Confronting and Adapting: Intelligence Agencies and International Law

Intelligence activity is—or, more accurately, was—the last bastion of foreign relations unconstrained by international law. States could steal diplomatic secrets, covertly assess rivals’ military capabilities, and disseminate propaganda inside other states without fear of international legal sanction. This absence of regulation made sense as long as a state’s intelligence activities were primarily directed at foreign states and their officials. However, intelligence activity now implicates private actors as never before, as states engage in bulk data collection, steal secrets from corporations, and expand their focus on non-state actors such as terrorist groups. As a result, some states and advocates are now pressing for a formalist approach to international law, claiming that states should interpret various bodies of existing international law as applicable to state intelligence activities. Others contend that intelligence activities will and should remain untouched by international legal constraint. Both approaches are flawed: The realpolitik view of the (nonexistent) relationship between intelligence and international legal constraints is unsustainable and creates troubling legal black holes. The formalist view fails to acknowledge important reasons why state-on-state intelligence activities are distinct from diplomatic and military actions that states view as constrained by international law.

This Article identifies a better way to mediate the relationship between intelligence and international law. Rather than rejecting international law altogether or, alternatively, imposing a rigid legal framework on intelligence activity, it argues that states should differentiate between international laws that protect individuals against tangible harm (such as international humanitarian law and human rights treaties) and those that protect states against harms that are often dignitary (such as respect for sovereignty and territorial integrity). The Article proposes a sliding interpretive scale whereby states engaged in intelligence activity have less freedom to interpret and apply individually-focused international rules and more freedom to interpret state-protective rules.  It also illustrates how several states have begun to pursue this approach in practice.  Ultimately, this Article argues that states and human rights advocates both must adapt—in different ways—their expectations about the proper role of international law in the world of intelligence operations.

Insider Trading in Commodities Markets

In securities markets, insider trading is a crime. In commodities, insider trading is almost completely legal. This divergent treatment has long been accepted as appropriate, given perceived differences between the markets. For example, it has been thought that futures traders are sophisticated enough to neither need nor want protections from informed traders, and that the assets traded—corn or copper, for example—do not lend themselves to insider trading anyway.

This Article disagrees, showing that purported differences between these two markets do not withstand serious scrutiny, and that insider trading is harmful in the same ways in both markets and should be governed by the same restrictions. Understanding securities and commodities markets to be peer financial markets permits, for the first time, a serious dialogue between scholars of both fields, and this Article takes the first steps toward applying theories from the securities literature to commodities markets and holding those theories up for verification or falsification against new data from commodities markets. 

Constitutional Commitment to International Law Compliance?

To what extent does the Constitution commit the United States to comply with international law? The question is a critical one, with implications for both the stature of international law and the conduct of U.S. foreign affairs. The question is also one of degree. Few would argue that the Constitution invariably commits the United States to comply with international law. Most scholars, for example, agree that Congress has discretion to violate international law by statute. On the other hand, few would argue that the Constitution leaves the United States free to disregard international law entirely. Scholars agree, for example, that self-executing treaties preempt conflicting state laws, forcing the states to comply with these treaties’ terms. The critical question is where along the spectrum between commitment and discretion the constitutional position toward international law lays. This Article asserts that the position tends closer to national discretion to violate than constitutional commitment scholarship might suggest.