I have just post my most recent article on the topic of international law and extraterritorial intelligence agency activities on SSRN here (alternative download: here). This article focuses on (to borrow the US parlance) "covert action", and was a reponse piece to an excellent, lengthier article by University of Virginia law school Professor Ashley Deeks, found here.
Despite this US context, I hope my essay is useful to Canadian circumstances as well. Given changes to CSIS's mandate in C-51, the observations in the article are relevant to CSIS's new overseas "threat reduction" powers. As I have argued before, the customary international law principles discussed in this article are deemed part of the common law of Canada through the Canadian rules of reception of international law. Trangressing these standards would, in this manner, violate a "Canadian law". This would trigger the requirement to obtain a Federal Court warrant prior to engaging in this activity, per the (C-51 amended) language in the CSIS Act. Under those same amendments, the Federal Court could issue a warrant, even in violation of this international law. But I suspect based on past practice, it would scrutinize carefully the international law principles at issue, and would be anxious about the implications of blessing conduct that may prove controversial.
The abstract of my article is as follows:
This essay dissects the concept of “intelligence activities” and distinguishes international law as applicable to spying versus that relevant to convert actions. It urges that while international law is mostly silent on peacetime spying per se, it is engaged by specific activities that rise to the level of intervention in a state’s sovereign affairs and which transgress the bar on the extraterritorial exercise of enforcement jurisdiction. There are, therefore, international norms that may be readily violated by at least some sorts of covert actions, above and beyond human rights principles protecting the individual. Ambiguity exists, but should not be over claimed. The article then contemplates the virtues of tempering this legal formalism to permit less than full legal compliance in the area of international law and intelligence activities. While sympathetic to the necessity for pragmatism, the article warns that a sliding compliance scale may result in the weakening of norms better served by being honored in the breach rather than abandoned in the name of realism.