Christopher Baker, a former Marine Corps infantry officer and law school classmate of mine, recently published a very provocative paper
(large PDF file) on the functional utility of espionage in the international arena that I highly recommend for anyone interested in this area. Clandestine espionage has long been neglected in international law, largely because of its shadowy nature and the reluctance of states to publicly endorse or condemn it. Nonetheless, Mr. Baker argues that it serves an important function, and that states rely on espionage to reinforce treaty and alliance relationships, and to maintain the peace.
This essay argues that international law neither endorses nor prohibits espionage, but rather preserves the practice as a tool by which to facilitate international cooperation. Espionage functionally permits states not only to verify that their neighbors are complying with international obligations, but also to confirm the legitimacy of those assurances that their neighbors provide. States are more willing to cooperate across various functional lines because espionage is available as a tool by which to monitor foreign behavior.Comments
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... spying complements the monitoring and verification regimes positively recognized within many international treaties to better enable functional cooperation. Distinguishable from conventional verification measures, espionage serves as an extension of monitoring regimes, and thereby enables functional cooperation. This essay concludes that the continued functional relevance of espionage is rooted in the growth of modern, transnational threats that increasingly threaten international security.
: I thought the article presented a very interesting argument for the importance of espionage in the international legal system. Ironically, for a piece about the law, the argument strongly supports the status quo -- that is, a dearth of law governing this subject so that states may continue to engage in clandestine
means of espionage. This is one of those places where the absence of law has allowed states to pursue rational policies based on interest and realist considerations -- and it's worked. And best of all, this paper is short. Judge Richard Posner, who's sharply criticized
law reviews for their length and lack of academic discipline, would applaud Mr. Baker and his editors for this piece.
The article appears in the American University International Law Review, and the citation for the article is 19 Am. U. Int'l L. Rev. 1091