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53 Colum. J. Transnat'l L. 507 (2014-2015)
Black Holes and Open Secrets: The Impact of Covert Action on International Law

handle is hein.journals/cjtl53 and id is 518 raw text is: 







Black Holes and Open Secrets: The Impact of
        Covert Action on International Law


                      ALEXANDRA H. PERINA*

        Governments maintain secrecy over a range of
        conduct in order to protect national security, but in no
        area is secrecy more likely to impact foreign relations
        and destabilize the international political order than
        in the use of force. Although the political costs of
        secrecy are widely discussed, there has been virtually
        no attention in scholarship to how secrecy influences
        the law itself This Article considers how secrecy and
        covert conduct shape the development of international
        law. Focusing on the area of the use of force, it
        examines how international law-making processes are
        affected when a state acts covertly-that is, when a
        state does not publicly acknowledge its conduct-and
        that covert conduct comes-partially        or fully,
        accurately or inaccurately-to public light.

        Despite widespread public perception that covert
        conduct necessarily violates international law, states
        act covertly for a range of legitimate political,
        diplomatic, and strategic reasons. Covert behavior
        may be-though certainly is not always-consistent
        with international law. I consider how covert actors'
        non-engagement in public discourse distorts the
        landscape of evidence that informs other actors' legal
        judgments. Where states view their conduct as lawful,
        acting covertly diminishes their ability to reinforce or
        develop the law, ceding that ground to third parties. I

*Attorney Adviser, U.S. Department of State; 2013-2014 International Affairs Fellow,
Council on Foreign Relations. The views presented here are my own and do not necessarily
reflect the views of the U.S. Department of State or the U.S. Government. I wish to thank
John B. Bellinger, Ashley Deeks, Steven Fabry, Monica Hakimi, Rebecca Ingber, Harold
Hongju Koh, Marty Lederman, Amnon Lev, Mira Rapp-Hooper, David Pozen, Philip
Spector, and Chuck Sturtevant for their time, comments, and insights at various stages of
this project.

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