Source: The Hindu

Introduction

Recently, Qatar court awarded death sentences to 8 Indian Navy personnel over charges of Espionage. They are charged with spying submarine programme on behalf of Israel. The personnel were detained in Doha in August 2022. This decision flashed as a shock to the Ministry of External Affairs and has also demanded an application of diplomatic skills of the Government of India.

What is Espionage?

• Espionage refers to the practice of spying or using covert means to gather information, typically for political, military, or economic purposes.
• Individuals involved in espionage are known as spies.
• The information sought through espionage can include government secrets, military plans, economic data, and other classified or sensitive information.
• Nations typically maintain intelligence agencies to carry out legitimate espionage activities to protect their interests.

What is the Position of Espionage in Public International Law?

• Traditionally, international law has been built upon the foundation of respecting the sovereignty of states.
• Espionage, however, challenges this principle as it involves the violation of a state's territorial integrity and, at times, its domestic laws.
• States argue that such actions infringe upon their right to self-determination and the protection of their national interests.
• Espionage involves crossing borders and infiltrating the internal affairs of other states, creating tension between the need for secrecy and the respect for state sovereignty.
• Article 2(4) of the United Nations Charter states principle of non-interference that is “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”.

What are the Challenges with Espionage in Public International Law?

• The absence of a comprehensive treaty governing espionage at the global level leaves a legal void that states have navigated through customary international law and bilateral agreements.
• The United Nations Charter, while emphasizing the principle of non-interference in the domestic affairs of states, does not explicitly address espionage.
• One primary challenge in regulating espionage lies in the secrecy that covers these activities.
• Espionage often occurs in the shadows, making it difficult to gather concrete evidence and hold states accountable for their actions.

How Do States Deal with Espionage?

• As there is no comprehensive treaty specifically on espionage, states often resort to bilateral agreements.
• These agreements, negotiated in secret, outline the rules of engagement between intelligence agencies and are intended to prevent unnecessary friction between states.

What is Transfer of Sentenced Persons Agreement?

• In 2015, India signed a bilateral agreement with Qatari Foreign Minister for “Transfer of Sentenced Persons”.
• According to this agreement, individuals from India who have been convicted in Qatar can be repatriated to serve the remaining portion of their sentences, while Qatari citizens convicted in India can likewise be sent back to their homeland to complete their sentences.
• This arrangement facilitates the proximity of sentenced individuals to their families and contributes to their social rehabilitation process.
• If the government succeeds in commutation of death sentence of the navy personnel by negotiating with the government of Qatar or proving before court, it can invoke this agreement and bring them back to the nation.

Way Forward

In addressing the challenges posed by espionage in the context of international law, there is a need for continued diplomatic efforts, the development of comprehensive global agreements, and a delicate balance between national security concerns and the principles of state sovereignty.