More recently, Kish and Turns 1995, Lafouasse 2012, and Chesterman 2006 came to the same conclusion, emphasizing that the legality of espionage should, as a result, be assessed in light of sectorial rules (whether human rights, humanitarian law, or also diplomatic law). Cohen-Jonathan and Kovar 1960 thus already noted that state practice showed that there was no clear rule forbidding espionage between states, even in times of peace. According to the majority opinion, there is no general prohibitive rule against espionage under international law. Three different positions can be found in doctrine. The main question is whether such activities are, in and of themself, legal. The second, on the other hand, is a sectorial approach that tends to analyze specific espionage activities in light of a particular set of rules (see the other sections).Ī certain number of publications give a general overview of the various questions raised by espionage activities under international law. The first consists in a global approach, which examines espionage in a transversal way and in its various dimensions (see General Overviews). Generally speaking, however, two types of approaches can be found in the doctrine. Because of this diversity, and of the absence of a single, general legal regime under international law, the problems raised by espionage require the examination of a different set of rules: sovereignty nonintervention use of force sea, air, and space law human rights international economic law international criminal law etc. Forms of espionage have become more diverse and sophisticated, involving a wide array of practices and actors. In legal scholarship, discussions have mainly focused on the legality of espionage under international human rights law. In June 2013, the revelations made by Edward Snowden, a former agent of the National Secret Agency (NSA), concerning the United States’ intelligence programs reinvigorated legal and political debate around espionage activities by states. The development of new technologies and communication media has, likewise, heightened possibilities for mass surveillance. After the 9/11 attacks, the issue of espionage has, indeed, gained new momentum due to the implementation of new augmented surveillance programs for the purpose of fighting terrorism. Recent studies, in particular, have started to question the compatibility of surveillance practices with human rights law. That being said, more critical writings also exist. This often resulted in a literature that defended the legality of intelligence-gathering activities as conducted by US agencies. American authors, most of whom held public office, dominated the field. The analyses provided then focused on general international law and on the principle of state sovereignty. It was only in the context of the Cold War-in light of various incidents that opposed the United States and the USSR-that authors started to take a real interest in interstate spying activities on land and sea, and in air and space. Moreover, until quite recently, the legal issues raised by espionage have largely been ignored by the doctrine. Only the status of spies in times of war is, in fact, subject to specific international rules. Although such operations are a very old and common practice, it is paradoxically not regulated by a single and coherent legal regime under international law.

It should also be noted that, against common assumptions, the notion exclusively refers to the gathering of information and does not refer to covert operations carried out by secret services more generally. While for a long time espionage essentially took place in the physical space, in the 21st century, it primarily takes place in the cyberspace.

This classical conception has evolved to also include surveillance programs implemented by intelligence agencies toward individuals as well as company-to-company industrial espionage. International espionage consists of the access, on behalf of a state, to information that is held by another state and considered as confidential or strategic, in the military, security, or economic field.

France industrial espionage