrets are made equal. Certain secrets are shallow, other secrets are deep. And it is those shallow secrets – the known unknowns, the things we know states are doing, but we might not know the specifics of when and why they did it – that we should take into account in our analysis of the overall behavior. And certainly, once those are discovered, once we have a glimpse into the matrix, when there is a glitch in that matrix – that's when we should be quick to react. And I think the Chinese spy balloon is one example of us building international law in real time, when we get revelations about behavior that was previously secret.
Paras: Thanks so much. This is such a rich discussion, and there's going to be a lot more to happen and unfold from this incident. But thanks so much for this overview, Asaf, and for joining us today.
Asaf: Thanks for having me.
Paras: The Just Security podcast is produced in partnership with NYU's American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.
This episode was hosted by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto! Special thanks to Asaf Lubin.
If you enjoyed this episode, please give us a five star rating on Apple Podcasts, or wherever you listen.
