{"id":410,"date":"2013-11-07T21:03:25","date_gmt":"2013-11-07T21:03:25","guid":{"rendered":"http:\/\/cornellilj.org\/?p=410"},"modified":"2013-11-07T21:03:25","modified_gmt":"2013-11-07T21:03:25","slug":"live-and-let-spy-u-s-intelligence-in-brazil","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/cilj\/2013\/11\/07\/live-and-let-spy-u-s-intelligence-in-brazil\/","title":{"rendered":"Live and Let Spy: U.S. Intelligence in Brazil, Vol. 1"},"content":{"rendered":"\n

CC Image Courtesy of Ag\u00eancia Brasil<\/a><\/p>\n\n\n\n

Live and Let Spy: U.S. Intelligence in Brazil<\/strong><\/strong><\/p>\n\n\n\n

by Oscar Lopez*<\/p>\n\n\n\n

Begging for a meeting is hardly presidential, but this is exactly what Barack Obama had to do when Brazilian President Dilma Rouseff snubbed a White House invitation to discuss bilateral trade agreements last month.[1] Rouseff\u2019s rebuff was the result of Edward Snowden\u2019s recent leaks.[2] Citing Snowden\u2019s information, recent media reports have alleged that the U.S. National Security Agency (NSA) has been listening in on conversations and reading emails that belong to Rouseff, her advisers, and executives of the giant oil company Petrobras.[3] At a recent United Nations General Assembly meeting, Rouseff responded by publicly accusing the U.S. of violating international law.[4]<\/p>\n\n\n\n

Of course, in light of recent revelations that Brazil has also been spying on the U.S.,[5] Rouseff\u2019s statement may be a bit hypocritical. However, the recent Brazilian controversy nonetheless presents an important question: Are past\u2014and presumably ongoing\u2014U.S. espionage activities a violation of international law? Rouseff has claimed that U.S. spying is a violation of Brazil\u2019s sovereignty, as well as its citizens\u2019 human rights and civil liberties.[6] However, she has not specifically mentioned which source of international law is violated by U.S. actions. Rouseff could be relying on codified international law. Alternatively, she may be basing her argument on the premise that peacetime spying is a violation of customary international law. The purpose of this article is to explore whether U.S. intelligence gathering violates these sources of international law and whether\u2014as the U.S. has argued\u2014national security may provide a justification for the NSA\u2019s activities.<\/p>\n\n\n\n

Codified and Customary International Law<\/strong><\/p>\n\n\n\n

Are the United States\u2019 intelligence activities a violation of codified international law? Probably not. While international law addresses wartime spying with \u201cunique, clear and consistent rules,\u201d it has largely failed to address peacetime intelligence gathering.[7] Very few\u2014if any\u2014countries have signed international treaties or conventions on intelligence activities.[8] While the Vienna Convention on Diplomatic Relations explicitly protects communications to and from diplomatic missions, [9] the Convention says nothing about the communications of a country\u2019s citizens or leaders within their own country.[10]  Instead, spying on a peaceful country has historically been seen as a domestic issue, regulated by the statutes of the place where the offense occurred.[11] Therefore, the lack of a treaty between the U.S. and Brazil on intelligence-gathering activities means that the U.S.\u2014though guilty of an unfriendly act\u2014has not violated any codified international law.<\/p>\n\n\n\n

Turning to customary international law, Rouseff\u2019s assertion doesn\u2019t fare any better. Since custom enjoys a privileged status in international law\u2014one that may be more central than treaties\u2014it leads to the creation of norms that define acceptable actions.[12] Custom in international law is generally defined as \u201ca certain state of fact considered to be law,\u201d or \u201ca general practice accepted as law.\u201d[13] This state of fact must result from a repetition of the practice which, in turn, is a result of its effectiveness.[14] While international agreements do not endorse espionage, countries have historically accepted the notion that others are eavesdropping on them, just like they are eavesdropping on others.[15] Further, intelligence gathering is effective and functionally important because it allows countries to make more informed decisions, which in turn create better foreign and economic policy decisions.[16] As a result, this functional approach to intelligence gathering has led to the implied acceptance and, through custom, the legalization of peacetime espionage.[17] <\/p>\n\n\n\n

National Security<\/strong><\/p>\n\n\n\n

Interestingly, the U.S. has yet to use either of these justifications in response to Brazil\u2019s criticism. Instead, the U.S. has argued that any spying that was done was justified on national security grounds\u2014the U.S.\u2019s catchall explanation\u2014because spying can detect possible terrorist activities.[18]<\/p>\n\n\n\n

