22 February 2019

Spooks and secrets

'The Liberty to Spy' by Asaf Lubin in (2019) 61(1) Harvard International Law Journal comments
Many, if not most, international legal scholars share the ominous contention that espionage, as a legal field, is devoid of meaning. For them, any attempt to extrapolate the lex lata corpus of the International Law of Intelligence (ILI), let alone its lex scripta, would inevitably prove to be a failed attempt, as there is simply nothing to extrapolate. The notion that international law is moot as to the question of if, when, and how intelligence is to be collected, analyzed, and promulgated, has been repeated so many times that it has attained the status of a dogma. 
This paper offers a new and innovative legal framework for articulating the law and practice of interstate peacetime espionage operations, relying on a body of moral philosophy and intelligence ethics thus far ignored by legal thinkers. This framework adopts a diagnosis of the legality of covert intelligence, at three distinct temporal stages – before, during, and after. In doing so it follows the traditional paradigms of international law and the use of force, which themselves are grounded in the rich history of Just War Theory. Adopting the Jus Ad, Jus In, Jus Post model makes for an appropriate choice, given the unique symbiosis that exists between espionage and fundamental U.N. Charter principles. 
This paper, focuses on the first of these three paradigms, the Jus Ad Explorationem (JAE), a sovereign’s prerogative to engage in peacetime espionage and the right’s core limitations. Examining a plethora of international legal sources the paper exemplifies the myriad ways by which peacetime intelligence gathering has been already recognized as a necessary pre-requisite for the functioning of our global legal order. The paper then proceeds to discuss the nature of the JAE. It argues that that the right to spy is best understood as a privilege in Hohfeldian terms. It shows how understanding interstate intelligence operations as a weaker “liberty-right” that imposes no obligations on third parties to tolerate such behavior, helps capture the essence of the customary norms that form part of the practice. 
Recognizing the liberty right to spy opens the door for the doctrine of “abuse of rights” to play a role in constraining the practice. By identifying two sole justifications for peacetime espionage – advancing the national security interests of States and promoting an increase in international stability and cooperation – we are able to delimit what may constitute abusive spying (exploiting one’s right to spy not for the purposes for which it was intended). 
The paper thus concludes by introducing five categories of unlawful espionage: (1) spying as a means to advance personal interests; (2) spying as a means to commit internationally wrongful acts; (3) spying as a means to advance corporate interests; (4) spying as a means to facilitate a dictatorship; and (5) spying as a means to exploit post-colonial relationship.
The Law Council of Australia has condemned the Federal Government’s processes in appointing members to the Administrative Appeals Tribunal (AAT) as secretive with the potential to undermine public confidence.

The Council comments
At least 14 former state and federal MPs and staffers were among 86 appointments to the AAT, announced Thursday. Law Council President Arthur Moses SC said the legal profession is concerned and troubled by these developments. “The lack of transparency compromises community confidence in the independence of the tribunal and the quality of its decision making,” Mr Moses said. 
“The independence and integrity of the AAT depends on an apolitical, open and merit-based appointment system. 
“The Federal Government’s announcement of 34 new appointments to the AAT made without community consultation and 52 reappointments for existing members is concerning, as a number of members have been re-appointed before the expiration of their current terms. 
“There is a concern that reappointment of members well before the expiry of their current terms, in the context of an upcoming Federal election, may give rise to a reasonable apprehension that decisions are affected by political considerations and therefore compromises the reputation of the Tribunal. 
“The appearance of a conflict of interest can be just as damaging to the AAT’s integrity as an actual conflict. “Appointments should be made transparently and in consultation with the community, including the legal profession, to safeguard their quality and improve their diversity. 
“The AAT deals with a significant number of cases that directly impact on the lives of Australians. It is important those appointed have the necessary skills to discharge its functions according to law and community expectations. 
“An AAT that reflects the community it serves better enhances public confidence in the administration of justice, including respect for the rule of law,” Mr Moses said. 
The Law Council calls on the Federal Government to implement a transparent appointment process based on merit, similar to that recently announced by the Federal Opposition. Any lack of transparency impacts on the reputations of all members of the AAT, which is unfair.