Treaties on Espionage — A Strange Pairing?

by Duncan Hollis

I’ve spent a lot of time thinking about treaties. And I’ve read lots and lots of them over the years. From time to time, however, I encounter something I find truly novel on the treaty front. A case in point, was this story in IT World yesterday.  It refers to pending negotiations between the United States and Germany on an agreement not to spy on each other:

The U.S. has verbally committed to enter into a no-spying agreement with Germany in the wake of disclosures about the U.S. National Security Agency’s secret surveillance programs.

The verbal commitment was given in talks with the German Federal Intelligence Service (Bundesnachrichtendienst, BND), the sole foreign intelligence service of Germany, the German government said in a news release on Wednesday. This means that there must be no governmental or industrial espionage between the two countries, it said . . . No further details about the agreement were given. The German Federal Ministry of the Interior reached on Monday could not immediately respond to a request for comment.

I’ve never encountered such a treaty commitment before and I wonder what the proposed agreement will look like (and even if it’ll be a treaty at all — perhaps a political commitment is more likely?).  Have astute readers encountered similar types of “no-spying” arrangements in the past?  If so, I’d love to hear about them, not to mention any comments or expectations for compliance if the United States and Germany do conclude a non-spying treaty. For my part, I’ve always assumed spying is by its very nature the sort of thing you do after promising not to do it, but I also assume the United States generally tries to honor its treaty commitments too, suggesting any future deal won’t end well one way or another.
http://opiniojuris.org/2013/08/15/treaties-on-espionage-a-strange-pairing/

5 Responses

  1. This agreement (treaty / political agreement, etc) sounds as useful as an agreement against piracy. States know well that espionage is illegal. The legal evidence of that is the denials or official apologies they issue every time they are caught doing it. With this treaty there a commitment in illegalizing something that is already illegal. A kind of La Palice agreement…

  2. You asked about precedents.  The “5 eyes” arrangements — which I think date back to WWII — provide for extensive intelligence  cooperation and sharing among the US, UK, Canada, Australia, and New Zealand, and, as a corollary, for no targeting by any of the 5 on each other.  It is certainly not a ‘treaty,’ simply an understanding among the 5 intelligence communities.  

  3. Hi, Duncan,
    I suspect the story is incomplete. There is a push-pull going on these days between the US and Germany as a result of the NSA disclosures. The coverage in German media about the leaks has been extensive and extremely critical of the US. A couple weeks ago Germany ended an information-sharing pact with the US; see:
    http://www.bbc.co.uk/news/world-europe-23553837
    My surmise is that some of the current discussions are about restoring frayed relations, in a way that can be conveyed positively to the German populace.

  4. An interesting counter-precedent can be found in  arms control treaties from the 1970s. The ABM treaty, for example, includes a provision not to interfere with efforts to spy on the other party for the purposes of assessing compliance. See details on p 1090-1091 of this piece: http://ssrn.com/abstract=969551

  5. Increases the breach space by increasing the good faith space or reducing/impacting the perfidy space.  Reminds me of the Saudi Arabian law negotiation rule that if a certain phrase is invoked then no one can cheat in the negotiation process.  If one side does espionage one has not only the standard remedies (expulsion of diplomat, criminal charges etc) but also the treaty breach remedies. A sad commentary on the state of our NSA spying on our relations with allies.
    Best,
    Ben

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