Self-defense, a well-recognized principle of international law, lies at the foundation of the U.S. argument.[19] The U.N. Charter gives countries the \u201cinherent right\u201d of self-defense when an armed attack occurs.[20] However, the international norms that underlie the Charter are much broader. Both scholars and countries alike have interpreted self-defense as justifying any means necessary to protect national security, including action to prevent<\/em> attacks.[21] Under this rationale, states need to be able to predict when an armed attack is about to occur and must know how to prepare for that attack.[22] Adequate preparation, which is part of the right of self-defense, would be impossible without knowledge of the looming threat.[23] And knowledge, in turn, is dependent on intelligence gathering before the threat occurs.[24] Because the information gathered is used for defensive, rather than offensive purposes, the act of collecting that information is legitimized.[25]<\/p>\n\n\n\n

Of course, the national security angle is not without its pitfalls. Brazil has countered the U.S. argument by noting that there is no evidence of terrorists within its borders and by explicitly stating that Brazilians \u201creject, fight and do not harbor terrorist groups.\u201d[26] Brazil\u2019s statement highlights an important point: without a limiting principal\u2014e.g. evidence of terrorist activity\u2014the U.S. (or any other country) could justify egregious acts of international espionage by merely asserting national security concerns.<\/p>\n\n\n\n

This pitfall is particularly relevant in the present context, where the U.S. has a strong economic interest in Brazilian oil.[27] While an imminent attack may be a valid justification for international snooping, gathering information to maintain an economic edge certainly is not. Thus, the United States\u2019 national security argument likely doesn\u2019t carry as much weight where\u2014as here\u2014it is accused of spying on economic actors, like Brazil\u2019s Petrobras.<\/p>\n\n\n\n

Conclusion<\/strong><\/p>\n\n\n\n

While the NSA\u2019s alleged surveillance of Brazilian leaders and citizens may warrant Rouseff\u2019s terse reaction, she may have gone too far in her assertion that U.S. intelligence activities violate international law. Codified international law says little about peacetime spying, and customary international law likely supports at least some degree of intelligence collection. Lastly, even if U.S. intelligence gathering ran awry of other sources of international law, national security would be a valid (if overused) justification, as long as it was done for legitimate security reasons.<\/p>\n\n\n\n

 <\/p>\n\n\n\n

For a PDF of this article in formal, law-journal format, click here<\/a>.<\/strong><\/p>\n\n\n\n

Citation: <\/strong>Oscar Lopez, Live and Let Spy: U.S. Intelligence in Brazil<\/em>, 1 Cornell Int\u2019l L.J. Online 63 (2013).<\/p>\n\n\n\n

\n\n\n\n

* Oscar Lopez is a J.D. candidate at Cornell Law School, where he is the Cornell International Law Journal<\/em>\u2019s Associate on South American Affairs. He holds an M.B.A. from Texas Tech University and a B.A. in economics and Spanish from the University of Texas at Austin.<\/p>\n\n\n\n

[1] See <\/em>Walyce Almeida, Economic Ties May Help Restore Relationship Between the U.S. and Brazil<\/em>, ABC News (Sept. 20, 2013), http:\/\/abcnews.go.com\/ABC_Univision\/ABC_Univision\/trouble-paradise-us-brazil\/story?id=20320361.<\/p>\n\n\n\n

[2] See id.<\/em> See generally Alex Kerrigan, Russian Federation: The Snowden Decision, 1 Cornell Int\u2019l L.J. Online 27 (2013).<\/p>\n\n\n\n

[3] Shasta Darlington, Brazilian President\u2019s U.S. State Visit Postponed Over Alleged Spying<\/em>, CNN (Sept. 18, 2013, 6:27 AM), http:\/\/www.cnn.com\/2013\/09\/17\/world\/americas\/brazil-us\/.<\/p>\n\n\n\n

[4] Julian Borger, Brazilian President: US Surveillance a \u2018Breach of International Law\u2019<\/em>, Guardian (Sept. 24, 2013), http:\/\/www.theguardian.com\/world\/2013\/sep\/24\/brazil-president-un-speech-nsa-surveillance.<\/p>\n\n\n\n

[5] Cheryl K. Chumley, Tables Turn: Brazil Admits Spying on U.S.<\/em>, Wash. Times (Nov. 6, 2013), http:\/\/www.washingtontimes.com\/news\/2013\/nov\/6\/brazil-admits-spying-on-us\/.<\/p>\n\n\n\n

[6] See <\/em>Thalif Deen, Breaking U.N. Protocol, Brazil Lambastes U.S. Spying<\/em>, Inter Press Service (Sept. 24, 2013), http:\/\/www.ipsnews.net\/2013\/09\/breaking-u-n-protocol-brazil-lambastes-u-s-spying\/.<\/p>\n\n\n\n

