Bugs, Bytes, and Blackletters: International law and espionage

This episode asks the deceptively simple question: is espionage legal? Host Leah West sets the stakes for Canadian operators—CSIS and the CAF must comply with international law unless clearly authorized otherwise—before welcoming scholars Asaf Lubin and Russell Buchan to square off on how international law actually treats spying. Using the African Union–Huawei affair as a provocation, Lubin argues we’re moving toward (and should embrace) a bespoke international law of intelligence that recognizes pervasive state practice and constrains it with principles like necessity, proportionality, and efficacy—even when activities pierce sovereignty. Buchan agrees international law applies, but says we’re not there yet: current rules (sovereignty, diplomatic inviolability, human rights, IHL) already regulate espionage, and declaring a new custom risks handing blank checks to powerful states. The trio parse peace-time vs wartime rules, Canada’s evolving positions (including the “de minimis” cyberspace view), and the Federal Court’s inconsistent jurisprudence, highlighting how secrecy, strategic ambiguity, and politics complicate “opinio juris.” The upshot: states spy constantly; the legal question is whether to formalize tailored guardrails now—or keep operating in the grey.