The issue of submarine espionage under international law

Abstract

The notion of espionage under international law is (perhaps ironically so) a rather enigmatic and vague concept, one left largely unaddressed by international conventions and general principles of international law. While municipal laws universally condemn espionage as one of the more heinous crimes, international law is more circumspect in this respect. Not only does a widely accepted definition of the term ‘espionage’ not exist, but the inconsistency of State practice with regard to espionage means that the three major sources of international law surprisingly offer very little legal certainty in addressing what is arguably a timeless reality of both peacetime and wartime international relations. When this inconclusiveness of traditional sources of international law is combined with the paradigm shift brought about by modern technological advancements (whereby espionage may nowadays be conducted remotely, using sophisticated, high-tech devices), the result may be described as a perfect storm. The focus on the ‘submarine’ element allows for an in-depth legal discussion into this specific form of espionage, while also serving secondary goal of further relating the study to the Maltese legal climate by focusing on a form of espionage particularly relevant to an island located at the epicentre of the Mediterranean basin. The specific focal-point of this study shall be on peacetime covert submarine intelligence collection conducted within target State territorial waters, and its objectives shall be threefold. To begin with, this study shall set off with a generic analysis of its constitutive elements, with particular emphasis on the notion of espionage. The second scope shall be to inspect the legality and implications of sub-marine espionage in particular, looking into the classification of submarines as warships, the doctrine of freedom of the high seas and the unresolved issue of non-innocent passage. The third and final aim shall then be to evaluate the legal avenues available to coastal target States in response to foreign submarine incursions.