[7] Geoffrey B. Demarest, Espionage in International Law<\/em>, 24 Denv. J. Int\u2019l L. & Pol\u2019y 321, 330 (1996).<\/p>\n\n\n\n

[8] See <\/em>A. John Rasad, The Unresolved Equation of Espionage and International Law<\/em>, 28 Mich. J. Int\u2019l L. 595, 597 (2007).<\/p>\n\n\n\n

[9] See <\/em>Vienna Convention on Diplomatic Relations, art. 27, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.<\/p>\n\n\n\n

[10] See id.<\/em><\/p>\n\n\n\n

[11] See <\/em>Demarest, supra <\/em>note 7, at 330.<\/p>\n\n\n\n

[12] See <\/em>Brigitte Stern, Custom at the Heart of International Law<\/em>, 11 Duke J. Comp. & Int\u2019l L. 89, 89 (2001).<\/p>\n\n\n\n

[13] See id. <\/em>at 89\u201390.<\/p>\n\n\n\n

[14] See id. <\/em><\/p>\n\n\n\n

[15] See <\/em>Christopher D. Baker, Tolerance of International Espionage: A Functional Approach<\/em>, 19 Am. U. Int\u2019l L. Rev. 1091, 1094\u201395 (2003). See<\/em>, e.g.<\/em>, Quincy Wright, Espionage and the Doctrine of Non-Intervention in Internal Affairs, <\/em>Essays on Espionage and International Law 16\u201317 (Roland J. Stranger ed., 1962).<\/p>\n\n\n\n

[16] See <\/em>Baker, supra <\/em>note 15, at 1094. C.f. <\/em>Demarest, supra <\/em>note 7, at 322\u201323.<\/p>\n\n\n\n

[17] See<\/em> Baker, supra <\/em>note 15, at 1094.<\/p>\n\n\n\n

[18] See <\/em>Deen, supra <\/em>note 6.<\/p>\n\n\n\n

[19] See <\/em>Baker, supra <\/em>note 15, at 1095.<\/p>\n\n\n\n

[20] See id. <\/em> at 1096; U.N. Charter art. 51 (allowing for self-defense in response to an armed attack).<\/p>\n\n\n\n

[21] See <\/em>Baker, supra <\/em>note 15, at 1095; Beth M. Polebaum, National Self-Defense in International Law: An Emerging Standard for a Nuclear Age<\/em>, 59 N.Y.U. L. Rev. 187, 193\u201394 (1984).<\/p>\n\n\n\n

[22] See <\/em>Baker, supra <\/em>note 15, at 1096.<\/p>\n\n\n\n

[23] See id. <\/em><\/p>\n\n\n\n

[24] See id.<\/em><\/p>\n\n\n\n

[25] See id.<\/em> at 1102.<\/p>\n\n\n\n

[26] See <\/em>Deen, supra <\/em>note 6.<\/p>\n\n\n\n

[27] For example, the recent discoveries of oil reserves in Brazil will provide the U.S. market with a substantial supply of oil and could present American oil companies with highly profitable business opportunities through joint enterprises with Petrobras. Christopher Helman, Of Course the NSA Should Be Spying on Petrobras<\/em>, Forbes (Sept. 9, 2013 10:04 PM), http:\/\/www.forbes.com\/sites\/christopherhelman\/2013\/09\/09\/of-course-the-nsa-should-be-spying-on-petrobras\/. Also, the U.S. has lent $2 billion to Petrobras in an effort to promote the Brazilian and American economies. See Facts About Ex-Im Bank Loans To Support Petrobras<\/em>, Export-Import Bank of the U.S. (2012), http:\/\/www.exim.gov\/newsandevents\/Facts-About-Ex-Im-Bank-Loans-To-Support-Petrobras.cfm.<\/p>\n","protected":false},"excerpt":{"rendered":"

CC Image Courtesy of Ag\u00eancia Brasil Live and Let Spy: U.S. Intelligence in Brazil by Oscar Lopez* Begging for a meeting is hardly presidential, but this is exactly what Barack Obama had to do when Brazilian President Dilma Rouseff snubbed a White House invitation to discuss bilateral trade agreements last month.[1] Rouseff\u2019s rebuff was the result…<\/p>\n","protected":false},"author":1,"featured_media":412,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13,17],"tags":[83,164,242,369,381],"class_list":["post-410","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles-2","category-forum-archive","tag-brazil-2","tag-espionage","tag-international-law","tag-snowden","tag-spying"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts\/410","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/comments?post=410"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/posts\/410\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/media\/412"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/media?parent=410"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/categories?post=410"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/cilj\/wp-json\/wp\/v2\/tags?post=410"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}