The Nationalists Strike Back: The “No-Spy” Agreement Solution to the NSA Spying Scandal

by Julian Ku

I agree with Peter that there is a move to universalize (through accretion) a norm against spying via Article 17 of the ICCPR.  But unlike Peter, I think it will get nowhere.  Instead, I was struck by how the German complaint against the NSA program has not really been phrased in terms of how it violates international norms or laws.  Rather, it seems that the Germans (and French) are really hurt because they don’t have a “no-spy” agreement with the U.S. like Canada, the UK, Australia, and New Zealand do (The so-called “Five Eyes” or AUSCANNZUKUS)

In other words, the problem is not that spying itself is illegal or morally wrong, but that it is illegal and morally wrong to spy on your allies and friends.  Spying on other countries might very well be morally and legally justified (e.g.: North Korea, Iran, China, Russia).  A universal anti-spying norm could very well be the opposite. Indeed, it seems unlikely that Germany and France would seriously support a universal anti-spying norm that would constrain their own very robust spying efforts.

With this in mind, it is worth considering whether and how the U.S. should adopt new “no-spy” agreements, something President Obama seems willing to consider.   I actually think a “no-spy” agreement is a better approach than unilaterally disarming in the spy wars.  Do we really think the French will stop trying to spy on the U.S. once the U.S. pledges to stop spying on France?  Better to at least commit the French to a deal.

From a foreign relations law perspective, “no spy” agreements are curious.  They are sole executive agreements and they may or may not have a binding character under international law. Certainly, they are not formal treaties.  The U.S. Congress probably has incomplete knowledge of exactly what is in these agreements and how they are operating.

Stewart Baker is already up with congressional testimony (dated today) on criteria for any new “no-spy” agreements.  Interestingly, the main thrust of his testimony is that Congress should start exercising a little oversight, at least if the U.S. starts buying off allies with new “no spy” agreements.  He has some pretty stringent requirements (a cooling off period for any new agreements that must all be submitted to Congress for review, a report on compliance,etc).  He doesn’t go so far as to require Congressional approval for any new no-spy agreements, but he might as well.  I doubt Congress would go that far, and I think there will be some questions over whether Congress has the legal authority to constrain these kinds of executive agreements.

In any event, my prediction is that the fallout from the latest NSA scandal will be a flurry of “no-spy-on-you” promises and then a series of new “no spy agreements” for certain favored “allies”.  I think Germany will talk about a universal anti-spying norm, but this initiative will eventually die largely because no large nation really wants it.

http://opiniojuris.org/2013/10/29/nationalists-strike-back-spy-agreement-solution-nsa-spying-scandal/

5 Responses

  1. Julian,

    The distinction between spying on leaders and spying on publics seems important to the equation. I see the “no spy” agreements as dealing with the former. Of course everyone will still want to be able to spy on Kim Jong-Un and Assad, even Putin, and other adversaries. But I suspect the Germans and others would be more receptive to universal constraints on general surveillance (if only because they probably do so much less of it). 

    BTW, is that acronym pronounced phonetically?

  2. Julian: why would these sole or presidential executive agreements not have a binding effect under international law? because they are understood to be merely “political” agreemtns?
    I suspect that there are other issues than “privacy.”  For example, how is the spying conducted?  Is there merely a U.S. receipt of information from “outside” the targeted state’s territory (as in the old claims re: spying from abovve by satellite vs. sending information into a country) or is there spying involving some conduct within — the latter implicating possible violations of foreign domestic law (which much of spying does).  I suspect that use of the internat makes the spying transnational.
    Is mere spying an impermissible “intervention” into the internal or external affairs “of” a particular state? or is anything of international or transnational interest no longer simplisitcally merely the affair “of” a single state?  And does “intervention” hinge more on what is done with info obtained?
    Would spying as part of a reasonable process of self-defense (e.g., against al Qaeda) be permissible under Art. 51 of the Charter? especially spying in order to more adequately identify who has been responsible for ongoing armed attacks and who is directly involved as a DPAA in other ways (and so that targeted responses can be accurate, etc.)?
    Given the recent disclosures, who could have a reasonalbe expectation of “privacy” with respect to phone or email conversations?  Does Obama’s “disclosure” provide a bootstrap?

  3. ok, I still can’t type that well.  “Internat” — a new type of spy-drone?

  4. p.s.  ICCPR, art. 17 merely protects against “arbitrary or unlawful” “interference” with “privacy” — so each word has to be interpreted with respect to relevant features of context and laws at stake.  The word “arbitrary” should be interpreted with reference to permissible conduct under other international law (e.g., the law of self-defense, the laws of war).  The word “unlawful” may supplement this point, but foreign domestic laws may also be at stake with respect to transnational spying and the word “or” suggests that “unlawful” is a standard independent from “arbitrary.”

  5. Great topic.  I think international law advocates should focus more on more enforceable agreements.   Given the self-defense exemption, and the ability to offload activities to private or third-party surrogates, this is likely to be more empty promises that further undermine international law more generally.  BTW, so-called ‘industrial espionage’ (including by German companies) has reportedly resulted in the greatest transfer of wealth in the history of mankind.

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