Towards Intelligent Self-Defence: Bringing Peacetime Espionage in From the Cold and Under the Rubric of the Right of Self-Defence

A Key Terms and ScopeThe term 'espionage' is used narrowly in this paper, excluding tangential conduct such as sabotage, covert action, paramilitary activities and domestic surveillance.It is limited to the conventional conception of a human agent engaging in territoriallyintrusive intelligence collection in another state.Espionage is the 'consciously deceitful collection of information, ordered by a government … accomplished by humans unauthorized by the target to do the collection'.4 Traditional definitions view espionage as essentially a state-to-state act targeting government or military assets, 5 although Parts III and IV will expose flaws in such a restriction.'Intelligence' entails a broader concept and, for the purposes of this paper, is the product of the analysis of raw information collected through espionage.6 For the sake of brevity, this paper does not examine aspects of cyber espionage and other technologically-based practices of intelligence collection. B Legal ArchitectureThere is no general norm or rule of international law that directly prohibits espionage.Indeed, the defining feature of espionage is its lack of legal control.7 Espionagelike the agents that practise it -operates in the shadows of international law, existing 'between the tectonic plates of legal systems'.8 Touching upon espionage somewhat 4