The regulation of intelligence activities under international law

Abstract

Espionage has existed since the birth of humanity but neither it nor its modern forms (intelligence activities) have ever been explicitly addressed in international law. Despite this absence of direct normative regulation, the international legal order has managed to constrain states' freedom in intelligence matters. This paradoxical state of affairs thus triggers theoretical and empirical research questions aimed at understanding how intelligence activities are regulated under international law.

This thesis theorises and models the regulation of intelligence activities under international law. Regulation is conducted by the international legal order, following a layered process: ethics and legality; enforcement of state responsibility; and effective accountability. In short, effective regulation leads to effective accountability, which itself leads to state compliance. As a result, we can now predict and explain state behaviour in intelligence matters as follows: the expectation that a state will comply with international law in its intelligence activities is equal to the likelihood of international legal accountability.

The thesis first demonstrates through doctrinal analysis that intelligence activities are indirectly but comprehensively addressed by international law. Breaches of applicable international rules thus lead to the engagement of state responsibility, and the concept of international legal accountability allows us to understand how legality is enforced in the international legal order. The thesis then adopts a behavioural approach to international law to theorise and model the role of state accountability in the regulatory process. Theoretical applications of experimental findings, interpreted through the lens of regulatory theory, provide the theoretical framework necessary to empirically identify the influence of legal and extra-legal factors on state decision-making in intelligence matters, and thus on state compliance with international law. Several case-studies empirically confirm the theories and model thus developed. Their findings also highlight the path towards a more systematic enforcement of international legality and an increase in state compliance. Finally, the thesis theoretically and empirically confirms that compliance with international law serves the national security interests of states.