국제법상 국가의 비밀 정보수집활동에 관한 규범성 연구

• 영문명: Study on the Normativity of State Espionage in International Law
• 발행기관: 국제법평론회
• 간행물 정보: 『국제법평론』제62호, 137~156쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.06.30

영문 초록

Espionage carried out in secret by the state are a long-standing practice that has developed alongside warfare and diplomacy in all ages. This is because, without reliable intelligence, it is difficult to carry out warfare and diplomacy. However, the international legal norms on war and diplomatic activities are clearly established, such as with treaty, but neither treaty nor customary law have been confirmed for state espionage in peacetime. This is grounds for an argument of ‘lacuna’ in the international law on state espionage. This raises several legal questions. First of all, doesn't there really exist a norm governing the state espionage under current international law? If not, is the legal order in state espionage left to the discretion of states? Or is it governed through interpretation or reevaluation of existing international law? Moreover, although the international legal norms on state espionage are not clearly established, the international order on state espionage has been maintained relatively stable, in reality. If so, what is the reason? As such, the state espionage have various legal issues from the point of view of international law, but these issues have not yet been clearly identified. Therefore, the purpose of this thesis is first, to confirm the existence of international legal norms applicable to state espionage in peacetime, and second, to figure out the reason that state espionage is stably maintained even under the current international law in which clear legal norms are not established. Furthermore, based on this, it is intended to assess how the normative system of the current international law on state espionage is structured. As a result of conducting research according to this purpose, this paper confirmed the following contents. First, from the early days of modern international law, the prohibition of state espionage has not existed either as a treaty or as a customary law. Also, there is no treaty that permits or directly supports this, and no customary law norms regarding this have been identified. Therefore, under current international law, state espionage appear to be in a grey area where neither prohibited nor permitted. However, it is also confirmed that state espionage is not carried out laissez-faire outside the order of international law. This is because violations of law occurring in the process of collecting confidential information - such as invasion of privacy right, illegal entry, interference in domestic affairs - are subject to the application of current international laws, such as the principle of sovereignty stipulated by the United Nations Charter. or Vienna Convention on Diplomatic Relations. In particular, as human rights norms develop into the leading norms of the international community today, excessive espionage are likely to be regulated by the human rights conventions. It was also confirmed that the espionage activities not governed by international law are governed by domestic law. As such, even if state espionage per se is in the zone free from international law or grey zone, activities which is performed in the process of collecting confidential information are subject to international law. Therefore, it cannot be considered that state espionage is not completely free from international law. In this regard, it is said that international legal order on state espionage is included in the web of international law, and within it, enjoys given freedoms and has imposed legal responsibilities as well. On the other hand, despite the ambiguous rules of international law on state espionage, the stability of the international order in this regard seems to be due to a combination of the following reasons. First of all, as described above, illegal acts that occur in the process of espionage activities are subject to existing international law. Therefore, it can be said that confidential information collection activities are also under the rule of law in principle.

목차

Ⅰ. 서론

Ⅱ. 평시 비밀 정보활동에 관한 국제법 태도

Ⅲ. 비밀 정보활동에 관한 국제법 규범의 모호성 이유

Ⅳ. 비밀 정보활동에 관한 국제법 질서의 안정 유지 배경

Ⅴ. 결론

키워드

비밀 정보수집행위 국제법규범 흠결 비밀 정보활동에 관한 관습법 탈린 매뉴얼 집단적 묵인 Tu Quoque 원칙 Espionage Intelligence Lacuna in International Law Tallinn Manual Collective Acquiescence Clean Hands Doctrine