Espionage between states is a common yet legally complex practice. Many organizations and governments question the legal implications when a country conducts intelligence activities on the territory of another. This article, published by the Integrity and Investigations Department of the Global Security Organization Against Corruption and Crime (OMSAC), aims to clarify international legal frameworks, the implications for those involved, and the diplomatic and security consequences of such actions.
1. International Law and Espionage
1.1. Absence of a Universal Legal Framework
Unlike transnational crimes such as terrorism or corruption, espionage is not explicitly regulated by a single international treaty. However, several principles and treaties influence how states handle such cases.
1.2. Violation of National Sovereignty
Article 2(4) of the United Nations Charter prohibits any interference affecting the territorial integrity or sovereignty of a state. Espionage can therefore be considered a violation of international law, justifying diplomatic or legal responses.
1.3. Relevant International Conventions
Vienna Convention on Diplomatic Relations (1961): Prohibits diplomats from engaging in intelligence activities under diplomatic cover. States can expel agents suspected of espionage.
Vienna Convention on Consular Relations (1963): Imposes similar restrictions on consulates, allowing states to limit certain activities considered hostile.
Geneva Conventions and Additional Protocols: During wartime, espionage can be assimilated to acts of war, leading to strict measures against captured spies.
2. Arrest of a Citizen in Cases of Dual Nationality and Espionage Accusation
2.1. Application of the Law of the Arresting Country
When an individual with dual nationality is arrested for espionage, the law of the arresting country generally applies. National sovereignty prevails, and the accused is judged according to the criminal codes and national security laws in force in that country.
2.2. Restrictions on Consular Protection
A dual national is often not entitled to consular protection from their second country, especially if the arresting country does not recognize dual nationality.
In cases involving national security, consular access may be restricted or entirely denied, particularly when the arrested individual is accused of collaborating with foreign entities or when suspicions arise regarding cooperation with their second nationality country. Specifically:
Some states consider a dual national acting on behalf of their second country and, therefore, refuse any consular intervention.
Consular visits can be indefinitely postponed under the pretext of an ongoing investigation or state secrecy.
The individual may be held in secret detention, with no external communication, to prevent diplomatic intervention.
The arresting state can invoke special espionage laws to justify accelerated judicial proceedings without foreign interference.
2.3. Possible Penalties
Severe sentences ranging from life imprisonment to the death penalty in some countries.
Expulsion or exchange of spies if diplomatic negotiations take place.
Political and media pressures, which may affect relations between states.
3. Non-Cooperation of the Suspected Country
3.1. No Obligation to Cooperate
When a spy is suspected of acting on behalf of a foreign country, the arresting country can refuse to cooperate with that country. Since espionage is considered a serious threat to national security, states handle such cases with high confidentiality.
3.2. Possible Measures by the Victim Country
Severing diplomatic ties or expelling foreign representatives.
Economic sanctions or reduction of bilateral agreements.
Restrictions on intelligence and defense cooperation.
3.3. Possible Reactions from the Suspected Country
Diplomatic and media pressure.
Negotiations to recover its national.
Economic retaliation or cyber-attacks in response.
4. Global Consequences and Recommendations
4.1. Impact on International Security
Espionage undermines diplomatic relations and increases mistrust between states.
It can lead to escalation of tensions, even open diplomatic conflicts.
4.2. Recommendations for States
Strengthening legal frameworks to better manage espionage cases.
International cooperation to prevent the abusive use of espionage accusations.
Ensuring transparency and fair trials to avoid arbitrary arrests.
5. Conclusion
International espionage, while widespread, remains legally ambiguous. Each state applies its own laws, and sovereignty issues take precedence over any diplomatic cooperation in intelligence matters. The OMSAC Integrity and Investigations Department recommends that governments reinforce regulations while ensuring transparent and fair judicial processes.
International Conference on Espionage and Sovereignty: Legal, Security, and Diplomatic Challenges
OMSAC plans to organize an international conference in collaboration with official institutions and NGOs specializing in security and international law. This event will aim to examine the legal, diplomatic, and security challenges related to espionage, involving all relevant parties: victim states, implicated states, legal experts, diplomatic actors, and international organizations.
Ahead of this conference, a consultation meeting will be held with security and international law experts to establish a structured framework for discussion, identify key challenges, and develop strategic recommendations. This preparatory phase will ensure a coordinated approach and an in-depth analysis of the issues raised.
Integrity & Investigations Department of OMSAC