S. Intelligence & International Law

Examples of the impact intelligence has on foreign policy abound and cross generations. Compare, for example, the U-2 spy planes that uncovered the Soviet missile sites in Cuba during the Cold War to modern-day Iranian exiled dissidents claiming proof of hidden nuclear facilities in Tehran. Or consider the Chinese spy balloon that was discovered traversing over missile sites in Montana, and compare it to the use of commercial satellites and user-generated evidence on social media to prove Russian violations of the laws of war in its war of aggression against Ukraine. In the age of cyber warfare, the types and nature of electronic surveillance and reconnaissance operations are only likely to further intensify in parallel with the diversification of the actors engaging in such activities.

Intelligence plays such a cardinal role in our public world order that one would have presumed there to be well-established rules of international law, undergirded by a vibrant academic and jurisprudential discourse, that would govern the ways states compile, analyse, verify, and promulgate intelligence. Instead, as noted by Professor Simon Chesterman, intelligence exists in a "legal penumbra, lying at the margins of diverse legal regimes and at the edge of international legitimacy." This ominous contention is one shared by many international legal scholars and practitioners. This seminar will examine the accuracy and broader implications of this proposition. In doing so the seminar will cover such topics as: the legality of spying in peacetime and its effects on friendly relations; the evolution of law in the face of secret treaties and clandestine state practice; the privatization of espionage and the rise of surveillance capitalism; the laws of armed conflict and intelligence gathering in wartime; and human rights law and its application to cases of mass surveillance, government hacking, and intelligence sharing.

This is an advanced international law seminar, so any prior course in international law (and working knowledge of basic international law concepts) is a prerequisite.