Chicago Journal of International Law

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Peacetime espionage is an incredibly important and common occurrence in modern international relations, yet its legal status is far from clear. This Comment explores the practice’s legal background, as well as the arguments for and against its legality. While there can be many benefits to peacetime espionage, and while few countries have “clean hands,” it seems unworkable to overcome the presupposition that most espionage is an “intervention” as defined by the ICJ in Nicaragua v. U.S., even if the prohibition on espionage is often unenforced. With the conclusion that most peacetime espionage is likely illegal under international law, this Comment attempts to ascertain how this prohibition can be enforced. After examining the ICJ’s prohibition on “intervention,” the ICC’s jurisdiction over “crimes of aggression,” the U.N. Security Council’s prohibition on “force,” and the Council of Europe’s Convention on Cybercrime, no panacea was found. Therefore, in situations where domestic law is unable to effectively enforce this prohibition, this Comment argues that countermeasures are the best way to deter state actors from engaging in acts of peacetime espionage. However, in certain situations where extreme versions of peacetime espionage are carried out upon weak countries unable to make use of countermeasures, reliance on the ICJ, the ICC, the U.N. Security Council, or the Council of Europe may be feasible.

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